^LLDpheny, C. S. G.

THE CATHOLIC UNIVERSITY OF AMERICA

Canon Law Studies
Number 77

THE
DELICT OF HERESY
IN ITS
COMMISSION, PENALIZATION, ABSOLUTION

A DISSERTATION
Submitted to the Faculty of Canon Law of the Catholic University
of America in partial fulfillment of the requirements for
the Degree of

DOCTOR OF CANON LAW

BY THE

REVEREND ERIC F. MACKENZIE, A.M., S.T.L., J.C.L

of the Archdiocese of Boston

The Catholic University of America

Washington, D. C.
MCMXXXII

-A
 1037

.wy

M3

/?3X.

• f

PATRICK J. WATERS, Ph.D.

Censor Deputatus

Smptimatttt:
WILLIAM CARDINAL O’CONNELL
Archbishop of Boston.
Boston, June 3,1932

Copyright, 1932
The Catholic University or America
WASHINGTON PRESS, INC.
BOSTON. MASS.

U
 To
HIS EMINENCE
WILLIAM CARDINAL O’CONNELL
Archbishop of Boston
in
Reverence and Gratitude
 TABLE OF CONTENTS
Page
BIBLIOGRAPHY ............................................................................ . vii

Chapter One
Historical Survey of Heresy Legislation.................................................. 1

Chapter Two
Heresy as a Sin ....... ............................................................................... 15

Chapter Three
The Delict of Heresy ...................... ........................................................ 33

Chapter Four
The Penalties Entailed by Heresy........................................................ 43

Chapter Five
Heresy and Acts of Catholic Piety........................................................ 56

Chapter Six
Heresy and Official Status and Actions................................................ 76

Chapter Seven
Judicial Process Against Heresy . .............................................. 98

Chapter Eight
Absolution from Heresy......................................................... . 106

BIOGRAPHICAL NOTE................................................................................. 123

TITULI . . . . . . ,...................................... · . . 119

CATHOLIC UNIVERSITY OF AMERICA LAW STUDIES . . 124

v
t'

é
 BIBLIOGRAPHY

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 CHAPTER ONE

HISTORICAL SURVEY OF HERESY LEGISLATION

The English word heresy is derived from the Greek noun αίρεσις. This
Greek term, which originally meant a taking or a capturing (as of a city,1 came
to mean also a choice and the thing chosen. At the time of the writing of the
New Testament, it meant a preference in matters doctrinal, political or religious.
Hence this is the Greek word in the New Testament which is translated by the
English word sect.
The Greek term αίρεσις occurs nine times in the New Testament. In the
earlier writings, there is no clear implication of sin or error, and little connota­
tion of reprobation. The word is used objectively, to signify simply the fact
that a certain group is recognized as distinct from others. Thus there is mention
of the sect of the Pharisees, and of that of the Saducees.’ Again, the Jews
prosecuting Paul before Festus describe him as a leader of the sect of the Naza-
renes; but an unpleasant implication of the term is suggested by the fact that
Paul in his reply deprecates the term.* In the Epistle to the Corinthians, Paul
speaks of schisms and heresies,* and in that to the Galatians, he enumerates an
ascending scale of discords: “emulations, wraths, quarrels, dissentions, sects.”1 *5*
In the last three instances just mentioned, the pejorative significance of the
term is somewhat noticeable; but in the later apostolic letters, the word takes
on the meaning which its English derivative has today: a deliberate and sinful
holding and teaching of false religious doctrines and practices, contrary to
the true teachings of Jesus Christ. Thus Saint Peter warns the faithful against
“lying teachers who shall bring in sects of perdition and deny the Lord Who
bought them; bringing upon themselves a prompt destruction.”* So too Saint
Paul sends instructions to Titus: “A man that is a heretic, after the first and
second admonition, avoid : knowing that he that is such a one, is subverted, and
sinneth, being condemned by his own judgment.”7
The early fathers took up the terms “heresy” and “heretic” and used them
for persons and doctrines that perverted the pure faith taught by Christ.» From

1 Herodotus, Hist., IV, 1; Thucydides, Hist., I, 28.

1 Acts, XV, 5; XXVI, 5; V, 17.
•Acts, XXIV, 5,14.
• I Cor., XI, 18-19.
‘ Gal., V, 20.
• II Pet., II, 1.
’ Tit., Ill, 10-11.
• Cf. Ignatius, Ad Eph., VI, 2; Ad Trail., VI, 1; Anie-Nicene Fathers, I, 51; 76.
1

"X J
 The Delict of Heresy
the first years of the Church, instances of heresy were multiplied; and heresy
as an organized religious body is indicated in the letters of Saint John.’ The
Church, then and in after centuries, used every effort to preserve pure and in­
tact the deposit of faith; and hence began a gradual development of exact for­
mulations in dogma and administration which give us the present day historic,
dogmatic and legal connotations of the term “heresy”; but it is to be noted
that the essential meaning has not changed from that which the word had in
the letter of Saint Peter.
The fact that heresies would appear in His Church was clearly foretold by
Christ, and heretics and their false teachings were strongly reprobated by Him.
It is important to notice this fact, since it is this divine example which originated
the severe attitude afterwards adopted by the Church in the treatment of this
delict.

Many false prophets shall rise and seduce many. . . . Then if any
man shall say to you: Lo, here is Christ, or there; do not believe
him. For there shall rise false Christs and false prophets, and shall
show great signs and wonders, so as to deceive (if possible) even the
elect. Behold I have told it to you before hand. If therefore they shall
say to you: Behold He is in the desert, go ye not out; behold He is
in the closets, believe it not.10

According to Christ’s own teachings, the mark of heresy would be the rejec­
tion of some part of His teachings,11 accompanied by a rejection of the au­
thority of the Church; and the proper action by the Church would be excom­
munication: “And if he will not hear the Church, let him be to thee as the
heathen and the publican.”1* The final destiny of those who refused to accept
the teachings of Christ and His Church was revealed in the final instructions
given to the Apostles on the eve of the ascension, when Christ commissioned
them to preach the Gospel to the whole world: “He that believeth not shall be
condemned.”1*
These brief citations only partly represent the insistence which our Lord
laid upon the absolute value and necessity of the truths He taught, and upon
the authoritative role which the Apostles and their successors were to play in
bringing His revelations to all men. Christ’s mind upon this subject is found
in the Gospels as a whole, and not merely in isolated texts. Heaven is not to be
given to all indiscriminately, but only to those who sustain God’s judgment as
to the purity of their lives and their acceptance of the truths and regimen of

• I John, 1,1-3; II, 18; IV, 2-6; II John, 6.

«Matt., XXIV, 11; 23-26.
11 Luke, XI, 23.
“ Matt., XVIII, 17.
*» Mark, XVI, 16.
 The Delict of Heresy 3
Christ’s Church. It is this doctrine which is indicated in the familiar parables
of the guest at the wedding feast, of the separation of the goats from the sheep,
of the postponement until the harvest of the separation of the cockle from
the wheat, and of the exclusion of the foolish virgins from the wedding feast.
Christ’s own teachings were therefore the source of the views regarding heresy
which are expressed in the apostolic writings and in the literature of the early
Church. The Jews and heathens who had never heard of Christ were pitied for
their ignorance, sternly but fairly judged for their sins; but at the same
time the Church prayed and hoped that they would receive the Gospel, be
converted and saved.14 With all this went a policy, established from the earliest
years, of clearly distinguishing between the Christian community and the
general mass of non-believers. The Christians, as temples of the living God
and sons and daughters of the Lord,15 must be marked off as a holy people,
thus calling attention to their status and affording an occasion for the illu­
mination and conversion of unbelievers. Hence they must not engage in law­
suits before pagan courts,1 · nor use meats offered to idols,17 lest the scandal given
thereby should obscure their essential superiority in faith and in divine grace.
Quite different from this anxious attitude in regard to pagan and Jewish
non-believers was the Church’s attitude toward apostates and heretics. These
had received the Gospel, had been baptized, and had shared the life and graces
of Christianity. Misled by ignorance, pride or other vices,18 they became false
prophets and lying teachers,19 antichrists and seducers.” Of such Saint Peter
wrote : “It had been better for them not to have known the way of justice, than,
after they had known it, to turn back from that holy commandment which
was delivered to them.”91 All the letters of Paul, of John, of Peter and of Jude,
repeat in strongest terms warnings against these false prophets and erroneous
teachers. Paul’s words to the Galatians
There are some that trouble you and would pervert the spirit of
Christ. But though we or an angel from heaven preach a gospel be­
sides that which we have preached to you, let him be anathema. As
we have said before, so now I say again: if anyone preach to you a
gospel besides that which you have received, let him be anathema.22

u Ci. Paul’s discussion of the status of Jews and pagans, and his argument that even pagans
sin by disbelief,—Romans, I, 20-22; his desire that all be saved,—I Tit., II, 4.
» II Cor., VI, 14-18.
” I Cor., VI, 1-6.
” I Cor., VIII, 0-13.
« I Tim., VI, 3-5; II Tim., Ill, 1-5.
« II Pet., Ill, 3.
99 I John, II, 18; II John 7; Rom., XVI, 18.
91II Pet., II, 21; cf. Heb., VI, 4-6; X, 26-27; Jude, 13.
99 Gal., XVIII, 20.
 The Delict of Heresy
were so familiar that their phrasing passed into the dogmatic formulations of
the Church councils from Nicaea to the Vatican: si quis dixerit.... anathema sit.
Nor did the Church confine herself to mere warnings. Paul writes of Hymeneus
and Alexander who have “made shipwreck concerning the faith” and “whom I
have delivered up to Satan, that they may learn not to blaspheme.”25 Thus,
from the first, the Church noted those who transgressed in matters of faith,
and cut them off from the body of the faithful. Paul’s orders to Titus have
already been quoted, requiring that there be a first and second warning, and then ;
avoidance of the heretic.24 He also wrote to Timothy decreeing that there must
be two witnesses before certain punishments be inflicted,25 and this text has been i
thought to indicate a more or less formal process of trial even in these earliest >
days of ecclesiastical organization. Correlative to these instructions in regard ·
to excommunicate offenders are the commandments issued by John in regard
to heretics: “If any man come to you and bring not this doctrine, receive him j
not into the house, nor say to him : God speed you. For he that saith to him : God i
speed you, communicateth with his wicked works.”2» In all this the purpose of 5
the Apostles seems to have been chiefly the protection of the Christian com-
munity, and secondarily the correction of the erring brothers. The purely puni-
tive element is not emphasized.27 ;
The writings of the Fathers show a preoccupation with the making of con- :
verts and the repelling of false teachings, rather than any attempt to formulate ;
legal and punitive codes.2» Thus Saint Ignatius of Antioch writes to the Ephe- i
sians of the necessity of avoiding Docetism,29 and to the Philadelphians in- ]
sisting that true faith depends upon the authoritative teaching of the Church I
through the bishops, and not merely upon what is written in the “archives” of J
sacred writings.2» Justin notes that heretics are always distinguished from the ]
true Church, and called by the name of the heresiarch who first propagated the 1
particular sect; and in this the heretics show themselves to lack the true faith ,■
of the prophets, of Christ and of the Apostles.21 Ireneus denies the right of 1
heretics to offer oblations; a basic distinction from the true Church, in which
the Sacrifice of the Mass can be and is offered.22 Tertullian pictures heresy

» Tit., I, 18-20.
« Tit., ΙΠ, 10-11.
« I Tim., V, 19-20.
22 II John, 10-11.
’’Hyland, Excommunication, p. 17.
22 Motry, Mortal Sin in Early Christianity, pp. 17-19.
«Ad Eph., VI, 2; Ad Trail., X-XI; Ad Smyrn., IV; Ante-Nicene Fathers, I, 51-52; 69-71;
87-88.
20 Ad Phil., VIII, 2 ; cf. Ill, VII ; A nte-Nicene Fathers, 1,80-84.
51 Dialogue, XXXV; Ante-Nicene Fathers, I, 212.
22 Adv. Haer., IV, 18, 4; Ante-Nicene Fathers, I, 485.
 The Delict of Heresy 5
metaphorically as the sterile and fruitless olive and fig trees, whereas the Church
is like the cultivated and productive trees; hence in heresy there is a likeness
to true Christianity, but not a real kinship.83 Moreover, "Haeretici nullum
habent consortium nostrae disciplinae quos extraneos utique testatur ipsa ademptio
communicationis. ”81 The right to judge and condemn heresy is for Tertullian
an important and distinctive prerogative of Church authorities.85
The foregoing texts illustrate the fact that even in these early centuries ex­
communication was the established spiritual penalty for apostasy or heresy,
accompanied logically by the deposition of clerics from the offices they had
proved unworthy to fill. When the era of persecutions came, and the problem
of apostasy rose to large proportions, these same penalties were invoked and
applied, but with more definite regulations caused by the special difficulties
which had to be solved. The well-known controversy of Saint Cyprian of
Carthage with the Roman authorities turned not merely on the question of re­
baptising heretics, but also on the extent of the punishment to be inflicted on
those who had failed to profess the faith in face of civil persecution. The Mon-
tanists, at this time and later, held that apostates could not be absolved from
their sin nor restored to membership in the Church, no matter how sincere their
repentance. Church authorities of orthodox faith held the contrary view,
but were concerned to regulate the manner of reconciliation. Typical of such
measures were the decrees of Saint Cyprian and the bishops of Africa, in the
Council of Carthage, 251, which were later confirmed by Pope Saint Cornelius
and sixty bishops in Rome. It was determined to exclude from all ecclesiastical
functions those bishops and priests who had sacrificed to the pagan gods, or
who had procured for themselves certificates of sacrifice; to accord commun­
ion to laic libellatici if they had done penance immediately after their sin; as to
the laics who had sacrificed, their cases would be decided individually, and the
degree of culpability thus discovered would determine the duration of the
penance to be imposed and the time to which reconciliation would be post­
poned.” This course of action obviously implies a penal system of excom­
munication, trial, punishment, and authoritative absolution.
Similarly, after the persecution of Diocletian, the Council of Ancyra decreed
the same spiritual penalties against apostates, together with special legislation
for those who could offer excuses that somewhat extenuated their delict.
As to those who succumbed under threats, who sacrificed to idols
through fear of the confiscation of their property, and who have
not yet done penance: if they will present themselves, it seems good

« De Praescript, XXXVI ; Migne, P. L., II, 50.

u De Bapt., XV; P. L., I, 1216.
“ Batifol, L'Eglise Naissante, p. 337.
“ Mansi, 1,863 ; cf. Allard, Histoire des Persecutions pendant la Première Moitié du Troisième
Siècle, pp. 346-347; Diet, de Théol. Cath., “Apostasie," I, 1606.
6 The Delict of Heresy
to us to wait until the great day [Easter] to receive them among the |
auditors; then they will accomplish their penance during three years; i
then, two years after, they will be admitted to communion. And. so, j
after six years complete, they will be restored to their first perfection. j
... In danger of death from sickness or any other cause, even before j
the six years are elapsed, they will not be refused communion for j
viaticum.37 !
The Ecumenical Council of Nicaea was likewise concerned with this problem. ;
The eighth canon decreed that Novatianists not merely could be reconciled J
to the Church, but likewise could be ordained to the clergy.38 Apostates who
were ordained in ignorance of their excommunication, or in contempt of the :
censure, were ordered deposed.39 The most detailed legislation is that of the
eleventh canon, which in general permitted reconciliation of those who apos­
tatized, but ordered that they be deprived of the exercise of their offices in the s
Church, and (in the case of laics) established an irregularity for Orders. When I
the apostasy was a purely material sin, these penalties did not apply.40 ί
The penalties inflicted by the Councils may seem exceedingly severe to
modem readers; but as a matter of fact, the orthodox Church, under the guid- i
ance of the Popes, was fighting and condemning the excessive severity of the ;
Montanists and Novatianists, who would not absolve apostates from sin or
censure even in the moment of death, and who became heretics themselves when
they added that the Church did not have the power so to absolve. Thus Pope
Innocent I (405) wrote that at no time was Penance ever denied the dying,
although the Holy Eucharist was denied during times of severe persecution,
lest too great leniency might tempt the weak to apostatize; but after the res- J
toration of peace, not merely the Sacrament of Penance, but likewise that of
Holy Eucharist should be given, lest the Catholics should seem to share in the
rigorism of the Novatianists. Hence both Sacraments are to be given to those
who are repentant and dying.44 This law was reaffirmed by Pope Celestine I
(422-432) who condemned a still existing contrary practice in strong terms, and
added what has since been quoted as a principle of administration: “Quovis
tempore non est deneganda poenitentia postulanti."0
The texts cited above indicate the close association of absolution from heresy

37 Canon 6, Mansi, II, 513 ; cf. Héfélé, Histoire des Conciles, 1,1, 298. The Council of Elvira
(314) decreed more strictly in its first canon, “let them not receive communion even at the
last moment of their lives”, Mansi, II, 57; Héfélé, o.c., I, 1, 212. It is agreed that these
texts do not refer to the administration of the Holy Eucharist (“Communion” in the modem
sense of the word), but to participation in the communion or membership of the Church;
cf, King, Administration of the Sacraments to Dying Non-Catholics, p. 95-97.
” Denzinger, n. 56; quoted by Gratian, c. 8, C. I. q. 7.
” Canon 9; quoted by Gratian, c. 4, D. LXXXI.
40 Quoted by Gratian, c. 32, D. L.
41 Denzinger, n. 95.
"Denzinger, n. 111.
 The Delict of Heresy •7
with public penance. The required public acts of penance passed into punish­
ments which were incurred by the delict of heresy. However a distinction be­
came recognized, between mortal excommunication and medicinal excom­
munication. The first was inflicted on those who were guilty of serious offenses
against faith and morals, and who thereafter refused to repent. This excom­
munication involved entire separation from the Church; forbade participation
in the Eucharist, in the prayers of the faithful, and in the hearing of the Scrip­
tures.48 The term anathema used in Paul’s text to the Galatians, was used
for this censure, particularly in matters of heresy.44 Etymologically, it simply
means separation or cutting off; in practice, it means a major or mortal ex­
communication.45
Medicinal excommunications were inflicted on those guilty of less serious
offenses, or on those who had offended seriously but had repented and con­
fessed. The penalties involved in this punishment were graduated and pro­
portioned to the crime which was thereby expiated. The variations and modi­
fications of this censure, and the different penances associated with its ob-
serance, developed the penal law of the Church.4’
To all these spiritual ecclesiastical punishments were added various secular
penalties, once the Empire was reconciled to the Church and Christianity be­
came the religion of the Emperors. Constantine considered himself a bishop in
matters of the Church’s external life.47 He took a prominent part in calling
councils,, and in providing for the attendance of bishops from all parts of the
Empire. At the conclusion of the Council of Nicaea, he pronounced a sentence
of exile against the Arians who would not submit.48 The following year he issued
a law allowing favors to the Church, but carefully refusing them to heretics and
schismatics.49 He and the Christian emperors who followed him issued many
decrees for the repression of apostasy and heresy, in as much as these involved
disturbance of the public order. From all this came a secular penalization of
sins against the faith: forfeiture of goods, annulment of wills, exile, and even
death. Thus we find, as early as the fourth and fifth centuries, the beginning
of the secular punishments which later were to be employed by the Middle Ages.
Vacandard, in his well-known history of the Inquisition, gives documented
evidence that such secular punishments, and especially the infliction of capital
sentences, were abhorrent to the Fathers of the Church. Tertullian, Origen,

48 Hyland, Excommunication, p. 20.

44 Cf. Council of Gangre, (350),—Mansi, II, 1095 ; also the last article of the symbol of Nicaea,
—Denzinger, n. 54.
“ Cf. Canon 2257, §2.
44 Hyland, Excommunication, p. 20.
47 Eusebius, Vita Constantini, IV, 24.
48 Batifol, La Paix Constantinienne, pp. 321, 326.
48 Batifol, o. c., p. 348.
8 The Delict of Heresy
Cyprian and others wrote in condemnation of the idea of renewing the Old
Testament punishment of apostasy. Lactantius has an eloquent passage in
protest against the use of physical force in matters of conscience:
It is true that it [religion] must be protected: but by dying for it,
not by killing others; by long suffering, but not by violence; by faith,
not by crime. If you attempt to defend religion by bloodshed and tor­
ture, what you do is not defense, but desecration and insult.6®
So too Hilary of Poitiers:
I ask you bishops to tell me, whose favor did the Apostles seek
in preaching the Gospel, and on whose power did they rely to preach
Jesus Christ? Today, alas, while the power of the state enforces
divine faith, men say that Christ is powerless. The Church threatens
exile and imprisonment. She, in whom men formerly believed while
in exile and imprisonment, now wishes to make men believe her by
force.61

But while these writers were insisting upon the doctrine which was later
summarized in the phrase Ecclesia abhorret a sanguine,** civil officials were faced
by disturbances on a vast scale, instigated by Donatists and Manicheans. The
putting down of these disturbances was a practical matter of vast importance
and difficulty. In view of these practical considerations, Saint Augustine, start­
ing from the advocacy of complete tolerance to heretics and entire reliance
on spiritual penalties, came finally to approve restricted persecution (temperata
severitas), and to a defense of the state’s right to inflict even capital punishment
when the heretics seriously disturbed the public order. This theoretical ap­
proval of the severest secular punishments was accompanied by insistence that
the right be exercised with mercy and forebearance.» This came to be the
accepted attitude of the Church: that in the Christian state, heresy is not
merely a religious delict, but likewise a civil crime; and in the later aspect
it may be punished by the state, even though the determination of the fact
of heresy be ecclesiastical.81
After the developments we have indicated, there was in existence at the end
of the sixth century a whole body of legislation visiting heresy with spiritual
penalties,—excommunication, infamy, suspension, deposition, obligation to

“ Divin. Institut. V, 20,—Migne, P. L., VI, 616.

“ Contra Auxent., 4,—P.L., X, 611.
« Attributed to Pope Nicholas I by Vacandard, Etudes de Critique et d'Histoire Religieuse,
p. 233. .
“Augustine, Ep. C. ad Donatum, c. 2; Ep. CXXXIX ad Marcelhnum; Ep. CV;—
P. L. XXXV, 366, 555, 396. Cf. Vacandard, L'Inquisition, pp. 17-ZB, Lath. Encycl.
“Inquisition," VIII, 27. „
« Vacandard, o.c., pp. 33-36; cf. St. Thomas, Summa, Ha-IIae, q. XI, art. 3.
 The Delict of Heresy 9
undergo public penance,—and also severe secular punishments,—loss of right
to bequeath property, confiscation of property, and even death. With the wan­
ing of active heresy, this law was less commonly applied, although it retained
its juridical vigor.55* There was little new development; so that when Gratian
made his compilation toward the middle of the twelfth century, he recorded
only old canons, in the matter of heresy.55
The next era in which the Church was faced with vigorous heresy began in
the middle of the eleventh century, when the old Manichean doctrines re­
appeared in Europe. The adherents of these doctrines called themselves various­
ly Albigensians, Cathari, Patari, etc.,57 They were not merely numerous, but
also well organized upon a secret basis which made their detection very difficult.
Like modern communists (whom they somewhat resembled), they disrupted
the Christian community by their attacks upon authority, marriage, oaths,
and the whole fabric of social life.58 From the middle of the eleventh century
onwards, synods and councils, both ecclesiastical and secular, were occupied
with the problem of discovering these delinquents and suppressing their secret
organization. During this same period the death penalty was often inflicted
on those who were discovered and proved guilty; this punishment, however,
was inflicted by mobs or by secular officials against the protest of churchmen,
and beyond the enactments of the existing law.59* It is quite clear that these
heretics were found guilty and punished not merely for spiritual faults, but also
for lives and teachings that outraged the secular social conscience of the day.
As has been noted, Gratian merely assembled old canons, of early councils,
against heretics; but immediately after his time, there was a sudden and vast
development of special legislation to cope with heresy. This was the natural
result of a crisis which was both social and religious, and widespread enough
to embroil all Europe. Previously, both the law and its application were quite
local. Now, with a more universal social consciousness that Europe was one
Christian community, and with the revived interest in Roman and canon law
that was strikingly manifest at this time, there was an attempt to organize legal
doctrine and practice upon a universal basis. The Decretals of the Corpus Juris

55 Legislation by Church Councils in Spain continued somewhat later, and was marked
by severity, particularly against the Jews; cf. Ziegler, Church and State in Visigothic Spain,
pp. 56, 185, sq.
55 Wemz, Jus Decretalium, VI, n. 283. In the Decree of Gratian C. XXIII; C. XXIV; the
introduction to Friedberg’s edition of the Corpus Juris indicates the sources which Gratian
used.
57 Douais, Les Hérétiques du Comté de Toulouse au XIII Siècle, studies the specific doc­
trines of the various groups; but admittedly they were much alike in belief and practice.
58 Guiraud, Questions d’Histoire, pp. 49-92.
59 Death penalties were inflicted at Orleans, in 1022; at Goslar, 1052; at Cambrai, in the
presence of Emperor Henry III, 1076; at Toulouse, 1114; at Liege, 1144. Note that these
dates extend back over a century before the establishment of the Inquisition. Cf. Vacandard,
L’Inquisition, pp. 40-45.
 10 The Delict of Heresy
contain the legislation and penal administration applicable by the Church as
a whole, which was the result of this development.
The suppression of the heretics was a task undertaken by both the Popes and
the Emperors. Pope Alexander III, in the Lateran Council of 1179, pronounced ’
against them the spiritual penalty of anathema, implying infamy, denial of
Christian burial, deprivation of the Sacraments, etc.; and in addition called
upon all princes to protect their Christian subjects from the outrages of here- (
tics who were disturbing the public welfare.60 The same pronouncement in­
flicted the penalty of excommunication upon all those who defended and re­
ceived the heretics. The secular penalty indicated for heresy was imprison­
ment and confiscation of property; but various rulers, such as Pedro II of Aragon
ί (1197) added the further penalty of death at the stake. «
j The next Pope, Lucius III, found that even these measures were not suffi- ,
1 cient. He concerted action with the Emperor, Frederick Barbarossa, at Verona 1
in 1184. The ecclesiastical penalties against heretics were to be excommunica­
tion, deprivation of every benefice and office, infamy, and inability to perform
legitimate actions. The administration of this law was entrusted to the local ,
bishops, who were bound to go once or more each year to every part of their
t dioceses, and there investigate all suspected persons. Those found guilty were
to be handed over to the secular officials to receive the secular punishment
deserved by their crime,—the animadversio debita.** At the same time that
this legislation issued from the Pope, the Emperor decreed that all heretics
were under the ban of the Empire, a punishment which involved banishment, (
confiscation of property, destruction of the house occupied by the criminal, 1
public infamy, and inability to hold office; it did not involve the death penalty.6’
Innocent III next reigned as Pope, and exerted his powers vigorously to over­
come the heresy whose evil influence still was rampant. He likewise secured .
co-operation from Emperor Frederick II. Innocent’s legislation was largely
devoted to systematizing the previous law and developing administrative
; processes.66 It was approved and applied to the whole Church by the Fourth
:4 Council of the Lateran, in 1215.“ In 1220, the Emperor issued a constitution,
I applying to the whole Empire, in which he ordered the strict punishment of
heretics.66 In this constitution he compared heresy with the crime of laesa .
majestas, and noted that rebellious insult directed against the majesty of God <
was more heinous than crime directed against human majesty. The import

66 C. 8, X, de haereticis, V. 7.
61 Vacandard, L’Inquisition, pp. 63-66.
° C. 9, X, de haereticis, V. 7; Vacandard, o.c., p. 68.
“ Vacandard, o.c., p. 67.
“Vacandard, o.c., p. 68.
“ Cap. III,—Mansi, XXII, 986.
·· Vacandard, o.c., p. 127.
 The Delict of Hersey 11
ΐ of this text was quickly noted. The secular penalty for the civil crime of laesa
i majestas was death at the stake; and while this penalty had often been applied
; to heretics, there had been no imperial law justifying this extreme punishment
! until the Emperor made this comparison. Death at the stake was made legal
in Lombardy in 1224, and was incorporated in the Imperial Code for Sicily
in 1231.67 This, of course, was civil legislation and a secular penalty for the
crime against the state and the social order; but when the Church authorities
discovered any contumacious and relapsed heretic and handed him over to the
I civil authorities, the penalty of death at the stake automatically followed.
i The next step,—a matter of administration,—came under Pope Gregory IX.
i He found that the bishops, despite the obligation imposed by Pope Lucius III,
were not uniformly active and successful in handling cases of heresy, and in
I detecting those who professed and practiced heresy in secret. To aid the local
; investigation (legally called an “inquisition”), he began, about 1231, to send
representatives to act in his name as assistants to the local authorities. This
was the beginning of the Papal Inquisition (i.e., investigation by agents and
delegates of the pope).
* The regulations of the activities of the papal inquisitors, their powers, the
• mutual relationships of their activities with those of local bishops, the pro-
ί cedure to be followed, the quality of evidence required for conviction of the
accused, the employment of the usual secular process of torture: all these
, complex matters were regulated through the succeeding years in a mass of
i law which may still be read under the title De Haereticis in the Decretals of the
ί Corpus Juris.68 This legislation has been frequently studied and commented
upon, and is too extensive and complicated to be summarized here.69
The official approval of the collections of Decretals in the Corpus Juris made
this heresy legislation the law of the Church; but after the disappearance of the
Neo-Manicheans, the law was rarely applied.76 There was no great outburst of
heresy until the Protestant revolution of the sixteenth century; and in this
connection the attempt to revive and use the medieval Inquisition was found
ineffective in practice. Pope Paul III therefore decided to reform the medieval
tribunal, and to this end appointed six cardinals to act as a supreme tribunal
in all matters of faith,—the Sacra Congregatio Romanae et Universalis Inquisi­
tionis seu Sancti Officii.71 Later Pope Sixtus V undertook an entire reorganiza-

67 Vacandard, o.c., pp. 129, 134.

” Chiefly in V, 2, de haereticis, in Sexto.
> ’’For commentaries, see Vacandard, o.c., pp. 141 sq; Douais, L'Inquisition; Vermeersch,
Tolerance, pp. 122-155; articles in Cath. Encycl., Did. de Thiol. Cath., etc.
70 In 1478, Pope Sixtus IV acceded to the request of Ferdinand and Isabella, and revived
the Inquisition in Spain. Its activities there have been much criticized, but the alleged evils
seem largely due to the domination by civil authorities; cf. Héfélé, Cardinal Ximines, pp.
276-400; Cambridge Modern History, I, 356.
71 July 21, 1542; cf. Bouix, Tract, de Curia Romana, p. 155.
l·
12 The Delict oj Heresy
tion of the papal curia, and distributed the administration of the business of the
Church among fifteen permanent congregations of cardinals, the first and chief
of which was the Sacred Congregation of the Holy Inquisition.72* 74This same
Congregation retained its pre-eminence in the new regulation of the Roman
Congregations by Pope Pius X in 1906.” Its present powers and duties are
defined in canon 247 of the Code. In general, it is charged with safeguarding
Catholic faith and morals throughout the world, and has competency over all
cases of heresy, either in first instance or upon appeal, of any persons in any places.
Under this supreme authority, Ordinaries have competence over cases of heresy
within their own territory.
The decisions of the Congregation of the Holy Office, rendered in regard to all
types of problems involving the faith, indicate the official application of the
law of the Church, and hence make clear in what circumstances and to what
extent the Church acts in regard to matters that involve or seem to involve
some doubt or denial of faith. These decisions form a very considerable part
of the background, in the light of which students must read and interpret the
canons of the Code.
The foregoing paragraphs have dealt with the Church’s organization for com­
batting heresy. Recurring now to the penalties inflicted upon heretics: the close
of the Middle Ages brought to an end the close union of Church and State;
and hence the application of secular punishments to delinquents against the
faith fell into desuetude. The strict provisions of older laws were found im­
possible of application in the modem world. Thus, the old Jaw made every
heretic vitandus; that is, the faithful were bound to avoid intercourse with
him not merely in religious acts, but in secular concerns as well. Failure to avoid
such heretics was punished by minor excommunication;75*i.e., by a deprivation
of the Sacraments. The consequence of this strict law was great uncertainty and
anxiety on the part of the faithful, who could not know whether or no they
had been exposed to the incurring of this excommunication; and even when
they knew, could not always avoid it. Hence, as a favor to the faithful, Pope
Martin V, in 1418, introduced a new canonical distinction, declaring some
excommunicates vitandi, and the rest tolerati.™ The former were excommuni­
cates who continued under the previous discipline, and hence must be strictly
avoided by the faithful. The tolerati were excommunicated, but the faithful
were permitted to have dealings with them in social, business, and political
matters; in general, they were to be avoided only in matters strictly religious.

72 Jan. 22, 1587; cf. Bouix, I. c.

n Constitution Sapienti Consilio, June 29, 1908,—Fontes Codicis J. C., n. 682.
74 Cf. canon 6.
71 Hyland, Excommunication, pp. 31-34; 36-47.
74 Constitution Ad Evitanda,—Fontes Codicis J.C., n. 45.
 The Delict of Heresy 13
! The purpose of this legislation was to restrict the number of cases in which
the faithful would incur the minor excommunication; and hence was intended
i solely as a safeguard for the faithful, and in no wise as a favor to the excom-
ί municates. One result of this legislation was the fact that minor excommunica-
! tion, once a familiar part of penal legislation, became more and more rare,
; and ceased to exist” after the publication of the Constitution Apostolicae Sedis.
! The Council of Trent was devoted chiefly to the definition of dogmatic
truths which had been impugned by Protestant heresiarchs, and to the Catholic
counter-reformation. It dealt but little with the canonical determination of
the fact of heresy, or with the proper punishment thereof. It may be noted
however that the Council gave to Bishops (but not to their vicars) the power
to absolve from heresy, in the internal forum.7778 This was a mitigation of the
previous law, which had reserved absolution of heresy to the Pope.79 However
Î after the Council, the customary Bulla Coenae continued to speak of the reserva-
j tion of heresy to the Pope, and included the following text:
Nullus per alium quam per Romanum Pontificem, nisi in mortis
i articulo, absolvi possit praetextu quarumvis facultatum et indulgen-
/ torum, quibuscumque personis, etiam episcopali vel majori dignitate
'J praeditis. . . . per Nos et dictam Sedem ac cujusvis concilii decreta
ΐ concessorum vel concedendorum.
J

j Since the Council of Trent was the only Council which permitted the Bishops
j to absolve from heresy, this Bulla Coenae appeared to limit the Tridentine
; faculties as far as the censures contained in the Bulla (including that of ex-
\ communication against heretics) were concerned.80
All controversy on this point was closed by the Constitution Apostolicae
Sedis.81 The introductory paragraph declared that only those penalties latae
j sententiae would be valid in the future which were contained in the following
j sections of the constitution; and that these penalties would be valid in the
■ manner in which they were inserted in the Constitution. The first excom-
j munication in the list of those reserved speciali modo to the Roman Pontif
was inflicted upon
Omnes a Christiana fide apostatas, et omnes ac singulos haereticos
' quocumque nomine censeantur, et cujuscumque sectae existant, eisque
Ï credentes, eorumque receptores, fautores, ac generaliter quoslibet
illorum defensores.

77 This was officially stated by S. C. S. Off., Dec. 5, 1883,—Colled., n. 1608.

’•Sess. XXIV, de reformatione, cap. 6,—Concilium Tridentinum, editio Goerresiana, pars
VI, p. 1011.
79 Cs. 3, 5, de poenitentiis, V, 9, in Extravag. Com.
80 Pennacchi, Commentaria in Consitutionem A postolicae Sedis, pp. 59-67, Cf. S. C. S. Off.,
deer. Sept. 24,1665, ad 3,—Fontes Codicis J. C., n. 734.
01 Fontes Codicis J. C., n. 552; cf. Carr, Constitution "Apostolicae Sedis" Explained, p. 35.
14 The Delict of Heresy
This legislation, taken from the Bulla Coenae, is the direct antecedent to
canon 2314 of the Code. It visits heretics with excommunication latae sententiae,
specially reserved to the Holy See. The Code of Canon Law, which went into
effect on May 19, 1918, continued this legislation, with minor changes which
will be noted under appropriate headings.
 CHAPTER TWO

HERESY AS A SIN

The Catholic Church claims to be, and is, the one and only true Church, estab­
lished by Christ to perpetuate through all ages and among all races the truths
which God had revealed. It is her duty to preserve and teach the deposit of
faith; and corresponding to this duty is the obligation on the part of men to
accept and believe the Word of God which the Church brings to them, and to
profess their faith externally on suitable and necessary occasions.1
It is in the light of this doctrine that the Code defines a heretic, in the following
terms:’
Si quis, nomen retinens Christianum, pertinaciter aliquam ex veri­
tatibus fide divina et catholica credendis denegat aut de ea dubitat,
haereticus [est.]
The following pages will record the mass of legislation concerning such persons;
but before turning to this legislation, it is necessary to consider the import of
each of the parts of this definition, and to determine just who are included
among those proscribed for the crime of heretical depravity.
In canon law, the concept of crime necessarily supposes the existence of sin.’
Hence the exposition of heresy must note separately the sin and the crime,—
the internal and the external acts which, together, make the individual a sub­
ject of penal legislation. Therefore this dissertation will treat first of the sin,
and secondly of the crime of heresy.
********
According to the perfection or imperfection of their religious faith, all men
may be divided among five groups:
1. The first is composed of individuals, technically called “infidels,” who
have never received the Sacrament of Baptism; the non-reception of this Sacra­
ment distinguishes them from the members of the other four groups. Among
the infidels are to be included those who have no knowledge of the true God,—
heathens or pagans; those who accept some part of God’s revelations concerning
himself and His relations with men,—the Jews and Mohammedans; likewise
many who profess to be Christians, but who either have not received Baptism

1 Canons 1322-1325, under the title “De Magisterio Ecclesiastico."

» Canon 1325, 52.
• Canon 2195. Cf. Wernz, Jus Decretalium, VI, n.13.
15
16 The Delict of Heresy
at all, or else have merely been subjected to some ceremony which is defective
in form or intention or both;4 and finally, those unbaptized persons who reject
all religions,—atheists, deists, etc.
These individuals, being unbaptized, have never received that spiritual re­
birth which is the beginning of Christian life,5 and which causes the recipient
to be a person in the Church of Christ, subject to her laws and her penalties.6
It must be clearly understood that there is no reference to infidels in the fol­
lowing exposition of the penalties inflicted upon heretics.7
2. The next four groups are alike in that each member of these groups has
validly received the Sacrement of Baptism, and thereby has been constituted
a person in the Church of Christ. The distinction of these groups, each from
the others, is found in the different relations which these baptized persons have
with the Church in which their Baptism gave them objective membership.
The first of these groups comprises those who were baptized and who live
in the unity of doctrines, Sacraments, and practices of the Church, and who have
not rejected their faith by apostasy, schism or heresy. Despite other sins of
which they may be guilty, they remain fideles, the faithful, in the sense that
they possess and hold to the Catholic faith. With this group, heresy legislation
has a very important connection, since the Church’s laws imposing punishments
and disabilities upon heretics have for their purpose the protection of the faith­
ful, must be administered by the officials who rule over the faithful, and, in
various instances, are addressed to the faithful, requiring them to avoid the
heretics as sources of perversion and occasions of scandal.8*
3. The next three groups include those who, despite their initiation into
the Church by Baptism, later secede from communion with her. The members
of the first of these three groups are called schismatics: namely those who pre­
serve their faith in revealed truths, but who refuse obedience to the Supreme
Pontiff, or reject communion with the Catholic faithful.
Schismatics, in the strictest sense of the word, do not sin against faith, but
only against obedience and charity.’ Pure schism of this type is not very com­
mon. Practically and historically, schism tends to become mixed schism, i.e.,

4Cf. Sabetti-Barrett, Compendium Theol. Moral., n. 662, in which is given a list of the
familiar non-Catholic sects in the United States, and a general estimate of the invalid or
doubtful Baptism administered by their ministers.
‘John, III, 1-21.
• Canon 87.
7 Hence a catechumen who studies the- Catholic faith, and then, before he has been bap­
tized, decides sinfully not to believe, is not a heretic, and is not subject to the penalties for
heresy,—Wemz, Jus Decretalium, VI, n. 284; Bouquillon, De Virtutibus Theologicis, p. 176.
• Cf. the Scriptural warnings against heretics, page 3 above, which serve as the basis and
reason for legislation requiring avoidance of heretics, as, e.g., canons 1258, 1324.
’ Noldin, De Praeceptis, n. 32*.
 The Delict of Heresy 17
to adopt and teach some heretical doctrine.1011This is clearly the case with various
Oriental sects, with the so-called Old Catholics, etc., who are commonly classed
as schismatical, despite the heretical tenets which they are known to hold.1!
This dissertation, being confined to the study of heresy, will not treat of
schismatics; although it may be remarked that schismatics are generally men­
tioned by the Code in parallel with heretics, as subject to the penal legislation
which is here expounded.
4.The last two groups are called apostates and heretics. The apostates are
those who, despite their Baptism, reject Christianity entirely, and profess
to be Jews, Mohammedans, pagans or entire unbelievers.1213The essential
characteristic of this group is the totality of their rejection of the Church and
the religious faith into which they were baptized, as shown by the fact that they
no longer retain the name of Christians. Juridically, they are grouped with
heretics, who differ from them in that the heretic rejects not all, but only one
or some dogmas. Both groups are subject to the same penalties.1’ The reason
for this is the fact, which will be demonstrated below, that both apostates and
heretics commit the same specific act of rebellion against divine and ecclesi­
astical authority.
5. Finally, there is the group comprised of heretics, defined above. We
have thus far noted that they are baptized, and so are distinguished from in­
fidels; that they sin against faith, and so are distinguished from schismatics;
that they reject some, but not all Christian revelation and authority, and thus
are distinguished from apostates. Before discussing the three further elements of
the definition given in canon 1325, §2, it is to be noted that heretics are of two
types.
First there are the heretics who, by birth or conversion, were at one time
members of the Church, but who become heretics by a personal act of disbelief
or doubt, thereby abandoning relations with the Church to which they had pre­
viously belonged. There are many such cases. Some lose their Catholic faith
through educational processes, in which they imbibe anti-Catholic or anti-
religious ideas from teachers, books, etc. Others sacrifice their membership in

10 Cath. Encycl., "Schism”, XIII, 529.

11 S.C.S.Off., Oct. 14, 1676,—Collect, n. 211, speaks of schismatici haeretici; cf. S.C.S.Off.,
Aug. 22, 1900,—Collect, n. 2093, which implies differences in faith between schismatics and
Catholics, The broad use of the term is common and justified by approved custom.
“ Distinction must be made between abandonment of religious belief and abandonment of
religious practices. A Catholic may become indifferent, and no longer practice his religion,
and yet never have rejected and eliminated faith in revelation and in the Church. In this case
there is no apostasy in the technical sense of the term. Cf. Wemz, Jus Decretalium, VI, n. 263 ;
Cappello, De Censuris, n. 62.
13 Wernz, o. c., n. 266: “Nullum in jure canonico statutam esse poenam haereticorum quae
non sit lata in apostatos, et vicissim ab apostatis nullum incurri poenam a qua haeretici sint
immunes.” Cf. c. 13, de haereticis, V, 2, in Sexto.
18 The Delict bj Heresy
the Church for reasons of worldly advantage, or for fear of temporal loss and |
difficulties. While some may be in good faith, it may be generally presumed I
that these heretics were fully conscious of the sin they committed when they |
definitely left the Church or abandoned belief in her teachings. In any case, they 1
remain fully subject to the Church’s laws, and hence to the penalties she as- |
sesses against heretics. j
The second and larger portion of the group of heretics is composed of those |
who were validly baptized, but who were thereafter brought up outside the
Church, in some non-Catholic form of Christianity. It may be conceded that
many of these heretics are in entire good faith, since they are determined to­
wards non-membership in the Catholic Church by family ties, by the tenor of
their earliest education, by their associations in mature life, and by the force
of a long-standing tradition supporting their particular sectarian affiliation.
When they are in good faith, their sin of heresy is purely material, and does not
involve personal guilt.11 In the external order, they are held responsible for
their non-membership in the Church by presumption of law.15 Canonists are
agreed that the Church continues to hold them to the observance of her laws,
in so far as these are intended to regulate public order.16 As to ecclesiatical laws
intended to promote personal sanctification, there is an unsettled controversy
among canonists. Some hold that these heretics are bound by the laws, but are
excused from observing them by invincible ignorance; others hold that the
Church does not wish to bind them, since actually they do not know or obey
her will in these matters.17 In any case, the legislation, about to be treated, is
concerned with public order in the external forum; and as such, it is intended
to apply to heretics of this class as well as to Catholics who become heretics.
It remains to examine three important elements of the definition of heretics,
as given by the Code in canon 1325, §2. Ί

A. “ Veritatibusfide divina et catholica credendis”

Heresy is an offense against religious faith. More precisely it is the rejection
of one or more truths which must be believed with divine and Catholic faith.
These words of canon 1325, §2, derive from the Vatican Council.18 They indi­
cate the two doctrinal authorities whose testimony precedes an act of Catholic
faith, viz., God revealing, and the Church authentically proposing.
Acts of faith are frequently made in regard to matters which are in no wise

“ Leitner, Handbuch, I, p.64.

“ Canon 2200, § 2.
11 Cf. Denzinger, n. 864.
17 Bouuaert-Snnenon, Manuale Juris Canonici, n. 162.
11 Cone. Vatican., sess. Ill, c. Ill, de fide catholica,—Denzinger, n. 1792.
 The Delict of Heresy 19
religious. In its most general sense, faith means simply the acceptance of a
judgment as true, not because the believer can demonstrate its truth himself,
but because he is satisfied with the knowledge and veracity of a witness who
assures him that the said judgment is in accord with reality. In this way men
know by faith countless things that are beyond their personal experience: far­
away places, and nations and individuals long since dead. Knowledge derived
:. from books, lectures, conversations and the general process of teaching is essen-
i tially knowledge through faith.
Faith in matters of religion is not, as a process of learning, psychologically
i different from faith in matters of everyday life.19 The difference comes only
in regard to the character of the witness who is believed. Experience amply
J proves that mere human witnesses can err and often do so, can lie and often
i' do so. Hence human testimony can only be believed with qualifications and
I reservations. On the other hand, religious truths, to be believed with divine
faith, are testified to by God Himself; and it is elementary theology that God
I can neither deceive nor be deceived. If God is the witness to any proposition,
r it follows that there cannot be any reasonable reservation or qualification to
I the assent which should be rendered to the proposition.
' Divine revelation must have taken place before an act of religious faith can
if be reasonably demanded. Granted this divine revelation did take place, the
ï heinousness of apostasy and heresy is found in the fact that misbelief or un-
I belief is a blasphemous imputation of error or deceit to God Himself. A fur-
I ther blasphemy is at least implicit, in that the apostate or heretic thinks, or
1 seems to think, that he has some means of distinguishing truth from error, which
tj operates more certainly and more infallibly than does God’s own Infinite In-
I telligence. ” Hence sins against faith are basically blasphemies against God
K Himself. As such they are considered, next to odium Dei, the most heinous that
f, man can commit.’1 Nor is there any essential distinction between the guilt of
l· heresy and of apostasy, since the same blasphemy is implicit in both. Divine
E revelation calls for absolute and universal faith in all that is revealed. Rejection of
I any one truth involves the same blasphemous attitude toward God that is in-
I volved when all the truths are rejected.”
e Public revelation by God ended with the death of the last Apostle, some
1 nineteen hundred years ago.” Since that time men have not been able to have
Ï direct contact with the human beings through whom God has delivered His
» _ ·
19 All mention of the necessary role played by divine grace in the preparation for and making
of an act of faith is here omitted; for this consult texts by dogmatists.
10 St. Thomas, Ha-IIae, q.V, art. 3.
* ** Noldin, De Praeceptis, n. 31.
: ” Noldin, o. c., n. 4.
” Cath. Encycl., "Revelation", XIII, 4.
 ■I

20 The Delict of Heresy

messages of religious truth to the world. However, by the institution of Christ
Himself, these revelations are handed on from place to place, and from genera­
tion to generation, by official intermediaries, to whom is given a special divine
assistance to preserve the truths from any adulteration of error. To Peter and
the Apostles, and through them to the Catholic Church, Christ gave the com­
mand: “Going therefore teach ye all nations . . . teaching them to observe all
things whatsoever I have commanded you; and behold I am with you all days,
even to the consummation of the world.”*4 This text, supported by others cog­
nate in meaning,*5 gives the Church the duty of proposing divine revelation for
men’s belief, and of preserving it from any admixture of error; and at the
same time it guarantees divine protection and guidance to ensure that the trans­
mission of revelation through the ages shall not in any wise deform the original
truth.*®
The Church therefore stands as witness to the fact of God’s revelation, and as
guarantor of the exactness of the transmission of this revelation. The divine
protection she enjoys in the performance of this duty is itself a revealed truth.
An act of faith therefore is properly called divine and ecclesiastical: divine, in as
much as faith accepts truths attested by God Himself; ecclesiastical, in as much
as the Church guarantees the fact of revelation and the exact transmission of
the truth so revealed. All this calls for faith, since God’s Infinite Knowledge and
Absolute Veracity support the whole.”
Heresy involves not merely a sin against faith, but a sin against the Church’s
proposal of revelation. In fact the technical sin of heresy can only be com­
mitted when both God and the Church are rejected as sources of religious truth.
Hence the following two cases do not involve sins of heresy.
The first concerns private revelations. God has spoken privately to certain
individuals through the ages. Such individuals are required to believe Him, even
though they lack intrinsic evidence supporting the proposition in question. If
however a favored individual were to receive such a private revelation and
yet disbelieve it, he would sin against divine faith, but he would not be a here­
tic, since the matter in no wise called for ecclesiastical faith.’8 On somewhat the
same basis, certain points of revelation contained in the deposit of faith have
not been defined as dogmas nor proposed by the Church through her ordinary
magisterium. Errors in regard to such points would not be technical heresy.”

« Matt., XXVIII, 19-20 Cf. Denzinger, n. 1793.

35 Matt., XXVI, 18; John, XIV, 16-17; Luke, XXII, 31-32.
»· Canon 1322.
V Noldin, De Praeceptis, n. 6,3, b. ,
a Wernz, Jus Decretalium, VI, n. 284; Cappello, De Censuris, a. 63; Noldin, De Praeceptis,
a. 32*.
» Diet, de Thiol. Cath., "Hirisie", VI, 2212; as for example, the Assumption of Mary,
materiality of the fires of Purgatory; cf. Pighi, Censurae, n. 52, 2; Bouquillon, De Virtutibus
Theologicis, p. 174.
 The Delict of Heresy 21
A second case concerns teachings which the Church proposes, but which are
not part of the deposit of faith. Thus there are matters which are of purely
human orgin; the propriety and efficiency of certain judicial procedures, regu­
lations of ceremony surrounding the Mass and the Sacraments, etc. Catholics
will regularly accept these because of their trust in the Church; but if anyone
should doubt or deny the Catholic teaching in their regard, he would not be
denying a divine revelation, nor be guilty of heresy. Again, the Church teaches
what are called theological conclusions. These are deductions obtained by joining
a revealed truth with a truth of human wisdom, and from these combined premises
deriving the teaching in question; for example, the propriety of the term “trans­
substantiation” to express the mysterious change produced in bread and wine
by the words of consecration in the Mass; or the sanctity of Saint Bonaventure;
or negatively, the condemnation of certain philosophical and theological teach­
ings as erroneous, though not heretical. In these matters the Church demands
assent, not because what she teaches is divinely revealed, but rather because
it is true. If assent is given, it is not fides divina et catholica, since we are only
assenting to the Church, and not to the revelation of God Himself. Hence, a
person who withholds assent in these matters is not a heretic.”
This teaching is briefly summed up in canon 1323, §1, of the Code. Divine and
Catholic faith is required only when a truth is officially proposed for belief either
by an Oecumenical Council, or by the Pope speaking ex cathedra, or by the con­
stant and universal authority of Catholic teachers throughout the world (ordi­
nary magisterium), and when this truth is part of the deposit of faith which was
divinely revealed and committed to the Church for public teaching. And, con­
versely, heresy is only present when such a truth is pertinaciously doubted or
denied, by a baptised adult. In all other cases, there is no heresy.

B. “Denegat aut Dubitat."

A heretic is one who pertinaciously denies or doubts a truth revealed by God
and authentically proposed by the Church. Denial and doubt are per se intel­
lectual acts. The determination of just what intellectual acts constitute the sin
of heresy, and of just what individuals are guilty of the sin of heresy, neces­
sarily involves a considerable psychological analysis. Thought is extremely

” Cappello, De Censuris, n. 63. This is the teaching of the Thomistic school. Contra,
Melchior Cano, Vega, etc., are quoted as holding that theological conclusions are to be believed
with divine as well as theological faith; cf. Tanquerey, Synopsis Theol. Dogm., II, n. 189.
Chelodi, Jus Poenale, n. 57, notes that a conclusion contained in a revealed premise as a part
in a whole, must be believed with divine as well as ecclesiastical faith: e.g., Christ died for
all men, therefore He died for me.
Note also that failure to accept theological conclusions, when it involves obstinate pro­
fession of doctrines branded by the Church as erroneous, is not heresy, but is still a serious
offense, punished by canon 2317.
22 The Delict of Heresy
complex, and takes many forms distinguishable only by careful analysis. The
true import of the law can only be determined when this analysis is made; and
the penalties decreed by law can only be applied when heretical acts are clearly
distinguished from other intellectual acts which, however similar, do not in­
volve the sin of heretical depravity. With this apology and explanation, the
following subjective states and processes may be distinguished:
1. The first state of any human mind is ignorance. With regard to religious
truths in general, or any one truth in particular, man is first of all unaware of
the doctrine and of its revelation. The truth expressed by combining (negatively
or affirmatively) a subject with a predicate, cannot be present to the mind until
both the subject and the predicate have been received in the mind as ideas,
and until the further step is taken of correlating or associating these ideas
in the form of a judgment.’1
In dealing with sins of heresy, it may properly be supposed that the indi­
vidual is not in a state of entire ignorance of all religion. Ex hypothesi, he is
baptized, and moreover accepts and believes some Christian doctrines on a
basis of religious faith. Without this background of faith, he could not be
classed as a heretic, but would be an entire apostate. Hence there is no need
here of considering his psychological relations with the preambles of faith,—
God’s Omniscience and Veracity, and the historic fact that God is the Author
of revelation, and particularly that Jesus Christ revealing is God revealing.
It may well be that the heretic has given these truths little careful and personal
study. But as a professing Christian, he must be familiar with these matters,
at least in a general way, and must assent to all of them.
2. Let attention now be limited to the individual’s relations with one par­
ticular truth, and let it be supposed that he accepts and believes the rest. The
number one is taken for the sake of simplicity,—it could be ten or two or any
other number, provided that it is less than the total of Christian doctine, and
that the individual is still to be classed as a Christian. In regard to this one truth,
the first stage of religious development is that of entire ignorance. The individual
does not know this dogma. This is evident in the case of children, who learn
their religion progressively, doctrine by doctrine; and in the case of neophytes,
and of many of the simple faithful, who learn the truths closely involved in their
daily life, but fail to learn other truths, or else only learn them after delays. Thus
a person might be baptized, and know and believe the elementary religious
truths, without yet knowing or believing that there is a general judgment, or
that there is a Sacrament of Orders, or that indulgences are related to the pun­
ishments of Purgatory.

·* "Cum credere dicat assensum, non potest esse nisi de compositione,”—St. Thomas,
Quaesi. Disputat., De Veritate, q. XIV, art. 12.
 The Delict of Heresy 23
Moralists and canonists are agreed that this state of ignorance is entirely
lacking in morality.’2 It is negative, hence neither virtuous nor sinful. Beyond
all argument, it does not involve a sin of heresy, since the individual does not
have the doctrine before his mind, either to doubt or deny it.
3. Something more of a problem is raised by the next case. Suppose again
that the individual is ignorant that God has revealed, and the Church has
proposed a specific truth to be believed. In the absence of this extrinsic teach­
ing, the individual approaches the subject matter of the truth from a purely
human standpoint, and formulates a judgment on the basis of the objective
evidence provided by his human and secular experience. Thus, for example,
let the dogma be that of the infallibility of the Church in the teaching of faith
and morals. The individual does not know this to be a matter of faith. He has
not even heard that the Catholic Church claims and has divine guidance and
protection against error. In the course of natural thinking, he reflects that all
men err in thought and act; that Catholic priests, and all the hierarchy are men;
that therefore, Catholics in general err, and therefore, the Church too. This
reflection is conducted purely on the plane of natural reasoning, without even
a suspicion that there is any revealed truth involved.
Objectively speaking, the individual has denied a truth which should be
believed with divine and Catholic faith. But it is likewise clear that this is a
purely material sin of heresy.” Since he is ignorant that God has revealed the
opposite doctrine, he is not in any way in revolt against divine doctrinal au­
thority, which is the formal object of faith.” He is in purely human error. His
judgment represents with sufficient accuracy and truth the finite evidence
which he possesses; it is erroneous only in the fact that further and different
evidence is lacking to him.
The example just cited was deliberately chosen, since it represents a fairly
frequent case among non-Catholics.” While they are baptized, and while they
profess to be Christians, and actually believe many Christian truths, it fre­
quently happens that the teaching they actually receive does not contain any
mention of God’s providential care of His Church, as revealed in the promises
of Christ, and as taught and proved by Catholic theology. When therefore
they think of this matter, they take their premises from purely secular wisdom,

’’Lehmkuhl, Theol. Moral., I, n. 1; Vermeersch-Creusen, Epitome I, 88, 1. Many non­

Catholics are in this condition in regard to revealed truths taught by the Catholic Church.
Hence their heresy is purely material. Gury-Ballerini, Comp. Theol. Moral., I, n. 210, q. 1;
Ferreres, Institutiones Canonicas, Π, η. 295.
” Konings, Theol. Moral. Comp., I, n. 267, 2; Donovan, Comp. Theol. Moral., I, tract. V. n.
39,2.
34 Cone. Vatican., sess. HI, c. HI, de fide catholica,—Denzinger, n. 1789; Tanquerey, Synopsis
Theol. Dogm., Π, n. 145.
“ Cath. Encycl., "Heresy”, VII, 256.
24 ; The Delict of Heresy
and draw from them a secular conclusion which contains no reference to revela­
tion or the supernatural, economy. Prescinding from their status in the external
forum, it is clear that they commit herein no sin of heresy—or, more accurately, |
they commit only a material sin, but not a formal sin which involves personal |
guilt and punishment. |
4. The next degree of complexity is obtained by adding to the preceding case j
some suspicion that there is a religious teaching in the matter, over and above
the secular experience and evidence which has been noted. Suppose therefore
that the individual has simply heard a statement made by a Catholic speaker,
or read a statement in a book or paper. To take another example, suppose
that our individual hears or reads the Catholic doctrine that Jesus Christ is i
really and personally present in the Blessed Sacrament. Struck by this new |
idea, he pauses to reflect upon it. He finds immediately that the evidence of j
his secular experience quickly opposes this teaching. The Blessed Sacrament |
was bread, over which certain words were spoken ; thereafter It continues to have j
the appearance of bread, in color, shape, size, taste, and all the other outward j
accidents. On the basis of natural experience, the argument is clear and forceful ?
that even after the words of consecration, It continues to be bread.
There are therefore present two opposed lines of thought: one, from natural
and secular observation, indicates the conclusion that Jesus Christ is not pres­
ent; the other, from testimony, indicates that He is present. When two such
opposed judgments are present before the mind, and when neither the one nor
the other is accepted, the individual is in a state of doubt.’6
Two questions may be asked concerning the doubt just described,—it being
understood that they relate to this first moment of hesitation, when both the
opposed judgments are before the mind, and not to succeeding moments when
some further process of thought has taken place. Is this doubt heresy? Is it
sin at all? The answer must be negative on both points. It is not heresy, since
there is present only a momentary and passing stage of thought, which has
nothing about it that is pertinacious and obstinate; and these are necessary
qualities of the sin of heresy. Moreover it is not sin at all, but rather a temp­
tation.’7 It must be recognized that in presenting the two opposed tentative
judgments, the intellect is simply acting in accordance with its nature. It is
simply recognizing and assenting to the objective evidence before it. There
is objective evidence that some Catholic speaker or writer claims Jesus Christ is
really present. There is likewise objective evidence that the appearances of
bread persevere in the Blessed Sacrament, and objective evidence that in
natural and secular experience, the perseverance of accidents connotes the
perseverance of the same substance. There can be no sin in the recognition of

’· Cath. Encycl., “Doubt”, V, 141.

•7 Noldin, De Praeceptis, n. 14, 2, d.
 The Delict of Heresy 25
objective evidence. It is simple intellectual honesty. Moreover, the intellect
has no freedom in this regard. When evidence is present, the intellect simply
records it. Freedom is found only in the will. Now, sin always presupposes
a free and deliberately chosen act, and is therefore derived from some act of
the will. The process described above is purely intellectual, and does not
involve the will in any way. Therefore again, it cannot be sinful.
Obviously, the case thus envisaged is the familiar one of those who are scrupu­
lous about temptations against the faith. This stage of the intellectual process
is not sinful. Sin can only be present when some act is taken in consequence of
this intellectual problem, under the guidance of the will.
5. From the problem presented in the last section, there are some four
distinct developments possible. The first of these consists in sheer neglect.
While the intellect is conscious of the problem presented above, it will like­
wise be conscious of multitudinous other objects which likewise manifest them­
selves and make some claim for attention. Thus the individual is aware of all
the objects of sense, internal and external. He has other reflections which he
can pursue, and a whole range of non-intellectual activities. The intellect, as
such, can be satisfied by objective evidence of any sort, deriving from any ob­
ject.
The power of determining what objects shall receive attention, and from
what objects attention shall be withdrawn, resides in the will.” It is the im­
mediate manner in which freedom is exercised. Now in many cases, choice
is made almost automatically, on the basis of the interest of the object. “In­
terest” or “value” are relative terms, difficult of appraisal. It seems clear how­
ever that they are determined in part by the nature of the object, and in part
by the previous choices of the individual, which, taken together, form his
present tastes and character, and constitute an apperceptive mass which con­
ditions his present choice. If the individual, on this basis, finds no interest in
the religious problem, and automatically turns his attention to other objects,
there can be at most only responsibility in cause.” His previous acts of will
and general tenor of life have made it morally impossible for him to occupy him­
self now with religious matters.
In other cases, the will will consciously determine the course to be pursued
in the present doubt. This means that the intellect is turned to a consideration
of motives for choosing one way or the other: to attend to the problem, or to dis­
regard it. The motives may be widely various. In favor of study of the prob­
lem, the intellect may note the importance of the problem, the authority of
the writer or speaker who informed him of the Catholic doctrine, the interesting
connection of the problem with investigations and studies previously pursued.

38 McNabb, Oxford Conferences on Faith, pp. 128 sq.

” Gury, Comp. Theol. Moral, I, p. 8.
26 The Delict of Heresy
In favor of disregarding it, the intellect may note the work involved in study,
the time that must be spent, the sacrifice of other interests and pursuits, and,
perhaps, the possibilities that investigation of the problem may lead to a duty
of changing religious beliefs, with consequent difficult readjustments of life,
business, social and other relations.
We suppose in this heading that the individual determines to abandon the
problem, and give his attention to other and alien objects. This choice of the
will involves morality, good or bad. If the individual, on reflection, finds nothing
of importance favoring the Catholic claim, and is convinced that the claim is
based on ignorance and superstition, which is exposed and disproved by his
natural and secular experience, his decision to turn to other matters is only
a material sin. If on the other hand, he is aware that there is some weight
and authority supporting the Catholic statement which deserves investi­
gation, but nevertheless, he determines to occupy his attention with other
matters, he is guilty of some formal sin of neglect. The gravity of this sin is
proportioned to his realization of the duty to investigate,4’ and to the worth
of the motives inclining him to distract himself.
It is important to note that sins of neglect are not sins of heresy.41 To be a
heretic, one must consciously reject and disregard the doctrinal authority of
God and of the Church. In the case thus far proposed, our individual knows
that some Catholic has claimed that Jesus Christ is really present, but he does
not yet know that this claim is backed by God and the Church. It is not until
this further fact is adverted to, that there can be any sin of heresy.
6. The second reaction to the problem presented in section four above, is a
decision to investigate and study it, and so settle the doubt. In other words,
the individual is conscious that the presence of these two conflicting lines of
evidence is a situation calling for further action.4’ Hence he seeks, immediately
or at the first convenient opportunity, to look further into the evidence. In this
number, it is supposed that he honestly comes to the conclusion that the prob­
lem is insolvable. He therefore remains in a state of doubt, finding no way of
reconciling the opposed evidence. This termination can be arrived at if his in­
vestigations show the natural evidence in apparent contradiction, e.g., to the
Real Presence, is clear and objective, and that the authoritative evidence of
witnesses is weighty, but not apodictical. In this last connection, his study
might indicate that there were serious doubts as to the fact of revelation, due
to the opposed testimony of non-Catholic religious leaders, and the possibility
of giving a non-Catholic meaning to biblical texts. It is quite clear that the in­
dividual in this case could not honestly assent to the doctrine as true and cer-

» Dût. de Thêol. Calh., "Foi", VI, 198.

41 Donovan, Comp. Theol. Moral., I., I, tract V, n. 39. 3.
a Tanquerey, Synopsis Theol. Dogm., I, n. 230; Noldin, De Praeceptis, n. 14, d.
 The Delict of Heresy 21
tain, when it appears to him as only doubtfully true. This failure to believe
would again be a material sin; and if his efforts were in due proportion to his
abilities and opportunities, no sin of neglect could be charged against him,
and hence no personal fault at all.4’
It should be added, however, that this solution of the problem is only possible
in the case of those who are unaware of the fullness of the Church’s teaching
authority. A Catholic bom and bred will know that whatever is taught by the
Church is infallibly true, and hence must make an act of faith as soon as he
finds with certainty that the Church does teach a given doctrine.43 44 Non­
Catholics will commonly not know and accept this general principle. It is they
who will be included in the solution just given.
7. The third reaction to the problem of section 4 is a determination to study
the opposed tentative judgments, and the carrying out of this determination
until it is clear that the dogma is revealed, and, thereafter, the making of an
act of faith. This activity is completely correct and meritorious. In this solu­
tion, the natural and secular evidence does not disappear, but is seen to be in­
complete and partial. While the mysteries of faith remain mysteries, the act
of faith is always reasonable. The inadequacies of our sense experience and our
reasoning therefrom are indicated, and proper motives assigned for disregarding
their apparent opposition to the dogma. However, no matter how firm and con­
stant our faith, these natural difficulties may and do recur, and present them­
selves to the mind. The recognition of the objective evidence upon which they
are based is not sinful, but is merely the natural function of the intellect. Faith
simply requires that we turn each time from the consideration of this incom­
plete truth, to the recognition of the infinite guarantee afforded by the Omni­
science and Veracity of God.4546*
8. The heretic’s reaction to the problem of section 4 has been reserved for the
last of these considerations. This heretical act involves two elements: first,
intellectual grasp of the fact that God and the Church testify to the truth of the
teaching, and a deliberate and obstinate act of the will turning attention away
from this testimony, and concentrating it upon considerations which support
judgments opposed to the teaching.48

43 Gury-Ballerini, Comp. Theol. Moral., I, n. 210, 1; St. Alphonsus, Theol. Moral., 1. II

tract. I, n, 9, 1 & 2.
44 Noldin, De Praeceptis, n. 29, c; St. Alphonsus, o.c., n. 9, 2; n. 19, 6. For this reason the
Church prohibits to Catholics the possession and reading of books advocating heresy, etc.,—
canon 1399, § 2.
46 The deliberate fostering of doubts and difficulties is a sin in a Catholic who possesses an
infallible source of religious truth; non-Catholics, who possess no infallible guidance, can and
should attend to the difficulties inherent in their sectarian beliefs; cf. Noldin De Praeceptis, n.
33, 2, b.
48 St Alphonsus, Theol. Moral, 1, II, tract I, n. 19; Bouquillon, De Virtutibus Theologicis, η.
216.
28 The Delict of Heresy
As to the first element, the heretic must be aware that he is rejecting religious
authority, not merely in the sense of authority of jurisdiction, but especially
in the sense of authority of testimony. He must be aware that the doctrine is
supported by the word of those who know, and who are speaking truly what
they know. If a person is conscious that this doctrinal authority is complete
and certain, it is practically impossible for him to prevent giving intellectual
assent. Those who know that God has spoken, will scarcely be able to reject His
teaching (implicitly accusing Him of ignorance or lying) ; if this is asserted in
words, the intellect will still be rejecting the words in its internal judgment.
It is psychologically easier to deny or doubt the authority of human witnesses
to divine testimony, as individuals, or as parts of the Church.47 Most heresy is
based upon rejection of the human element in the divine dispensation of truth.
The psychological process involves the will’s use of its power to distract the
attention of the intellect.48 Confronted with the evidence of revelation and
Catholic promulgation, the intellect is directed to disregard this external evi­
dence and confine its attention to the internal problem of reconciling the sub­
ject with the predicate of the proposition. Religious truths ordinarily involve
mysteries; in other words, God tells us something is true, but He does not ex­
plain or make clear how it is true.49 Hence, the intellect will constantly find in­
trinsic difficulties,—i.e., intrinsic objective evidence in apparent contradiction
to the declaration of the Church. The intellect can and must accept this in­
trinsic evidence (as far as it goes) as true; in so doing, it is acting properly, and
in accordance with its nature. The sin of heresy consists in the direction given
the intellect by the will, which prevents the intellect from considering extrinsic
objective evidence, and which confines the intellect to evidence contrary to the
dogma. Thus, to recur to our example given above: the individual is conscious
of the teaching authority of the Church and, at least in a general way, of the
implied absolute authority of divine revelation; all this supports the Church’s
affirmation of the Real Presence. However, the individual wills not to heed
this. He repeatedly causes his intellect to recur to the fact that the senses
manifest the appearances of bread; to the human experience that mere words
do not cause substantial changes; that a real human body occupies vastly more
volume than a consecrated host; that men are prone to superstition, and that
religious priesthoods often consciously encourage superstition; that millions of
people, including religious teachers, deny the teaching; and so following. There

47 Lehmkuhl, Comp. Theol. Moral., n. 135; Bouquillon, De Virtutibus Theologicis, p. 175.

48 McNabb, Oxford Conferences, p. 128, states: “Of late years, the subject of attention has
been given its normal place in psychology. It has even been called the essential phenomenon
of will .... St. Thomas has analysed its function, and has even looked upon it as the source
of all subsequent evil in intellectual beings that have turned to evil .... Psychologists
are discovering that error is a volitional, more that an intellectual, problem.” Cf. Wemz,
Jus Decretalium, VI, π. 284.
49 St. Thomas, Ila-IIae, q. 2, art. 4; Contra Gentiles, pars I, c. 5.
 The Delict of Heresy 29
is objective evidence to substantiate all of these considerations, and the in­
tellect can accept all of them as true. The result will be that from these premises
(with the opposite evidence of revelation carefully excluded) a heretical con­
clusion will be drawn. And each time the intellect recurs to the matter of
authoritative teaching, the will intervenes, and diverts attention back to these
and like considerations. In this sense heresy is pertinacious and obstinate. The
intellect has some knowledge of the authoritative teaching of the truth, and
this memory tends to recur and upset the erroneous tenet; but the heretic re­
peatedly represses this consideration, and thus prevents a full and honest sur­
vey of all the evidence relating to the matter. He causes the intellect to formu­
late a judgment, and then insists that there be no review or reconsideration.
The example we have just considered was one of complete denial. As Canon
1325, §2, indicates, heresy may take the form of doubt. Before the Code, cer­
tain authorities taught that even sinful doubt would not constitute a sin of
heresy;50 their reasoning being that heresy, as one of the most serious of sins
in either the internal or external forum, must be restricted to acts which were
perfectly consummated according to their species; while the state of doubt,
or suspended judgment, is an imperfect and incompleted activity. The posi­
tive enactment of the Code makes this opinion untenable.51 But even more
than this extrinsic argument, there is the intrinsic fact that the state of doubt
can involve the same malice as is found in express denials of revealed truths.
It has been shown that the essential sin of heresy consists in deliberately avert­
ing the intellect from the consideration of the doctrinal authority supporting a
doctrine, and at the same time causing the intellect to note and approve ob­
jective evidence which is somewhat contrary to the doctrine. Now this evi­
dence may be completely against the doctrine, or it may be itself divided. Take
for example, the immortality of the soul. Leaving out of account any revealed
certainty, the ordinary examination of the matter will disclose demonstrative
arguments favoring immortality, along with less weighty but more popular and
appealing arguments denying immortality. The heretic would thus consciously
exclude from his mind the religious backing of the doctrine, and confine himself
to the natural evidence in the matter, and find that it appeared on this basis
to be objectively doubtful. His statement that human immortality is doubtful is
opposed to the Church’s teaching that human immortality is certain. At the
same time he has been consciously dishonest, and has consciously abused his
freedom of will, when he excluded the definite declaration of the Church from his
mind. We have therefore an erroneous conclusion due to an abuse of the will’s
control of intellectual attention. This clearly includes all the elements of a sin

50 Noted by Cappello, De Censuris, n. 64.

51 The majority of pre-Code moralists taught this same doctrine, that positive doubt con­
stituted formal heresy; cf. Gury, Comp. Theol. Moral., I n. 210, q. 2; St. Alphonsus, II, De
Praecepto Fidei, η. 19, 2.
30 The Delict of Heresy
of heresy.52* Judgment that the subject matter of a revealed truth is objectively
doubtful (positive doubt) is therefore rightly included by the Code as a form of
real heresy.
In brief summary of the examination so far made, it may be said that there
is no formal sin of heresy when a truth of faith has not been sufficiently pro­
posed; i.e., when the individual does not know that it has been revealed by God
and proposed by the Church. This remains true even when the ignorance was
caused by some guilty choice of the individual, causing the ignorance to be
classed as culpable,55—whether simply so, or crass and affected, or even affected.
In this last case, of affected ignorance, care must be taken to be Sure that the in­
dividual is really ignorant; for, in affected ignorance, there is room to suspect
that the individual is not ignorant at all, but knows the truth and its revelation
and promulgation, and is simply intent upon repressing that knowledge; or
else, that the individual has made up his mind not to believe, even if he does find
that the doctrine was actually revealed and proposed. Either of these last two
conditions is sufficient to make the individual guilty of heresy.54 Once the
doctrine has been sufficiently proposed to the individual, he is called upon
to believe it, to assent to it as true and certain. Any act of his wherein he
refuses to assent, whether he deems it untrue or uncertain, is the sin of heresy.

C. Pertinaciter
What we have already said makes plain that heresy consists not merely in
error, but in error which is consciously and deliberately conceived by excluding
the evidence which would otherwise lead to a true judgment. Heresy is an
act of the intellect, but an act directed by the will and attributable morally
to the will. This influence of the will is indicated in the definition of heresy
by the word “pertinacious.” Pertinacity means that the individual holds ob­
stinately to an erroneous judgment, despite the contrary urging of doctrinal au­
thority toward truth. It indicates that the formal sin only exists when the
individual assents to error dishonestly, and in bad faith.55 In D’Annibale’s
phrase, already quoted, he errs “sciens volens.”
The absence of any pertinacity excuses a person from the sin of heresy. Mere
tentative judgments, erroneous though they may be, do not involve this de­
liberate choice by the will, and the deliberate and obstinate holding of error

52 Gury, o. c., I, n. 210, q. 1.

“ St. Alphonsus, ibid., n. 19, 3; cf. D’Annibale’s phrase {Commentarium in Constitutionem
Apostolicae Sedis, n. 30): “Ut igitur Christianus haereticus dici potest, necesse est ut erret; ut
in fide erret; ut erret sciens volens."
u The distinction between affected ignorance of this type, and other affected ignorance in
which the person is prepared to believe, but deliberately avoids having to do so, is made by
Lugo, De Fide, Disp. 20, n. 197, sq.; and quoted by Gury, ibid., q. 1, not. a.
55 Wemz, Jus Decretalium, VI, n. 284.
 The Delict of Heresy 31
known to be error. On this basis, there is no heresy in the cases presented by
many scrupulous Catholics, who confess that they have entertained doubts con­
cerning matters of faith.56 Such doubts are simply the recognition of objective
truths, whose harmonious correlation with the dogma is not understood. This
causes a tentative judgment that the problem of correlation must be investi­
gated. This however is not heresy; it is a correct and proper finding on the
basis of what is thus far before the mind. Actually, such Catholics soon advert
to the absolute demonstration afforded by the teaching authority of Christ
and of the Church; and with this in mind, assent to the truth of the teach­
ing, and thus explicitly make an act of faith. Even though there remains the
persistent recollection of the inability to perceive the truth by intrinsic evi­
dence, and even though the recollection of this inability persists through con­
siderable periods of time, the individual does not thereby commit any sin of
heresy, but is merely suffering from a temptation. His basic judgment is one
of assent and faith; the incidental advertence to one or to many difficulties
does not change his essential attitude.57
So too a person who methodically investigates a doctrine, and thereby be­
comes aware of difficulties and objections whose cogency and force he judges
to be real and based upon true and certain evidence, does not thereby commit
the sin of heresy.58 He may sin against prudence if he rashly and without
reason exposes himself to temptations against the faith; or sin by neglect if he
does not take proper means to safeguard himself against temptations once
he is conscious of them. But the same sins would be committed by rashness
and carelessness in regard to any other virtue. These sins are not specific sins
against faith, but rather against prudence, fortitude and caritas sui.&> If there
is no rashness, and if the study of difficulties and objections is part of the ful­
filment of duty (as in the case of a theologian or an apologist), the perception
of the truth of the objective evidence and the awareness that this truth offers diffi­
culties with regard to dogmas, are not sinful acts, and especially are not sins of
heresy. Even a Saint Thomas is aware that truths of the natural order offer
apparent contradiction to truths of revelation, and can with difficulty be har­
monized with the latter. The act of faith gets much of its merit in that it is
made in spite of these difficulties.5’ Clearly there is no sin of heresy in an act66
66 NoIdin, De praeceptis, n. 33, 3, b.
’’Aertnys, Theol. Moral, 1. II, tract I, n. 16, 2; cf. Gury-Ballerini, Comp. Theol. Moral.,
I, n. 210.
“ This investigation is different from the methodic doubt of Georg Hermes, condemned in
1835 by Pope Pius IX in the Encyclical "Qui Pluribus". Hennes applied the Cartesian method,
and did not simply investigate truth, but first removed it from the mind by a positive act, and
then sought to regain it by a process of purely human or philosophical reasoning. The result
of his method is the opposite of faith, which assents to truth propter auctoritatem Dei revelantis;
cf. Denzinger, nn. 1634-1639.
’· Lehmkuhl, Theol. Moral, I, n. 298, 3 & 4.
M Diet, de Thiol. Cath., "Foi", VI, col. 393 sq.
 32 The Delict of Heresy
which is simply the recognition of the truths that difficulties persist in con-
I; nection with the mysteries of faith.
Distinction must likewise be made concerning the guilt attaching to errors
in faith, when these errors are due to inculpable ignorance, to culpable ignorance,
• and to formal heretical depravity. As has been stated, sheer ignorance is a
negative and unmoral state. A person who holds some heretical tenet because
of complete lack of opportunity to know the truth (inculpable ignorance), is in no
wise guilty of sin in conscience. Ignorance which is due to neglect of oppor­
tunities to learn the truth (culpable ignorance), is sinful in proportion to the
gravity of that neglect. On this basis there is the familiar distinction between
grave culpable ignorance simpliciter, crass and supine ignorance, and affected
: I ignorance. All of these are seriously sinful ; but as long as the sinner is actually
J ignorant that he is denying or doubting a revealed truth, the sin is technically
j not a sin of heresy. This neglect is directly opposed, not to the virtue of faith,
! but to the precept to learn religious truth and to order life in proper relation to
! God and the divinely established economy of salvation.61 It must be added how­
ever that the so-called affected ignorance is sometimes a mere affectation of
ignorance; in other words, the sinner is definitely conscious that he is resisting
jj doctrinal authority, and is deliberately determined not to give assent, no matter
i I what be the teaching of that authority. In this case there is really a deliberate
ii and pertinacious rejection of the very principle of faith, and a formal sin of
jI heresy.62
j The negative considerations, under the headings of temptations and ignor-
| ance and neglect in regard to faith, make clear the positive implication of the
term pertinaciter. There must be a series of intellectual acts under the direc-
1 tion and control of the will. The intellect must formulate an erroneous judgment
P of denial or doubt, must then come to some realization of the opposed doctrinal
authority, must revert to difficulties and objections, and, under command of
i the will, must obstinately hold to the error by persistently considering the evi-
j dence supporting the objections, and by refusing to attend to the extrinsic
j evidence of the doctrinal authority. Etymologically considered, the word perti-
i nacious means holding firmly. Heresy consists precisely in holding firmly to
error which is in some way known to be error, for reasons which may be true in
Î themselves, but which do not justify the assent given to the error. Without this
; quality of pertinacity, there may be material sins of heresy,—erroneous acts
j of judgment which de facto are opposed to revealed truth. With this quality, such
acts are formally sinful, and constitute the subjective element in the delict of
heresy, and are the subjective reason for the serious penalties inflicted by
the Church.
"Sole, De Delictis, p. 223; Chelodi, Jus Poenale, n. 57; Ballerini-Palmieri, Opus Theol.
Moral., II, n. 90.
62 Lehmkuhl, Theol. Moral., I, n. 301.
 CHAPTER THREE

THE DELICT OF HERESY

Heresy has thus far been studied as a sin. This study properly concerns the
moralist, since the sin of heresy, as such, is confined to the conscience of the
sinner. If there is nothing more than the erroneous judgment and the sinful
will which have been described thus far, the Church will deal with the matter
in the court of the internal forum, as part of the regular administration of the
Sacrament of Penance. It is only when the sin of heresy is externalized that the
individual is guilty of a delict,1 and subject to judgment in the external forum
of the Church, and punishable by the penalties contained in the penal legislation
of the Fifth Book of the Code of Canon Law.
The first canon of this fifth book defines a delict as:
“Externa et moraliter imputabilis legis violatio cui addita sit sanctio
canonica saltem indeterminata.”12*

That heresy in general is a violation of laws to which have been added canonical
punishments, is too patent to need proof. But it may be advisable to noté
that these punishments are incurred only by an external and morally imputable
act, and to indicate how these limitations affect the status of those who have
committed sins of heresy.
The principle was established from early times that canonical punishments
cannot be incurred by subjective sins.’ There must be some external act, whose
malice derives from the subjective sin, but whose effect is a disturbance of the
life of the Church as a social body.4 It is for the regulation and protection of
this social life that the punitive features of Canon Law have been established.
Hence, if an individual should commit a sin of heresy, but carefully restrict
his act to thoughts, and in no wise manifest externally what he was thinking,
he would be guilty of serious sin, but not of the delict of heresy. Such a state
could never be known except upon his own confession. But if he confesses this

1 The word “delict” is used hereinafter, instead of such words as crime or offense. The
Code no longer distinguishes crimen from delictum (Cf. Lega, De Judiciis, III, nn. 15, 37, and
Weraz, Jus Decretalium, VI, n. 17, note 38, for the old distinction.) Since the Code uses the
word delictum for even the gravest offenses, we may well adopt its English derivative, and thus
avoid the connotation of civil laws and civil penalties which might be involved in the use of
the word “crime”.
’ Canon 2195, § 1.
’ “Cogitationis poenam nemo patitur”,—c. 14, D. I, de poenitentia.
4 Wernz, l.c., VI, n. 3; n. 153; Noldin, De Censuris, n. 19.
33
34 The Delict of Heresy
sin with the sole purpose of obtaining forgiveness, this forgiveness will be ac­
corded according to the principles guiding the administration of the Sacrament of
Penance, and without any application of the penal laws which are now to be
studied.5.
The second essential characteristic of a delict is that it be morally imputable.
The external act must be (or at least must seem to be), the expression of a mind
that is aware of, and a will that is freely committed to, a sinful act. The pre­
servation of order, and the elimination of quibbling excuses, make necessary
the provision that where the external delinquent act has been committed, the
existence of sin be presumed.· In exceptional cases this juridical presumption of
sin might lead to the imposition of penalties upon a person who in conscience
was free from sin; however, such cases are rare, and in spite of them, the pre­
sumption is reasonable and necessary.
We therefore deal hereafter with heresy as an externalized, morally imputable
violation of the Church’s law. And our first question concerns the mode of
committing this delict. The first and obvious answer to this question is that
the delict of heresy is committed most commonly by words, written or spoken.
This is the ordinary way of externalizing thought. A person who ponders a
question of faith and arrives at a decision, will regularly express his decision
in speech or writing; and if the decision be a pertinacious assent to error, he
is guilty of the sin of heresy as soon as he makes a definite act of perverse will,
and of the delict of heresy as soon as he completely expresses his erroneous
judgment. The Code does punish certain delicts even if they are not carried
through completely in actuality; thus attempted suicide is penalized by canon
2350, §2.' But the general principle is that only completed delicts incur penal­
ties, and this applies to the delict of heresy.7 Hence a person who intended to
write a heretical doctrine which he had conceived, but only went so far as to

5 Blat, Commentarium, III, pars IV, p. 242. Vermeersch-Creuzen, Epitome, II, n. 660 inserts
the word “externe" in the definition of a heretic.
* Canon 2242, §1. This presumption may be disproved by demonstrating the existence of
some one or more of the excuses recognized in canons 2201-2206.
Note also that moral theologians distinguish between the sin of external denial of the faith
(which presupposes that the sinner continues to believe interiorly), and the sin of heresy, in
which faith is rejected both externally and internally. The former is a sin against the com­
mandment to profess the faith ; the later is a sin against the commandment to assent inter­
iorly. But the canonist properly presumes a sin of heresy as the cause of external words and
acts contrary to faith, until the presumption is shown to be wrong by contrary facts. Hence
the same canonical punishments have always been imposed upon both types of sinners.
’ Cf. Canons 2228 and 2242, §1. On this basis, apart from considerations of subjective in­
advertence, there is no delict of heresy in the ejaculations listed by Noldin, De Praecentis, n.
203,3. These words may suggest, but do not state heretical error. Again, a person who states
heretical propositions as a part of a consultation in which he is seeking to learn the truth, is
unquestionably guiltless of the delict of heresy, since the context proves that the propositions
were not advanced as definitive judgments, but almost as questions; cf. Cappello, De Censuris,
n. 64.
 The Delict of Heresy 35
pen a few innocent words of introduction, would not thereby incur the penal­
ties of heresy, although guilty of the sin.
Words are the ordinary, but not the only means of communication. Com­
plete extemalization of thought may exist in signs, acts or omissions. Hence
Pighi rightly states that if a person disbelieves in the Real Presence, and, in token
of this disbelief, deliberately omits to remove his hat in a Catholic Church, he
has completely expressed his heretical tenet, and has incurred censure.
* Noldin
cites the case of those who seek to divine the secrets of the present, past or
future, which are known to God alone, by appeal to spiritistic activities; if
these consultations are made by a person who is at least implicitly aware that
they have been condemned by the Church as both superstitious and heretical,
then the consultation expresses heretical belief, is a delict, and entails cen­
sure.’ In these cases the subjective malice would give specific character to
these acts; but since the special significance of the act would not be clear, the
delict of heresy would remain occult. A judgment that everyone who consults
spiritistic media, or who wears his hat in a Catholic Church, is guilty of heresy
and excommunicated, would be unfair and without justification.1’
The delict of heresy, then, can have many forms. All of them will be serious,
since in regard to faith there can be no partitas materiae. To deny or doubt God’s
Omniscience and Veracity is essentially the same, whether it be in one matter
or another, in form of words or acts or omissions. When however a judge is
determining whether or no a delict has been committed, he will properly look
either for confession by the delinquent, or else some act which clearly and
definitely expresses a heretical mind. To this end the Code itself brands certain
acts as causing only the suspicion of heresy, because they may be committed
by those who preserve the faith, although more commonly they indicate some
heretical tenet.11
The very commission of any act which signifies heresy, e.g., the statement of
some doctrine contrary or contradictory to a revealed and defined dogma, gives
sufficient ground for juridical presumption of heretical depravity.12 There may
however be circumstances which excuse the person either from all responsibility,
or else from grave responsibility. These excusing circumstances have to be
proved in the external forum, and the burden of proof is on the person whose
action has given rise to the imputation of heresy. In the absence of such proof,
all such excuses are presumed not to exist. When satisfactory proof is offered,
• Censurae Latae Sententiae, π. 52, 2.
• De Censuris, η. 58, a; cf. Sole De Delictis, p. 223; Augustine, Commentary, VIII, p. 277;
also S.C.S.Off, July 28, 1847,—Collect, η. 1018; S.C.S.Off, Aug. 4, 1856,—Collect, η. 1128.
10 Thus, in the Decretals, the current heresy of the day was detected by the heretics refus­
ing to take oaths, or to admit their sanctity; by lay preaching; etc. The same acts and tenets
today would not necessarily imply a heretical mind; cf. c.12, X, de haereticis, V, 7.
11 Cf. canon 2319. etc.
» Canon 2200, §2.
36 The Delict of Heresy
the juridical presumption will yield to fact, and the person will be pronounced
innocent of heresy, and not liable to censure.
Among the cases in which it is clear that no delict of heresy has been com­
mitted, are the following. First, when a Catholic (or other baptized person) has
consulted a priest or other well-informed person in order to ascertain religious
truth, he will frequently express his own tentative views and difficulties in words
which are per se heretical. The circumstances make clear, however, that there
is no pertinacity or definite judgment behind these words, and hence no delict
of heresy. Again, Catholic teacher? and writers will often state heretical views,
in order that they may refute them. Statements of this sort do not express per­
sonal judgments, and hence do not constitute a delict of heresy. Finally, Catho­
lics treating of dogmatic subjects frequently forestall objection to their words
and ideas by inserting a preliminary notice that they submit in advance to any
authoritative correction which may be found necessary. In the event of some
heretical tenet being discovered, the author will be called upon to correct his
statements. If he does so, and thereby proves the sincerity of his previous
submission to correction, there is clear evidence that he has never pertinaciously
held to error, and hence he will not be accounted subject to censure or punish­
ment.1’
Somewhat more complicated is the case of a Catholic who denies his faith
exteriority in face of public or private persecution, but inferiority retains com­
pletely his faith in what he denies. His words or acts are realty lies, of a par­
ticularly scandalous nature, and a violation of the commandment of external
profession of the faith. There is no question as to the seriousness of the sin he
commits; but it is likewise clear that it is not a sin of heresy, since inferiority
he retains and actually renews his faith in the dogmatic truth he exteriority de­
nies. Moralists therefore teach that he has not committed a sin of heresy, and
therefore is not bound, in the internal forum, by the censures which the Church
attaches to heresy.14 Canonists admit this teaching in theory, but are careful
to add that in the external forum he has professed heresy (or apostasy), and has
therefore made himself Hable to the punishments inflicted on those guilty of
these delicts.15 In actual practice, the main distinction between formal here­
tics and those who deny their faith under pressure, would seem to be that the
latter will be more anxious to regain communion with the Church, and more
ready to withdraw contumacy, and hence to seek and obtain absolution in both
the internal and external fora.
1J Chelodt, Jus Poenale, n. 57; Cappello, De Censuris, n. 64.
14 Gary, Comp. Theol. Moral., n. 210, q. 3; Donovan, Comp. Theol. Moral., I tract V, n. 38,
1; St. Alphonsus, Theol. Moral., 1. II, tract. I, n. 19, 1.
15 Chelodi, Jus Poenale, n. 57. Cf. Benedict XIV, Constitution Inter Omnigenas, Feb. 2,1744,
—Fontes Codicis J. C., n. 339, in which he treats of the duties of Catholics in face of Turkish
persecution. He insists that they must profess their faith, and condemns various forms of
external denial; but he treats the offenders rather as sinners than as formal apostates.
 The Delict of Heresy 37
In addition to the cases just cited, others may arise in which the delinquent may
claim the benefit of the excusing causes recognized by general law. These are
familiar, and are here only briefly indicated. Any act due to physical force
which completely overmasters the person, is obviously not a delict for which
the constrained person is responsible. Thus a Catholic constrained against
his will to sign a declaration of heresy, or to trample upon a cross in sign of de­
testation of Christianity,16 would not be personally responsible for his act, and
hence would not incur the penalties for heresy.” So too, any involuntary cause
which destroys the person’s ability to reason, renders any words or acts during
this period non-imputable.18 Words or acts committed during sleep or while
the person is only partly awake, are clearly not imputable actions. Finally, the
Church has declared by express legislation that she will not apply to minors
under the age of puberty any penalization which is incurred ipsofacto. Hence such
minors do not incur the excommunication attached to heresy; and this applies
even if the said minor has attained the use of reason and has actually sinned in
conscience.19
In other cases, circumstances may be alleged which do not exclude, but which
do diminish responsibility. Acts of heresy and apostasy have often been oc­
casioned by fear and violence. The Catholic finds that continued external pro­
fession of his faith exposes him (or those dear to him), to dangers involving life,
health, reputation, property and status. These threatened dangers may be due
to persecution by non-Christian or heretical public authorities, or to bigoted
individuals who have power to injure the Catholic. While the Church honors
a long list of martyrs and confessors who braved the worst of worldly evils, it is
likewise true that a certain percentage of Catholics have been and will be guilty
of apostasy or heresy to avert harm from themselves.
Obviously the delict under these circumstances has not the full malice which
would be present were the delinquent not oppressed by vis et metus. Moralists
universally teach that sins committed under stress of grave fear are voluntary

>» Cf. S.C.S.Off., 1863,—Collect, n. 1235.

” Canon 2205, §1.
16 Canons 2201, 2206. For a detailed examination of imputability in cases of physical and
psychical derangement, see Roberti, De Delictis et Poenis, nn. 83-121.
19 Canons 2204, 2230. Vermeersch, Moral. Theol. II, n. 50, seems to suggest that, by virtue
of canon 2230, baptized non-Catholic children may be admitted to active participation in
Catholic divine services, in as much as ‘‘They are not considered, formaliter, as non-Catholics
before they attain the age of fourteen.” The canon certainly indicates that they are not
formally excommunicated, and hence are not excluded directly by canon 2259. However, they
derive from their parents a non-Catholic status which clearly renders such active participation
improper. The decisions of the Holy Office make no distinction of age in banning heretical
children: cf. June 22,1859,—Collect, n. 1176; Nov.20,1850,—Collect, n. 1053. Participation in
singing is reprobated, May 1, 1889,—Collect, n. 1703; or at most tolerated for schismatics
where it cannot well be avoided, Jan. 24,1906,—Collect, n. 2227. Such children are not to be
altarboys at any function, Nov. 20, 1850, Collect, n. 1053, ad 2; July 7,1864,—Collect, n. 1257,
ad 2. Cf. also S.C.S.Off, litt.fad Ep. Harlemen.) April 6, 1859,—Fontes Codicis J.C., n. 950.
 38 The Delict of Heresy

simpliciter, but involuntary per accidens.w The delinquent may seek to be ex­
cused, claiming that his act is similar to that of a Catholic who abstains from
attending Sunday Mass through fear of threatened sickness, or to that of a
Catholic who attacks the validity of a marriage into which he entered under
threats and duress. It is true that the cases cited are recognized instances in
which fear and violence are sufficient to release the Catholic from responsi­
21 But the parallel with the heretic’s delict is not to be admitted. Attend­
bility.20
ance at Mass is required by an ecclesiastical law, which does not oblige sub
tanto incommodo. Marriage contracts are of a privileged character, and will be
voided when either party has been deprived of full liberty. But external pro­
fession of apostasy or heresy is covered by the well known moral and canonical
principle stated in canon 2205, §3 :
Si actus sit intrinsece malus aut vergat in contemptum fidei vel
ecclesiasticae auctoritatis vel in animarum damnum, causae de quibus
in §2 [metus gravis, etiam relative tantum, necessitas, irnmo et grave
incommodum] delicti imputabilitatem minuunt quidem sed non aufer­
unt.
The individual subjected to fear or violence as described above, has always the
choice of braving the dangers threatened, or of avoiding them by a forbidden
act. His choice (except in the rare case in which fear totally overthrows his
reason) is a free and deliberate act, in which he is consciously rejecting obedi­
ence to duty, and choosing the sin of violating law. He may make this choice
with some repugnance, and wish that he were not thus impelled toward sin;
but if he does choose the sin, it is by a free and voluntary exercise of his own
will. Moreover, in choosing heresy or apostasy, he is choosing something which
is in contempt of faith and ecclesiastical authority: for he is rating something
as a higher guide than his faith—namely his wordly well-being. He is likewise
prejudicing the welfare of souls, for his apostasy or heresy is a scandal (in the
theological sense of the term) to others,—a bad example which may readily
serve to mislead other Catholics or to harden the persecutors in their sin. All
this makes plain why, despite their plea, the Church has always held such
delinquents responsible, and applied to their delicts the full penalization of
heresy.22
A second very common excuse for acts of heretical import is that they were
committed in ignorance. In this matter, the familiar distinction of the various

20 Cf. Gury-Ballerini, Comp. Theol. Moral., 1,19-20; Noldin, De Principiis, n. 54-58; etc.
21 Noldin, De Praeceptis, n. 257, e; De Sacramentis, n. 616.
22 Lehmkuhl, Theol. Moral, I, n. 25, 1. Note that moralists, under proper restrictions, allow
the Catholic to keep his faith hidden, not by denying it, but by avoiding a public profession
of it; cf. Noldin, De Praeceptis, n. 21 sq; Lehmkuhl, Theol. Moral, I, n. 292 sq. Where the
Catholic avoids the sin of denying the faith, he can urge that his act is not morally imputable,
and not subject to censure; cf. canon 2205, § 4.
 The Delict of Heresy 39
degrees of imputability finds ready application. There is some ignorance, even
in matters of faith, which is inculpable. In our day as in Paul’s, "How shall
they call on Him in Whom they have not believed? Or how shall they believe
Him of Whom they have not heard? And how shall they hear without a preach­
er?”28 Nor should this text be restricted in its application to purely pagan locali­
ties. Even in our own nominally Christian country, there are many who belong
to some non-Catholic sect or to no sect at all, and there are even some Catholics,
who hold erroneous tenets with every evidence that they do so in entire good
faith and honest acceptance of what seems to them to be truth.24
However often the truths of Catholic faith be stated, the fact remains that
there is likewise counterstatement of non-Catholic errors; and however authori­
tative be the testimony to the truths of revelation, there is likewise a specious
authority supporting the modern tenets destructive of individual dogmas and
of faith in general. Outside the faithful, many have been so reared in anti­
Catholic prejudice that no formulation of words really reaches their minds and
impresses their intellects as possessed of any conclusive force or moral value.
Others, even Catholics, have been taught by those who seem to have a deserved
prestige as educators and writers, that all religion is a myth, with no value
as historic truth, but only some poetic or inspirational charm. Such teachings
erect psychological barriers to the entrance of truth, for which the person him­
self seems little responsible, and for which education and environment must be
blamed. In such cases, since the person has not received a presentation of
religious truth which is adequate for him, it seems entirely proper to hold that
any erroneous doctrines which he might hold or utter would derive from incul­
pable ignorance. He will indeed be presumed, under canon 2200, §2, to be juridi­
cally responsible in the external forum. But in the internal forum of conscience,
a confessor could with assurance find him guiltless of sin. Moreover, an in­
dividual might conceivably wish to assert this claim of inculpable ignorance
in the external forum.25 If he could offer sufficient proof of his claim, the judge
would find him guiltless there too. It may even be stated, on the authority of
priests who have dealt with non-Catholic consciences, that this absence of per­
sonal guilt is not so much the exception as the rule: and that the censures of
canon 2314 apply to the ordinary non-Catholic only by juridical presumption,

«Rom. X,14.
« Cf. Cath. Encycl., "Heresy”, VII, p. 256; “a man born and nurtured in heretical surround-
Ï ings may live and die without having a. doubt as to the truth of his creed .... It is not for
t men, but for Him Who searcheth the reins and the heart to sit in judgment on the guilt which
’ attaches to an heretical conscience.” The recognition of the possibility of this good faith is
j seen in concessions by moralists in regard to internal forum judgments: cf. St. Alphonsus,
j Theol. Moral., II, tract. I, n. 19, 5.
j « Since the person would, ex hypolhesi, not be contumacious, it would be easier to submit
■; to absolution than to seek to prove that absolution was not needed; and the absolution in the
; external forum is justified by canon 2200, § 2.
j < ■
r
40 The Delict of Heresy
and not by actual guilt.28 Certainly many non-Catholics, at the time of their
conversion, state that they had abandoned their errors promptly when they
attained the grace of faith, and there is no reason for holding this intrinsically
impossible.
Whatever may be the general case, there certainly are cases, among both
Catholics and non-Catholics, which differ from the above by being culpable
in various degrees.21 The psychology of their acts has already been described.
It remains to consider what effect the various degrees of guilt have upon the
delict as external violation of penal law.
The general principles are set forth in canon 2229. In the first section of this
canon, it is stated that affected ignorance is not acceptable as an excuse for the
delict, and seems rather to be an aggravation of guilt than an excuse from re­
sponsibility.28 The second section reads as follows:

Si lex habeat verba: praesumpserit, ausus fuerit, scienter, studiose,

temerarie, consulto egerit aliave similia quae plenam cognitionem ac
deliberationem exigunt, quaelibet imputabilitatis imminutio sive ex
parte intellectus sive ex parte voluntatis eximit a poenis latae sen­
tentiae.

At first reading, this principle would not seem to apply to the law governing
heresy, since canon 2314 contains none of the words italicized in the text just
quoted. However, as has been emphasized above, the definition of heresy con­
tains, as one of its essential elements, the word "pertinaciter," and "pertinaciter"
means in D’Annibale’s phrase,29 "sciens volens." The very essence of heresy is
that it be a knowing, deliberate, presumptuous rebellion against the authority
of God and the Church in the matter of religious belief and profession. Hence
the definition of heresy includes a term which is one of the “alia similia quae ple­
nam cognitionem ac deliberationem exigunt. ’ ’
All this has immediate application to cases where the delict was due to cul­
pable ignorance, whether crass and affected, or culpable simpliciter. Ex hypothesi,
the delinquent is ignorant that he has doubted or denied a revealed truth, and,
as noted above, is responsible in conscience for neglect only. This means that
his delict, while still serious, is less imputable than the delict of a conscious
heretic. Hence, by application of the canon just cited, the delinquent escapes

29 Cf. Augustine, Ep. ad Titum, Migne, P.L. XXVI, 598: “Qui sententiam suam, quamvis
falsam atque perversam, nulla pertinaci animositate defendunt, praesertim quam non audacia
suae praesumptionis pepererunt sed a seductis atque in errorem lapsis parentibus acceperunt,
quaerunt autem cauta sollicitudine veritatem, corrigi parati cum invenerint, nequaquam
inter haereticos deputandi." In this same sense, see c. 26-31, XXIV, q: 3.
27 For the general discussion of degrees of culpability, see Wernz, Jus Decretalium, VI. n. 21;
Lega, De Delictis, p. 63; Roberti, De Delictis, n. 76, b; Lehmkuhl, Theol. Moral., I, n. 18.
2S Wernz, o.c., VI, n. 159, not. 72; Sole, De Delictis, n. 115.
29 Commentarium in Constitutionem "Apostolicae Sedis", n. 31.
 The Delict of Heresy 41
the latae sententiae penalties decreed against heresy. It must be immediately
noted, however, that this ignorance must be proved. By virtue of canon 2200,
§2, the fact that a delict has been committed establishes a presumption that
the delinquent was fully responsible. A mere assertion of ignorance will not
suffice. Lay persons will be able to prove this claim more easily than clerics,
non-Catholics more easily than Catholics.
Heretics, who can allege and prove none of the extenuating circumstances
noted above, are subject to the legislation of canon 2314, §1, n. 1, which pro­
vides an ipso facto excommunication. This basic excommunication is the penalty
incurred by all heretics, whether or no they are guilty of other aggravating delicts
which are mentioned in the succeeding numbers of the same canon and section.
It may therefore be called simple heresy, with the term “simple” used in the
sense of the Latin “simpliciter.”
The second number of canon 2314, §1, deals with the punishments to be
inflicted on a heretic who adheres to his heresy despite the punishment in­
flicted by the first number of the canon, and despite canonical warnings issued
to him personally by a judicial Superior. Obsordescentia in peccato novum de­
lictum constituit.^ This perseverance in heresy involves at least virtual repetition
of the original delict, with ever greater contumacy and pertinacity, and hence
greater guilt. This properly leads to the imposition of juridical infamy, to
privation of any benefice, dignity, office or other charge the heretic may have
held, and finally (in the case of clerics and after a second warning) to deposition.
The third number of canon 2314, §1, concerns those heretics who add to their
original delict by joining or publicly adhering to a non-Catholic sect. Thereby
the delinquent accepts the status of one who not merely rebels against doc­
trinal authority, but likewise co-operates and participates in organized religious
teaching and worship other than that established by Christ, and at the same time
gives even greater scandal than would be given by the delict of heresy alone.
Properly, this aggravated delict is punished more severely than simple heresy.
Juridical infamy is automatically incurred. Clerics, by virtue of canon 188, §4,
are declared to have automatically resigned their benefices or other offices; and*
after canonical warning, are liable to degradation.
These penalties will be studied in detail in the following pages. In this con­
nection, a further distinction must be made which will constatly recur,—be­
tween the sentenced and the unsentenced heretic. The latter is a heretic who is
bound by the ipso facto excommunication attached to the delict of heresy, but
who has not been personally dealt with by the judicial authorities of the Church;
he has been excommunicated by the law itself, but has not been sentenced by
ecclesiastical officials. The former is a heretic whose delict has come to the
official notice of the Church, has been proved in judicial process, and has been

·’ Venneersch—Creusen, Epitome, III, n. 513.

42 The Delict of Heresy
made the basis of either a condemnatory of declaratory sentence. All this will
be discussed in following chapters. It is here noted that the term “sentenced
heretic” will be used as a translation of the phrase “post sententiam declaratoriam
vel condemnatoriam," which occurs frequently in the text of the Code.

?
 CHAPTER FOUR

PENALTIES ENTAILED BY HERESY

The Church is a society commissioned to teach the truths of doctrine and

morality which God has revealed. As a society, she must regulate her mem­
bers, and, particularly, judge and penalize any of her subjects whose life and
actions disturb the welfare of his fellows.1 Since the dissemination of revealed
truth is the primary activity of the Church, the greatest possible offense against
the Church as an organization is an action which adulterates this truth with
error.
Hence it is that delicts of heresy and apostasy are dealt with most severely.
The Church uses every effort to dissuade her subjects from sins against charity,
justice, temperance and all the other virtues. But, save in rare instances, she
does not punish offenders against these virtues with penalties of the external
forum, no matter how grave be the sin. Rather, she deals with the sinner through
the tribunal of Penance, in the internal forum of conscience.1
2*In striking contrast,
delicts against faith are visited with her heaviest punishments. The heretic im­
mediately incurs excommunication, and is liable to further vindictive punish­
ments. The reason is plain. Heresy indicates such a destruction of the Christian
character of the delinquent, and, being externalized, has such potentialities of
hindering and preventing the teaching of revealed truth to others, that im­
mediate and decisive action must be taken to prevent any spread of the con­
tagion of error.
All this may sound strange in an age of religious indifference, when even
Catholics are apt to give more attention and care to morals than to faith; but
it is the logical and necessary consequence of the possession of God’s revealed
and final truth, and as such is justified in the judgment of all save those· who
would deny the existence of such truth, or its importance. It is as an applica­
tion of these principles that the Church punishes the delict of heresy in its
various forms. And, considering first the delict of simple heresy, the Church
decrees:
“Omnes a Christiana fide apostatae et omnes et singuli haeretici aut
schismatici incurrunt ispo facto excommunicationem.”’

1 C.l, D. IV, states: “Pactae sunt autem leges ut earum metu coerceatur humana audacia,
tutaque sit inter improbos innocentia, et in ipsis improbis formidato supplicio refrenetur
nocendi facultas." As to the general right to inflict punishments, cf. canon 2214.
2 Wemz, Jus Decretalium, VI, n. 14, 2; Lega, De Delictis, p. 25.
* Canon 2314, § 1, n. 1.
43
 44 The Delict of Heresy
Excommunication is never anything except a medicinal penalty.4 It con­
sists in the exclusion of a delinquent from the communion of the faithful, with
definite consequences which are set forth in the provisions of law. Excom­
munication is not imposed for a definite period of time, whether of years, months
or days; but simply until the delinquent shall have been brought to repentance
of his fault and to amendment of life. Once this purpose has been obtained,
and the delinquent proves the reality of his amendment by repairing any
damage or scandal his delict may have caused, the Church’s judicial officer
must immediately absolve him from the excommunication.5
A delinquent guilty of the simple delict of heresy (who therefore has not
continued in rebellious disregard of canonical warnings and punishments, nor
joined any non-Catholic sect), incurs ecclesiastical excommunication in its
simplest form. It will be easier to examine the implications of the excommunica­
tion in the next chapter, by way of contrast with the status of the sentenced
heretic. Hence the following table merely summarizes the canonical meaning
of this term:

I a. general exclusion from the communion of the faithful; (canon

’ 2257);
[ b. status of a toleratus; (canon 2258) ;
c. loss of right to assist at divine offices, save the preaching of the
; word of God; (canon 2259) ;
d. prohibition of the reception of the Sacraments; (canon 2260);
é. prohibition of active ministration of the Sacraments and Sacra-
mentals, save in special cases determined by law; (canon 2261);
f. loss of participation in the indulgences, suffrages, and public pray­
ers of the Church; (canon 2262);
g. prohibition of legitimate ecclesiastical acts; loss of right to be
f plaintiff in ecclesiastical courts; prohibition of fulfilment of
f ecclesiastical charges and offices, and of enjoyment of privi-
i leges previously granted by the Church; (canon 2263);
h. prohibition of acts of jurisdiction; (canon 2264);
, i. prohibition of participating in appointments to ecclesiastical office,
or of being appointed thereto, or of receiving Orders; (canon
2265).

! This long list of prohibitions and exclusions is summed up in the single term
! excommunication, and all of these penalties are inflicted together upon every
excommunicate, and continue together until the censure is removed by abso­
lution.®

4 Vermeersch-Creusen, Epitome, III, n. 456, 1.

8 Canons 2241, § 1; 2242, § 3; 2248, § 2.
8 Canon 2257.
 The Delict of Heresy 45
The application of these penalties will be examined in more detail in the
chapters treating of the canonical punishment of the sentenced heretic.7 Post­
poning until then all details, the fact may now be noted that the simple heretic
will in most cases be able to take advantage of the legislation by which the
Church mitigates her punishments in the case of occult delicts.
An occult delict is defined as one which is not public; which has not been
noised abroad, and took place in such circumstances that it will not be noised
abroad.8 An act has been committed sufficient in its nature and in the circum­
stances to be a full violation of a canonical penal law, and hence is a delict;
it could have been understood as a delict, had any observer been present, or,
being present, had the observer adverted to the act; but it so happened that
no observer did advert to the act, or at least no observer was aware of the
identity of the delinquent. Occult delicts are distinguished from public delicts,
which are known to the community, or to a small group which will almost inevi­
tably make the delict known to the community ; and from notorious delicts, which
have been committed under such circumstances that they cannot be con­
cealed by any artifice, nor excused by any subterfuge of law (notoriety of fact),
or else have been juridically proved by process of law and so entered upon
official records (notoriety of law).9
The application of these classifications to delicts of heresy is easily made.
All sentenced heretics are notorious at least with notoriety of law. Some simple
heretics and some heretics who join a non-Catholic sect may be notorious in
fact, but the rest, representing perhaps the ordinary case, will be only occult
delinquents. Thus, a Catholic might say, deliberately and sinfully, that he
did not believe in the Real Presence; and yet his words might pass unnoticed,
since this disbelief is common in our community, and the auditors would be in
no wise surprised at hearing this doctrine expressed and hence promptly forgot
the utterance; or else the auditors were a small and select group who can be
trusted not to manifest the commission of the delict or in any way to bring it
to the attention of the community or to the Church’s judicial inquisition.10
Such a delict would be truly occult; and it may well be added that ordinary
private individuals in our communities rarely can attain general notoriety by
sins against faith. Our urban civilization makes for a social anonymity, and
modem indifferentism causes the public to be little interested in the vagaries
of individual belief.
Hence the canons relating to occult delicts have a very common application
to delicts of heresy. These laws are generously conceived, despite the first

7 Chapters Five and Six.

’ Wemz, Jus Decretalium, VI, n. 17; Sole, De Delictis, nn. 9 & 10 Lega, De Delictis, p. 31,
Wemz's phrasing had been adopted in the Code.
» Canon 2197.
10 D'Annibale, Summa Theol. Moral. I, n. 242, not. 49.
46 The Delict of Heresy
principle that must be insisted upon. This first principle is that all persons
conscious of having committed a delict of heresy incur excommunication ipso
facto,n and are bound in conscience to observe the various spiritual privations
implicit in this penalty, even though no external compulsion is exerted against
them.1112* In civil law, punishment is always inflicted by the coercive power of
the state. If the state fails to act, the citizen is not expected to penalize him­
self. But in the Church’s life, much can be and is left to the conscience of the
individual, and the Church can and does require the individual to enforce j
laws against himself as a duty of conscience. She particularly provides that t
those who incur excommunication by an occult delict shall consider them­
selves bound by this censure in both the internal and external forums, and
that they shall do this without waiting for judicial decisions or other compul­
sion by ecclesiastical superiors. As was stated above, delicts of heresy are very
apt to be occult, and hence peculiarly subject to this legal principle. It cannot
be stated too strongly that despite the occult character of the delict, the ex- 1
communication binds the delinquent from the moment that his delict is com­
plete.12 I
The Church does, however, make certain generous concessions to the occult
delinquent. In immediate connection with the general principle just quoted,
the Code goes on to say:14
Ante sententiam declaratoriam a poena observanda delinquens
excusatur quoties eam servare sine infamia nequit, et in foro externo
ab eo eiusdem poenae observantiam exigere nemo potest, nisi delictum
sit notorium, firmo praescripto can. 2223, §4.
Hertce an occult heretic is permitted to continue acting in the external forum in
such a way as to safeguard his reputation as a faithful Catholic; and no one
has the right to force him to observe the full scope of excommunication except
the Superior who issues a judicial sentence.15*17Sole explains this as an applica­
tion of the natural law: Nemo tenetur prodere seipswn.u Ayrinhac prefers rather
the principle that no one should incur punishment unless his guilt is certain,*7—ά
principle which here means that in public estimation no one can be held cer­
tainly guilty unless the commission of the delict is judicially determined, or is
entirely notorious in fact.

11 Canon 2314, §1,1.

“Canon 2232.
“Canon 2228.
14 Canon 2232, § 1.
“ It is obvious, but perhaps needs explicit statement that the judicial Superior is not a
parent or friend, nor a curate nor even a pastor; but only the Bishop or the Holy Office, or
their delegated officials. Cf. cannons 1572, sq.
’· De Delictis, n. 126; cf. Vermeersch-Creusen, Epitome, III, n. 426.
17 Penal Legislation, p. 73.
 The Delict of Heresy AH
This legislation goes far to ease the condition of an occult heretic. Whether
he be cleric or layman, he may continue to do anything in the external religious
order, the omission of which would cause the community to suspect that he
was guilty of serious crime.18* Thus a layman who had always sung in a choir at
High Mass, or acted as master of ceremonies, and who could not suddenly cease
these active participations without incurring obloquy, is free to continue, and
does not thereby violate the provisions of the law of excommunication. On the
other hand, he is bound in conscience to abstain from religious acts which are
not necessary for the preservation of his good name, and which are forbidden to
excommunicates; thus if he were invited to join a choir of which he had never
been a member, he is bound to refuse, since in any ordinary case this refusal
will not incriminate him. Clerics guilty of occult heresy may likewise act in
necessary matters as if they had not been censured; and since the cessation of
religious activities would commonly occasion public disgrace, they will be free
in most cases to continue their religious ministrations. As will be stated below,
the Code permits publicly excommunicated clerical delinquents to administer
Sacraments and Sacramentals, at the request of the faithful.” This permission
applies a fortiori to the occult clerical heretic, whose status is entirely unknown
to the faithful.
A complication may here be noted, which may arise in connection with oc­
cult heresy, which, from the nature of the case, cannot arise in cases of sen­
tenced heretics. Many occult heretics will admit that they are guilty of sin,
but profess ignorance that the Church had attached penalties to their delict.
We have already discussed ignorance that their act was heretical. This is an
entirely different claim; they admit the heresy, and urge only that they were
not aware that they would be excommunicated for their external act.
As regards this claim, the same general principle holds as in any case of ig­
norance: the violation of a promulgated law gives rise to juridical presumption
that the law was known and deliberately flouted.” In civil law the ignorance
that penalties would be assessed for a given act is never accepted as an excuse.
The Church is more anxious to fit the penalty to the delict, and weighs all the
circumstances affecting the moral guilt.’1 She does however, require that these
extenuating circumstances be not merely alleged, but proved in the external
forum.” Hence the occult delinquent’s claim that he was ignorant of the penalty
must be supported by demonstrable facts. Moreover, canon 2202, §2, deter-

18 This legislation concerns only the prohibition deriving from the censure. Despite this
permission, the delinquent may still be bound to abstain from religious acts by the fact that
he is in the state of mortal sin, where such acts would be sacrileges.
” Canon 2261, § 2, up to the moment when a judicial sentence is imposed.
» Canon 2200.
81 Canon 2218, § 1.
” Canon 2218, §2.
J
ί 48 The Delict of Heresy
mines the weight such an extenuating circumstance will have by stating that
mere ignorance of the penalty does not remove all imputability from the delict,
but only diminishes it.23
Iΐ With these principles in mind, the general facts concerning certain classes of
i delinquents may be noted. First, if the delinquent making this claim be a
II cleric, his plea for mitigation must be dismissed, either as untrue, or else as
! indicating ignorance which is affected, or at least crass and supine. His ecclesias-
I' tical training in the seminary, with its moral and dogmatic theology, its eccle-
1 siastical history, not to mention its canon law, all insure that the Church’s atti-
!| tude toward heresy was imparted to him. Thereafter his professional associa-
1J tions and his contacts with Church affairs offer further guarantee that he had
> ]i ample opportunity to know about heresy. Hence his present ignorance is unreal ;
or, if it be real, it can be explained only as deliberately fostered—affected
ignorance,—or else as the result of a complete failure to do even a minimum
of work in regard to fundamental ecclesiastical theory and practice,—crass and
i supine ignorance. Under canon 2229, §1, and §3, n. 1, affected ignorance
u would not excuse from the penalty of excommunication; but crass and supine
ignorance, if it really existed, would excuse.
11 If the occult heretic was an ordinary American lay person, the claim would
,i have more weight. The ordinary lay Catholic has had in childhood a certain
amount of religious training, chiefly in terms of the catechism and the routine
• i of ordinary life. Thereafter he hears sermons and instructions, and occasionally
1 reads something of Catholic books and papers. In addition he observes the
practical life of the Church in his parish and diocese, and to some extent in
the world at large. From all this he derives whatever knowledge he may have
of the Church and her legislation.
It may safely be stated that this training will scarcely inform the ordinary
Catholic of penal legislation in general, and of the penalization of heresy in
particular. He would rather be apt to think of heresy as a sin, an offense against
the virtue of faith, than as a delict against the Church as a society. He might
well advert, before or during the commission of the act of heresy, to the fact
that this is a serious sin, and that it would merit severity when confessed. He
i might even think that it was the sort of sin for which a penitent would be tem­
porarily refused absolution, and told to return after a period of waiting24. All
this is quite compatible with ignorance that heresy is judged and punished by
the Church in the external forum. Moreover, if he did know the term excom-

23 Wemz (Jus Decretalium VI, n. 21) held that the penalty was inflicted on the sin, and that
ignorance of the penalty was an immaterial circumstance. This view was in singular contrast
to even pre-Code teaching (Cappello, De Censuris n. 77), and in any case is overruled by the
Code.
24 This reservation of absolution for sins is sometimes the only idea which lay persons have,
and their understanding of the terms "excommunication”, “censure”, etc.
 The Delict of Heresy 49
munication, and did further know that it was applied to heretics in the past,
there is still room for non-advertence to the imposition of the penalty in the
present. There are many who think that all Church law regarding heresy is as
obsolete and ineffective as the medieval courts of the Inquisition.
Under these circumstances, and subject to exceptions for laymen whose
religious training and opportunities for knowledge were more extensive, the
judge who passes upon the claim of ignorance of penalty may justly find that
the ignorance was real, and that culpability for this ignorance was non-existent,
or very small. This does not mean that the delict of heresy is to be entirely
condoned, since, by canon 2202, §2, the imputability of the delict is merely
diminished; but it does mean that the judge must find that the medicinal
penalty of excommunication was not incurred25 by the action of the delinquent
while he was thus ignorant; and if he is now repentant, there is need only of
punishing him with some exemplary penalty. If however the delinquent is still
contumacious, he is now combining contumacity with complete knowledge of
both delict and penalty, and incurs the full excommunication by his present
acts and words reaffirming his heresy. On this basis, if no other, all sentenced
heretics are excluded from entering this claim against their censure.
There is one practical application of this theory of the diminished imput­
ability of lay occult heretics. A confessor who verified this ignorance in a case
presented by a penitent in the confessional, can judge that the penitent has
not incurred excommunication by his sin, and that therefore the sin itself is
not reserved. He may therefore absolve from the sin by his ordinary powers,
and without seeking special faculties from the Bishop.26 This absolution ap­
plies only to the internal forum.27 If the delict afterward becomes known and is
made the basis of a declaratory sentence, this absolution of the internal forum
cannot be urged in the external forum. Unless the delinquent satisfies the judge
of the external forum of his ignorance, he is held responsible for the delict he
committed. On the basis of this possibility of incurring censure in the external
forum, it may be well for the penitent to seek external absolution as well as that
received in the forum of conscience. Where the delict is now occult and in all
probability will remain so, this recourse to external judgment will not be neces­
sary.
A third group is composed of those baptized and educated outside the Church.
These individuals must be presumed responsible both for the acts of simple
heresy which they commit, and likewise for their membership in a non-Catholic
sect.28 It has been already noted that many of them may honestly enter the

25 Canon 2229, § 3, n. 1.
36 The reservation of canon 2314, § 2, is ratione censursae, and does not exist where the
censure does not obtain; cf. canons 894 and 2246, §3.
27 Canon 2251.
26 Canon 2200, § 2.
 50 The Delict of Heresy
plea that they were in inculpable ignorance that they were sinning against
divine and ecclesiastical revelation. They may with even more probability plead
ignorance that they were subject to canonical penalties. What is unkown to
most Catholics will a fortiori be unknown to non-Catholics.
Ordinarily, however, this plea will not be urged in the external forum. The
Church generally comes to a discussion of their status only when such individuals
are converted and seek entrance into the Catholic communion. The converts
will quite universally adjure their errors, and accept absolution from censure in
the external forum, all without raising the question of their juridical responsi­
bility for previous material acts of assent to false doctrine and violation of
Catholic ecclesiatical law.
* * *** * ***
The discussion thus far has been confined to the simple heretic, and to the
basic excommunication which is incurred by the commission of this delict.
Canon 2314 imposes penalties upon two further offenses which are aggravated
forms of the delict of heresy. Obdurate heresy,—cases in which the delinquent
perseveres in his erroneous tenets despite official correction by judicial superiors,
—receives a very severe punishment which will be examined in detail in the fol­
lowing two chapters. The essential note of this aggravated delict is the fact that
the heretic continues obstinately to hold to his error despite clear knowledge that
all the forces of the Church, her teaching authority and her judicial and coercive
authority, are arrayed in condemnation of the heretical doctine. This state of
obsordescentia of its nature indicates that there is no possibility that the heretic
is in ignorance of the malice of his sin. The heretic’s acts or words have been
judicially established as heretical, and perhaps have been made the basis of a
declaratory sentence. Furthermore, the heretic has been warned of impending
canonical proceedings in which the heinousness of his delict is amply indicated
by the grave punishments which are threatened if he show continued con­
tumacy. All of this indicates that heretics who are guilty of the delict punished
by the second number of this first section of canon 2314 are necessarily formally
guilty in both the internal and external fora, and that none of the excuses and
extenuating circumstances considered above can be alleged in their favor.
The penalties established for heretics of this type include, first, a privation of
any benefice, dignity, pension, office or other charge which the heretic may have
hitherto held in the Church, together with juridical infamy. The words of the
canon “-priventur beneficio, dignitate, pensione, officio, alione munere, si quod in
Ecclesia habeant," are designed to cover any and all cases, and to leave the delin­
quent without any pre-eminence of place or position; so that, even if he later
repents and returns to the communion of the faithful, he can do so only as a
simple member of the Church, without any rank above that of the ordinary faith­
ful. This penalty presupposes that the heretic had previously been served with a
 The Delict of Heresy 51
canonical warning, and that the warning had not been heeded, in the sense that
the heretic did not recant within the time specified for that purpose. In the
case of clerics, a further process may be instituted, beginning with a new warning;
if this warning goes unheeded, and the heretic is thus proved still to continue
pertinaciously and contumaciously in his error, a sentence of deposition may
issue.29
These vindictive penalties may indeed be assessed against any heretic whose
delict can be judicially proved, and who thereafter refuses to recant and make
reparation for the scandal and damage caused by his delict. This does not
mean that in actual fact every unrepentant heretic will be so punished. The
Bishop has the right and duty to determine when to urge these penalties, and
when to leave the heretic to his own conscience and the grace of God.20 In actual
practice, there are each year thousands of Catholics who fall into heresy or apos­
tasy. In the majority of cases their delict is noticed only by friends and rela­
tives, and has nothing of public importance or notable scandal to call it to the
judicial attention of the Church. Even when the offense is notorious in fact,
so that the whole community knows that a former Catholic is now a heretic,
the Bishop may consider that the general welfare will be better served by leav­
ing the delinquent to his own conscience, than by instituting a judicial process
which may be misunderstood in our non-Catholic age, as savoring of bigoted
persecution. What has been here remarked of Catholic offenders applies even
more clearly to non-Catholic heretics. The result is that there are few cases in­
deed in which the process and penalties of canon 2314, §1, n. 2, will be actually
invoked against delinquents. In general, it might almost be stated that such
action would be needed, here in the United States, only when some delinquent
would seek to retain an official place in Catholic ecclesiastical life, thereby
scandalizing the faithful and damaging the Church.
Canon 2314, §1,. n. 3, legislates for another aggravated form of the delict of
heresy; namely where the delinquent, in addition to his heretical words or acts,
formally joins some non-Catholic sect, or at least publicly adheres thereto. The
peculiar malice of this form of the delict of heresy is to be found in the fact that
the heretic is not merely guilty of personal errors in regard to revealed re­
ligious truth, but likewise has made himself a co-operator in the organized life
and activities of a society opposed to the one true Church of Christ. The text
of this legislation is as follows :

Si sectae acatholicae nomen dederint vel publice adhaeserint, ipso

facto infames sunt, et,' firmo praescripto can. 188, η. 4, clerici moni­
tione incassum praemissa, degradentur.

29 Canon 2314, §1, n. 2.

•° Canon 2223.
52 The Delict of Heresy
Question may be raised immediately as to the meaning of the phrase "sectae
acaiholicae.” Augustine states without discussion, as if the matter occasioned
no difficulty:
“A sect is any religious society established in opposition to the
Catholic Church, whether it consists of infidels, pagans, Jews, Mos­
lems, non-Catholics, or schismatics.”31

The following contrary doctine is stated by Vermeersch-Creusen:

“Secta acatholica stricto sensu est coetus religiosus qui, etsi Chris­
tianum nomen retinet, catholicum fidem doctrina vel factis negat.
Excludendi sunt ab hoc conceptu religiones non christianae, v.g.,
judaismus, muhamedanismus, etc., et societates massonum, anar­
chistarum, etc.”32

Cance quotes Vermeersch-Creuzen without comment,83 and hence should be

cited as approving this interpretation. Cocchi makes a significant revision, al­
though he quotes the same authors as reference for his text :
“Non agitur hic de sectis quae nullam religionem profitentur, sed
de secta acatholica quae fidem negat doctrina aut factis; non compre­
henduntur ergo hic massones, socialistae et anarchici.”34

Vermeersch-Creuzen’s distinction is based upon the recognized popular dis­

tinction between the term “sect,”—a recognized distinct group within a generic
religious body,—and the term “religion,”—any one of the four or five great sys­
tems of belief and morals to which the human race is devoted. In this meaning of
the terms, “religion” would refer to Christianity in general, to Judaism in gen­
eral, and so following; while “sect” would refer to interior divisions of these
bodies, such as the Methodists, Baptists, etc., among Christians, and the Phari­
sees, Saducees, etc., among the Jews. On this basis, "secta acatholica” would be
restricted in meaning to Christian, religious groups other than the Catholic
Church.
It would seem that this restricted definition is too narrow in scope. In the
first place, it is clear that the canon refers not merely to heretics, but to apos­
tates as well. It is scarcely possible that an apostate, defined as one "qui
totaliter a fide Christiana recedit,"^ would become a member of any Christian
sect; whereas it is entirely possible that he would join one of the other world

31 Commentary, VIII, 279.

32 Epitome, III, n. 513.
33 Le Code de Droit Canonique, III, 398, not. 3.
34 Commentarium, V, n. 138.
33 Canon 1325, $ 2.
 The Delict of Heresy 53
religions, such as the Buddhists. Moreover, Vermeersch-Creuzen admit, in this
very connection, that the word “secta" is used elsewhere in the Code in reference
to societies which are in no wise Christian,3’ and that the word “acatholica” is
likewise applied by the Code in an absolutely general sense.37 Hence it would
seem to be a forced and unnatural reading of the canon to say that its penalties
are incurred by Catholics who join the Episcopalian or Lutheran sects, but not
by those who join the Buddhists of the Theosophists. This doctrine seems im­
plicit in the changes made by Cocchi,38 and is explicitly supported by Meester,
whose statement admirably sums up the matter:
“Etsi probabilior nobis videatur sententia juxta quam agitur hic de
quovis coetu religioso in quo apostatae, haeretici aut schismatici
. coadunantur, respuentes sive solum catholicismum sive etiam chris­
tianismum, tamen probabilis et practice tuta apparet sententia Ver-
meersch-Creusen. . . .”39

Until some definitive interpretation is given by the Holy See, the stricter opinion
cannot be enforced.”
The Code specifies two ways of committing this delict, formal inscription as
a member of the sect, or the practical'membership which consists in publicly ad­
hering to it. The first would be a matter of record, and hence easy to prove
juridically. It would obtain in those sects which provide a formal process of
admission and a recording of the names of those so admitted. The second ob­
tains in many other sects which do not practice a formal enrolling of members,
and in which membership consists merely in attendance and co-operation in
religious practices. In the internal forum, this delict is complete, and the ipso
facto penalties are incurred by the first external act of sharing in the activities
of the sect, informed by the delinquent’s intention to thereby renounce his
Catholic allegiance and to become one of the sectarian group. In the external
forum, such a single act would scarcely be a sufficient basis for judicial deter­
mination that the penalty was incurred (unless accompanied by the delin­
quent’s confession of his intention), since the same act of attending sectarian
worship may be performed by Catholics who attend non-Catholic weddings or
funerals, and yet have no intention of renouncing their faith nor of joining the
sect.’1
The joining of the non-Catholic sect may follow after the extemalization of

»« Canons 1340, § 1: 693, § 1 ; 2335.

” Canons 1099, §2; 1149; 1350; 987, § 1; 1657. Cf. Schmid, in Apollinaris, Oct.-Dec., 1931,
pp. 552 sq.
·· Commentarium, V, n. 138, quoted above.
• Juris Canonici Compendium, tom. Ill, pars 2, p. 236.
” Canon 19.
41 Canon 1258, §2; Noldin, De Praeceptis, nn. 34-39.
54 The Delict of Heresy
heretical error as a consequence, or may itself be the first external act which
manifests the internal sin of heresy. In either case, the delinquent incurs first
the basic excommunication inflicted on simple heresy.42 In addition, as a penalty
for his aggravated delict, he incurs juridical infamy ipso facto, whether or no
there is further official action by the Church. This is quite independent of in­
famy of fact, and may exist without the loss of reputation in the judgment of
the general public. It is a juridical status, which consists of a series of incapaci­
ties, which may be summed up as follows :4’

1. irregularity, (canon 984), which prevents promotion to Orders; dis­

qualification for benefices, for legitimate ecclesiatical acts, and for
the fulfilment of ecclesiastical offices and charges, (canon 2294,
§1):
2. repulsion from any ministry in sacred functions, (canon 2294, §1) ;
from acting as sponsor in Baptism, (canon 766, §2) ; and in Con­
firmation (canon 796, §3); from receiving Holy Eucharist,
(canon 855, §1);
3. incapacity as witness (canon 1757, §2), as expert (canon 1795, §2), or
as arbiter, (canon 1931).

Moreover, the Code provides that this juridical infamy can be removed only by
dispensation by the Holy See.44
The juridical infamy here spoken of is incurred by all baptized persons who
become members of non-Catholic sects. This legislation therefore includes all
lay persons and all clerics who previously were members of the Church. In
addition, it applies to all those who were validly baptized but were brought up in
sectarian belief. In other words, Protestants, Nestorians, etc., must be pre­
sumed responsible for their external acts in violation of the law of the Church,
unless and until the contrary is proved.45 Consequently, when they formally
joined their sect, or publicly lived in accordance with its tenets and its practices,
they are presumed to have incurred this juridical infamy, along with the general
excommunication for heresy. As has been remarked above, this presumption will
yield to facts; and if any importance attach to the matter of their status in the
external forum, proof of inculpable or simply culpable ignorance of the penalty
will show that the censure and the juridical infamy was not incurred.45

« Canon 2314, § 1, n. 1.
43 For brief history of legislation, and statement of pre-Code provisions, cf. Wernz, Jus
Decretalium, VI, nn. 105-106, and notes.
44 Canon 2295.
41 One application of this may be found in the decision of the Holy Office, Jan. 18,1928,
(4.4.5., XX, pp. 75-76) that non-Catholics may not be plaintiffs in matrimonial causes. See
discussion of this below, p. 81-85.
44 Canon 2229, § 3, n. 1. Cf. Bouuaert-Simenon, Man. Juris Cananiri, n. 1310.
 The Delict of Heresy 55
If a cleric is guilty of this aggravated delict, the Code makes two further pro­
visions. The first is referred to in the text quoted above :
Ob tacitam renuntiationem ab ipso jure admissam, quaelibet officia
vacant ipso facto et sine ulla declaratione, si clericus. . ..
4/ a fide catholica publice defecerit.

This canon (188, §4) is one from the section treating of resignations from eccle­
siastical charges; and the import of this sectionis that the act of severing con­
nection publicly with the Church is a tacit resignation from any office, benefice or
position, which resignation is accepted by the Church without formal notice of
acceptance being necessary on the part of the Bishop or any other official. In
other words, a cleric who joins a non-Catholic sect strips himself, by this very
act, of any ecclesiastical position he may previously have held, and no longer
has any rights or powers deriving from that position.
Just as the simple heretic incurs further penalties by judicial trial and sen­
tence, so too the cleric who joins a non-Catholic sect may be subjected to judicial
trial, and incur a final penalty, if the event proves him contumacious in re­
taining membership in the non-Catholic sect despite the warning and full
knowledge of his offense which the trial makes certain. The penalty provided
for this case is degradation.
Degradation is an even severer penalty than the deposition decreed against
obdurate heretical clerics in the preceding number of the same canon and sec­
tion. By deposition, a cleric is deprived permanently of all offices, benefices, dig­
nities, pensions and functions in the Church, and becomes incapable of acquiring
them in the future; but he is not deprived of clerical privileges, and is not re­
duced to the status of a lay person.*7 Degradation includes deposition, and adds
further penalties to it. Thus a degraded cleric is not merely deprived of any
place or position, not merely made incapable of acquiring them in the future,
but likewise is perpetually deprived of the right to wear clerical dress or to claim
clerical privileges. He retains the powers conferred upon him by ordination,
since nothing can change or remove the character imprinted by the Sacrament
of Holy Orders; but although the exercise of Orders would be valid, he is
forbidden so to act, and hence any exercise of the power of Orders is illicit.47
48
Before this severest of all ecclesiastical penalties can be imposed, there must
be a fruitless warning, a trial of guilt and a finding both that the offense was
committed and that the delinquent cleric is still contumacious. This prosecu­
tion may accompany prosecution of the basic delict of heresy, or may be de­
layed until a vain attempt has been made to secure amendment and recanta­
tion by punishing the heresy alone, under the second number of canon 2314, §1.

47 Canon 2303. Cf. Wemz, Jus Decretalium, VI, n. 120.

48 Canon 2305. Cf. Wernz., o.c., VI, n. 133.
 CHAPTER FIVE

HERESY AND ACTS OF CATHOLIC PIETY

The punishments incurred by heresy have been thus far mentioned only in a
general way. The terms “excommunication,” “deposition,” “infamy,” and
“degradation” refer to punishments whose nature is unfamiliar to most per­
sons, or is known only in a confused way. It is therefore desirable to review in
more detail the meaning of these terms, particularly as they apply to the heretic.
All these punishments are privations of spiritual benefits. The delinquent loses
something he previously possessed. If a heretic, as often happens, entirely
severs connection with the Church and all things Catholic, he has by his own
choice cut himself off from Catholic life, and the fact that the Church likewise
cuts him off will make no practical change in the situation. He has by his own act
deprived himself of even more than the Church would deprive him of. Other
heretics, even after their delict, may still wish to continue certain habitual
Catholic activities. The question therefore arises as to the precise meaning of
the excommunication and other penalties they have incurred: to what activi­
ties have they still a right? what activities may they continue by tolerance?
from what activities are they barred ? For the most part, the answer to these ques­
tions involves legislation which is general for all excommunicates, and is not
peculiar to heretics. It will here be reviewed summarily, with the problem of
the heretic kept foremost.
The basic penalty attached to heresy is excommunication, which is de­
fined as: "Censura qua quis excluditur a communione fidelium cum effectibus qui
in canonibus qui sequuntur enumerantur, quique separari nequeunt."1 The nine
canons which follow may be roughly divided into two groups, the first of which
legislates for certain deprivations in the delinquent’s own religious life, and the
second for certain deprivations in his official ministrations to the religious life
of others. This distinction offers a convenient method of summarizing the
legislation, and it will therefore be followed in dividing the matter between this
and the following chapter.
*********
As regards the heretic’s own life of piety and religion, one general observation
must preface all others. Excommunication is not imposed to prevent or pro­
hibit his personal sanctification. Rather, it is a medicinal penalty, and is decreed

1 Canon 2257.
56
 The Delict of Heresy 57
by the Church in the express hope and purpose that it will serve as a means of
grace and an occasion of repentance for his sin, and lead to amendment of his
life.2* During the period in which the excommunication is in effect, the heretic
is indeed separated from the communion of the faithful; but this must not be
understood as meaning that he is cut off from communication with God. He is
deprived of participation in graces which come through the ministry of the
Church, but not from those which come directly from the merciful generosity
of God. It is indeed the Church’s hope that the heretic, during his enforced sepa­
ration from the common religious life of the faithful, will prosecute more in­
tently his own private religious life, and so come to sincere repentance and re­
gain the state of sanctifying grace.
Hence excommunication does not forbid the heretic to pray as much and as
often as he wills; to use in these prayers any formula of words which may appeal
to him, or any form of meditation and mental prayer; to practice any works of
penance and mortification, or of praise and adoration, or of justice and charity.
In a word, the heretic may and should continue his personal life of piety upon
the same basis as any other sinner; and in his sincere prayers rests his best
human hope of obtaining the grace of repentance. Excommunication deprives
him only of certain acts which are social in their character, and which have their
meaning and value in that they imply a solidarity with the corresponding acts
of the brotherhood of the faithful. The fact that these acts are forbidden should
serve to recall to the heretic’s mind that he is in rebellion against the one true
Church of God, and this in turn should lead him to consider the extrinsic au­
thority supporting the truth he denied, and so move him to recant.
The following pages review these deprivations, and note how various here­
tics are affected in matters of external piety and religious life.

a. Assistance at Divine Offices

Divine offices are sacred functions, instituted by Christ or the Church, for the
worship of God, which can be performed only by those having the power of
Orders.’ Included under this term are the various acts of official divine worship,
such as the Holy Sacrifice of the Mass, the choral recitation of the canonical
hours, liturgical processions, consecrations, and blessings. There are various
popular devotions which are not, technically, divine offices; such as the recita­
tion of the Rosary, the following of the Stations of the Cross, morning and even­
ing prayers, etc. Even if these services are conducted by a priest, they do not
thereby become divine offices, since by their nature they may be conducted by
any person, lay or clerical.4

2 Canon 2215.
• Canon 2256, § 1.
4 Sole, De Delictis, n, 202; Cappello, De Censuris, n. 149.
58 The Delict of Heresy
Canon 2259, §1, states that excommunicates are deprived of the right of
assisting at divine offices, but makes no mention of other devotional exercises.
Leaving this phrase “caret jure" for later consideration, it may be noted that the
canon goes on to direct those in charge of the divine offices as to their conduct
in regard to heretics. It first considers the case in which the heretic seeks merely
to attend passively, i.e., merely as one of the congregation. In this case, it is not
necessary that he be expelled, unless he has been characterized as vitandus in a
sentence of excommunication issuing directly from the Holy See, naming him
personally, and indicating expressly that he must be avoided by all the faithful.5*
The vitandi are few in number, and such cases will rarely occur.» The other
heretics, even though they have been subjected to a declaratory or condem­
natory sentence, may be permitted to attend passively. The law however
gives the celebrant implicit permission to cause the expulsion of any heretic
whose presence would be a scandal. The phrase “non est necesse ut expellatur"
clearly implies that while it is not necessary in every case, it may be done in
certain cases. However, no occult heretic can be subjected to this expulsion,
since no one has the right to cause him to observe his excommunication in the
external forum. Even if the celebrant knows that the occult heretic has incurred
excommunication, he cannot order his expulsion. Hence, it may be stated, in
general, that those in charge of divine offices are not obliged to prevent here­
tics, ratione censurae, from attending these offices. Any action on the part of the
clergy will be dictated by the natural law, and will be intended only to prevent
irreverences or scandals, when these may be anticipated as a result of the here­
tic’s presence.
The same canon 2258, §2, imposes a different and stricter obligation on those
in charge of divine offices, if a heretic seeks to participate actively in the cele­
bration of the office. In this case they are required to repel not merely the
vitandus, but likewise all notorious heretics, whether the notoriety be in law or in
fact. There is no mention of occult heretics, nor of those whose offense is public
but not notorious.’ There is therefore no obligation, on the basis of this canon,
to repel delinquents of these types; action need only be taken when there is
danger of scandal or irreverence. But in all cases in which the delict was no­
torious, the obligation binds those in charge of the office sub gravi. «

5 Canon 2258.
’As to the mode of discontinuing the service, see Cappello, o.c., p. 42, note. Cf. Hyland,
Excommunication, p. 66-68.
’ As to this distinction, see canon 2197 and commentaries thereon. Note also that no one
can require an occult heretic to observe his excommunication in the external forum, until he
has been judicially sentenced (and therefore ceases to be occultly excommunicated),—canon
2232, § 1.
• Failure to repel sentenced clerics is punished by an interdict ab ingressu ecclesiae—canon
2338, § 3; if the cleric is vitandus, failure to repeal him is punished by an excommunication
reserved simpliciter to the Holy See,—canon 2338, $ 2. These penalisations are incurred only
by those who fail scienter.
 The Delict of Heresy 59
Active participation is defined by the Code in terms that are broadly exten­
sive: “Assistentia . . . quae aliquam secumferat ■participationem in celebrandis
* Under this term will be included all the activities, during a
divinis officiis.”910
11
divine office, of priests, deacons, subdeacons, and inferior ministers whether
clerical or lay; the chanting or saying of psalms, prayers, etc., in the choral reci­
tation of the canonical hours; participation in liturgical processions, consecra­
tions and blessings; singing in the choir at a liturgical service. There is con­
troversy among canonists as to whether or no an organist playing with a choir
participates actively;19 and hence a heretical organist may appeal to reflex
principles and insist that a doubtful penalty be not assessed against him.11
All these activities, save probably the last, are to be forbidden any heretic
whose delict is notorious. Other heretics may be permitted such participation;
although it must be kept in mind that even when positive law is silent, the natural
law binds those in charge of divine offices to take prudent care to avoid the
scandal of seeming to rate heresy or apostasy on a par with true faith by per­
mitting heretics or apostates the roles which belong to the faithful.1’
When canon 2259 is approached from the viewpoint of the heretic, its in­
terpretation is more difficult. As was stated above, the Church will, in practi­
cally every case, tolerate his presence as a witness of divine offices. Does this
mean that he is perfectly free in conscience to avail himself of this toleration?
or is he bound in conscience to recognize his status, and remain away from the
official services of the Catholic Church?
There is no doubt that the ancient discipline of the Church was very strict
in this regard. The Fourth Council of Carthage expressly provided that here­
tics might attend only the Mass of the Catechumens, and this canon was among
those quoted by Gratian.11 When heresy became a new and pressing danger in
Europe, the Third Council of the Lateran, in 1179, forbade such attendance.14
Even after Martin V, in 1418, distinguished between the tolerati and the vitandi,
the attendance of an excommunicate at any divine office was deemed a serious
offense.1516

9 Canon 2259, § 2.
10 Chelodi. Jus Poenale, n. 37, favors the view that the organist participates actively;
Augustine, Commentary, VIII, 177, and Noldin, De Censuris, n. 39, favor the negative view.
A decree of the Holy Office, Feb. 23, 1820, permits heretics to play the organ when no other
organist can be secured,—Collect, n. 739.
11 Canon 19. ,
11 Vermeersch-Creusen, Epitome, III, n. 461, ad 1.
u C. 67, D. I., de consecratione.
14 Canon 9,—Mansi, XXII, 223. Gregory IX later refers to this canon, and states that he
has punished transgressors,—c. 31, X, de praebendis, III, 5.
16 Hyland, Excommunication, p. 55.
60 The Delict of Heresy
Change in this discipline came not by law, but by custom. D’Annibale was
the first to record that confessors rarely instructed tolerati to abstain from at­
tending divine offices, and that excommunicates commonly did not know of any
obligation to remain away. On this basis, he argued that the obligation to ab­
stain from assistance was either non-existent, or else bound only under pain of
venial sin.16 Other notable theologians and canonists noted that this teaching
was at least probable.17 Thus, in the years just preceding the writing of the
Code, the duty of tolerated excommunicates to remain away from divine offices
was seriously questioned.
This modem doctrine was necessarily familiar to the Commission that wrote
the Code. Hence the difficulty of interpreting the ambiguous formula of canon
2259, §1. This states: "Excommunicatus quilibet caret jure assistendi divinis
officiis.” The phrasing is open to either a strict or a benign interpretation. It
may be understood to mean that heretics have a duty to stay away, or else
that they simply lose the right to attend. In the second interpretation, the loss of
right does not necessarily imply a prohibition against attendance; the ex­
communicate may licitly attend, but has no ground for a claim of unjust treat­
ment if he is refused admission. Commentators are divided as to which of these
opinions is more consonant with the second section of this canon, and with
other penal canons.18 The result is that the duty is at best doubtful, and in
practice cannot be insisted upon. If a tolerated heretic wishes to attend divine
offices, such as the Mass, he cannot be told positively and definitely that this
attendance is a sinful violation of this censure.19
One particular case of some importance is that of a Catholic who commits a
delict of heresy, and then wishes to know if his status as an excommunicate
releases him from the obligation of attending Mass on Sundays and holydays.
The principle is well recognized that no one should profit by his own malice.
On this basis Michiels holds that the general precept, requiring attendance under
pain of mortal sin, still applies and binds in conscience;2® in this opinion he is
supported by all those commentators who hold that the present canon simply
deprives the heretic of a right, but does not impose a prohibition.21 On the
other hand, Chelodi,22 Cappello,23 Noldin,24 and Aetnys-Damen25 hold that the

” Summula Theol. Moral., I, n. 362, not. 19.

17 Bucceroni, Comment, de Censuris, n. 99; Lega, De Judiciis, III, n. 139; Genicot, Institut.
Theol. Moral., n. 583.
13 Particularly canon 2275.
19 Cf. Hyland, Excommunication, pp. 53-68, where the various opinions and arguments are
carefully canvassed. Note that all agree that the vitandus is certainly bound to abstain from
attendance.
20 Normae Generales, I, p. 287.
21 Vermeersch-Creusen, Epitome, HI, n. 461; Ayrinhac, Penal Legislation, p. 121.
 The Delict of Heresy 61
excommunicate is still forbidden to assist at divine offices; and being thus for­
bidden, the general precept to attend is superseded by the special precept to
stay away. Once again the matter is doubtful, and in practice the heretic cannot
be held to the general obligation, nor judged guilty of mortal sin if he has failed
to attend Mass on days of obligation.21
*26
There is one special divine office which has not been mentioned, but for which
special provision is made in the Code. This same canon 2259, §1, specifically
provides that every excommunicate still retains the right to be present at the
preaching of the Word of God. Nothing could illustrate better the medicinal
purpose of the Church’s penal legislation than this provision. The church’s
mission is to preach the Gospel to every creature, and, like her Founder, to
seek especially for the sheep that are lost in sin. Hence no matter how grave
the guilt of any heretic, he is always permitted to attend sermons, instructions,
missions and conferences, in the hope that the preaching of revealed truth may
convert him from his errors, and so direct him back to the one true fold of
Christ.27

b. Reception of Sacraments
Canon 2260, §1, states that heretics cannot receive the Sacraments; and if
they have been juridically sentenced for their delict, they cannot thereafter
receive the Sacramentals during the period of their excommunication. The
reason is obvious. The Sacraments are the chief means of grace whereby the
Church procures and supports the supernatural well-being of her subjects.
The heretic who has cut himself off from the Church has not the slightest right
to turn to her and expect from her hands these greatest of spiritual favors. His­
torically, deprivation of the Sacraments has always been the penalty assessed
against heretics, from the earliest canons and regulations up to and including
the legislation of the Code.28

21 Jus Poenale, π. 37.

23 De Censuris, n. 149.
11 De Censuris, n. 39.
26 Theol. Moral., Π, 1002.
26 Except where he neglects to secure absolution from the censure precisely that he may be
free from the necessity of obeying this or such other precepts as that of Easter Communion:
Cappello, o.c., n. 108.
27 Certain authorities insist that this right cannot be extended so as to give the delinquent
permission to attend divine Offices, (where this permission would not otherwise be accorded),
even though sermons and instructions are commonly delivered during the course of such
offices. Cf. Cocchi, Commentarium, VIII, n. 87 ; Blat, Commentarium, V, n. 86.
28 Cf. c. 59, X, de sententia excommunicationis, V, 39. Note that this penalty was the chief
element of minor excommunication, imposed on those who communicated with heretics before
the Constitution "Ad Evitanda". This minor excommunication was abrogated by the Con­
stitution "Apostolicae Sedis". Oct. 12,1869, —Fontes Codicis J.C., n. 552.
62 The Delict of Heresy
Familiar theological principles indicate that this canon makes the reception
of sacraments illicit, but not invalid. The validity of the Sacraments depends,
not upon ecclesiastical law, but upon the presence of proper matter and form,
confected by a qualified minister. With these elements present, the Sacrament is
valid, but will be illicit if the further requirements are not met by the minister
or the recipient of the Sacrament. The present question concerns a heretical
recipient.
This law offers little difficulty in the case of Catholics who have been excom­
municated for the delict of heresy. They are forbidden to receive any Sacrament
during the period of their excommunication, which is to say, until they have
received absolution from their censure. If they were to receive any Sacrament,
they would be guilty of a serious offense against this obligation, which binds not
merely in the external forum, but also in conscience.” Of course this violation of
the censure is a distinct offense from that of receiving a Sacrament while in the
state of mortal sin. In other words, even if the heretic regain the state of grace
by an act of perfect contrition, he is still bound, trader pain of sin, to observe his
censure and to refrain from receiving any Sacrament until he has secured abso­
lution from his excommunication.
A different and interesting problem arises in connection with heretics who
have never been Catholics. Theologians have recognized that in certain cases
priests may wish to administer Sacraments to them, and have discussed the
liceity of this administration. A brief review of this discussion will be apropos.
First, it may be noted that definite and familiar provision has been made
concerning heretics and the Sacrament of Matrimony.” When the Church
grants a dispensation super mixta religione, there can be no question of the
liceity of the Sacrament conferred upon the non-Catholic party. Again, there
need be here no discussion of the Sacrament of Baptism, since this is in all cases
conferred upon one who is, not a heretic, but an infidel or unbaptized person.’1
Likewise, the Sacraments of Confirmation, Holy Orders and Holy Eucharist are
not necessary to the non-Catholic’s salvation, and hence do not fall within the
reasoning here reported.
The case in point is that of a non-Catholic who has lived all his life as a non­
Catholic, with every appearance of being in entire good faith as regards his
membership in some sect, or as regards his non-membership in any sect. He is
baptized, a Christian in belief and profession, and, in every human judgment, a
good, charitable and moral character. This individual is found by a priest in
what theologians call extreme spiritual necessity; that is, he is now dying, with

” Canon 2232.
*’ Marriage between two heretics, canon 1012, § 2, 1099, § 2; between a heretic and a
Catholic, 1061-1064.
11 For discussion of Baptism of such persons, conditionally or absolutely, see King Adminis­
tration of Sacraments to Dying Non-Catholics, pp. 42-48.
 The Delict of Heresy 63
judgment and eternity in immediate prospect. Granted human frailty, he prob­
ably has sins to answer for; and with equal probability it may be thought that,
despite his general good character, he has not been so perfectly contrite as to have
attained forgiveness. In such a case, many priests wish, out of love for souls,
to administer the sacraments of Penance and Extreme Unction. They hold that
the dying man has all the necessary dispositions required for valid reception
of the Sacraments, and that therefore his sins will be forgiven, and another
soul will be added to the court of Heaven.
There is no difficulty about administering the Sacraments to those who
manifest, even incompletely, a desire to enter the Communion of the Church,
and to receive her Sacraments. Even though the dying man lapses into uncon­
sciousness before the arrival of the priest, he may be given absolution and Ex­
treme Unction. In the case of the dying, the Church grants all priests the most
generous faculties, over every sin and every censure.’2 The smallest indication
of desire for their exercise will justify the administration of the Sacraments, at
least sub conditioned
The real problem concerns those who are dying without expressing in any way
a desire to join the Church, or without repudiating in any way their non-Catholic
life. It may be held that many of these individuals are in subjective good faith,
and that' they have a real desire for salvation, which contains at least implicitly
*24 In ignorance of their actual dispositions, reverence
a desire for the Sacraments.22
for the Sacraments is safeguarded by administering them sub conditione. The
objection of scandal can be met and removed by various measures,—secrecy,
words of explanation, etc.25
All this favors the administration of the Sacraments in these cases. As against
administration, the words of Canon 731, §2, may be quoted :
Vetitum est sacramenta Ecclesiae ministrare haereticis et schis­
maticis, etiam bona fide errantibus, eaque petentibus, nisi prius,
erroribus rejectis, Ecclesiae reconciliati fuerint.
It would scarcely be possible to find a prohibition more strictly and absolutely
expressed. The wording of the law is explicit, and covers exactly the cases pro­
posed, save in the one element that the canon is general, whereas the present
discussion relates to a special case, in which the heretic is dying. And while it
is true that canon 882 gives the priest such broad powers, urgente periculo mortis,

22 Canon 882.
22 As early as 441, the Council of Orange accepted a mere nod in answer to questions, or
even the testimony of others, as sufficient indication of repentance. Pope Leo I (452) expressly
confirmed the acceptability of the testimony of bystanders in regard to the repentance of
heretics: Denzinger, n. 147. Cf. c. 4-32. C. XXVI, 6.
24 Cf. Gury. Casus Conscientiae, casus III. De Virtutibus, I. p. 118.
22 Cf. LaCroix, Theol. Moral, 1. VI, pars II, n. 1866; he would permit a priest to change his
garb and approach the individual incognito; the practice would seem to be too open to scandal.
 64 The Delict of Heresy
that he can be sure of the validity of his absolution if the dying heretic has the
proper dispositions, the question still remains whether he can act licitly, in view
of the strict prohibition decreed by canon 731, just cited.
Turning to decisions of the Holy Office, it is clear that the traditional view
always required some sign of repentance and of desire to return to the true
Church.36 There are however, certain decisions which have been cited in favor
of the proposed practice. Three of these may be grouped together, in as much
as the text is practically identical.37 The case proposed concerned the practice
of administering Viaticum and Extreme Unction to natives of Canada and
China who had been baptized, but who had not received sufficient instruction
for the other Sacraments; these individuals came into danger of death, and the
question arose as to whether they might receive these Sacraments despite their
incomplete preparation. The answer was:
“Non esse administrandum Viaticum. . . . Non esse pariter conferen­
dum Sacramentum Extremae Unctionis neophyto moribundo quem
missionarius capacem Baptismi credidit, nisi saltem idem habeat
aliquam intentionem recipiendi Sacram Unctionem in beneficium
animae pro mortis tempore ordinatam.”

As is evident, these decisions do not precisely relate to the point here in question,
and simply indicate that the Sacrament of Extreme Unction may be admin­
istered when the subject has “some intention” of receiving its benefits. While
this formulation is sufficiently generous to cover the case of a God-fearing non­
Catholic, who implicitly desires anything which will benefit his soul at the hour
of death,38 the case in general concerns, not a person who has made no con­
nection with the Church, but neophytes, who have formally adhered to Catholi­
cism.
Another decision concerned the practice existing at Jerusalem of absolving
heretics and schismatics when dying, without insisting upon a sign of recon­
ciliation to the Church. The decision was:
“Usum de quo quaeritur, prout exponitur, esse improbandum; et
ad mentem: La mente è de accenare a Mons. Patriarca de Gerusaleme
che, qualora il monobundo eretico o scismatico avesse dato un qualche
signo su cui fondare un ragionevole dubbio che quegli aderisca alla
santa Chiesa cattolica, in tel caso i preti di quella delegazione dovrano
seguire le norme dettate da accreditati autori.”39

“ S.C.S.Off., May 9,1821,—Collect., n. 757: Aug. 1, 1855,—Collect., η. 1116; July 8, 1874,—

Collect., n. 1419; July 20, 1898,—Collect., n. 2012; etc.
» S.C.S.Off., May 10, 1703,—Collect., n. 256; cited later by S.C.P.P., Sept. 26, 1821,—
Collect., n. 768, and S.C.S.Off., April 10,1861,—Collect., n. 1213.
’* Kjlker, Extreme Unction, p. 128.
»· S.C.S.Off., Jan. 13, 1864,—Collect., n. 1246.
 The Delict of Heresy 65
The plain import of this decision is that administration of Sacraments to here­
tics who remain heretics is prohibited; that before administration, there must
be some sign that they desire to attain membership in the true Church. This text
should rather discourage than encourage the practice we are now considering.
The next decision in point is dated July 20, 1898. It is evidently influenced
by the writings of modem theologians on this point. To the question:
“An aliquando absolvi possint schismatici materiales, qui in bona
fide versantur?”
the Holy Office replied :
“Cum scandalo nequeat vitari, Negative: praeterquam in mortis
periculo, et tunc efficaciter remoto scandalo.”40
It is evident that the Holy Office is willing to conceive of cases in which
schismatics can be absolved, remoto scandalo, without the previous reconcilia­
tion which had hitherto been explicitly required. The omission of this con­
dition cannot have been an oversight, and therefore must be taken as a relaxing
of the older and sterner discipline.
The decision of May 26,1916 must next be considered. One interesting feature
of this decision is the fact that it antedates by only a year the issuance of Bene­
dict XIV’s Encyclical Providentissimus Deus, which promulgated the Code
and set the following Pentecost as the date of its going into effect.41 Moreover,
the date of this decision is only six months preceding the date of the announce­
ment, in secret consistory, of the completion of the work of codification.4’ While
it is possible that the decision was rendered with full knowledge that it would be
reversed by the Code shortly to go into effect, this possibility is scarcely conso­
nant with the practice of the Holy Office. Hence the proximity of dates is
some argument4’ that the Code does not reverse the Holy Office’s decision, and
that the two can be harmonized. Another feature of some importance is the
fact that this decision was never officially published in Rome. It is quoted by
Pruemmer44 and Reuter45 only from Catholic papers. The absence of publica­
tion in the Acta indicates some limitation of its general application.
The question proposed was the licitness of conferring Penance and Extreme
Unction on schismatics who were unconscious and in danger of death. The answer
was given in the following terms :

« S.C.S.Off., July 20, 1898,—Collect., n. 2012.

41 May 19, 1917.
42 Nov. 4, 1916; cf. Falco, Introduzione allo Studio del Codex Juris Canonici, p. 29.
43 Augustine, Commentary, IV, 353, notes of a similar argument that it is of little juridical
value.
44 Manuale Theol. Moral., Ill, p. 223, quoting the Linzer neolozisch-Praktische Quartal-
schrift, L, (1916), 504 sq.
46 Neo-Confessarius, n. 203, quoting the Koelner Pastoralblatt, 1916, 693 sq.
66 The Delict of Heresy
“Sub conditione, affirmative, praesertim si ex adjunctis conjicere
lieat eos implicite saltem errores suos rejicere, remoto scandalo, mani­
festando scilicet astantibus Ecclesiam supponere eos in ultimo mo­
mento ad unitatem rediisse.”
The permission to give Sacraments to those who desire them implicitly, on the
supposition that they have, during their last unconscious moments, formulated
a desire to return to the Church, is generous and charitable; and while the
decision was rendered concerning schismatics, it may fairly be applied to here­
tics whose condition and good faith is parallel.4*
There is then this one clear decision of the Holy Office covering almost exactly
the case here under discussion, and permitting the administration of Sacraments,
provided scandal is removed. As against it there is the general prohibition of
canon 731, §2, which forbids the administration of the Sacraments of the Church
to heretics and schismatics, even though they are in good faith, and even though
they request them, unless they first reject their errors and are reconciled to the
Church. The Code makes no distinction between the well and the sick, between
the conscious and the unconscious. Elsewhere in the Code, there is the same con­
scious endeavor to exclude heretics and schismatics.47 It would seem that a study
of the Code justifies Kilker’s verdict that from a juridical viewpoint, those out­
side the Church are not suitable recipients of the Sacraments.48
Apart from this legal discussion of the problem, moral theologians offer a solid
and weighty (though conditional) approval of administering the Sacraments in
the cases in question. D’Annibale recorded his opinion that Extreme Unction
might be given to a person suddenly stricken with unconsciousness and danger
of death, even if he had given no sign indicating desire for the Sacrament, when
it is probable that he would not reject such aid, and particularly where he is
an uninstructed (rudis) person of good faith, or a person who has never been
adverse to Catholicity.49 Kenrick, who wrote with more intimate knowledge
of conditions in the United States, was stricter; he would extend this permission
only to those who had shown some leaning toward the Church.59 Noldin51 and
Genicot5’ would allow secret and conditional absolution of a heretic whose good

49 Kern, Tractatus de Extrema Unctione, p. 317 would restrict the application of these de­
cisions to schismatics who share the Catholic faith in these Sacraments,—Orthodox Greek,
Nestorians, etc. On this basis, only certain High Church Episcopalians, among the familiar
heretical organizations, could be given the Sacraments.
47 Cf. “Fidelis" in canons 1161,1162, § 3, 1169; compare canons 1188 and 2259, § 1; canons
906, 925, 1152. In all these “fidelis” is clearly restricted to the Catholic faithful.
49 Extreme Unction, p. 126.
n Summula Theol. Moral., Ill, 317. He quotes as authority a text from St. Augustine
which, Kilker notes (o. c., p. 133), applied to the very different case of a dying catechumen.
59 Epitome Theol. Moral., p. 413, n. 50.
51 Theol. Moral., Ill, n. 295.
*» Institutiones Theol. Moral., II, 298; cf. his Casus, p. 424, casus 619.
 The Delict of Heresy 67
faith made his heresy a purely material delict, and who, though still conscious,
cannot prudently be further instructed. Tanquerey thinks it would not be
illicit to absolve dying heretics who cannot now be instructed in the true faith,
and whose heresy is purely material.53*55
Among more recent writers, Vermeersch-Creusen in their commentary on
canon 731, §2, itself, introduce a distinction between Catholics in good health
and those in danger of death.54 The same distinction is found in Vermeersch’s
Moral Theology.55 Pruemmer would allow the administration of Penance, but
not of Extreme Unction.56 King, in his dissertation on this very subject, allows
the administration of both Sacraments.57
The names just cited are not a complete list, but in themselves constitute a
weighty body of extrinsic authority for any opinion. There exists therefore the
seeming contradiction between a law which seems clear and definite, and an
opposite teaching by probati auctores. The solution would seem to lie in the
fact that law, as law, deals with the regular and ordinary cases.58 On this basis,
the Church has insisted that her Sacraments be given only to her own faithful;
and, mindful of her traditional attitude toward heresy, she imposes on her
ministers a strict obligation not to administer the Sacraments to others, no
matter how good their faith, nor how explicitly they request sacramental aid.5’
Moralists, on the other hand, deal with exceptional cases, and heed particularly
small distinctions which cannot possibly be provided for in general legislation.60
With the familiar doctrine of “extreme spiritual necessity” before them,61
they recognize that a great spiritual good can be obtained (probably), and that

53 Brevior Synopsis Theol. Moral, n. 1194.

« Epitome, II, n. 16. Kilker (Extreme Unction, p. 132) criticizes this passage: it wrongly
implies that canon 731, §2, refers only to administration to those that are healthy; whereas
admittedly the canon refers also to Extreme Unction, which is always administered to the
sick.
55 Theologia Moralis, III, 195.
66 Manuale Juris Canonici, III, De Sacramentis, p. 1.
57 The Administration of the Sacraments to Dying Non-Catholics, p. 78.
66 St. Thomas, la-IIae, q. 90, art. 2, writes “Legislator in eis [legibus] statuendis attendit
id quod communiter et in pluribus accidit. Si quid autem ex speciali causa in aliquo inveniatur,
quod observantiae statuti repugnet, non intendit talem legislator ad statuti observantiam
obligare. In quo tamen est discretio adhibenda.” Cf. also Ila-IIae, q. 147, art. 4.
69 Kenrick (Moral. Theol., De Virtute Religionis, n. 46) records an interesting case: “In foro
externo ornes censentur haeretici qui errorem contra fidem in secta aliqua profitentur. Ideo
severe correptus est a Suprema Inquisitione sacerdos quidam qui hominem a secta Calviniana
a censuris absolvit absque facultate necessaria, praetextans quod ‘cum ignarus haeresum et
errorum Calvini esset, non posset dici haerticus formalis.’ ‘Ipsius opinio potius metaphysica
quam vera in S. Officio non est recepta’. ’’ Considering only the question of subjective good
faith one may question the dictum that the good faith and consequent purely material sin of
heresy is “potius metaphysica quam vera" in many cases today.
•° “Quod non est licitum lege, necessitas facit licitum”,—c. 3, de regulis juris, V, 41.
61 Noldin, De Praeceptis, II, nn. 75-78. According to this moral principle, all men are bound
to assist a neighbor in extreme spiritual necessity, even though this assistance involves risk of
life itself.
 .1

68 The Delict of Heresy

small evils are present only indirectly and by tolerance,—the administering of
Sacraments sub conditione, some minimum of scandal, and technical violation
of the exact letter of the law. Judging the relative proportions of these con­
siderations, they conclude that it would be unreasonable to interpret the law
with absolute rigor; and since the Church is never unreasonable, they con­
clude that these cases are not contemplated by the law.62* This is the moralist’s
equivalent of the epikeia of canonists, and serves to indicate that the applica­
tion of epikeia to this canon has a prudent basis.62
Canon 731, §2, will therefore be understood as imposing a strict warning
against any lax concessions to heretics. But as regards exceptional and extreme
cases, Kilker’s verdict may be adopted:
“A priest who gives Extreme Unction [or Penance] to dying here­
tics has enough of extrinsic probability on his side to save him from
any scruples of conscience or criticism by his superiors. Again, a priest
who does not anoint [or absolve] in these cases cannot be impugned for
a lack of love toward souls. He has in support of his refusal argu­
ments whose intrinsic worth are [ric] much greater than those which
prompt the contrary mode of procedure.’164

*********
The Code defines Sacramentels as: “Res aut actiones quibus Ecclesia in aliquam
Sacramentorum imitationem, uti solet, ad oblinendos, ex sua impetratione, effectus
praesertim spirituales.Among Sacramentels are included certain religious
articles which have been blessed,—holy water, candles, etc.,—sometimes called
permanent Sacramentels because of the durability of the articles themselves; and
certain rites, sometimes called transient Sacramentels, since the spiritual benefit
is connected with an action.66
Cmica states that prior to the Code there was no explicit legislation for­
bidding heretics or other excommunicates the reception of Sacramentels.67 It
would seem that this omission is explained by the fact that it was deemed

62 Reuter, Neo-Confessarius, p. 203, suggests that canon 731, 2, is the official teaching of the
Church, whereas the decision of the Holy Office is what "Ecclesia, pia Mater, non-officialiter
concedat.” This distinction of official and unofficial is rather unhappy. It suggests that there
exists outside the law an esoteric discipline which is available only to the initiated, while
others remain bound by the strict letter of ordinary legislation.
·» “Epikeia dicit eam legis interpretationem qua, contra verba etiam clara legis, sed secundum
mentem legislatoris, quidam casus e legis dispositione prudenter eximitur”,—Vermeersch-
Creusen, Epitome, I, n. 97.
H Extreme Unction, p. 135.
“Canon 1144.
“ Cappello, De Sacramentis, I, n. 113; Paschang, Sacramentals, p. 10.
67 Modificationes in Tractatu de Censuris, p. 93.
 The Delict of Heresy 69
unnecessary, in view of the strict attitude of the Church toward these delin­
quents.68
The chief legislation of the Code, as regards those who may receive Sacra-
mentals, is found in three canons :
Benedictiones, imprimis impertiendae catholicis, dari quoque
possunt catechumensis, imo, nisi obstet Ecclesiae prohibitio, etiam
acatholicis ad obtinendum fidei lumen vel, una cum illo, corporis sani­
tatem.69
Exorcismi a legitimis ministris fieri possunt non solum in fideles et
catechumenos, sed etiam in acatholicos vel excommunicatos.70
Non potest excommunicatus .. . recipere . . . post sententiam dec-
laratoriam vel condemnatoriam . . . Sacrementalia.71

The effect of this legislation will be best understood by distinguishing various

types of heretics.
First, the Catholic who has committed a simple delict of heresy, or who even
has joined a non-Catholic sect, but who has not been sentenced judicially for his
delict, is not forbidden by canon 2260, §1, to receive or use Sacramentels. As will
appear below, the use of permanent Sacramentels,—such as blessed water,
candles, rosaries, etc.,—is probably not forbidden to even the sentenced here­
tic; a fortiori, the simple heretic may continue to possess and use these articles,
subject to the restriction that he cannot now gain the indulgences which are
commonly attached to their use.7’ As to blessings, canon 1149 states that they
are intended primarily for Catholics, that is, the faithful; but the same canon
adds that they may be given to non-Catholics for the purpose of obtaining the
light of faith and, secondarily, health of body. Since the Catholic who has
fallen into heresy, and the baptized non-Catholic are presumed” to be equally
guilty of their heretical depravity, it would seem that there is no reason to
deny to the former what is allowed to the latter.
Canon 1149 restricts the giving of blessings to non-Catholics by the clause
"nisi obsiet Ecclesiae prohibitio." Such prohibitions exist in regard to sentenced
excommunicates;” delinquents who have been personally interdicted;75 those
who, scienter, have contracted a mixed marriage without obtaining the required
dispensation;76 those who have been sentenced with a vindictive penalty of

“ Hyland, Excommunication, p. 78.

” Canon 1149.
79 Canon 1152.
71 Canon 2260, §1.
» Canon 2262, §1.
” Canon 2200, §2.
71 Canon 2260, §1.
« Canon 2275, §2.
76 Canon 2375.
 70 The Delici of Heresy
i
I prinatio Sacramentalium77 None of these prohibitions attaches to the simple
I heretic as such. He does however incur an irregularity ex delicto, which dis-
!j qualifies him for the réception of Orders, and hence of the Sacramentals given iri
i the various Ordinations.18
; Baptized non-Catholics, as was just said, are presumed in the external forum
I to be responsible for their heresy, and hence to be in the same condition as the
ί Catholic who lapses into heresy. However, canon 1149 permits them to
, receive blessings, save where the Church has interposed a prohibition. A de­
cision of the Sacred Congregation of Rites has indicated the extension of the
!I term '‘benedictiones,” as used in this canon; and declared that it includes the
•< bestowing of such public Sacramentals as the imposition of ashes, the distribu­
tion of palms, etc.” This decision was rendered in response to a question con-
I ceming catechumens. Hence Blat 80 and Noldin81 restrict its application to
; catechumens alone. Others, such as Augustine,82 Ayrinhac,88 and Vermeersch-
Creusen,84 understand it in a broader sense, as indicating the scope of the canon
in regard to non-Catholics in general, whether or no they have expressed any in-
! tention of joining the Church. Hence they state that these public Sacramentals
may be given to non-Catholics in general.
The Holy Office has frequently insisted that Catholic ministers take great
care in the matter of giving Sacramentals to non-Catholics. There is, first, the
. danger that the recipients will ignorant of their nature and purpose, and hence
receive and use them superstitiously.85 Secondly, there is the danger that in
giving Sacramentals to non-Catholics, scandal might be given, since this action
would seem to be an approval of the non-Catholic’s religious status.86 The duty
to avoid these dangers, indicated by the decisions of the Holy Office, is a matter
of natural law, and hence applies irrespective of any positive legislation which
permits the giving to the Sacramentals to the non-Catholic.
The third type of heretic is the sentenced heretic,—a delinquent whose delict
has been judicially proved and made the basis of a declaratory or condemnatory
sentence. Canon 2261 states simply that he is forbidden to receive Sacramentals.
Pre-Code authorities made a distinction between the reception and use of

17 Canon 2291, n. 6.
18 Canon 985, n. 1. Cf. Noldin, De Sacramentis, n. 450.
79 March 8, 1919,—A.A.S., XI, 144.
89 Commentarium, III, 724.
81 De Sacramentis, n. 46.
82 Commentary, IV, 567.
88 Penal Legislation, n. 342.
81 Epitome, II, 467.
88 S.C.S.Off., Dec. 11, 1749,—Collect., n. 374; Aug. 11, 1768,—Collect., n. 468; cf. II Council
of Baltimore, n. 350.
» S.C.S.Off., June 22, 1859,—Collect., n. 1176.

!
h

,1
 The, Delict of Heresy 71
Sacramentals.87 Certain Sacramentals were received; as, for example, the
blessing accorded women after childbirth ; the recipient is passive, and the Sacra­
mental consists in the actions and words of the priest. Other Sacramentals were
used; the permanent Sacramentals, like rosaries, candles, etc. Since the Code
uses only the word '‘recipere,” and since this penal law, as a res odiosa, is subject
to strict interpretation, it would seem probable that even a sentenced heretic
may use Sacramentals, although he may not receive them.88
There is one Sacramental which may be received both validly and licitly by any
heretic, namely, exorcism. This blessing, designed to drive forth evil spirits
who possess the person, may be accorded, under the usual conditions, to any
person, whether the person be infidel, catechumen, heretic or excommunicate.
The Code makes no distinction in regard to the last group; and hence the exor­
cism may be imparted to the vitandi as well as the tolerati.

c. Participation in the Common Suffrages of the Church

The common suffrages of the Church are the spiritual aids by which members
of the Church assist one another, either to atone for temporal punishments due
to sin (per satisfactionem), or to obtain, directly or indirectly, spiritual benefits
(per impetrationem). In the terminology of pre-Code authors, “common suf­
frages” was the generic term for all the spiritual aids which come from the treas­
ury of the Church and from the prayers, good works and Masses offered in the
name of the Church. Canon 2262, §1, enumerates separately “indulgences,
suffrages and public prayers.” Indulgences are specifically defined in canon 911,
as:
Remissio coram Deo poenae temporalis debitae pro peccatis, ad
culpam quod attinet jam deletis, quam ecclesiastica auctoritas ex
thesauro Ecclesiae concedit pro vivis per modum absolutionis, pro
defunctis per modum suffragii.

The distinction between suffrages and public prayers is not clearly indicated
in the Code or by commentators.89 In a general way, the term “suffrages” seems
to indicate prayers and works of satisfaction, while “public prayers” seems
to indicate impétration." In any case, canon 2262, §1, is intended to in­
clude all the effects of prayer and good works offered in the name of the Church;
and the provision of this canon is:

87 Ballerini, Opus Theol. Moral., VII, n. 396; Alphonsus, Theol. Moral., VII, n. 174.
88 So Hyland, Excommunication, p. 79; contra, Augustine, Commentary, VIII, p. 180; Noldin,
De Censuris, n. 40; Ayrinhac, Penal Legislation, p. 122.
89 Cf. Vermeersch-Creusen, Epitome, III, n. 464.
80 Augustine, Commentary, VIII, p. 184. Cf. Cappello, De Censuris, n. 156; Sole, De Delictis,
n. 222.
72 The Delict of Heresy
§1. Excommunicatus non fit particeps indulgentiarum, suffragiorum,
publicarum Ecclesiae precum;
§2. Non prohibentur tamen:
1. Fideles privatim pro eo orare;
2. Sacerodotes Missam privatim ac remoto scandao pro eo appli­
care; sed si sit vitandus, pro ejus conversione tantum.

As has been stated, a heretic is not deprived of access to God. He can and
he should pray for himself in the same manner as any sinner. »* Likewise, the
Church explicitly provides that the faithful may pray for him in private,—for
his conversion, and for any legitimate grace or favor.91 92* Moreover, this canon
terminates a pre-Code controversy as to whether or no a priest can say Mass for
a heretic.95* Under the present law, a heretic is excluded from the general fruits
of the Mass, since they are excluded from the common suffrages. From their
very nature the most special fruits are reserved to the celebrant. This leaves
the special or ministerial fruits, which can be applied according to the intention
of the celebrant. These may now, without question, be offered for the heretic,
and for any legitimate intention of his; always provided that there is no scandal,
and that there be no public announcement of this application. The only re­
striction is in the case of a vitandus; here the Church will only allow Mass to be
said for his conversion.
Returning to the consideration of public prayers, canon 2262, §1, states that
heretics are deprived of all participation in them. This law is somewhat more
rigorous than the teaching of approved pre-Code authorities. Excommunicates
were deprived of this participation under the law of the Decretals,94 but after
the Constitution Ad Evitanda, question arose as to the status of the tolerati; and
common opinion held that at least the latter could be publicly prayed for.95 The
Code, while conceding full permission for private prayers, has definitely over­
ruled this pre-Code doctrine, and excluded all excommunicates, whether vitandi
or tolerati, from such prayers. Hence it would be illicit for prayers to be publicly
offered in the Church that any heretic might recover from sickness, or even be
converted to the true faith.”
One special case concerns the offering of prayers and Masses for deceased
heretics. This should not be done for those who died obdurate and in manifest
bad faith ; for this would be to pray for a lost soul, and would imply the heretical

91 He cannot of course obtain the indulgences attached to certain formulae;—Canon 2262,

§1, quoted above.
92 Pighi, Censurae, n. 21, b. This permission extends even to the vitandi.
99 Gasparri, De Eucharistia, I, n. 483.
94 C. 8, X, de haereticis, V, 7.
95 Alphonsus, Theol.. Moral, NTL, n. 164; Wemz, Jus Decretalium, VI, n. 188.
94 Pighi, Censurae, n. 22, b.
 ft

The Delict of Heresy 73

belief that God’s judgment can be reversed. But where this condition does not
obtain, prayers and Masses can be offered on the same basis as for the living.
Thus there may be such cases as the following. If the heretic was reconciled to
the Church, he became again one of the faithful, for whom prayers and Masses
may be offered publicly. If he was accorded Christian burial, either because
his delict was occult, or because before death he made some sign of repentance,
the presumption of his having re-entered the communion of the faithful will
again permit a public Mass.97 If however he died while still under declaratory
sentence, the Mass could be said only privately, and in such manner as to give
no scandal. Finally, if he died as a vitandus, there is controversy as to whether
Mass may be said at all. Augustine holds that canon 2262, §2, n. 2 permits
Mass only for his conversion, and that Mass for this intention is meaningless
when the vitandus is dead; hence no Mass may be said.9899Pighi agrees with this
doctrine, but cautiously adds “saltem publice." w Hyland argues that penal law
must be interpreted strictly; and since the canon contemplates only the living
vitandus, its prohibitions should not extend to a different case, that of a dead
vitandus; therefore Mass may be offered, privately and without scandal.199 In
practice however, it would seem clear that a heretic whose offense was so serious
as to merit his condemnation as vitandus, and who persevered until death under
this censure, must be considered, in any prudent judgment, an obdurate sinner.
On this basis, if no other, Mass should not be said for him.

d. Ecclesiastical Burial
The religious life of the individual may properly be considered as extending
beyond his death, and to include the final disposition of his body. Ecclesiastical
burial is the last pledge of communion with the Church, and as such, is highly
prized by the faithful, and properly denied to those who do not belong to the
communion of the Church. Deprivation of ecclesiastical burial is one of the
ancient penalties inflicted upon heretics and other excommunicates.191 Con­
versely, the intrusion into a Catholic cemetery of the body of one who was not
a member of the Church, was considered a sacrilege, and the profanation was
removed only byexhumingthe body and burying it elsewhere.191 The seriousness
of the offense committed by those who violate this law is to be seen in the legis-

97 Cappello, De Censuris, n. 156.

99 Commentary, VIII, n. 186.
99 Censurae, n. 22, c.
190 Excommunication, p. 122.
191 C. 1, C. XXIV, q. 2; in which are repeated the familiar words of Pope Leo I, (440-461),
“Quibus non communicavimus vivis, non communicemus defunctis.”
199 C. 12, X, de sepult., Ill, 28; in the Code, canon 1242 provides for the exhumation of the
body of a vitandus.
 ] 74 The Delict of Heresy
i . .
! ! i lation which has obtained from the early centuries, and which is retained in the
! 1! 1 i Code.103 ■'
; i The general principle governing ecclesiastical burial is generously conceived: >
r i . no one is to be refused such burial unless he be expressly denied it by law.104 This '
? ; burial comprises the transfer of the body to the Church, funeral services over
; it in the Church, and burial in a place legitimately constituted for the bodies
! of the faithful departed.105 i
J Canon 1240 gives a taxative list of those who are denied these final honors.
J Three headings concern heretics:

; 1. Notorii apostate a Christiana fide, aut sectae haereticae vel schis-

maticae aut sectae massonicae aliisve ejusdem generis societatibus
i notarié addicti;
' 2. Excommunicati vel interdicti post sententiam condemnatoriam !
; * vel declaratoriam;
6. Alii peccatores publici et manifesti.
i
5 , Thus, all heretics who are members (notoriously) of a non-Catholic sect or
condemned society, are denied ecclesiastical burial under section one; all the
vitandi and all sentenced tolerati under section two; all whose final unrepentant
( death is publicly known and manifest, under section six. This leaves unmen-
,' tioned a considerable number of heretics, who therefore cannot be denied ec­
clesiastical burial, if it is requested; viz., all occult heretics who, after their
: delict, continued to live in such a way as not to be considered public sinners.
! It must be noted, moreover, that canon 1240 does not exclude these groups
> absolutely, but only conditionally: “Ecclesiastica sepultura privantur, nisi ante
J mortem aliqua dederint poenitentiae signa.” If they did give some sign of re-
: pentance before death, they are not to be denied ecclesiastical burial. The
i clearest sign of repentance would be the request for the presence of a priest;
i but other signs would be entirely satisfactory,—words of sorrow and repentance,
ί acts of faith and contrition, and,—if the delinquent had lost the use of speech,—
nods, movements of the hands or eyes in response to suggestions of repentance,
or general acts of piety, such as kissing a crucifix, etc.
; Even more than this, the Church provides that where there are signs of
j ! repentance which are only doubtful, the case is to be referred, if time permits,
I ! to the Ordinary; and if on investigation, it is found that the sign might indicate
1 repentance, even doubtfully, the Ordinary is to permit ecclesiastical burial,

103 C. 8, de priv., V, 7, in Sexto; Constitution "Apostoticae Sedis”, VI,n. 2,—Fontes Codicis

J.C., n. 552. The present law is stated in canon 2339.
104 Canon 1239, §2, n. 2.
105 Canon 1204.
 The Delict of Heresy 75
under any conditions of privacy and lack of pomp which may be required to
avoid scandal.108
Difficulties in regard to burial will ordinarily arise where the religious status
of the dead person is different from that of his surviving relatives; commonly this
is due to a previous mixed marriage. The question therefore often comes in the
form of a request that a heretical spouse be interred in the same plot as a Catholic
spouse who had previously died. The sentiment which demands that those
who have been partners in life should not be separated in death, is a natural
and strong one, and deserves respectful consideration. The Church has tolerated
the practice of having a common burial lot for such families, in which the graves of
the Catholics are blessed individually, while those of the non-Catholics remain
unconsecrated. 107 The reply of the Holy Office, August 16,1787, indicates that a
very grave reason i.e., the inability to resist the requirements of civil law, will
ί permit the toleration of a burial of a heretic even in Catholic and consecrated
cemeteries. However, this toleration would seem possible only in extreme
cases; and the other solution of providing unblessed graves for heretics is cer­
tainly preferable, granted that the Church has, by granting a dispensation,
* conceded not merely the validity, but likewise the liceity of the previous mar­
riage.108

108 Vermeersch-Creusen, Epitome, II, n. 649. Cf. S.C.S.Off., Sept. 19,1877,—Collect, n. 1483.
107 S.C.S.Off., Aug. 16, 1787,—Collect, n. 549; April 13, 1853,—Collect, n. 1089; March 30,
1859,—Collect, n. 1173; Feb. 12, 1862,—Collect, n. 1227; the special toleration of burial "in
, sepuchris gentilitiis”,—Collect. I, p. 641, not. 1.
I i« This reasoning applies to heretics who have never been Catholics, in whose case there is
reason to think that good faith existed. If the dead person were an ex-Catholic, there is less
reason to think that this excuse existed, and more reason to apply the penal law in all its rigor.
 CHAPTER SIX

HERSEY AND OFFICIAL STATUS AND ACTIONS

The last chapter treated of the effects of heresy upon what was called, in
general terms, the religious or pious life of the delinquent. In the same way,
the present chapter treats of the effects of heresy upon what is called, again in
general terminology, official status and actions. In the last chapter, the heretic
was envisaged as entering, or seeking to enter, into activities which have to do
with personal sanctification and devotion, and it was noted to what extent his
excommunication debarred him from doing what other .Catholics do in caring
for their spiritual welfare. In this chapter he is envisaged as engaging or seek­
ing to engage in activities which minister to the spiritual welfare of others in
some official way. He is occupying, or seeking to occupy, a place in the Church’s
organized life, with Catholics depending upon his actions, directly or indirectly,
for certain religious benefits.
In general, it may be said that a heretic is guilty of sin whenever he acts in
an official capacity (in the sense of “official” just given); it is manifestly im­
proper for one who has been guilty of the gravest of sins against the Church
as an authoritative society, and who has thereby incurred excommunication and
loss of membership in the general communion of that society, to act thereafter
as one of the society’s officers, and to administer officially to the faithful mem­
bers of that society. This reasoning applies to the occult heretic, whose con­
science is burdened with responsibility for his delict, even though others know
nothing of its commission. When however his delict is judicially ascertained
and declared, the Church provides in general that he may not act and if he
attempts to do so, makes his acts invalid. Finally, as a supreme vindictive
penalty, when all other efforts to break his contumacy have failed, she not
merely makes his acts invalid, but removes him from the office itself, and ap­
points another in his stead.1 This progression, illicity, invalidity, removal from
office, is her general plan of successive punishment. With this in mind, and
making necessary exceptions, it will be easy to understand and remember the
provisions of the law in regard to various activities.

a. The Administration of Sacraments and Sacramentals

There may be unfortunate cases in which the delict of heresy is committed by
a cleric. In such cases, according to canon 2261, the excommunication incurred
1 The delict of joining a non-Catholic sect is an automatic resignation of any benefice, etc.,
when committed by a cleric. This penalty is immediately applied, and not reserved for ad­
vanced contumacy.
76
 The Delict of Heresy 77
as a consequence involves a prohibition to confect or administer Sacraments
or Sacramentals.
In this connection, two preliminary points must be noted. First, if a cleric
is in the state of mortal sin, he commits a new sin of sacrilegious irreverence each
time that he says Mass or administers a Sacrament.2*This is a law of the internal
forum, and makes these acts illicit because of his subjective dispositions. This
subjective law has its origin and administration in moral theology, and not in
canon law. This moral law applies quite independently of any prohibition of the
external forum. It may exist where full permission is accorded in the external
forum, or not exist where external law interposes a prohibition. In the following
pages disregard entirely the moral worthiness of the person, and consider only
his relation with laws governing the external forum.
Secondly, this section deals only with the licit administration of the Sacra­
ments, prescinding entirely from questions regarding their validity except where
(as in the case of Penance), validity depends upon jurisdiction in the external
forum. A Mass said, or a Confirmation or Ordination conferred by even a
vitandus heretic will be valid if he had the proper power of Orders, and the
requisite matter, form and intention, in confecting the Sacrament. The legis­
lation we are about to record does not make the confection of these Sacra­
ments invalid, but does make it illicit.
This much stated,—the propriety of excluding heretics from the administration
of Sacraments and Sacramentals has always been so clear that the origins of
the present law can be traced to the earliest legislation of the Church.’ In the
Corpus Juris, heretics and excommunicates were forbidden to celebrate Mass,
and in general to perform any sacred function whatever.4 The penalty for vio­
lation of this prohibition was an irregularity, sometimes accompanied by vin­
dictive penalties of privation of benefice and deposition.5 The Church likewise
imposed an obligation on her faithful to avoid receiving Sacraments from ex­
communicated ministers.*
In the Code, canon 2261, §1, prohibits heretical clerics the licit confection and
administration of Sacraments and Sacramentals, and in so doing continues the
age-old discipline of the Church. The law is not, however, absolute and un­

2 Noldin, Theol. Moral, III, De Sacramentis, n. 28.

’ See Chapter One above.
4 Cf. X, de clerico excommunicato, V, 27. C. 1 is the 29th. canon of the Apostolic canons
tea. 400); c. 2 is canon 6of the Council of Antioch (341), which had likewise been quoted by
Gratian, c. 6, C. XL, 2. 3.
• C. 3,4,6,10, X, de clerico excommunicato, V, 27.
• C. 9, X, de haereticis, V., 7. The penalty was minor excommunication. After the consti­
tution ‘‘Ad Evitanda”, this minor excommunication was incurred only when a Sacrament was
illicitly received from a vitandus. Minor Excommunication was abolished by the Constitution
“Apostolicae Sedis”; but this Constitution and the Code (canon 2372) penalize the reception
of Holy Orders from a heretic, '
78 The Delici of Heresy
conditional. Certain exceptions are immediately made. Before noting these,
it is well to recall again canon 2232, §1, which allows occult delinquents to act
in the external forum as if they were not censured, to the extent required for
the preservation of their good name. This canon may have ready application
in the case of a heretical cleric whose offense was occult. The refusal to say
Mass or confer Sacraments could scarcely be explained, in certain circumstances,
except in terms of his being conscious of guilt. Hence, as far as the external
forum is concerned, an occult heretic may appeal to this canon 2232, §1, as a
release from the prohibition of canon 2261, §1.
In addition to this, the second and third sections of canon 2261 provide for
the delinquent’s administration of Sacraments in certain special cases. This
provision is not intended as a favor to the delinquent himself, but rather as a
means of making the Sacraments more available to the faithful, especially in
urgent cases. These two sections provide:
2. Fideles, salvo praescripto §3, possunt ex qualibet justa causa
ab excommunicato Sacramenta et Sacramentalia petere, maxi­
me si alii ministri desint, et tunc excommunicatus requisitus potest
eadem ministrare neque ulla tenetur obligatione causam a requirente
percontandi.
3. Sed ab excommunicatis vitandis necnon ab aliis excommunica­
tis postquam intercessit sententia condemnatoria aut declarato-
ria, fideles in solo mortis periculo possunt petere tum absolutionem
sacramentalem ad normam can. 882, 2252, tum etiam, si alii desint
minstri, cetera Sacramenta et Sacramentalia.
These two sections are addressed to the faithful, and regulate their inter­
course with priests known to be excommunicated for some delict. Ex hypothesi,
an occult heretical minister is not concerned; but obviously, what is true of
public excommunicates is even more true of occult delinquents. The provisions
distinguish between those priests who have not and those who have received
judicial sentences, and between the faithful whose case is urgent and those who
are in ordinary need of the Sacraments. Hence:
1, When a priest has been sentenced with either a declaratory or condem­
natory sentence of excommunication (whether he be vitandus or toleratus), the
faithful may only seek Sacraments from his hand when they, the recipients, are
in danger of death. Canons 882 and 2252 give all priests, of whatever good or
bad standing, faculties for Penance whenever one of the faithful is in danger of
death; and these faculties are of the broadest possible extension, so that the
priest can absolve from every sin and every censure, with no exceptions what­
soever. Canon 2261 is the logical complement of this legislation, in giving the
faithful the right to seek the ministrations of priests so empowered. The whole
is intended to make easier the receptions of Sacraments by those who, in dying,
need them most. The familiar fact may be noted that the Code uses the term
 The Delict of Heresy 79
“in periculo mortis,” and not the term “in articulo mortis," which might have a
stricter interpretation.7 Moreover, it is to be noted that the dying person may
choose to receive absolution from an excommunicated priest, even when priests
in good standing are present or available; but that the excommunicated priest
can administer Viaticum, Extreme Unction or Matrimony, and such Sacra-
mentals as the Last Blessing, only in the absence of approved priests.
2. When the priest or other cleric is excommunicated, but has not received
either a declaratory or condemnatory sentence, the faithful are permitted to
ask and receive from him any Sacrament or Sacramental, especially if other
ministers are absent.8 In these circumstances the said minister is free to ad­
minister to the faithful, and does not thereby violate the censure of which
he is conscious. The faithful are required to have a just cause for their request,
but canonists do not require that it be a serious (gravis) cause; the earlier con­
ferring of Baptism, the dispelling of doubt concerning the gravity of a sin and
the state of conscience, the desire for greater purity of soul when approaching
the Holy Table, or the wish to communicate more frequently, have been recog­
nized as just causes for requesting Sacraments even from priests known to be
under simple censure.8 Meanwhile the minister is not required to investigate
the reasons impelling the faithful to approach him, nor to verify the justice
of their reasons. On being asked to administer a Sacrament, he is immediately
free (ratione censurae) to do so. Even more, canonists do not require him to
wait for an explicit request. Any implicit or reasonably presumed petition will
be sufficient. Hence, when no other minister is available, a priest who is con­
sciously guilty of a delict of heresy may go to the Church, and show himself
as ready to hear Confessions at the regular hours, to distribute Communion
and celebrate Mass when the faithful gather for these purposes.18
A special word may be said about the Sacrament of Matrimony. The min­
isters of this Sacrament are the spouses themselves. The general provision by
the Church is contained in canons 1060 to 1066 inclusive. Canons 2260 and 2261
offer an interesting study, in as much as these latter canons apply to the recep­
tion and administration of the Sacrament of Matrimony. The heretical party is
prohibited by these canons both to receive and to administer the Sacrament,
while the Catholic party is administering the Sacrament to a person who is (by
juridical prestunption of the external forum) excommunicated, and at the same
time receiving the Sacrament from this excommunicate. In most cases, the
heretical party is in good faith, and does not know of canons 2260 and 2261.

_ ’ Cappello, De Sacramentis, II, n. 408; Hyland, Excommunication, p. 94. On the older dis­
tinction of these terms, see Carr, Constitution “Apostolicae Sedis" Explained, pp. 62-66.
8 This clause implies that the faithful have a certain duty in charity not to occasion a sin of
sacrilege when a priest is in the state of mortal sin.
’ Cocchi, Commentarium, VIII, n. 87; Vermeersch-Creusen, Epitome, III, n. 463.
18 Vermeersch-Creusen, I. c.; Hyland, Excommunication, p. 92.
I
1

80 The Delict of Heresy

Moreover, where a dispensation has been obtained, it shows the Church’s
toleration of the situation, and exempts the particular marriage from the general
principles here stated. But even where the ordinary good faith does not exist,
e., where one of the parties is a Catholic in good standing, and the other is
i.
an ex-Catholic who is contumaciously addicted to heresy or apostasy, the
Church will, for sufficient cause, still grant the dispensation for the sake of the
innocent party. The explanation may be offered by recalling the general theory
of contracts.11 An innocent party may, for a just and sufficient reason, enter
into a contract even when he knows that the other party will thereby sin. This
will be eminently true of the innocent party to such a marriage, since this con­
tract will in such cases bring more of value and utility than most ordinary
business affairs,—at least in the estimation of the innocent spouse. In any case,
marriages with heretics will be arranged and contracted in the light of the
legislation specially provided for these cases.12
A second aspect of this legislation arises when a priest has been guilty of a
delict of heresy, and then is requested to assist at a marriage. The right to
assist at marriages is very like the power of jurisdiction. It is obtained by
virtue of an office, and may be delegated to others. It is therefore regulated by
canon 1095, §1, on the same principle that will later be seen regulating acts of
jurisdiction; viz., the right to assist at marriages obtains until a declaratory or
condemnatory sentence has been issued. This means that a priest who otherwise
has a right to assist at marriages can continue to do so validly even after a
delict of heresy, up to the moment that he is subjected to a declaratory or con­
demnatory sentence of excommunication. In conscience however, he is bound
to observe the prohibition of canon 2261 except when the second or third sec­
tions of that canon give him permission to act, or when his offense is occult
and he acts under the permission granted by canon 2232, §1, to protect his good
name. Moreover, by virtue of canon 1095, §2, he may delegate other priests
to assist at marriages during all the period in which he could validly assist
himself; and hence such delegation is valid, in spite of his delict of heresy, up to
the moment a judicial sentence is issued against him.
It need scarcely be added that if a priest has incurred more than a simple
excommunication,—i.e., he has been sentenced to deposition or degradation, or
has automatically resigned his benefice or office by joining a non-Catholic sect,—
he has lost thereby all right to assist at marriages, and cannot validly do so.
Moreover, it is controverted, and at best doubtful, whether a sentenced heretical
priest can be validly delegated to assist at marriages even by an Ordinary or

11 Hyland, Excommunication, p. 99.

11 This phase of the Church’s legislation has been frequently treated, and hence will not be
reviewed m this dissertation. Cf. Cappello, De Matrimonio; De Smet, De Matrimonio; Cerato,
Matrimonium; Chelodi, Jus Matrimoniale; Petrovits, The New Church Law on Matrimony;
Ayrinhac, Marriage Legislation in the New Code of Canon Law.
 The Delict of Heresy 81
Pastor who has the right to delegate.1’ Such delegation would certainly be illicit;
and since it will likewise probably be invalid, it should never be consciously given.
As regards the duty of the priest who finds that one of the parties to a mar­
riage is an ex-Catholic, who has incurred excommunication by a delict of heresy,
and who further refuses to be reconciled to the Church, canon 1066 states the
general principle that the priest should not assist at the marriage in question,
unless compelled by some grave cause, concerning which he should consult, if
possible, the Ordinary. This prohibition does not apply to an occult heretic,
even though the parish priest is aware of the delict and the existence of the re­
sulting censure.14 The canon refers only to public sinners and those notoriously
under censure of excommunication. And even in these cases, a grave reason will
permit assistance at the marriage.15 If however this ex-Catholic has been de­
clared vitandus, an even more serious reason will be required, which, in the
opinion of some canonists, should be gravissima.™

b. Acts of Jurisdiction
The administration of Sacraments and Sacramentals involves the power of
Orders. Other activities of the clergy are based upon the power of jurisdiction.
Jurisdiction is defined as the power of ruling, or the power of commanding the
faithful in all matters which are in any way necessary for the attainment of the
ends for which the Church was instituted.17 Its two chief kinds are ordinary
jurisdiction, where the power of ruling is attached to an office and hence is
possessed by whoever holds that office, and delegated jurisdiction, where a
person is given certain authority, without possessing the office to which the au­
thority regularly belongs. Obviously, it would be highly improper for anyone
but a Catholic to exercise either ordinary or delegated authority, and thus to
assume the role of directing the Catholic faithful in their religious life. Canon
Law, guided by this principle, has consistently declared that those who do not
possess membership in the Church,—heretics or other excommunicates,—are
thereby incapacitated for the exercise of jurisdiction over the faithful.18 More-

u Contra, Vermeersch-Creusen, Epitome, II, n. 396; De Smet, De Matrimonio, n. 122; favor­

ing validity, Vlaming, Praelectiones, n. 573, not. 2; Petrovits, New Church Law on Matrimony,
followed Vlaming in his first edition, but changed to the contrary view in his second edition;
in each edition, n. 474.
» Canon 2232.
15 Vermeersch-Creusen, o.c., II, n. 331; cf. S.C.S.Off., Jan. 30, 1867,—Collect, n. 1300.
'•Chelodi, Jus Matrimoniale, n.67; Cappello, De Sacramentis, III, n. 332; Wernz-Vidal, Jus
Canonicum, V, n. 202.
” Canon 196. Cf. Bargilliat, Praelectiones, I, n. 175.
18 Cf. Chapter One, above. In the legislation of the early Church councils, apostates and
heretics not merely lost their positions in the Church, but likewise were not permitted to regain
their former power of orders and jurisdiction, even after repentance,—c. 1-12, D. L. For
medieval legislation, cf. c. 9, 16, X, de haereticis, V, 7.
 ; 82 The Delict of Heresy
ί over, the faithful were for centuries required, under pain of minor excommuni­
cation, to avoid communication with clerics and other superiors who had been
excommunicated. The Church did not recognize the right of these superiors
to rule the faithful, and obliged the faithful to avoid them; thus punishing
i delinquent superiors by a two-fold barrier against their use of jurisdiction.
I ' Because of the difficulty of determining when a superior claiming jurisdiction
should or should not be obeyed, Pope Martin V introduced the mitigated dis-
I cipline of distinguishing vitandi and tolerati.19
, . A grasp of the general principles guiding the Church’s penal legislation makes
I I the law of the Code in the matter of jurisdiction clear and easily understood.
Canon 2264 follows the same plan in regard to jurisdiction as was followed in
I the use of the power of Orders. As soon as a delict of heresy has been com-
; mitted, the delinquent incurs excommunication, and in that instant is bound in
; conscience,29 under pain of sin, to avoid exercising jurisdiction either in the
internal forum or the external. Hence, he may not hear Confessions (which, be-
i, side the power of Orders, requires the power of jurisdiction), nor grant dis­
pensations, nor act as judge, nor in any wise act as an ecclesiastical superior. This
■ prohibition is not entirely absolute. As in the use of Orders, so in acts of juris-
; diction, the Code provides that in certain cases the power of jurisdiction already
possessed may be exercised even after a delict of heresy. These exceptions are
1 I, not established as a favor to the delinquent, but rather as a favor to the faithful,
for whose benefit the jurisdiction will be employed. Thus, if the faithful request
a cleric to act in some matter hitherto within his competency, he may do so
validly and licitly, despite the censure he has incurred, provided he has not
:· 1 yet received a judicial sentence of excommunication. Again, if one of the faith-
J ful is dying, and needs some exercise of jurisdiction, any priest may exercsise
I jurisdiction, even though he has been declared not merely excommunicate, but
I even vitandus. Hence (outside of the ministration to the dying), acts of juris-
, i diction by a sentenced heretic are both invalid and illicit; an unsentenced
heretic acts both validly and licitly when he has been requested, at least im-
, plicitly, by the faithful, but otherwise acts validly but illicitly. Moreover,
if a cleric has been guilty of a delict of heresy, and its commission becomes
i ! known to the Bishop so that a declaratory sentence has to be issued, the good
i of the Church will regularly require that further steps be taken in accordance
I with canon 2314, §1, n. 2. A canonical warning will be issued, and if this does
1 not lead to recantation and repentance, the cleric will be deprived of any po-
i sition he may have held, and thus of the source of any jurisdiction. Thereafter
I his acts will be entirely invalid on this score.
I We have therefore the following possibilities:

»» Cf. pages 12, 61, note 28.

“Canon 2232.
 The Delict of Heresy 83
1. The occult heretic: he is bound in conscience to avoid the exercise of
jurisdiction until he has been absolved; but may licitly and validly act when
such actions are necessary, either to avoid infamy (canon 2232), or when re­
quested even implicitly by the faithful; save for these exceptions, he acts validly,
but illicitly.
2. The public heretic, who has not yet been restrained by his Bishop or by
judicial sentence: his acts of jurisdiction are valid, but illicit, except when re­
quested by the faithful.
3. The sentenced heretic: his acts are both invalid and illicit, except in the
one case when he is requested to act by a dying Catholic.
This last case is rare, but may be briefly reviewed. If a dying Catholic wishes
to receive the Sacraments, for the peace of his conscience and (if the Sacrament
be Matrimony) for the legitimation of offspring, any priest, even a vitandus, is
fully empowered by the Church to act in her name. Hence he may administer
the Sacrament of Penance, and therewith exercise jurisdiction and grant absolu­
tion from any sin or censure whatsoever.21 Canon 2261, §3, permits a Catholic
who is in danger of death to seek and receive the Sacrament of Penance from
even a sentenced heretical priest, even if there are present or available other
priests in good standing, possessed of faculties for the administration of this
and other Sacraments. This is a favor extended to the Catholic in what may
be the last moments of his life, and is designed to remove any difficulty or repug­
nance which he might feel toward the Sacrament of Penance, if he could only
receive it from the approved priest. This generous permission exists only in
regard to the Sacrament of Penance. The sentenced heretical priest cannot ad­
minister other Sacraments or Sacramentals if an approved priest is present.
This law for the administration of the Sacraments governs indirectly the
sentenced heretic’s acts of jurisdiction. In the administration of Penance, an act
of jurisdiction is involved; and in permitting the sentenced heretic to administer
this Sacrament, the Church is giving him jurisdiction ad hoc. Since the law
provides for this exercise of jurisdiction, it is both valid and licit, despite the
fact that the priest is a sentenced excommunicate.
Likewise, in the absence of any approved priest, the sentenced heretic may
have occasion to exercise further jurisdiction in connection with the Catholic who
is in danger of death. This possibility would arise in connection with the case
in which the Catholic is not merely in periculo mortis, but likewise urgente peri­
culo mortis, and in addition it is impossible to reach the Bishop for a necessary
dispensation22 which the Catholic wishes to obtain for a marriage that will give
21 Canon 882.
21 The Bishop “cannot be reached” if it is impossible to see him in person or send a letter
and receive an answer. Communication with the Bishop by telegraph of telephone is con­
sidered an extraordinary method, and even if this communication is possible, the Bishop
"adire nequit" in terms of the canon,—Comm. Interpret. Cod., June 2, 1918,—A.A.S., X, 662.
 84 The Delict of Heresy

peace of conscience or legitimacy to his children.23 This case could involve the
sentenced heretical priest only if he has been summoned to assist the dying
Catholic, under the provisions of canon 2261, §3. If he has been requested to
act because no other priest is present, (and if all the conditions of canon 1043
are verified), then he may not merely perform the marriage, as desired by the
dying Catholic, but likewise dispense the Catholic from any impediment except
the two mentioned in canon 1043, viz., the impediment arising from the priestly
character, and the impediment of affinity in linea recta. It may be noted that
the need of obtaining this dispensation is the essential motive for calling upon
the sentenced heretical priest; for in the absence of all impediments, the de­
sired marriage can be performed, under the conditions of canon 1098, §1, merely
in the presence of two witnesses.24 When this need exists, the exercise of juris­
diction, as in the case above, is both licit and valid.
If there is no need of a dispensation, canon 1098, §1, provides that a dying
Catholic may contract a valid and licit marriage simply in the presence of two
witnesses, if a competent priest cannot be obtained to solemnize the marriage.
The second section of the same canon imposes an obligation to summon any
other priest who can be present, even though he is not regularly competent for
the solemnization of marriages. This requirement does not affect the validity
of the marriage, and hence the failure to summon such a priest does not in­
validate a marriage which has fulfilled the requirements of the first section. The
question may arise of whether or no to summon an available priest who is known
to have committed the delict of heresy, and hence to be excommunicated. The
text of canon 1098, §2, speaks simply of “alius sacerdos qui adesse possit,’’ a
phrasing which does not positively exclude excommunicated priests. Vermeersch-
Creusen 25 and Cappello26 insist however that the parties should not summon a
vitandus, since his presence would add nothing to the validity of the marriage,
and since it is the mind of the Church to avoid the vitandi in all the concerns of

23 Canon 1014.
24 Hyland, (.Excommunication, p. 109), argues that the exercise of jurisdiction by dispensing
under the authority granted by canon 1044, applies only to the case in which one of the parties
is dying. Canon 1098 also provides for summoning any priest when a competent priest will be
absent, (according to a prudent judgment), for a month or more. This delay of a month is
considered by the Church a sufficient reason for setting aside the canonical form of marriage
in the presence of a competent priest. But, supposing under these circumstances of the com­
petent priest being absent for a month, the parties wish to be married, but are impeded by a
canonical impediment: May they summon a sentenced heretical priest and obtain from him a
dispensation which will allow them to proceed with the marriage? The case would be rare in
practice, and therefore is of more theoretical than practical value. It would seem however
that a negative answer should be given, since canon 2261, §3, which gives the sentenced heretic
jurisdiction, only does so “in solo mortis periculo”. If the parties are in no such danger, the
mere fact of a delay of one or more months does not seem a sufficient reason for granting a
heretical priest the extraordinary power of dispensing.
25 Epitome, II, n. 406.
36 De Sacramentis, III, n. 696.

..-· -
 The Delict of Heresy 85
life.27 The same considerations lead Cappello to the opinion that the parties
should not summon either the vitandi or the sentenced tolerati™—since the latter
are to be repelled from active participation in religious services.29 Others, fol­
lowing the exact language of the canon, hold that the parties should call for the
presence of any priest, without distinction as to his status.”

c. Legitimate Ecclesiastical Acts |

The two preceding sections have dealt with heretical priests, in regard to their |
power of Orders and their power of jurisdiction. The present section deals with a !
number of official activities which are regulated by law, and hence are given the
name of legitimate acts, and which are performed commonly by clerics, but also |
at times by lay persons. Hence our attention is not now confined solely to the 1
clergy. |
Canon 2256, §2, gives a list of these legitimate ecclesiastical acts: the adminis- |j
tration of ecclesiastical goods; the functions in ecclesiastical causes of judge, j
auditor, relator, defensor vinculi, prmnotor justitiae and fidei, notary, cursor and j
apparitor; the office of chancellor, of advocate and procurator; the office of ■
sponsor in the Sacraments of Baptism and Confirmation; the act of voting in ·
ecclesiastical elections, and the exercise of the juspatronatus. The reading of :
this list of activities shows that it comprehends three chief sections: first, ;
sponsors at Baptism and Confirmation, who have taken upon themselves in
this post certain rights and duties in regard to the spiritual education of those \
receiving the Sacraments, and hence represent the guidance of the Church; j
secondly, participation in elections of new officials; and thirdly, various offices, |
of high and low degree, which participate in the daily routine of administration of |
property and justice,—i.e., in the Church’s official life as a social organization, |
apart from the use of orders and jurisdiction. |
In pre-Code legislation, this taxative enumeration was not made, and no one I
law indicated the effect which a delict of heresy would have upon these varied [
activities. However in various sections of the Corpus Juris, there were pro- Î
hibitions of legitimate acts which indicate that the legislation of the Code is ΐ
simply a continuation of the older practice of the Church. The basic law of
the Code is contained in canon 2263, and follows the same general plan as that
already noted in connection with the use of Orders and of jurisdiction.
The largest portion of the legitimate acts center around the chancery and

» Canon 2267.
” De Sacramentis, I. c.
29 Canon 2257, §2.
•’Cerato, Matrimonium, η. 95; Petrovits, Matrimony, n. 501; Augustine, Commentary, V,
925.
86 The Delict of Heresy
courts of the Church. Obviously there is a striking impropriety in having a
heretic actively engaged in these offices. Hence heretics were definitely ex­
cluded from forensic communication from the earliest days, as part of their
general excommunication.’1 After Martin V issued his Constitution “Ad
Evitanda," this exclusion was absolute only for the vitandi. As regards the
tolerati, the faithful were left free to communicate with them or not, as occasion
warranted. Hence the heretic could continue to act in judicial matters, unless
and until the exception of excommunication was urged against him.” There
seems to have been no explicit legislation removing excommunicates from
the administration of ecclesiastical property.” But heretics and other ex­
communicates were forbidden to take upon themselves the spiritual duties of
sponsors at Baptisms and Confirmations, for which their status obviously in­
capacitated them.’1
This legislation is continued in the Code. Canon 2263 reads:
Removetur excommunicatus ab actibus legitimis ecclesiasticis
intra fines suis in locis jure definitos; nequit in causis ecclesiasticis
agere, nisi ad normam can. 1654; prohibetur ecclesiasticis officiis seu
muneribus fungi, concessisque antea ab Ecclesia privilegiis frui.

There are herein three statements. First, the heretic is removed from legitimate
ecclesiastical acts in accordance with special provisions of the Code, as given
under its special headings. Since penal law is a res odiosa, it seems proper to hold
that where the law, under the special headings, does not legislate against here­
tics, this section of canon 2263 does not affect them either.” However, the
number of special statements declaring the acts of heretics and other excom­
municates to be invalid or illicit is considerable, and hence this loophole is more
apparent than real. Also, in the case of heretics, canon 2314, §1, n. 2, provides
that after a fruitless canonical warning, the judge shall deprive the delinquent
of any benefice, dignity, pension, office or other position he may have held in the
Church. In other words, once thé delict of heresy is juridically established, and
continuing contumacy is proved in the delinquent, he is to be removed from
any possibility of performing legitimate ecclesiastical acts as an administrative
officer; and the somewhat distinct office of sponsor is explicitely provided for in
the special legislation of canons 765-766; while participation in elections is
regulated by canons 2265 and 167.

31C. 23-26, C. II, q. 7; c. 8,11,12, X, de haereticis, V, 7.

33 If this objection was substantiated in eight days, the judge was obliged to exclude the
censured person,—c.I, de exceptionibus, II, 12, in Sexto.
33 Suarrez, De Censuris, disp. XIII, s. 2, η. 6; Crnica, Modificationes, p. 101.
34 Roman Ritual, Tit. II, cap. 1, nn. 22-26; Roman Pontifical, tit. De Confirmandis.
33 Hyland, Excommunication, p. 126.
 The Delict of Heresy 87
The third provision in the canon prohibits heretics and other excommunicates
to discharge ecclesiastical offices and charges. "Officia" are defined as positions
stably instituted by divine or ecclesiastical authority, carrying with them some
participation in the ecclesiastical power of orders or jurisdiction.” This part of
the canon is therefore a further insistence upon the regulations already made in
regard to the exercise of orders and of jurisdiction.87 "Munera" are not explicitly
defined by the Code, but the term suggests some general idea of office, employ­
ment or duty. The combining of these two terms seems to indicate a desire to
avoid the strict delimitation which would be given a single term, and to require
that heretics abstain from fulfilling any office or duty that had been assumed for
a spiritual purpose.88 And, since they have already been deprived of the licit
exercise of both Orders and jurisdiction, this further obligation to avoid dis­
charging their spiritual offices is a logical and necessary consequence.8’
This regulation leads properly to the further provision that the heretic is not
to enjoy privileges previously granted by the Church. Privileges are special or
permanent faculties granted by a superior, providing for acts and statuses which
are contrary to or different from the ordinary provision of law. Canon 2263
is a punishment inflicted on the individual. He therefore loses the right to enjoy
any personal privileges previously accorded him. Real privileges,—given not
to a person, but to a thing, place, office or dignity,—are not directly affected by
the delict of any individual; although part of the punishment of the individual
delinquent may be the loss of the position which enabled him to enjoy and
use these real privileges. Certain privileges are granted an individual, not for
his own benefit, but simply to be used in benefit to others; e.g., special facul­
ties for absolving from reserved sins; it would seem that the heretic may con­
tinue to use such privileges as often as he may act in these matters at all. In
such cases, the "fungi” of the text is verified rather in the penitent or other bene­
ficiary, than in the heretic himself.40
Last place has been reserved for the consideration of the second provision in
canon 2263, which states that excommunicates cannot be plaintiffs in ecclesi­
astical causes, except under the provisions of canon 1654; and this because the
point deserves somewhat fuller treatment. Canon 1654 reads as follows :
1. Excommunicatis vitandis aut toleratis post sententiam de-
claratoriam vel condemnatoriam permittitur ut per se agant tantummo­
do ad impugnandam justitiam aut legitimitatem ipsius excommuni­
cationis; per procuratorem, ad aliud quodvis animae suae praejudi­
cium avertendum; in reliquis ab agendo repelluntur.
M Canon 145, §1.
87 Canons 2261, 2264. cf. Sole, De Delictis, n. 226.
" Hyland, Excommunication, p. 141, Meester, Juris Canonici Comp., Ill, pars. II, n. 1765.
” Sole, De Delictis, n. 226.
40 Cappello, De Censuris, n. 152; this doctrine is admitted as probable by Cipollini, De
Censuris, n. 65, but he himself leans to the opposite doctrine; so also Pighi, Censurae, n. 24.
88 The Delict of Heresy
2. Alii excommunicati generatim stare in judicio queunt.

This canon clearly defines the right of a sentenced heretic to appear personally
and contest any judicial sentence decreed against him. This is simply the right
of self-defense which is part of the natural law, and which has always been recog­
nized by the Church.4142 43Secondly, sentenced heretics may defend themselves
against any other threatened danger in the spiritual order, not in person, but
through a proxy: some canonist or other cleric or competent layman who is in
good standing in the Church. Whenever the judge prudently decides that there
is such spiritual danger, he must admit the representative of the heretic, and the
case by him instituted. Thirdly, outside of these two cases, the sentenced here­
tic, whether vitandus or toleratus, has no standing in an ecclesiastical court as a
plaintiff. He may be summoned to answer charges by others, but he may not
appeal to the Church’s courts to require that the Church use her power to
secure his real or asserted rights. This is both just and natural, since he has
already, by his deliberate delict and contumacious refusal to amend, cut him­
self off from the Church. If, however, a sentenced heretic were to institute an
action, and carry it through in part or even to à sentence, the whole process in­
cluding the sentence must be held null and void, once the fact that the plaintiff
was a sentenced heretic is established: “vitio insanabilis nullitatis laborat.”*1
Heretics who have not been sentenced for their delict may, according to
the canon, be plaintiffs, with the limitation that this holds “in general.” This
limitation is made clear by the reference to canon 1628, §3, which permits in­
terested parties to interpose the exception of excommunication at any stage of
the judicial proceedings, up to the definitive sentence.4’ When this exception
is entered and substantiated, the court must issue a declaratory sentence against
the heretic, and therewith exclude his action on the basis of the legislation
recorded above.44
It was the common teaching of canonists that marriage cases were included
among those in which a heretic might find himself in spiritual danger, and in

41 Under pre-Code law, the vitandus had first to secure absolution from his censure, before
he could plead his cause. The reason was that his delict was so heinous and so certain, before
he incurred this final censure, that he deserved no hearing from the Church until he gave
evidence that he was no longer contumacious. Cf. Hyland, o.c., p. 138.
42 Canon 1892, n. 2.
43 Noval, (De Judiciis, n. 222), holds that when a sentence has been reached in these cases,
and appeal is being taken against the sentence, the exception of excommunication cannot be
proposed in the appeal. But Roberti, (De Processibus, I, η. 175), argues conclusively that a
definitive sentence is not that of the court of first instance, but rather the sentence finally
rendered in quolibet gradu; and that therefore the exception can be entered against the first
sentence.
44 Canon 223, §4; Cappello, (De Censuris, n. 42), suggests that the judge should not allow
this exception to be pressed against a simpliciter toleratus, unless there is a just cause.
 The Delict of Heresy 89
which he had a right to be plaintiff, at least through a proxy.45 However, in
January, 1928, the Holy Office determined to clarify its competence with regard
to the other Roman Congregations and inferior Roman tribunals. Hence there
were proposed to the Supreme Congregation of the Holy Office the following
dubiaj6

1. Utrum in causis matrimonialibus acatholicus, sive baptizatus

sive non-baptizatus, actoris partes agere possit?
2. Utrum in quibuslibet causis matrimonialibus inter partem
catholicam et partem acatholicam, sive baptizatam sive non-baptiza-
tam, quocumque modo ad Sanctam Sedem delatis, Suprema Sacra
Congregatio Sancti Oficii exclusivam habeat competentiam?

The answer to the first dubium was negative, with the added reason that
canon 87 should apply to such cases. This means that non-Catholics are not
to be considered as mere excommunicates, but as in a distinct status of heresy
(or infidelity) ; and that this status results in their having less right to institute
proceedings before Catholic marriage courts than Catholics who are involved in
excommunication for some offense which does not destroy his Catholic faith.
Non-baptized persons have not, in the language of canon 87, been “constituted
persons in the Church of Christ, with the rights and duties of Christians”; and,
not having the rights of Christians and Catholics, have no status for approaching
the Church’s courts and demanding the use of her authority to redress their
alleged wrongs. Heretics are indeed baptized persons; they were “constituted
persons in the Church of Christ with the rights and duties of Christians” ; but
their external delict of heresy has “interposed an obstacle impeding ecclesias­
tical communion,” and, moreover, they are subject to “a censure imposed by
the Church.” Both of these facts are recognized by canon 87 as preventing the
claiming of rights. It may be further urged that any baptized person who joins
a non-Catholic sect or publicly adheres thereto, has been declared juridically in­
famous; and this involves a disqualification or disability for legitimate ec­
clesiastical acts,4’ and a further characterization as a suspectus, whose testimony
is to be rejected in ecclesiastical courts.48
This decree therefore excludes from Catholic marriage courts cases in which
non-Catholics are the plaintiffs. It is generously added that whenever there
seem to be special reasons for allowing a non-Catholic to be plaintiff in matri­
monial causes, permission to this effect can be secured upon application to the

Noval, De Judiciis, p. 165; Vermeersch-Creusen, Epitome, III, n. 79; Wernz-Vidal, Jus

Canonicum, VI, n. 210; Hyland, Excommunication, p. 138.
« A.A.S., XX, pp. 75-76.
« Canon 2294, §1.
« Canon 1757, §3, n. 1.
 90 The Delict of Heresy
Holy Office.49 As a matter of fact, the plaintiff in the well-known Vanderbilt-
Marlborough trial was a non-Catholic. The Church has never been unwilling
to do justice when her courts are the proper hope even of a non-Catholic party.
Moreover, it has been suggested that this decree is a restriction of rights, and
as such must be interpreted strictly.50 In the decree there is reference to “causis
matrimonialibus.’’ The word “causa” is a technical term, and has been dis­
tinguished in the Code from “casus,”—the latter being used for certain rela-
tively informal settlements of matrimonial difficulties.54 Under a strict inter­
pretation of the decree, a non-Catholic might seek and be accorded a decision
under canons 1990-1992, without violating the prohibition of the Holy Office.52

d. Jus Eligendi Praesentandi Nominandi

In canons 2265 and 2266, the Church punishes clerics who are guilty of heresy
by restricting them in the exercise of Orders and of jurisdiction. She is equally
alert to prevent heretics from attaining to offices which involve the power of
jurisdiction, and require, to some extent, the power of Orders. To this end,
she legislates against the election of heretics to office, and, as a further safeguard
against unworthy elections, legislates likewise against heretics sharing in the
appointment, or election in any form, of any candidate. Both of these measures
are manifestly ordained to secure proper persons to fill all places of responsi­
bility in her organized life, and as such need neither explanation nor justification.
Under pre-Code discipline, all appointments, presentations, nominations and
votes in ecclesiastical elections were prohibited in the case of any heretic; and this
under pain of invalidity if he were vitandus; and if he were toleratus, his act
could and would be declared invalid if it were challenged by any of the faithful
on the score of his censure.55 Likewise, under the law of the Decretals, any
process which resulted in the giving of ecclesiastical office to a heretic was
thereby invalid.54 Even after the Constitution “Ad Evitanda,” canonists taught
that excommunicates were invalidly placed in such positions, and this without
distinction of vitandi, tolerati, notorious or occult delinquents.55
D’Annibale, with his customary attention to liberal views, noted that it
would be better to concede the validity of the process in the case of a toleratus,
since otherwise there would be serious inconvenience to the faithful, who would

" The response to the second dubium gives the Holy Office sole competence over matrimonial
causes between a Catholic and a non-Catholic, when these are brought in any way before the
Holy See; cf. canons 247, 53, and 1557, §1, n. 1.
“ Canon 19.
« Canon 1990-1992.
“ Park, Ecclesiastical Review, January, 1930, p. 70.
** Wernz, Jus Decretalium, II, n. 357.
54 Wernz, o.c., VI, n. 193.
“ Wernz, ibid.
 a

The Delict of Heresy 91

frequently be doubtful as to whether or not a given official were validly in office.56
Wernz noted this opinion, and suggested that the difficulty might be solved by a
j law invalidating the process in the case of those who had been juridically
9 sentenced, and whose censure was thus notorious in law, while keeping valid the
process in the case of other non-notorious delinquents. The Code has adopted
this plan.
Canon 2265, §1, η. 1, prohibits all excommunicates,—and therefore all here­
tics,—the exercise of any right to elect, present, or nominate others to ecclesiastical
positions. This prohibition makes all such actions illicit. The second number of
this canon decrees that when the delinquent is vitandus or even toleratus post sen­
tentiam, his action is invalid in these matters. Hence sentenced heretics cannot
validly share in any way in the filling of Church offices. Furthermore, if a
person otherwise qualified to act has been guilty of a delict of heresy, and if
à he is challenged on this ground in advance of action to fill a Church office, he
may be subjected to a declaratory sentence on the basis of his delict, and thus
rendered incapable thereafter of sharing in the process of filling the office. If
however such an individual has already acted, by voting with others for a can-
' didate, the election will be held valid, unless it be clearly evident that if he had
not voted, the successful candidate would not have received sufficient votes
for election, or unless the other voters knowingly allowed him to vote, with full
consciousness of his incapacity.67
The second section of this same canon states that heretics and other ex­
communicates cannot acquire any ecclesiastical dignity, office, pension, or other
0 charge, even by the action of others. This legislation is further qualified to in­
dicate that unsentenced heretics are only illicitly placed in office, while sen­
tenced heretics whether tolerati or vitandi, are invalidly elected or appointed, and
do not receive the office at all.
S ·: '

ί e. Promotion to Orders
Canon 950 states that in law the term "Orders” in its various forms refers
not merely to Major Orders,—the episcopate, priesthood, diaconate and sub-
diaconate,—but likewise to minor orders and tonsure. The records of the early
* councils show that heresy and apostasy not merely barred the delinquent from
attaining Orders, but even from the further exercise of Orders already received.68
This discipline was retained, with some limitations in the case of those who
repented, in the Decree of Gratian5’ and in the Decretals.6667

66 Wernz, ibid, not. 306.

67 Canon 167, §2; cf. c. 25, 26, X, de electione, I, 6.
66 See Chapter One, above.
“ C. 2, 4, D. XXIII; C. 5, D. XXIV; c. 10-32, D. L.
C. 5, X. de electione, I, 6; c. 9, X, de haereticis, V, 7.
92 The Delict of Heresy
It has been already noted that heretics are forbidden the licit reception of
the Sacraments;’1 under this law, as well as canon 2265, they may not be con­
secrated Bishops, priests or deacons.’2 The same canon 2260 forbids the recep­
tion of Sacramentals by sentenced excommunicates, and hence excludes these
delinquents from minor orders and tonsure. Canon 2265, §1, n. 3, reaffirms
this legislation, and adds a general statement that no heretic or other excom­
municate may be promoted to Orders. This prohibition can only make the
reception of the Sacrament of Orders illicit;” As to minor orders, which are only
Sacramentals, there might be question as to whether these were validly re­
ceived by a sentenced excommunicate.”
As parallel to this legislation may be noted the provisions of canon 693 and fol­
lowing, which regulate membership in confraternities, tertiary orders and similar
pious associations. These societies commonly have special statutes of their
own which would exclude heretics. In addition, the general law of the Church
provides that notorious excommunicates cannot be received into such associa­
tions; and that any member who becomes a notorious excommunicate should be
expelled in the manner provided by the statutes.’5
Reception of Orders by a heretic is likewise prohibited by various irregu­
larities and impediments which are associated with heresy. By irregularity is
meant an unfitness for, and consequent prohibition of, the reception of Orders,
or the exercise of Orders by those who have already been ordained. These
irregularities are of two types: irregularities ex defectu, where the unfitness and
prohibition arise from defects in the person,—in his physique, paternity, repu­
tation, etc.,—which are deemed so serious that the person laboring Under these
handicaps cannot fitly engage in the sacred ministry; and irregularities ex delicto,
which result from the commission of crimes so serious as to indicate that the
person is not morally worthy of the high honors and responsibilities of Sacred
Orders.”
Careful choice of the ministers of the Church has always been part of the
Catholic discipline. Something of this may be seen in Paul’s instructions to
Timothy’7 and to Titus.*8 Gratian included in his Decree a long canonical dis-

·> Canon 2260; cf. pages 61, 62 above.

K Subdiaconate is not (probably) a Sacrament, although included among the Major Orders,
—Noldin, De Sacramentis, n. 450, 453. The reception of the Subdiaconate is prohibited at least
by canon 2265, §1, n. 3, and probably by canon 2260.
° Blat. Commentarium, V, n. 92.
w Paschang, Sacramentals, p. 74.
“ Cf. the interesting legislation concerning the membership of masons in pious associations
in South America,—Pope Pius X, ep. “Quamquam”, May 29, 1873,—Fontes Codicis J.C., n.
563; ep. "Exortae”, April 29, 1876,—Fontes Codicis J. C., n. 571.
“ Canons 984-985.
” I Tim., Ill, 1-13.
” Tit., I, 6-9. Note that these texts are immediately followed by warnings against heretics.
 The Delict of Heresy Ô3 i
cussion of the necessary qualities in those who seek ordination, and in his com- [
pilation of the canons and laws of the early Church may be found most of the
provisions of the present legislation.69
Among the irregularities ex defectu, this dissertation is concerned only with
that which arises from juridical infamy.’9 As was seen above, canon 2314 in­
flicts juridical infamy upon those who join or publicly adhere to non-Catholic
sects, and also upon heretics who, after canonical warning, do not recant and
repent. The Code repeats several times, in various canons, that this status of
infamy is a sweeping disqualification. As an irregularity, it impedes the recep­
tion of orders.71 As a vindictive penalty, it causes an incapacity for the ac­
quirement of benefices, pensions, offices and ecclesiastical dignities, for the per­
formance of legitimate ecclesiastical acts, and for the fulfilment of ecclesiasticàl
offices and the exercise of rights; and furthermore, all such infamous persons are
to be repelled from the exercise of any ministry in sacred functions.72 It fol­
lows then that all baptized persons who have joined a non-Catholic sect, and
all heretics who have been sentenced under canon 2314, §2, n. 2, are subject to
this complete disqualification for obtaining exercising official places in the
Church. Moreover, the status of juridical infamy persists until it is dispensed by
the Holy See.” Even if the sin of heresy is forgiven, and absolution is obtained
from the excommunication, the status of infamy will still remain and need
special dispensation before the delinquent can regain normal status in the
Church.
Canon 985 gives a complete list of the irregularities ex delicto. Two of these
concern heretics:

Sunt irregulares ex delicto :

1. Apostatae a fide, haeretici, schismatici;
7. Qui actum ordinis, clericis in sacro constitutis reservatam, ponunt,
vel eo ordine carentes, vel an ejus exercitio poena canonica sive
personali, medicinali aut vindicativa, sive locali, prohibiti.

The application of these canons needs no special comment. All those who in­
cur censure for being heretics, apostates or schismatics, incur this irregularity
at the same time.71 Under the seventh number quoted above, those heretics who
perform an act involving the exercise of Sacred Orders,—saying Mass, adminis­
tering a Sacrament, etc.,—and this in violation of a prohibition to exercise

** Dist. XXIV and following.

70 Canon 984; cf. c. 2, C. VI, q. 1.
71 Cf. canon 968, §2.
77 Canon 2294.
77 Canon 2295.
74 Even those who were heretics in good faith need a dispensation ad cautelam before they
may be promoted to Orders,—Vermeersch-Creusen, Epitome, II, n. 257, 1.
94 The Delict of Heresy
Orders in the future,75*thereby incur a further irregularity. This serves as a
sanction for the prohibition stated in canon 2261, which forbids excommunicates
the exercise of Orders. Moreover, the irregularity exists even if the delinquent
is ignorant that the law inflicts it upon him.75 Finally, it is quite possible for a
heretic to be irregular on several counts; by the delict of heresy, by thereafter
exercising Sacred Orders in conscious violation of the excommunication; and
by various other delicts attended with irregularity.77 Repetition of the same
offense, however, does not multiply the irregularity.78
In addition to irregularities, the law establishes what are called simple im­
pediments. These are distinguished from irregularities chiefly in the fact that,
whereas the latter are -per se permanent in character, and cease only if they are
dispensed, the former are temporary matters, which may cease to exist by some
change of circumstances. They may likewise be overcome by dispensation.79
Simple impediments are listed in canon 987. Only the following pertain to
this dissertation:
. Sunt simpliciter impediti:
1. filii acatholicorum, quamdiu parentes in suo errore permaneant;
7. qui infamia facti laborant, dum ipsa, judicio Ordinarii, per­
durat.80
As regards the first category, pre-Code law established this impediment against
sons and grandsons of heretical fathers, and against sons (only) of heretical
mothers.81 The fact that the person is a candidate for Orders presupposes that,
despite his parentage, he himself is a Catholic, and that the impediment is
occasioned by the fault of his parents, and not by any fault of his own. Hence
it almost seems, at first sight, as if an innocent individual is made to suffer for a
delict in which he had no personal share. This seeming injustice is explained away
by the fact that simple impediments are not punishments, but simply the result
of certain facts which render promotion to Orders improper. The heretical
status of parents is such a fact.82 It creates a justified fear that the children are
not of the proper type, and have not lived in the proper environment to be

75 A simple prohibition, making the act illicit in the internal forum does not suffice,—
Vermeersch-Creusen, o.c., n. 257, 7.
’· Canon 988: this is an application of canon 16.
77 Canon 989.
” Except in delicts of voluntary homicide,—ibid.
” C. 10, X, de haereticis, V, 7; c. 15, de haereticis, V, 2, in Sexto. Cf. Vermeesch-Creusen,
Epitome, II, n. 252.
50 Heretics, like other persons, may be impeded by marriage, slavery, etc.; but these im­
pediments are not essentially connected with heresy as such, and hence need not be treated
here.
·' C. 2,15, de haereticis, V, 2, in Sexto; S.C.S.Off., Dec. 4, 1890,—Collect., n. 1774; March 6,
1891,—Collect., n. 1748. Cf. Wemz, Jus Decretalium, II, n. 139.
° Wernz, ox., VI, n. 287.
 The Delict oj Heresy 95
suitable candidates for the high dignity and grave responsibilities of the clergy,
especially in the primary duty of guiding the faithful in the knowledge and
practice of Catholic faith.
This legislation has been given two official interpretations which specify
its meaning. The first, dated October 16, 1919,88 states that even if one parent
is a Catholic, the other being a non-Catholic, the impediment nevertheless exists;
and the fact that the parents received a dispensation for their mixed marriage
does not remove the impediment. In other words, the Church recognizes that
even where only one parent was a non-Catholic, the children are still liable to
partake, perhaps even unconsciously, in the errors of that parent.
The second interpretation is dated July 14,1922,84 and declares that the term
“filii" is to be understood as meaning sons, and sons only. In other words,
the Code changes the older legislation, which made grandsons as well as sons
of non-Catholic fathers subject to this impediment. The grandson is not in­
cluded in the present legislation.
It may be further noted that, in the opinion of Vermeersch-Creusen, this im­
pediment ceases at the death of the heretical parent or parents.85 The reason
alleged is that canon 987 is penal law, and consequently subject to strict inter­
pretation; the impediment exists “quam diu parentes in suo errore permanent,”
and they can scarcely be thought to persist in error after their death. Moreover,
simple impediments have relation to the present status of the person, and, ad­
mittedly cease to exist when the circumstances of the person change; the death
of the heretical parent is, in the opinion of these authors, such a change of cir­
cumstances. Pruemmer86 adopts the same doctrine, without discussing it.
As opposed to this, Blat87 argues that the death of the parent or parents means
that their assent to error has become perpetual,—death having deprived them
of any opportunity to change their views. In view of the controversy, a dis­
pensation ad cautelam may be sought and issued.
Another controverted point concerns the meaning of the term “acatholicorum”
in this canon. Vermeersch-Creusen88 claims that if the parents are technically
infidels, the sons are not subject to this impediment. In support of this opinion,
appeal is made to a decision of the Congregation of the Council, which held
that the impediment did not exist in the case of a son of Jewish parentage.8’
Augustine” holds that the term “acatholicorum” should be understood in a broad

** Resp. Comm. Interpret. Cod.,—A.A.S., XI, 478.

M Resp. Comm. Interpret. Cod.,—A.A.S., XIV, 528.
“ Epitome, II, n. 259.
M Manuale Juris Canonici, p. 411.
87 Commentarium, III, De Sacramentis, 355.
·· Epitome, II, n. 259.
" The decree is cited in Richter, Concilium Tridentinum, p. 339.
K Commentary, IV, 498.
 96 The Delict of Heresy
sense as including all those who do not accept the teachings of Catholic faith;
and Blat’1 argues at some length that the legislation of the Code has changed
what was admittedly the legislation prior to the Code. Here again a dispensation
ad cautelam would be the appropriate practical solution.
Number seven of canon 987 states that a simple impediment arises from in­
famy of fact,—i.e., from the judgment of the community that a person has com­
mitted such crimes and is of such bad character that he must be considered as
lacking in honor, reputation and standing, and hence unworthy of advancement
to Orders.92 This infamy of fact is incurred apart from any judicial process, and
represents the judgment of the community as to the religious character and
standing of the individual involved. Among Catholics, such infamy of fact
could well be incurred by a Catholic who publicly and knowingly apostatized or
became a heretic. It is true that belief or unbelief today attract little attention,
and that the defection of a Catholic would often pass unnoticed. But if the
Catholic had been in some position which called attention to his defection from
the faith, the resulting publicity might be a real and reasonable cause for the
Ordinary to refuse him promotion to Orders, no matter how sincere his subse­
quent repentance.
The judgment as to the existence of this impediment is committed to the pru­
dence of the Ordinary.93 If he determines that the individual does not labor under
this infamy, there is no impediment, and no need therefore of dispensation.
If he judges that the individual actually has an infamous reputation, he may
indicate measures that will lead to a change of public opinion, and thus to
the cessation of the impediment. If however no such measures are possible, the
individual remains subject to the impediment, unless he secures a dispensation
by showing a sufficient reason for disregarding his existing infamous reputation.
The practical solution of any such case would be that the heretic should not
merely repent, but show by an exemplary life of faith, through some consider­
able time, that he has repented; and, if necessary, that he should seek and exer­
cise Orders in some other place than that in which he committed the delict,
thereby divorcing himself completely from the scene and memory of his crime.

f. Pontifical Rescripts
Pontifical rescripts are written responses by the Holy See to questions asked or
favors requested.»4 These responses may grant a grace, privilege or dispen­
sation, or concern some element of the administration of justice.

i M Commentarium, III, De Sacramentis, 355.

J « Canon 2293, §3.
“ Canon 987, n. 7. Cf. Vermeersch-Creusen, Epitome, II, n. 259.
t « Canon 36, JI.
 The Delict of Heresy 97
Under the law of the Decretals, all excommunicates were held incapable of
validly receiving any pontifical rescript; that is to say, any rescript addressed
to them was invalid, and this whether the recipient was vitandus or toleratus.
j occultly or publicly censured.95*97
However, justice often required that appeals and
{ other communications regarding the status of the delinquent should be an-
[ swered, and the practice arose of absolving the delinquent ad cautelam (on the
I possibility that he had incurred the censure), ad effectum dumtaxat gratiae con-
I seqùendae. This last clause lifted the existing or presumed excommunication
I just to the extent required to give the rescript validity, but no further. Hence
I the excommunication could not be alleged to invalidate the rescript, nor the
rescript alleged to prove the absence of censure. Thus the rescript could be re­
ceived validly, even though the recipient was under censure.
On and after November 3, 1908, the Constitution "Sapienti Consilio” had
the force of law. Among other changes, the "Normae Peculiares” attached to
this Constitution provided that all favors thereafter granted by the Holy See
would be valid and legitimate, even if the grantee were under the ban of cen­
sure." This discipline is continued under the Code. Canon 36, §2, states that
graces and dispensations granted by the Holy See are valid, even when the
recipient is censured, with due regard for the provisions of canons 2265, 2275,
and 2283. These three canons add that when the recipient has been judicially
sentenced to excommunication, interdict or suspension, the rescript will be
invalid unless it contains mention of the sentenced status of the recipient.
Hence a heretic who receives from the Holy See any rescript, whether of grace
or of justice, will today have a valid document; with one exception, viz., when
he has been judicially sentenced for his delict, and this fact is unknown to and
unmentioned by the rescript. It may be recalled again that by virtue of canon
2263, the heretic is deprived of the enjoyment of privileges previously granted.
By canons 36, §2, and 2265, §2, the Church wishes to restrict the attainment of
further privileges, at least by the sentenced heretic. Hence the spirit of the
Code is to cut off the heretic from all such favors.”

95 Wernz, Jus Decretalium, I, n. 151.

98 Normae Peculiares, cap. Ill, n. 6. Exception was made for cases in which the grantee had
been excommunicated nominatim, or had been suspended a divinis, nominatim, by the Holy
See.
97 Sole, De Delictis, n. 230.
 CHAPTER SEVEN

JUDICIAL PROCESS AGAINST HERESY

The canonical penalties against heresy are partly automatically imposed by

the law itself (latae sententiae), and partly imposed only by judicial process
(ferendae sententiae). The commission of an external act of heresy is presumed
by law to have all the necessary qualities of contumacity,1 and hence is auto­
matically punished by a state of excommunication, which the delinquent must
recognize as binding him in both the internal and external fora.1 In this no
judicial process is involved. The person is excommunicated by virtue of the
pre-existing law and the fact that he has committed the forbidden delict. The
observance of this excommunication is left to the delinquent’s own conscience.
No compulsion can be exerted against him to force compliance with the laws
governing excommunicates, up to the moment when judicial process has been
completed and a sentence has been issued against him. Hence, even if a friend
or a superior knows that the delict was committed, they may not do anything
more than urge him to recognize his status and avoid the further sin of violating
his censure. They cannot compel him however, with the exception of certain
cases in which he has become a public sinner, and as such is to be repelled from
the reception of Holy Eucharist,’’Matrimony/ enrollment in pious associa­
tions,5 and ecclesiastical burial.’ In other words, the Church will deny him
these communications in Catholic life, not because he is a heretic, but because
he is a public and manifest sinner.
The external enforcement of laws against heretics as heretics, always in­
volves some judicial process. This process may have various stages, marked by
the judicial sentences imposed: a declaratory sentence that excommunication
has been incurred by a delict of heresy; a sentence of juridical infamy; depriva- I
tion of offices, benefices, etc. ; deposition and degradation.7 The issuance of any
of these sentences (save the declaratory sentence), requires canonical warnings
and trials, with full observance of the criminal code in all details of the process.

1 Canon 2200, §2.

’ Canon 2232, §1 ; a further ipso facto penalty is imposed on those who join or publicly adhere
to a non-Catholic sect; and if a cleric is guilty of this, he has automatically resigned any office
or benefice hitherto his,—canon 2314, §1, n. 3.
’Canon 855.
« Canon 1066.
• Canon 693, §1.
• Canon 1240, §1.
’Canon 2314, JI.
98
 The Delict of Heresy 99
It scarcely needs to be stated that the infliction of these penalties is of rare
occurrence. Although delicts of heresy are numerous, it is not usual to pursue the
delinquents with judicial process. Most of the cases of heresy involve the laity,
and since they are already excommunicated, the additional process could lead
only to a sentence of judicial infamy, and, in rare cases, to deprivation of some
official position. Cases of heresy among the clergy are rarer. If these are occult,
no judicial process is possible. If they are public, the cleric will in practically
every case have abandoned any position which was hitherto his, together with the
reception and administration of Sacraments and the exercise of jurisdiction
within the Church. Thus the delinquent, by his own choice, will have deprived
himself of all the rights which the judicial process would strip from him; and he
will have ceased to exercise any powers within the Church, so that the faithful
will not be endangered by him, except on the score of scandal. Judicial process
can therefore serve only as exemplary punishment,—as a formal notice to the
world that the delinquent has offended, and that his teachings and example are
condemned by the Church. Hence there will be utility in pressing such cases
to final punishment only in those cases in which the delinquent retains some
power of prestige or personality whereby the faithful may still be misled. The
obscure and uninfluential, even among clerical delinquents, may well be left to
the punishment of their own consciences.
There are two problems in regard to heresy which may need authoritative
determination. The first is the problem whether or no some new teaching is
actually an error against Catholic faith. Students of Catholic dogma are aware
that most of the definitions of faith have been occasioned by some erroneous
teaching which the Church has had to condemn. In our day, most of the cur­
rent errors offend against definitions already recorded; but with the multitude
of new doctrines, it is possible for some new view to be developed, the relation
of which with Catholic faith is not entirely clear. Any person, lay as well as
clerical, may denounce these doctrines, as well as repetitions of doctrines al­
ready known to be heretical, to his Bishop, or to the Holy Office;8 while Legates
of the Holy See, Bishops and Rectors of Catholic Universities have this as one
of their duties and privileges. The power to condemn offending books is given
by the Code not merely to the Sacred Congregation of the Holy Office, but
likewise to Particular Councils (for the dioceses represented), and to Ordinaries
(for their own dioceses or religious bodies).’ In addition, certain types of books
are prohibited to the faithful by general law, apart from special condemnation.”
Among these may be noted:

• Canon 1397.
’ Canon 1395; cf. canon 336.
” Canon 1399.
100 The Delict of Heresy
2. Libri quorumvis scriptorum, haeresim vel schisma propug­
nantes, aut ipsa religionis fundamenta quoquo modo evertere nitentes;
3. Libri qui religionem aut bonos mores, data opera, impetunt;
4. Libri quorumvis acatholicorum, qui ex professo de religione
tractant, nisi constet in eis nihil contra fidem catholicam contineri;
6. Libri qui quodlibet ex catholicis dogmatibus impugnant vel
derident, qui errores ab Apostoica Sede proscriptos tuentur, qui
cultui divino detrahunt, qui disciplinam ecclesiasticam evertere con­
tendunt, et qui data opera ecclesiasticam hierarchiam, aut statum
clericalem vel religiosam probris afficiunt.
Ordinaries and all having care of souls are required to warn the faithful of the
danger inherent in possessing and reading forbidden books.11
The foregoing is cited as indication of the great care with which the Church
views the publication of heresy and error. To this may be added a brief notice that
canon 2318 visits with excommunication, specially reserved to the Holy See, the
editors of books by apostates, heretics or schismatics, in which they defend
and advocate their apostasy, heresy or schism; and the same penalty is assessed
against those who defend books which have been condemned by name by the
Holy See, and also those who knowingly retain and read forbidden books, with­
out due permission.
The second question which may require judicial determination is that of the
guilt or innocence of a person accused of heresy, and of the proper punishment of
a delinquent found guilty. Under canon 247, the Sacred Congregation of the
Holy Office, which guards the teaching of faith and morals, may judge criminal
cases of heresy, not merely on appeal from the tribunals of local authorities, but
likewise in the first instance, if the case be directly referred to Rome. However,
Bishops are not forbidden to judge and punish delinquents subject to their juris­
diction,12 under guidance of the directions issued by the Holy Office, such as
the Instruction, dated February 20,1866, which regulated trials for solicitation.12
Since criminal prosecution of heresy will today be reserved to cases of especially
great importance and scandal, the Bishop may well denounce the delinquent to
the Holy Office, and then simply act upon the instructions he receives in regard
to the case.
Judicial action against heresy can begin only when some baptized person has
(at least by imputation) externally manifested, in words, acts or omissions, that
he doubts or denies some truth or truths which must be believed with divine
and Catholic faith. The commission of this delict may have been so public that

“ Canon 1405, §2.

11 Roberti, De Processibus, I, n. 237.
u Collect., n. 1282; referred to hereafter as "the Instruction.” There is in the hands of the
Bishops a recent Instruction which has not been published; beyond doubt its contents do not
greatly change the process of prosecution.
 TheJDelict of Heresy 101
it is known to Church authorities by public report, and without specific denunci­
ation by any one or more individuals. In other cases, the commission of the
delict will be made known to ecclesiastical officials by the report (denunciation) of
some one who knows the fact. Under the law of the Decretals, a specific obliga­
tion was imposed upon the faithful to denounce all heretics.11 The Code gives
the right of denunciation to all the faithful, but imposes the obligation only on
those who are bound by law or special precept,11 and upon individuals who,
under the natural law, are personally responsible for the averting of danger to
religion and faith or imminent harm to the common welfare.1*
The exception of heresy may also be entered in certain cases as a means of
nullifying or preventing harmful acts by one who had previously been guilty
of heresy. As has been seen,17 the sentenced heretic is deprived of the power
to exercise jurisdiction, (acting as judge, imposing sentences, granting dispensa­
tions, etc.), to share in the election or other modes of appointment to benefices
and ecclesiastical offices, and to perform legitimate ecclesiastical acts (among
others, being plaintiff in ecclesiastical courts). If he has done these things
after committing a delict of heresy, and if it be desired to restrain him from
further actions of this sort, the interested party can enter the exception of
heresy, to the end that a declaratory sentence issue against the delinquent,
with its consequent deprivations and prohibitions. ’ Canon 2223, §4, provides
that the issuance of declaratory sentences, stating that excommunications
latae sententiae have been incurred, is left in general to the judgment of judicial
Superiors; but imposes an obligation to issue such sentences when the common
welfare requires it, or “ad instantiam partis cujus interest.”
This process does not require the monitiones mentioned in canon 2314, §1.
It is not directed to the vindictive punishment of the crime so much as the
juridical determination and recording of a status already existing. The trial is
therefore simply to determine the fact : did the accused commit an act of heretical
depravity?18 If he did, and it is so proved, then the declaratory sentence issues,
stating judicially that the delinquent was excommunicated on and after the
date of the commission of the delict.1» This finding gives the delinquent the status
of a sentenced heretic, makes this status notorious in law, and imposes the dis-

« C. 13, X, de haereticis, V, 7.
11 Canon 1935. Thus, by canon 1397, Legates of the Holy See, Bishops, and Rectors of
Catholic Universities are peculiari titulo to report pernicious writings to the Holy See.
“ Cf. Lehmkuhl, Theol. Moral., I, n. 813; Π, n. 987.
17 Cf. Chapter Six above.
11 Cappello, l.c., states that the Bishop should inquire into the reasonableness of preceding
to this sentence; there should be not merely the fact that the delict has been committed, but
also some useful purpose (public welfare or protection of individual rights) in issuing the
declaratory sentence.
*» Canon 2232, §2.
 102 The Delict of Heresy
abilities and prohibitions which are decreed against sentenced heretics.2’ The
seriousness of these results has led the Church to require that the verdict be
issued only by a collegiate tribunal of three judges,21 who hear the evidence, and
reach their decision by a majority verdict.22 It is recommended that the Bishop
should not himself act as judge in these and other criminal cases.28
Quite different from the judicial determination that an excommunication has
been incurred, is the criminal prosecution of the delict of heresy, with a view
to the infliction of the ferendae sententiae penalties of canon 2314, §1. As has
been stated, the Sacred Congregation of the Holy Office has exclusive com­
petency to judge delicts of heresy;24 but local Ordinaries are not forbidden to
impose these penalties, after following the process of trial indicated by the
common law and the instructions of the Holy Office.25 Canon 1555, §1, states
that even under the Code, the Holy Office will follow its own mode of procedure
and preserve its own customs; and that inferior tribunals, in handling cases
which belong to the Holy Office, must be guided by the instructions and rules
issuing from that Congregation. Hence even local prosecution of the delict of
heresy will follow, not the ordinary criminal procedure of Title XIX, Book Four,
of the Code, but rather the simpler procedure which was outlined by the Holy
Office in its Instruction to Bishops as to the mode of prosecuting clerics guilty
of the crime of solicitation ad turpia in connection with Confession.26 A brief
review of the procedure of the Congregation itself null indicate the procedure to
be followed in local tribunals as well.
It is not the practice of the Holy Office to initiate criminal proceedings im­
mediately upon the receipt of a denunciation. Rather, the custom exists of re­
plying to the first denunciation by the command “Observetur," i.e., the local
authorities are to observe and study the delinquent further, and watch especially
to see if he repeats his delict and is guilty of further scandal. If a second de­
nunciation of the same delinquent is received, indicating that he is continuing
his evil course, the same instruction will be issued, and a further period of
observation will be begun. It is only when a third denunciation has been re­
ceived, that the Holy Office will, in ordinary cases, begin judicial procedure. Only
by way of exception, will action begin after the first or second denunciation, when
proof is advanced that further delay will result in grave harm to the Church.27

“ Canon 2250-2267.
21 Canon 1576, §1, n. 1.
22 Canon 1577, §1.
22 Canon 1578.
«Canon247, §2.
25 Roberti, De Processibus, I, p. 237.
22 S.C.S.Ofi., Feb. 20, 1866,—Collect., n. 1282. This Instruction is made the basis of the
directions for local prosecution of heresy by Lega, De Judiciis, IV, n. 534, and Heiner, De
Processu Criminali, 148. Cf. Blat, Commentarium, IV, n. 7.
27 Lega, l.c.; Roberti, De Processibus, I, n. 151; the Instruction, n. 11.
 The Delict of Heresy 103
During these periods of observation, the local authorities will, of course, ac­
cumulate information which will be of use if and when criminal prosecution
begins.
A further fact of primary importance is that the Holy Office treats all cases
with the most absolute secrecy. Even if a suspected person is acquitted of
charges advanced against him, he would suffer greatly in reputation and stand­
ing if it were known that he had been under investigation or trial by the Holy
Office. Hence, the Congregation requires that every participator in the process
be held to the utmost secrecy, and even the office staff of the Congregation are
sworn to avoid all mention of knowledge that comes to them concerning these
cases.28 The same secrecy is extended even to those cases that reach a final
condemnation and infliction of punishment.2’ Unless the decree of punishment is
officially published, there must be no mention of its being inflicted.20 The
Instruction to Bishops requires that local prosecution be conducted on the
same basis. All officials of the local curia, all those who are called upon for testi­
mony (included the denouncer), are to be sworn to secrecy. Even priests are
to take oath by touching the Bible. The Bishop himself is bound to the same
secrecy.81
The judicial procedure is per modum inquisitionis; that is, the case against
the delinquent is carefully prepared in advance by the taking of depositions as
to the commission of the delict. This preliminary investigation, or inquisition,
caused the tribunal to be known for centuries simply as “the Inquisition.” It is
to be conducted in strict secrecy, with all care and prudence, to determine the
facts of the case. Only when the evidence seems clear and conclusive is the ac­
cused summoned to answer.
It is the practice of the Holy Office to suspend all clerics a divinis from the
moment they are cited for trial. In view of the strong evidence which is re­
quired before citation, this suspension will be clearly justified, even in advance
of the formal verdict. Moreover, the accused will have been given great op­
portunity to repent. Before the Bishop denounces him to the Holy Office, he
should endeavor by paternal admonitions and friendly counsels to win the
delinquent from his error. If these means are effective, there will be no need
of the formal prosecution, and the delinquent will be given only salutary pen­
ances. If however, the delinquent has been so contumacious that a denunciation
was required, but afterwards repents before he is cited and formal prosecution is
begun, it is customary to inflict some vindictive penalties upon him, but of a less

22 Hilling, Procedure at the Roman Curia, p. 55.

22 Heiner, l.c.
20 E.g., if a heretic is declared vitandus. Ci. Lega, o.c., IV, 531.
” Instruction, n. 14.
104 The Delict of Heresy
serious degree than those mentioned in canon 2314, §1.» If however the delin­
quent recant only after he has received the citation, he does not merit, per se,
any reduction of the penalties ferendae sententiae, although, if his repentance
be sincere and in accordance with canons 2242, §3, he must be absolved from
the basic excommunication he had incurred.”
When the accused appears in court, he is given the depositions which have
been made against him, and is required to answer the charges therein contained.
The names of those who made the depositions are withheld from the accused, in
accordance with a custom which extends back to the procedure of the Middle
Ages. He is given the fullest opportunity to deny or explain the delict that
is attributed to him; and, contrary to usual procedure, his own sworn state­
ment is received in evidence.’1 Finally, after hearing all the defense, and de­
termining the weight of any exceptions and counter evidence and depositions
the defendant may introduce, the judges determine the guilt and the punish­
ment to be assigned. As is set forth in canon 2314, §1, the infliction of these
punishments has always been preceded by warnings to the delinquent that he
recant his error and perform specific works of atonement and reparation of
the damage and scandal he has caused. Failure to obey these warnings is proof
of final and continuing contumacy and justifies the extreme spiritual priva­
tions there recorded.
It is proper, and perhaps necessary, to close this review of the judicial prose­
cution of heresy, by remarking that in actual fact the trial of heretics by the
Holy Office is attended by none of the horrors of cruelty and injustice which
have been so frequently depicted in fiction. The testimony of Cardinal De Luca
may be adduced:
Illud autem certum et indubitatum est (quidquid ignarum vul­
gus indebite et absque fundamento opinatur) quod stylus est nimium
placidus ac benignus, omnique majori charitate et circumspectione
plenus, adeo ut non nisi magna urgente necessitate et quando com­
pertum sit quod exactissimae occultae diligentiae non proficiant,
hujusmodi negotia publice pandantur.35
The purpose of the Church has ever been the saving of souls. Her action against
heretics is like that of Saint Paul against the incestuous Corinthian. He deter­
mined “to deliver such a one to Satan for the destruction of the flesh, that the
spirit may be saved in the day of our Lord Jesus Christ.”” Actually, the Co-

” Roberti, De Processibus, I, n. 151; Lega, De Judiciis, n. 543; Heiner, De Processu Criminali,

p. 149, Instruction, η. 13, note.
» Canon 2248, §2.
“ Roberti, l.c.
* Quoted by Lega, l.c., who himself describes the action of the Holy Office as "mitis et.
charitativa.” Roberti, l.c., calls it “mitis et prudentissima."
"I Cor., V, 5.
 The Delict of Heresy 105
rinthian was moved to repentance, and was restored to the communion of the
faithful by Paul who had excommunicated him.’7 So too, the Church desires sin­
cerely that he against whom she has had to use her power of binding, should
under the inspiration of divine grace, return in a spirit of repentance, and receive
from her the loosing from sin and censure which brings grace to the sinner and
joy to the angels in heaven.

« II Cor., II, 1-11.

 CHAPTER EIGHT

ABSOLUTION FROM HERESY

It is the Church’s hope that every heretic will repent of his error, recant and
seek absolution. To this end she has provided a definite process of absolution
which is found, upon examination, to be generously conceived and easy of appli­
cation.
Canon 2314, §2, states the law in the following terms:
Absolutio ab excommunicatione de qua in §1, in foro conscien­
tiae impertienda, est speciali modo Sedi Apostolicae reservata. Si
tamen delictum apostasiae, haeresis vel schismatis ad forum exter­
num Ordinarii loci quovis modo deductum fuerit, etiam per volun­
tariam confessionem, idem Ordinarius, non vero Vicarius Generalis
sine mandato speciali, resipiscentem, praevio abjuratione juridice
peracta aliisque servatis de jure servandis, sua auctoritate ordinaria
absolvere potest; ita vero absolutus potest deinde a peccato absolvi
a quolibet confessario in foro conscientiae. Abjuratio vero habetur
juridice peracta cum fit coram ipso Ordinario vel ejus delegato et.
saltem duobus testibus.
In this legislation the primary distinction is between absolution in foro con­
scientiae and absolution in the external forum. The former is reserved by the ·
Code to the Holy See, up to the moment when absolution in the external forum
has been obtained. The latter is one of the ordinary powers of the Bishop, (but
not of the Vicar General), whenever the case has been brought in any way
to his judicial attention in the external forum. This distinction will be fol- J
lowed in the following text, which will treat first of absolution in the internal
forum, and then of absolution in the external forum. ‘
*** **** **
Absolution in the internal forum of delicts of heresy is reserved to the Holy
See. It must be noted that this absolution is reserved ratione censurae, and not ■;
ratione peccati. According to canon 894, there is only one sin reserved ratione ·
peccati by the general law of the Church, and that is the delict of falsely ac­
cusing a priest of solicitation. Hence, with heresy reserved ratione censurae,
it follows that there is no reservation unless the censure has been incurred; and f
that there is no reservation of the sin when a censure which has been in­
curred, has been removed.» The provision of canon 2314, §2, to this effect is
simply an application of the general principle of canon 2246, §3. The application

1 Cf. Mothon, Institutions Canoniques, III, n. 1927.

106
J
 The Delici of Heresy 107
of the foregoing doctrine may be seen in the following cases. A penitent who
confesses a purely subjective sin of heresy, and who states that the heretical
error was in no wise expressed in words, acts or omission, may be absolved
by any priest, by virtue of his ordinary faculties. There has been no external
delict, and hence no censure, and hence no reservation. Likewise, a penitent who
admits having been censured, but who has since received absolution from the
i censure, may be absolved by any confessor. In these cases, the confessor is re­
stricted only by the requirement of verifying the existence of the proper dis­
positions in the penitent; in other words, he can absolve from the sin of heresy
just as he absolves from other mortal sins.
Passing now to the question of absolution from the censure attached to
heresy; there will be many cases in which absolution in the internal forum
, will be the proper method of reconciling the excommunicated delinquent to
the communion of the Church. Many heretics were guilty of a delict which
was and which remained occult. While they themselves knew that they had
incurred excommunication, the fact was not known to others, and was not
a recorded in the judicial records of the Church. In popular estimation and
public standing, there existed no evidence that they had been severed from
the communion of the faithful. It follows then that there would be little utility
in providing a public reconciliation. It has been the practice of the Church to
provide that excommunicates of this type, whether heretics or others, should be
reconciled with the same privacy as attended the incurring of the censure.
Such reconciliation may be effected in a number of ways. First, as canon
2314, §2, suggests, the delinquent may approach the Holy See, through the
Tribunal of the Sacred Penitentiary, and obtain absolution from the censure
under the usual conditions of abjuration, repairing of damage and scandal,
and submission to penances enjoined. Such recourse may be made in person
or by letter, and, if the latter, in any language and without special formulae of
words.’ When absolution has been received from the censure, the penitent may
be absolved from this and other sins by any confessor.
While this method entails no great difficulty, save perhaps the amount of
time required, the Church has provided a second method which is even easier.
Many of the Bishops of the United States possess faculties granted under the
title “Formula Number Six.” In this pagella is contained the following para­
graph:
Ex Sacra Poenitentiaria
Absolvendi quoscumque poenitentes (exceptis haereticis haeresùn
inter fideles e proposito disseminentibus) a quibusvis censuris et
poenis ecclesiasticis ob haereses tam nemine audiente quam coram
aliis externatas incursis, postquam tamen poenitens magistros ex
* A confessor may write the letter in behalf of the penitent. For a model of such a letter
and other information, cf. Vermeersch-Creusen, Epitome, III, n. 454. 1
108 The Delict of Heresy
professo haereticalis doctrinae, si quos noverit, ac personas ecclesiasti­
cas et religiosas, si quas hac in re habuerit, prout de jure denunciaverit;
et quatenus ob justas causas hujusmodi denunciatio ante absolutio­
nem peragi nequeat, facta ab eo seria promissione denunciationem
ipsorum peragendi, cum primum et quo meliori modo fieri poterit; et
postquam in singulis casibus haereses coram absolvente abjuraverit;
injuncta pro modo excessuum gravi poenitentia salutari cum frequen­
tia Sacramentorum, et obligatione sese retractandi apud personas
coram quibus haereses manifestavit, atque illata scandala reparandi.
The text is ciear and definite. The Bishop can, by virtue of these faculties,’
absolve both occult and public heretics, but not those proselytizing heretics who
had professedly endeavored to propagate religious errors among the faithful.
Absolution may be granted only upon the fulfilment of certain conditions. Thus
the heretic must make reparation for the scandal given by his delict by en­
deavoring to arrest the activities of teachers of heresy. To this end, he must
denounce any such persons that he knows. Also, he must make known any
Catholic clergy who were accomplices in his delict. Finally, he must recant his
heresy and make this known to those who heard him manifest his doubts or
denials of revealed truth. These denunciations and recantations must either
precede the absolution, or else must be seriously promised by the penitent.
Secondly, the penitent must abjure his erroneous tenets in the presence of the
Bishop or the priest who absolves him. Thirdly, he must submit to a penance
proportioned to the gravity of his delict.
Attached to this section of the pagella is the following adnotandum which
regulates the use and delegation of the faculty just quoted.
Ordinarius recensitis facultatibus tum absolvendi a censuris tum
dispensandi, pro foro conscientiae, etiam extra sacramentalem con­
fessionem, cum suis subditis, et extra dioecesim quoque, quatenus vel
ipse yel subjectus yel uterque extra diocesim fuerint, necnon cum non
subditis intra limites proprii territorii ex speciali Sedis Apostolicae
auctoritate ispi concessa, uti valebit; easque intra fines dioecesis tan­
tum Canonico Poenitentiario necnon Vicariis Foraneis, pro foro pariter
conscientiae et in actu sacramentalis confessionis dumtaxat, etiam
habitualiter, si ipsi placuerit, aliis vero confessariis cum ad ipsum
Ordinarium in casibus particularibus poenitentium recursum habue­
rint, pro exposito casu impertiri poterit, nisi ob peculiares causas
aliquibus confessariis specialiter deputandis per tempus, arbitrio
suo statuendam, illas communicare judicabit.
The Bishop who possesses these faculties can therefore absolve any heretical
delinquent who comes to him within the confines of his own diocese, whether
the delinquent be one of the Bishop’s own subjects or not.’ Moreover, the Bishop

* Note that this faculty concerns the internal forum, and hence is quite distinct from the
power to absolve given by canon 2314, §2. The latter power is restricted to the external forum.
4 Canon 94.
 The Delict of Heresy 109
can absolve his own subjects (but not heretics who are not his own subjects)
outside his diocese; that is, when the Bishop is away from his diocese, or the
subject is outside the diocese, or when both are outside. The absolution in this
case pertains to the internal forum, but is conceded by the Bishop apart from
the sacramental absolution from sins. The reason of this is, of course, the
fact that the Bishop cannot give faculties to absolve from sins, save within the
territorial limits of his diocese. Hence, if a subject is outside the diocese, the
Bishop can either absolve directly himself from the censure, thus making it
possible for the delinquent to receive absolution from sin in the Sacrament of
Penance from any confessor; or else the Bishop may delegate a priest of the
other diocese to absolve from the censure in connection with the sacramental
absolution which the priest will impart by virtue of the faculties which he holds
in the other diocese.
The case just stated involves some unusual elements which will rarely be
found in actual practice. For more regular cases of delegation, the Bishop will
deal with the clergy of his own diocese. The faculty instructs the Bishop that
he may delegate, but with restrictions. First, all who are given this faculty are
to use it in connection with the giving of sacramental absolution. Moreover, the
Bishop is instructed not to grant this faculty in general and habitualiter to all
his priests; but rather to delegate priests individually and for individual cases,
when they need this power for some penitent. There are exceptions to this rule.
The faculty may be given, even habitualiter, to the Canon Penitentiary (where
such an officer exists), and to the Rural Deans of the diocese. It may likewise be
given for a restricted and defined time to one or a few confessors, who have
some special need of it: i.e., if they are chiefly engaged in dealing with heretics,
and frequently have occasion to reconcile them to the Church.
Hence, in dioceses where this faculty is possessed, delinquents who desire
absolution from their censure in the internal forum may address the Sacred
Penitentiary in Rome, or their own Bishop, or any priest whom the Bishop dele­
gates.
There is a third manner in which absolution in the internal forum becomes
possible. This is the case in which the penitent heretic is in danger of death. As
is well known, the Church has made generous provision for any sinner who is in
danger of death, and desires absolution from his sins. By a sweeping provision
of the law itself, all priests, without exception, are granted the fullest faculties
for this penitent.’ The priest may or may not be in good standing, may or may

* Canon 882. Note that if the penitent is a sentenced heretic, his absolution must be governed
by canon 2252, since the judicial sentence makes the censure ab homine. Hence, if the penitent
should survive, he is bound, sub poena reincidentiae, to submit himself to the superior who
sentenced him, and to obey any orders which are given him. The confessor is not required to
make this known to the penitent before absolving (note the difference in this regard of canon
2254) ; but should at least instruct the penitent when the latter has recovered sufficiently.
110 Tke Delict of Heresy
not be within his own diocese, may or may not be approved for confessions.
His previous status and powers are not concerned. If he is present where a peni­
tent is in danger of death, he is thereby automatically given all possible facul­
ties and powers to administer to the penitent; can absolve from all censures
without exception, and can absolve from all sins, provided only the penitent
possesses the proper dispositions for the reception of the Sacrament of Penance.
Even beyond these three sources of internal forum absolution, there is a
fourth, deriving from the provisions of canon 2254. This canon begins with the
words :
In casibus urgentioribus, si nempe censurae latae sententiae
exterius servari nequeunt sine periculo gravis scandali, vel infamiae,
aut si durum sit poenitenti in statu gravis peccati permanere per
tempus necessarium ut Superio competens videat. ...

A large proportion of the cases of heresy fall within the terms of this legislation.
After a delict has been committed, the delinquent finds himself excommuni­
cated. If he cares at all for his relationship with the Church, this status will be
very burdensome to him. He is forbidden in conscience to receive the Sacra­
ments, or (if he is a priest) to confect and administer them. He is bound in
conscience to abstain from the exercise of jurisdiction (with exceptions stated
above in Chapter Six). Violation of these and other prohibitions addressed to ex­
communicates means the commission of new sins, and perhaps the incurring of
irregularity. Observance of his status will frequently cause the Catholic com­
munity to become aware that the individual is living and acting in an unusual
way, and hence expose him to suspicion and infamy.» The delinquent is there­
fore in a dilemma, from which he can be saved only by obtaining absolution from
his censure.
Moreover, it may happen that heretics, as well as other sinners, are moved by
divine grace to a true repentance, and to a sense of the horror of being in the
state of sin. When this is true, and when the penitent finds it hard to continue
in the state of mortal sin during the time necessary to adjust his case in the
external forum, the Church mercifully provides for immediate absolution in
the internal forum, by which the censure is removed, and the penitent is enabled
to receive the Sacrament of Penance and regain the state of grace. The hard­
ship spoken of in the canon is purely moral, and means simply that the penitent
finds the consciousness of being in the state of sin a burden and torment. The
Code does not state how long a time is required to make the continued state of
mortal sin a real hardship, sufficient to justify the application of the canon.

’ Canon 2232, §1, provides that an excommunicate may disregard his censure when he
would, by observing it, incur infamy; but this permission only concerns the censure, and does
not remove the sinful dispositions which would make blasphemous the reception of the Holy
Eucharist, the saying of Mass, etc.
 The Delict of Heresy 111
Cappello thinks that continuance in this state for a week would be, in reason­
able estimation, hard to bear; or even four or three days, if the penitent would
have occasion, during these days to observe the censure.7 Augustine8 and Sole’
note the practice of frequent Communion, and suggest that even one day of
delay would be a hardship for a penitent who wishes to receive Communion day
by day. Since the matter is judged in the internal forum, the confessor must be
guided by the facts that he discovers in the individual penitent. He may there­
fore find cases in which he is justified in absolving, even when recourse to the
Bishop would result in absolution the following day.
The cases considered above would be chiefly, though not exclusively, occult
delinquents. If the delict of heresy had been notorious, either in fact or by judi­
cial process, there is less opportunity of applying this canon. Such penitents are,
ex hypothesi, already disgraced and cannot plead that they fall within the pro­
visions of the first clause of the canon. It is possible, but rather improbable,
that obdurate heretics of this type will be so moved with compunction and
religious fervor, that they will find it hard to delay their reconciliation with
the Church for even a few days. However, if this possibility were actualized
in a given case, the canon might be applied, especially if the delinquent takes
immediate steps to notify the general public of his repentance.
To all cases that fall within the clauses just discussed, the following procedure
may be applied:
... quilibet confessarius in foro sacramentali ab eisdem [censuris
latae sententiae], quoquo modo reservatis, absolvere potest, injuncto
onere recurrendi, sub poena reincidentiae, intra mensem saltem per
epistolam et per confessorem, si id fieri possit sine gravi incommodo,
reticito nomine, ad S. Poenitentiariam vel ad Episcopum aliumve
Superiorem praeditum facultate et standi ejus mandatis.
This concluding portion of canon 2254 indicates that absolution in the internal
forum may be given to delinquents in urgent cases by any confessor. This
faculty to absolve is given by the Code to all priests who are approved for con­
fessions, in addition to the ordinary faculties they enjoy, but cannot be used, of
course, except in behalf of penitents who are of the types mentioned in the first
half of the canon.
The conditions under which absolution is permitted are, as usual, real with­
drawal of contumacy, submission to the authority of the Church, and willing­
ness to prove these in action. The particular test in these cases is that the peni­
tent must, in person or through the confessor, submit himself to the Sacred
Penitentiary, or to his Bishop or some other Superior who has faculties, and

7 De Censuris, p. 34.
• Commentary, VIII, p. 259.
’ De Delictis, p. 193.
 112 The Delict of Heresy
follow the authoritative decision which will be rendered concerning his case.
This recourse to higher authority must be made within a month, sub poena rein-
cidentiae; that is, the penitent who neglects to fulfill his promise, automatically
becomes excommunicated at the end of a month, if he has not prepared and
sent,—or had the confessor do so,—a report of his delict and his submission
to judgment and penance.
Certain details concerning this legislation deserve careful notice. First,
the canon places an obligation upon the confessor to inform the penitent of the
duty of referring himself to higher authorities.10 Most penitents will not know
of this provision, but it is not the Church’s mind that they should thereby
avoid its fulfilment. The confessor must inform them, and make this a test
of the sincerity of their desire to be absolved and reconciled to the Church.
Secondly, the period of a month is tempus utile.I11 It begins with the date of the
confession, and is extended, ordinarily, to a month from that date; but if the
penitent were impeded and could do nothing in the matter, “tempus non cur-
rat" and the computation would include only the time when the penitent
had opportunity to send his report.12 Thirdly, the time refers only to the send­
ing of the report, and not to the reception of the report by the higher authority,
nor to the receipt of the answer from higher authority by the penitent. Thus,
a penitent who writes to the Sacred Penitentiary in Rome within the month,
does not reincur excommunication, even if it is well over the month before he
receives an answer to his letter.
The canon indicates that the confessor should be ready to act for the peni­
tent, unless there be some good excusing reason.12 If the confessor does act, the
penitent must return to him later to receive the further instructions which the
Superior will send through the confessor. When the confessor undertakes
to represent the penitent, the latter is free from the obligation of reporting
himself; and even if the confessor fails to make the report, the penitent does not
thereby reincur excommunication. Certain cases may arise in which recourse
cannot be made. Thus, it might conceivably happen that neither the penitent
nor the priest could write, and that the penitent cannot personally approach any
other confessor;14 or, with the penitent unable to write, the priest might know
that he would not be in the same place again to transmit the Superior’s in­
structions, and that the recourse would not really bring the penitent in touch
with the proper ecclesiastical authorities.15 In these rare cases, the confessor will
( 14 S.C.S.Off.,
“ Nov. 6,
S.C.S.Off., Sept. 9, 1898,
1900, —Colled, n. 2023.
“ Cappello, De Censuris, p.—34, n. 6. n. 1095.
Colled,
H· 10 If the confessor fails - but illicit,
' in this duty, his absolution is valid Ï ; —Vermeersch-Creusen,
< '
“ Sole, DeIII,
Epitome, n. 454,n.4,1.
Delictis, 196; Cappello, De Censuris, p. 34, n. 4.

I
• 11 Canon 35.
 The Delict of Heresy 113
himself give final and complete absolution, imposing some salutary penance
in connection with the absolution from the censure, which must be performed by
the penitent sub poena reincidentiae.™
The recourse may be directed to the Tribunal of the Sacred Penitentiary
in Rome, in any language.17 As we have seen, this is not necessary, when the
Bishop has special faculties allowing him to absolve these cases in the internal
forum.1’ A fictitious name is to be used, as a protection to the seal of the con­
fessional, since the delict is being reported and absolved in the internal forum.
The delict should be described in general terms, and statement be made of the
penitent’s readiness to submit to the penances imposed.

$ * * ******

All the foregoing refers to absolution in the internal forum. Canon 2251
states that this absolution, while perfectly valid in the internal forum, does not
hold in the external forum, unless it can be proved or legitimately presumed.
Hence the penitent is still subject to the possibility of being cited and sentenced
in the external forum. Moreover, if the penitent has been sentenced in the ex­
ternal forum, mere sacramental absolution will not suffice to free him from the
prohibitions which the sentence brought upon him in regard to his external
religious life. Likewise when converts are made from non-Catholic sects, there
is need of regulating their standing, not merely in the forum of conscience, but
likewise in public estimation. In all these cases, it will be necessary to secure
absolution in the external forum.
Canon 2314, §2, already cited, provides that when a delict of heresy is brought
to the external forum of the Ordinary in any manner, even by voluntary confes­
sion, he has full power to absolve from the censure. Converts will afford typical
cases of voluntary confession. When they have decided to become Catholics,
they will report themselves to the Church, admitting their status, and seeking
absolution and admission to the communion of the faithful. So too, occult
delinquents may approach the Bishop, with the purpose of avoiding possible
prosecution in the external forum. Finally, sentenced heretics will have to report
to the Bishop, in order to secure the removal of their public status as excom­
municates.
The heretic must first satisfy the Bishop that he is no longer contumacious.
The test of this matter is given by canon 2242, §3:

“ Canon 2254, §3.

17 Vermeersch-Creusen, o.c., HI, n. 454; Sole, De Delictis, n. 195, give a form of petition and
the postal address.
>· Note canon 2314 gives the Bishop power only in the external forum; hence he is to be
approached here with a request to use the faculties granted by the Sacred Penitentiary.
 114 The Delict of Heresy
Contumaciam desiisse dicendum est cum reum vere delicti com­
missi poenituerit et simul ipse congruam satisfactionem pro damnis et
scandalo dederit aut saltem serio promiserit ; judicare autem utrum poeni­
tentia vera sit, satisfactio congrua aut ejusdem promissio seria, necne,
illius est a quo censurae petitur.

With this point settled to the Bishop’s satisfaction, the penitent must abjure
his errors in due form. This requirement has existed since the earliest times,1’
and is a proper precaution to insure the sincerity of the penitent’s recantation.
The Roman Ritual provides a formula of abjuration and profession of Catholic
faith which is designed especially for converts.” Delinquent Catholics would
be held to make a more specific abjuration of the particular error which was
involved in their delict. The essential necessity is that the delinquent abjure his
particular error, and profess full belief in the opposite Catholic dogma, together
with sincere acceptance of the doctrinal authority of God and of the Church.
This abjuration must be made juridically: i.e., there must be a formal and
public act, under oath, in the presence of the Bishop or his deputy, and at least
two witnesses.’1 The Code requires that other juridical necessities be com­
plied with. This refers to the need of taking steps to undo the scandal already
done, and to avert future damage by denouncing secret propagators of heresy.
Not until all these preliminaries have been concluded may the Bishop absolve.
The absolution will regularly take the solemn form indicated in the Roman Pon­
tifical and Roman Ritual.22 This may however be deemed little consonant with
the modem distaste for ceremonies of personal humiliation.22 Absolution will
be perfectly valid if it be given in the simpler form, which may likewise be
found in the Ritual and in approved authors.”
The foregoing paragraphs have spoken of the reconciliation of converts by
the Bishop. There exists in the United States a general practice of reconciling
heretics, not by action of the Bishop personally, but by absolution imparted
by simple priests,—commonly the priest who has instructed the heretic in the

*’ Cf. canon 8 of the Council of Nicaea,—Denzinger, n. 55; c. 21,22, C, I, 7, which are quo­
tations from Pope Leo I, (440—461), and Pope Martin, (643-654). In the Decretals, cf. c. 9,
X, de haereticis, V, 7; c. 10, X, de purgatione canonica, V, 34; c. 11, de haereticis, V, 2, in Sexto;
c. 3, 5, de poenitentiis, V, 9, in Extrava. com.
” Rituale Romanum, Addenda, De Neo-Conversorum Receptione; this formula originated in
the decree of S.C.S.Off., July 20, 1859, addressed to the Bishop of Philadelphia; it is indicated
for use in these cases by Acta et Decreta Con. Plen. Baltimorensis II, n. 242; Acta et Decreta
Con. Plen. Baltimorensis III, n. 122.
21 Cf. c. 11, de haereticis, V, 2, in Sexto.
22 Pontificale Romanum, Ordo Excommunicandi et Absolvendi; Rituale Romanum, tit. ΙΠ,
cap. 3.
22 Vermeersch-Creusen, Epitome, ΠΙ, n. 449, 2.
21 Vermeersch-Creusen, ibid.; Cappello, De Censuris, η. 29, not. 4; cf. canon 203, §2.

i LX·*'-*-
nnrinin
 The Delict oj Heresy 115
Catholic faith.M In view of the text of canon 2314, §2, question may well arise as
to whether this practice is in accordance with the provisions of the Code. At
first sight, it would seem that the absolution of heretics, apostates and schis­
matics is a power belonging to the Bishop, to the exclusion of others. The canon
remarks that the Vicar General who, ex officio, has ordinary jurisdiction in a
diocese,” does not possess this power of absolution; By implication, simple
priests, whether pastors or curates, are even less likely to possess it.
Before discussing this question, it is well to remark that where the convert
comes to the Church from infidelity,—i.e., when he had never received the
Sacrament of Baptism,—he has not incurred any censure, and hence there is
no reservation of censure possible in his case. Such converts will be baptized
and thereby become members of the Church in full communion.” Moreover, if
the convert had previously been doubtfully baptized in heresy, this doubt as to
his fundamental status would affect any subsequent censure; and such a doubtful
censure, by reflex principles, does not bind. Hence converts of this type may
likewise be reconciled by any priest. A large proportion of the converts from
other faiths will be included in one or other of these classes.
There remain the converts who certainly were baptized. By the external forum
presumption of canon 2200, §2, these heretics are presumed to have incurred
the excommunication entailed by heresy, and hence their absolution in the ex­
ternal forum must, in general law, be governed by the provisions of canon 2314,
§2. This in turn means that the case must be juridically presented to the Bishop
for judgment. Mere casual statements are not sufficient for this purpose. Even if
the delinquent admit his fault, this is not the confession referred to in the text
of the canon. Rather, there should be a canonical confession, which implies that
the delinquent should admit his fault in the presence of two witnesses and the
judge, and that this admission of guilt should be therefore established in the
external judicial forum. After this canonical confession, would come the equally
formal abjuration and absolution.
Now it is obvious that this formal procedure is not followed by the priests who
receive heretical converts today. Even when they receive delegated powers
from their Bishop, explicitly or implicitly in the grant of diocesan faculties,’8
they have not treated the case with this formality, but rather with the simpler
procedure indicated in the formula “De Neo-Conversorum Receptione" which is
printed in their Rituals. This leads to the questions of the sufficiency of the

“ Ferreres, Derecho Sacramental y penal, n. 886, remarks that this practice is in vigor ("esti
en visor") in Germany and other places; by implication, it does not exist in Spain.
» Canon 366, §1; 368, §1.
” Canon 87.
“ Explicit delegation has been given to the priests of the Archdiocese of Philadelphia —
Faculties, n. 11 ; and to the priests of the Diocese of Harrisburg,—Faculties, n. 14. ’
116 The Delict of Heresy
practice and, more fundamentally, of the relation between the legislation of the
Code and the previously existing practice of using this formula.
In answer it may be stated that the Holy Office, in granting the priests of the
United States the use of this simple method of reconciling converts, was in reality
granting a privilege, which still remains in force, by virtue of canon 4, which
states that privileges and induits granted by the Holy See which have not
been expressly reprobated, remain in full vigor. Hence the reception of con­
verts from heretical sects may even now be completed by following the direc­
tions of the Ritual.
 Universitas Catholica Americas
WASHINGTON!!, D. C.
FACULTAS JURIS CANONICI

1932
’ No. 77

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