Excommunication. —This subject will be treated under the following heads: I. General Notions and Historical Summary; II. Kinds of Excommunication; III. Who Can Excommunicate? IV. Who Can Be Excommunicated? V. Effects of Excommunication; VI. Absolution from Excommunication; VII. Excommunications Latoe Sententoce Now in Force.
I. GENERAL NOTIONS AND HISTORICAL SUMMARY.—Excommunication (Lat. ex, out of, and communio or communicatio, communion exclusion from the communion), the principal and severest censure, is a medicinal, spiritual penalty that deprives the guilty Christian of all participation in the common blessings of ecclesiastical society. Being a penalty, it supposes guilt; and being the most serious penalty that the Church can inflict, it naturally supposes a very grave offense. It is also a medicinal rather than a vindictive penalty, being intended, not so much to punish the culprit, as to correct him and bring him back to the path of righteousness. It necessarily, therefore, contemplates the future, either to prevent the recurrence of certain culpable acts that have grievous external consequences, or, more especially, to induce the delinquent to satisfy the obligations incurred by his offense. Its object and its effect are loss of communion, i, e. of the spiritual benefits shared by all the members of Christian society; hence, it can affect only those who by baptism have been admitted to that society. Undoubtedly there can and do exist other penal measures which entail the loss of certain fixed rights; among them are other censures, e.g. suspension for clerics, interdict for clerics and laymen, irregularity ex delicto, etc. Excommunication, however, is clearly distinguished from these penalties in that it is the privation of all rights resulting from the social status of the Christian as such. The excommunicated person, it is true, does not cease to be a Christian, since his baptism can never be effaced; he can, however, be considered as an exile from Christian society and as non-existent, for a time at least, in the sight of ecclesiastical authority. But such exile can have an end (and the Church desires it), as soon as the offender has given suitable satisfaction. Meanwhile, his status before the Church is that of a stranger. He may not participate in public worship nor receive the Body of Christ or any of the sacraments. Moreover, if he be a cleric, he is forbidden to administer a sacred rite or to exercise an act of spiritual authority.
Right of the Church to Excommunicate.—The right to excommunicate is an immediate and necessary consequence of the fact that the Church is a society. Every society has the right to exclude and deprive of their rights and social advantages its unworthy or grievously culpable members, either temporarily or permanently. This right is necessary to every society in order that it may be well administered and survive. The fundamental proof, therefore, of the Church‘s right to excommunicate is based on her status as a spiritual society, whose members, governed by legitimate authority, seek one and the same end through suitable means. Members who, by their obstinate disobedience, reject the means of attaining this common end deserve to be removed from such a society. This rational argument is confirmed by texts of the New Testament, the example of the Apostles, and the practice of the Church from the first ages down to the present. Among the Jews, exclusion from the synagogue was a real excommunication (Esd., x, 8). This was the exclusion feared by the parents of the man born blind (John, ix, 21 sq.; cf. xii, 42; xvi, 2); the same likewise that Christ foretold to His disciples (Luke, vi, 22). It is also the exclusion which in due time the Christian Church should exercise: “And if he will not hear the church, let him be to thee as the heathen and publican” (Matt., xviii, 17). In the celebrated text: “Whatsoever you shall bind upon earth, shall be bound also in heaven; and whatsoever you shall loose upon earth, shall be loosed also in heaven” (Matt., xviii, 18; of. xvi, 19), it is not only the remission of sins that is referred to, but likewise all spiritual jurisdiction, including judicial and penal sanctions. Such, moreover, was the jurisdiction conferred on St. Peter by the words: “Feed my lambs”; “feed my sheep” (John, xxi, 15, 16, 17). St. Paul excommunicated regularly the incestuous Corinthian (I Cor., v, 5) and the incorrigible blasphemers whom he delivered over to Satan (I Tim., i, 20). Faithful to the Apostolic teaching and example, the Church, from the very earliest ages, was wont to excommunicate heretics and contumacious persons; since the fourth century numerous conciliary canons pronounce excommunication against those who are guilty of certain offenses. Of the facts there can be no doubt (Seitz, Die Heilsnotwendigkeit der Kirche, Freiburg, 1903).
Excommunication not only External.—In first Christian centuries it is not always easy to distinguish between excommunication and penitential exclusion; to differentiate them satisfactorily we must await the decline of the institution of public penance and the well-defined separation between those things appertaining to the forum internum, or tribunal of conscience, and the forum externum, or public ecclesiastical tribunal; nevertheless, the admission of a sinner to the performance of public penance was consequent on a previous genuine excommunication. On the other hand, formal exclusion from reception of the Eucharist and the other sacraments was only mitigated excommunication and identical with minor excommunication (see below). At any rate, in the first centuries excommunication is not regarded as a simple external measure; it reaches the soul and the conscience. It is not merely the severing of the outward bond which holds the individual to his place in the Church; it severs also the internal bond, and the sentence pronounced on earth is ratified in heaven. It is the spiritual sword, the heaviest penalty that the Church can inflict (see the patristic texts quoted in the Decree of Gratian, cc. xxxi, xxxii, xxxiii, C. xi, q. iii). Hence in the Bull “Exsurge Domine” (May 16, 1520) Leo X justly condemned Luther’s twenty-third proposition according to which “excommunications are merely external punishments, nor do they deprive a man of the common spiritual prayers of the Church“. Pius VI also condemned (Auctorem Fidei, August 28, 1794) the forty-sixth proposition of the Pseudo-Synod of Pistoia, which maintained that the effect of excommunication is only exterior because of its own nature it excludes only from exterior communion with the Church, as if, said the pope, excommunication were not a spiritual penalty binding in heaven and affecting souls. The aforesaid proposition was therefore condemned as false, pernicious, already reprobated in the twenty-third proposition of Luther, and, to say the least, erroneous. Undoubtedly the Church cannot (nor does it wish to) oppose any obstacle to the internal relations of the soul with God; she even implores God to give the grace of repentance to the excommunicated. The rites of the Church, nevertheless, are always the providential and regular channel through which Divine grace is conveyed to Christians; exclusion from such rites, especially from the sacraments, entails therefore regularly the privation of this grace, to whose sources the excommunicated person has no longer access.
History of Excommunication.—While excommunication ranks first among ecclesiastical censures, it existed long before any such classification arose. From the earliest days of the Christian society it was the chief (if not the only) ecclesiastical penalty for laymen; for guilty clerics the first punishment was deposition from their office, i.e. reduction to the ranks of the laity. Subsequently, when ecclesiastical discipline allowed clerics more easily to resume their ministry, the ancient deposition became suspension; thenceforth even clerics were subject to excommunication, by which they lost at once their rights as Christians and as clerics. Both laymen and clerics were henceforth threatened or punished with excommunication for offenses that became daily more definite and numerous, particularly for refusing obedience either to special ecclesiastical precepts or the general laws of the Church. Once the forum externum, or public ecclesiastical tribunal, was distinctly separated from the forum sacramentale, or tribunal of sacramental penance, say from the ninth century on, excommunication became gradually an ever more powerful means of spiritual government, a sort of coercive measure ensuring the exact accomplishment of the laws of the Church and the precepts of her prelates. Excommunication was either threatened or inflicted in order to secure the observance of fasts and feasts, the payment of tithes, the obedience of inferiors, the denunciation of the guilty, also to compel the faithful to make known to ecclesiastical authority matrimonial impediments and other information.
Abuse.—This extension of the use of excommunication led to abuses. The infliction of so grave a penalty for offenses of a less grievous kind and most frequently impossible to verify before the public ecclesiastical authority, begot eventually a contempt for excommunication. Consequently the Council of Trent was forced to recommend to all bishops and prelates more moderation in the use of censures (Sess. XXV, c. iii, De ref.). The passage is too significant to be here omitted: “Although the sword of excommunication is the very sinews of ecclesiastical discipline, and very salutary for keeping the people to the observance of their duty, yet it is to be used with sobriety and great circumspection; seeing that experience teaches that if it be wielded rashly or for slight causes, it is more despised than feared, and works more evil than good. Wherefore, such excommunications which are wont to be issued for the purpose of provoking a revelation, or on account of things lost or stolen, shall be issued by no one whomsoever but the bishop; and not then, except on account of some uncommon circumstance which moves the bishop thereunto, and after the matter has been by him diligently and very maturely weighed.” Then follow equally explicit measures for the use of censures in judicial matters. This recommendation of the Council of Trent has been duly heeded, and the use of censures as a means of coercion has grown constantly rarer, the more so as it is hardly ever possible for the Church to obtain from the civil power the execution of such penalties.
Excessive Number of Excommunications.—In the course of time, also, the number of canonical excommunications was excessively multiplied, which fact, coupled with their frequent desuetude, made it difficult to know whether many among them were always in force. The difficulty was greater as a large number of these excommunications were reserved, for which reason theologians with much ingenuity construed favorably said reservation and permitted the majority of the faithful to obtain absolution without presenting themselves in Rome, or indeed even writing thither. In recent times the number of excommunications in force has been greatly diminished, and a new method of absolving from them has been inaugurated; it will doubtless find a place in the new codification of the canon law that is being prepared. Thus, without change of nature, excommunication in foro externo has become an exceptional penalty, reserved for very grievous offenses detrimental to Christian society; in foro interno it has been diminished and mitigated, at least in regard to the conditions for absolution from it. However, as can readily be seen from a perusal of the excommunications actually in force, it still remains true that what the Church aims at is not so much the crime as the satisfaction to be obtained from the culprit in consequence of his offense.
Refusal of Ecclesiastical Communion.—Finally, real excommunication must not lee confounded with a measure formerly quite frequent, and sometimes even known as excommunication, but which was rather a refusal of episcopal communion. It was the refusal by a bishop to communicate in sacris with another bishop and his church, in consideration of an act deemed reprehensible and worthy of chastisement. It was undoubtedly with this withdrawal of communion that Pope Victor threatened (or actually punished) the bishops of Asia in the paschal controversy (Eusebius, Hist. Eccl., V, xxiv); it was certainly the measure to which St. Martin of Tours had recourse when he refused to communicate with the Spanish bishops who caused Emperor Maximinus to condemn to death the heretic Priscillian with some of his adherents (Sulpicius Severus, Dial., iii, 15). Moreover, a similar privation of communion was in early Christian times imposed by councils as a regular penalty for bishops found guilty of certain minor faults; the most frequent example is that of bishops who, without good reason, neglected to attend the provincial council (so the Councils of Carthage, 401, can. xi; Agde, 506, can. xxxv; Tarragona, 516, can. vi; II Macon, 585, can. xx; etc.). These bishops were evidently not excommunicated, properly speaking; they continued to govern their dioceses and publicly to hold ecclesiastical services; they were simply deprived, as the aforesaid-texts say, of the consolation of communion with their episcopal brethren.
II. KINDS OF EXCOMMUNICATION.—(I) Major and Minor.—Until recently excommunication was of two kinds, major and minor. (a) Minor excommunication is uniformly defined by canonists and by Gregory IX (cap. lix, De sent. exc., lib. V, tit. xxxix) as prohibition from receiving the sacraments, what theologians call the passive use of the sacraments. In order to receive the Eucharist and the other sacraments, those who had incurred this penalty had to be absolved therefrom; as it was not reserved, this could be done by any confessor. Indirectly, however, it entailed other consequences. The canon law (cap. x, De cler. excomm. ministrante, lib. V, tit. xxvii) taught that the priest who celebrates Mass while under the ban of minor excommunication sins grievously; also that he sins similarly in administering the sacraments; and finally, that while he can vote for others, he himself is ineligible to a canonical office. This is readily understood when we remember that the cleric thus excommunicated was presumed to be in the state of grievous sin, and that such a state is an obstacle to the lawful celebration of Mass and the administration of the sacraments. Minor excommunication was really identical with the state of the penitent of olden times who, prior to his reconciliation, was admitted to public penance. Minor excommunication was incurred by unlawful intercourse with the excommunicated, and in the beginning no exception was made of any class of excommunicated persons. Owing, however, to many inconveniences arising from this condition of things, especially after excommunications had become so numerous, Martin V, by the Constitution “Ad evitanda scandala” (1418), restricted the aforesaid unlawful intercourse to that held with those who were formally named as persons to be shunned and who were therefore known as vitandi (Lat. vitare, to avoid), also with those who were notoriously guilty of striking a cleric. But as this twofold category was in modern times greatly reduced, but little attention was paid to minor excommunication, and eventually it ceased to exist after the publication of the Constitution “Apostolicae Sedis”. The latter declared that all excommunications latae sententiae that it did not mention were abolished, and as it was silent concerning minor excommunication (by its nature an excommunication latae sententiae of a special kind), canonists concluded that minor excommunication no longer existed. This conclusion was formally ratified by the Holy Office (January 6, 1884, ad 4).
(b) Major excommunication, which remains now the only kind in force, is therefore the kind of which we treat below, and to which our definition fully applies. Anathema is a sort of aggravated excommunication, from which, however, it does not differ essentially, but simply in the matter of special solemnities and outward display.
(2) A jure and ab homine.—Excommunication is either a jure (by law) or ab homine (by judicial act of man, i.e. by a judge). The first is provided by the law itself, which declares that whosoever shall have been guilty of a definite crime will incur the penalty of excommunication. The second is inflicted by an ecclesiastical prelate, either when he issues a serious order under pain of excommunication or imposes this penalty by judicial sentence and after a criminal trial.
(3) Latoe and Ferendoe Sententioe.—Excommunication, especially a jure, is either latoe or ferendae sententiae. The first is incurred as soon as the offense is committed and by reason of the offense itself (eo ipso) without intervention of any ecclesiastical judge; it is recognized in the terms used by the legislator, for instance: “the culprit will be excommunicated at once, by the fact itself [statim, ipso facto]”. The second is indeed foreseen by the law as a penalty, but is inflicted on the culprit only by a judicial sentence; in other words, the delinquent is rather threatened than visited with the penalty, and incurs it only when the judge has summoned him before his tribunal, declared him guilty, and punished him according to the terms of the law. It is recognized when the law contains these or similar words: “under pain of excommunication”; “the culprit will be excommunicated”.
Public and Occult.—Excommunication ferendae sententiae can be public only, as it must be the object of a declaratory sentence pronounced by a judge; but excommunication latae sententiae may be either public or occult. It is public through the publicity of the law when it is imposed and published by ecclesiastical authority; it is public through notoriety of fact when the offense that has incurred it is known to the majority in the locality, as in the case of those who have publicly done violence to clerics, or of the purchasers of church property. On the contrary, excommunication is occult when the offense entailing it is known to no one or almost no one. The first is valid in the forum externum and consequently in the forum internum; the second is valid in the forum internum only. The practical difference is very important. He who has incurred occult excommunication should treat himself as excommunicated and be absolved as soon as possible, submitting to whatever conditions will be imposed upon him, but this only in the tribunal of conscience; he is not obliged to denounce himself to a judge nor to abstain from external acts connected with the exercise of jurisdiction, and he may ask absolution without making himself known either in confession or to the Sacred Penitentiaria. According to the teaching of Benedict XIV (De synodo, X, i, 5), “a sentence declaratory of the offense is always necessary in the forum externum, since in this tribunal no one is presumed to be excommunicated unless convicted of a crime that entails such a penalty”. Public excommunication, on the other hand, is removed only by a public absolution; when it is question of simple publicity of fact (see above), the absolution, while not judicial, is nevertheless public, inasmuch as it is given to a known person and appears as an act of the forum externum.
Vitandi and Tolerati.—Public excommunication in foro externo has two degrees according as it has or has not been formally published, or, in other words, according as excommunicated persons are to be shunned (vitandi) or tolerated (tolerati). A formally published or nominative excommunication occurs when the sentence has been brought to the knowledge of the public by a notification from the judge, indicating by name the person thus punished. No special method is required for this publication; according to the Council of Constance (1414-18), it suffices that “the sentence have been published or made known by the judge in a special and express manner”. Persons thus excommunicated are to be shunned (vitandi), i.e. the faithful must have no intercourse with them either in regard to sacred things or (to a certain extent) profane matters, as we shall see farther on, All other excommunicated persons, even though known, are tolerati, i.e. the law no longer obliges the faithful to abstain from intercourse with them, even in religious matters. This distinction dates from the aforesaid Constitution “Ad evitanda scandala”, published by Martin V at the Council of Constance in 1418; until then one had to avoid communion with all the excommunicated, once they were known as such. “To avoid scandal and numerous dangers”, says Martin V, “and to relieve timorous consciences, we hereby mercifully grant to all the faithful that henceforth no one need refrain from communicating with another in the reception or administration of the sacraments, or in other matters Divine or profane, under pretext of any ecclesiastical sentence or censure, whether promulgated in general form by law or by a judge, nor avoid anyone whomsoever, nor observe an ecclesiastical interdict, except when this sentence or censure shall have been published or made known by the judge in special and express form, against some certain, specified person, college, university, church, community, or place.” But while notoriously excommunicated persons are no longer vitandi, the pope makes an exception of those who have “incurred the penalty of excommunication by reason of sacrilegious violence against a cleric, and so notoriously that the fact can in no way be dissimulated or excused”. He declares, moreover, that he has not made this concession in favor of the excommunicated, whose condition remains unchanged, but solely for the benefit of the faithful. Hence, in virtue of ecclesiastical law, the latter need no longer deprive themselves of intercourse with those of the excommunicated who are “tolerated”. As to the vitandi, now reduced to the two aforementioned categories, they must be shunned by the faithful as formerly. It is to be noted now that the minor excommunication incurred formerly by these forbidden relations has been suppressed; also, that of the major excommunications inflicted on certain definite acts of communion with the vitandi, only two are retained in the Constitution “Apostolicae Sedis” (II, 16, 17): that inflicted on any of the faithful for participation in a crime that has merited nominative excommunication by the pope, and that pronounced against clerics alone for spontaneous and conscious communion in sacris with persons whom the pope has excommunicated by name. Moreover, those whom bishops excommunicate by name are as much vitandi as are those similarly excommunicated by the pope.
(6) Reserved and Non-Reserved.—Finally, excommunication is either reserved or non-reserved. This division affects the absolution from censure. In the forum internum any confessor can absolve from non-reserved excommunications; but those that are reserved can only be remitted, except through indult or delegation, by those to whom the law reserves the absolution. There is a distinction between excommunications reserved to the pope (these being divided into two classes, according to which they are either specially or simply reserved to him) and those reserved to bishops or ordinaries. As to excommunications ab homine, absolution from them is reserved by law to the judge who has inflicted them. In a certain sense excommunications may also be reserved in view of the persons who incur them; thus absolution from excommunications in foro externo incurred by bishops is reserved to the pope; again, custom reserves to him the excommunication of sovereigns.
III. WHO CAN EXCOMMUNICATE?—Excomminication is an act of ecclesiastical jurisdiction, the rules of which it follows. Hence the general principle: whoever has jurisdiction in the forum externum, properly so called, can excommunicate, but only his own subjects. Therefore, whether excommunications be a lure (by the law) or ab homine (under form of sentence or precept), they may come from the pope alone or a general council for the entire Church; from the provincial council for an ecclesiastical province; from the bishop for his diocese; from the prelate nullius for quasi-diocesan territories; and from regular prelates for religious orders. Moreover, anyone can excommunicate who, by virtue of his office, even when delegated, has contentious jurisdiction in the forum externum; for instance, papal legates, vicars capitular, and vicars-general. But a parish priest cannot inflict this penalty nor even declare that it is incurred, i.e. he cannot do so in an official and judicial manner. The subjects of these various authorities are those who come under their jurisdiction chiefly on account of domicile or quasi-domicile in their territory; then by reason of the offense committed while on such territory; and finally by reason of personal right, as in the case of regulars.
IV. WHO CAN BE EXCOMMUNICATED?—Since excommunication is the forfeiture of the spiritual privileges of ecclesiastical society, all those, but those only, can be excommunicated who, by any right whatsoever, belong to this society. Consequently excommunication can be inflicted only on baptized and living persons. Although the Church recites against the devil exorcisms in which the word anathema occurs, he cannot be excommunicated, for he in no way belongs to the Church. Among living persons, those who have not been baptized have never been members of the Christian society and therefore cannot be deprived of spiritual benefits to which they have never had a right; in this way, infidels, pagans, Mohammedans, and Jews, though outside of the Church, are not excommunicated. As the baptized cease, at death, to belong to the Church Militant, the dead cannot be excommunicated. Of course, strictly speaking, after the demise of a Christian person, it may be officially declared that such person incurred excommunication during his lifetime. Quite in the same sense he may be absolved after his death; indeed, the Roman Ritual contains the rite for absolving an excommunicated person already dead (Tit. III, cap. iv: Ritus absolvendi excommunicatum jam mortuum). However, these sentences or absolutions concern only the effects of excommunication, notably ecclesiastical burial. With the foregoing exceptions, all who have been baptized are liable to excommunication, even those who have never belonged to the true Church, since by their baptism they are really her subjects, though of course rebellious ones. Moreover, the Church excommunicates not only those who abandon the true faith to embrace schism or heresy, but likewise the members of heretical and schismatic communities who have been born therein. As to the latter, however, it is not question of personal excommunication; the censure overtakes them in their corporate capacity, as members of a community in revolt against the true Church of Jesus Christ.
Catholics, on the contrary, cannot be excommunicated unless for some personal, grievously offensive act. Here, therefore, it is necessary to state with precision the conditions under which this penalty is incurred. Just as exile presupposes a crime, excommunication presupposes a grievous external fault. Not only would it be wrong for a Christian to be punished without having committed a punishable act, but justice demands a proportion between the offense and the penalty; hence the most serious of spiritual chastisements, i.e. forfeiture of all the privileges common to Christians, is inconceivable unless for a grave fault. Moreover, in order to fall within the jurisdiction of the forum externum, which alone can inflict excommunication, this fault must be external. Internal failings, e.g. doubts entertained against the Catholic Faith, cannot incur excommunication. Note, however, that by external fault is not necessarily meant a public one; an occult external fault calls forth occult excommunication, but in foro interno, as already seen. Most authors add that the offense must be consummated, i.e. complete and perfected in its kind (in genere suo), unless the legislator have ordained otherwise. This, however, is a rule of interpretation rather than a real condition for the incurring of censure, and is tantamount to saying that attempt at a crime does not entail the penalty meted out to the crime itself, but that if the legislator declares that he wishes to punish even the attempt, excommunication is incurred (cf. Const. “Apost. Sedis”, III, 1, for attempt at marriage on part of clerics in major orders).
Considered from a moral and juridical standpoint, the guilt requisite for the incurring of excommunication implies, first, the full use of reason; second, sufficient moral liberty; finally, a knowledge of the law and even of the penalty. Where such knowledge is lacking, there is no contumacy, i.e. no contempt of ecclesiastical law, the essence of which consists in performing an action known to be forbidden, and forbidden under a certain penalty. The prohibition and the penalty are known either through the text of the law itself, which is equivalent to a juridical warning, or through admonitions or proclamations issued expressly by the ecclesiastical judge. Hence arise various extenuating reasons (causae excusantes), based on lack of guilt, which prevent the incurring of excommunication: (I) Lack of the full use of reason. This excuses children, also those who have not attained the age of puberty, and, a fortiori, the demented. Inadvertence, however, is not presumed; while it may affect moral responsibility and excommunication in foro externo, it is no obstacle to juridical guilt. (2) Lack of liberty resulting from grave fear. Such fear impairs the freedom of the will, and while it exists contumacy or rebellion against the laws of the Church cannot be presumed. Evidently, a proper estimation of this extenuating reason depends on the circumstances of each particular case and will be more readily accepted as an excuse for violating a positive law than in palliation of an offense against the natural or Divine law. (3) Ignorance. The general principle is, that whosoever is ignorant of the law is not responsible for transgressing it; and whosoever is ignorant of the penalty does not incur it. But the application of this principle is often complicated and delicate. The following considerations, generally admitted, may serve as a guide: (a) All ignorance, both of law and of fact, is excusatory. (b) The ignorance known as “invincible” always excuses; it may also be called inculpable or probable ignorance. (c) There are two kinds of culpable ignorance, one known as crassa or supina, i.e. gross, improbable ignorance, and supposing a grievously guilty neglect in regard to knowledge of the law; the other is affected ignorance, really a deliberate ignorance of the law through fear of incurring its penalty. (d) Ordinarily, gross ignorance does not excuse from punishment. But it does so only when the law formally exacts a positive knowledge of the prohibition. The laws that inflict excommunication contain as a rule two kinds of expressions. Sometimes the offense only is mentioned, e.g. “all apostates, heretics”, etc., or “those who absolve their accomplices in a sin against chastity” (Const. “Apost. Sedis”, I, 1, 10). Sometimes clauses are inserted that exact, as a necessary condition, the knowledge or effrontery of the culprit, e.g., “those who knowingly read books” condemned under pain of excommunication, “regulars who have the audacity to administer the Viaticum without permission of the parish priest” (Const. Apost. Sedis”, I, 2; II, 14). Gross ignorance excuses in the second case but not in the first. (e) For many authors, affected ignorance is equivalent to a knowledge of the law, since by it some avoid enlightening themselves concerning a dreaded penalty; these authors conclude that such ignorance never excuses. Other canonists consider that every penal law is to be strictly interpreted; when, therefore, it positively exacts knowledge on the part of the culprit, he is excused even by affected ignorance. As, in practice, it is not always easy to establish the shades of difference, it will suffice to remark that in a case of occult excommunication the culprit has the right to judge himself and to be judged by his confessor according to the exact truth, whereas, in the forum externum the judge decides according to presumptions and proofs. Consequently, in the tribunal of conscience he who is reasonably persuaded of his innocence cannot be compelled to treat himself as excommunicated and to seek absolution; this conviction, however, must be prudently established.
V. EFFECTS OF EXCOMMUNICATION.—If we consider only its nature, excommunication has no degrees: it simply deprives clerics and laymen of all their rights in Christian society, which total effect takes on a visible shape in details proportionate in number to the rights or advantages of which the excommunicated cleric or layman has been deprived. The effects of excommunication must, however, be considered in relation also to the rest of the faithful. From this point of view arise certain differences according to the various classes of excommunicated persons. These differences were not introduced out of regard for the excommunicated, rather for the sake of the faithful. The latter would suffer serious inconveniences if the nullity of all acts performed by excommunicated clerics were rigidly maintained. They would also be exposed to grievous perplexities of conscience if they were strictly obliged to avoid all intercourse, even profane, with the excommunicated. Hence the practical rule for interpreting the effects of excommunication: severity as regards the excommunicated, but mildness for the faithful. We may now proceed to enumerate the immediate effects of excommunication. They are summed up in the two well-known verses:
Res sacrae, ritus, communio, crypta, potestas, praedia sacra, forum, civilia jura vetantur, i.e. loss of the sacraments, public services and prayers of the Church, ecclesiastical burial, jurisdiction, benefices, canonical rights, and social intercourse.
(I) Res Sacrae.—These are the sacraments; the excommunicated are forbidden either to receive or administer them. The sacraments are of course validly administered by excommunicated persons, except those (penance and matrimony) for whose administration jurisdiction is necessary; but the reception of the sacraments by excommunicated persons is always illicit. The licit administration of the sacraments by excommunicated ecclesiastics hinges upon the benefit to be derived by the faithful. Ecclesiastics excommunicated by name are forbidden to administer the sacraments except in cases of extreme necessity; apart from this necessity penance and matrimony administered by such ecclesiastics are null (Decret. “Ne temere”, art. iv). Excommunicated ecclesiastics tolerati, however, may licitly administer the sacraments to the faithful who request them at their hands, and the acts of jurisdiction thus posited are maintained by reason of the benefit accruing to the faithful, most frequently also because of common error (error communis), i.e. a general belief in the good standing of such ecclesiastics. The faithful, on their side, may, without sin, ask tolerated excommunicated ecclesiastics to administer sacraments to them; they would, however, sin grievously in making this request of the vitandi, except in case of urgent necessity.
(2) Ritus.—Hereby are meant the Mass, the Divine Office, and other sacred ceremonies. An excommunicated person may not and should not assist at these ceremonies. If he be a toleratus, his presence need not be taken into account, and the service can be continued. If he be a vitandus he must be warned to retire, and in case of refusal he must be forcibly compelled to withdraw; but if he still persists in remaining, the service must be discontinued, even the Mass, unless the Canon has been commenced. (Benedict XIV, De sacr. Miss., sect. ii, n. 117.) Nevertheless, since the condition of an excommunicated person, even a vitandus, is no worse than that of an infidel, he may assist at sermons, instructions, etc., venerate images and relics, take holy water, and use privately other sacramentals. The excommunicated cleric is not released from any of his obligations in regard to the Divine Office and, if bound to it, must recite it, but privately and not in the choir. A toleratus may be admitted to the choir, but a vitandus must be expelled therefrom. All excommunicated clerics are prohibited from celebrating Mass and performing other strictly liturgical functions, under penalty of the irregularity ex delicto for violation of the censure; participation in the liturgical acts performed by an excommunicated cleric is a forbidden communicatio in sacris; however, no censure would result from it except in the case of clerics voluntarily communicating in sacris with those whom the pope had excommunicated by name (Const. “Apost. Sedis”, II, 17). In each case the fault should be estimated according to circumstances.
(3) Communio.—These are, properly speaking, the public suffrages of the Church, official prayers, Indulgences, etc., in which the excommunicated have no share. But they are not excluded from the private suffrages (i.e. intercessory petitions) of the faithful, who can pray for them.
(4) Crypta.—This word signifies ecclesiastical burial, of which the excommunicated are deprived. In chapter xii, de sepulturis (lib. III, tit. xxviii), Innocent III says: “The canons have established that we should not hold communion after their death with those with whom we did not communicate during their lifetime, and that all those should be deprived of ecclesiastical burial who were separated from the unity of the Church, and at the moment of death were not reconciled thereunto.” The Ritual (tit. VI, cap. ii, n. 2) renews this prohibition for those publicly excommunicated, and most writers interpret this as meaning those whose excommunication has been publicly proclaimed (Many, De locis sacris, p. 354), so that, under this head, the ancient discipline is no longer applicable, except to the vitandi. However, this does not mean that the tolerati can always receive ecclesiastical burial; they may be deprived of it for other reasons, e.g. as heretics or public sinners. Apropos of this leniency, it must be remembered that it is not the excommunicated the Church wishes to favor, but rather the faithful for whose sake communion with the tolerati is allowed in the matter of burial as well as in other matters. The interment of a toleratus in a consecrated cemetery carries with it no longer the desecration of said cemetery; this would follow, however, in the case of the vitandi. (See Christian Burial.)
(5) Potestas signifies ecclesiastical jurisdiction, of which both the passive and the active use, to speak canonically, are forbidden the excommunicated. Jurisdiction is used passively when a person is the object of one of its acts, of a concession. Now, ecclesiastical authority has no official relations with the exile unless, at his request, it negotiates the conditions for his return to society. Connected with this discipline is the rule forbidding the excommunicated to receive from the pope any kind of rescript (of grace or justice), except in regard to their excommunication, under pain of nullity of such rescript (c. xxvi, de rescriptis, lib. I, tit. iii, and c. i, eod., in VI). Hence the custom of inserting in papal rescripts the so-called ad effectum absolution from censures, intended solely to ensure the value of the rescript, but affecting in no wise the excommunication, if already existent. Jurisdiction is used actively when exercised by its depositaries. It is easy to understand that the Church cannot leave her jurisdiction in the hands of those whom she excludes from her society. In principle, therefore, excommunication entails the loss of jurisdiction both in f oro externo and in foro interno and renders null all acts accomplished without the necessary jurisdiction. However, for the general good of society, the Church maintains jurisdiction, despite occult excommunication, and supplies it for acts performed by the tolerati. But as the vitandi are known to be such, this merciful remedy cannot be applied to them except in certain cases of extreme necessity, when jurisdiction is said to be “supplied” by the Church.
(6) Praedia sacra are ecclesiastical benefices. The excommunicated ecclesiastic is incapable of acquiring a benefice, and his presentation to it would be legally null. A benefice already held is not forfeited at once, even when to the censure the law adds privation of benefice; this is carried into effect only through a sentence which must be at least declaratory and issue from a competent (i.e. the proper) judge. Nevertheless, from the very first the excommunicated beneficiary loses those fruits of his benefice belonging to choir service, provided he is bound thereunto. Moreover, should he live a year in the state of excommunication, he can be deprived of his benefice through judicial sentence. The aforesaid effects do not result from occult excommunication.
(7) Forum.—The excommunicated person is an exile from ecclesiastical society, consequently from its tribunals; only inasmuch, however, as they would be to his advantage. On the other hand, if he be summoned before them to satisfy a third party he is obliged to appear. Hence he cannot appear as plaintiff, procurator, or advocate; he may be the defendant, or the party accused. At this point the difference between the vitandi and the tolerati consists in this, that the former must be prevented from introducing any legal action before an ecclesiastical tribunal, whereas the latter can be debarred from so doing only when the defendant alleges and proves excommunication as already incurred. It is a question here only of public excommunication and before ecclesiastical tribunals.
(8) Civilia juror, i. e. the ordinary relations between members of the same society, outside of sacred and judicial matters. This privation, affecting particularly the person excommunicated, is no longer imposed on the faithful except in regard to the vitandi. The medieval canonists enumerated the prohibited civil relations in the following verse:
Os, orare, vale, communio, mensa negatur, namely: (a) conversations, exchange of letters, tokens of benevolence (osculum); (b) prayer in common with the excommunicated; (c) marks of honor and respect; (d) business and social relations; (e) meals with the excommunicated. But at the same time they specified the reasons that rendered these relations licit:
Utile, lex, humilis, res ignorata, necesse,
that is to say: (a) both the spiritual and the temporal benefit of the excommunicated and of the faithful; (b) conjugal law; (c) the submission owed by children, servants, vassals, and subordinates in general; (d) ignorance of excommunication or of the prohibition of a particular kind of intercourse; (e) finally, any kind of necessity, as human law, is not binding to this degree.
Remote Effects.—All the effects that we have just enumerated are the immediate results of excommunication, but it also causes remote effects, which are not a necessary consequence and are only produced when the person censured occasions them. They are three in number: (I) The cleric who violates excommunication by exercising one of the liturgical functions of his order, incurs an irregularity ex delicto. (2) The excommunicated person who remains a year without making any effort to obtain absolution (insordescentia) becomes suspected of heresy and can be followed up and condemned as guilty of such (Council of Trent, Sess. XXV, cap. iii, De ref.; cf. Ferraris, s.v. “Insordescens”). (3) This neglect makes it the judge’s duty to deprive the excommunicated cleric of all benefices, though some judges postpone for three years the fulfillment of this obligation (see Hollweck, Die kirchlichen Strafgesetze, art. 1, note 3).
Effects of Invalid or Unjust Excommunication.—An excommunication is said to be null when it is invalid because of some intrinsic or essential defect, e.g. when the person inflicting it has no jurisdiction, when the motive of the excommunication is manifestly incorrect and inconsistent, or when the excommunication is essentially defective in form. Excommunication is said to be unjust when, though valid, it is wrongfully applied to a person really innocent but believed to be guilty. Here, of course, it is not a question of excommunication latae sententiae and in foro interno, but only of one imposed or declared by judicial sentence. It is admitted by all that a null excommunication produces no effect whatever, and may be ignored without sin (cap. ii, de const., in VI). But a case of unjust excommunication brings out in a much more general way the possibility of conflict between the forum internum and the forum externum, between legal justice and the real facts. In chapter xxviii, de sent. excomm. (Lib. V, tit. xxxix), Innocent III formally admits the possibility of this conflict. Some persons, he says, may be free in the eyes of God but bound in the eyes of the Church; vice versa, some may be free in the eyes of the Church but bound in the eyes of God: for God‘s judgment is based on the very truth itself, whereas that of the Church is based on arguments and presumptions which are sometimes erroneous. He concludes that the chain by which the sinner is bound in the sight of God is loosed by remission of the fault committed, whereas that which binds him in the sight of the Church is severed only by removal of the sentence. Consequently, a person unjustly excommunicated is in the same state as the justly excommunicated sinner who has repented and recovered the grace of God; he has not forfeited internal communion with the Church, and God can bestow upon him all necessary spiritual help. However, while seeking to prove his innocence, the censured person is meanwhile bound to obey legitimate authority and to behave as one under the ban of excommunication, until he is rehabilitated or absolved. Such a case seems practically impossible nowadays.
VI. ABSOLUTION FROM EXCOMMUNICATION.—Apart from the rare cases in which excommunication is imposed for a fixed period and then ceases of itself, it is always removed by absolution. It is to be noted at once that, though the same word is used to designate the sacramental sentence by which sins are remitted and that by which excommunication is removed, there is a vast difference between the two acts. The absolution which revokes excommunication is purely jurisdictional and has nothing sacramental about it. It reinstates the repentant sinner in the Church; restores the rights of which he had been deprived, beginning with participation in the sacraments; and for this very reason, it should precede sacramental absolution, which it thenceforth renders possible and efficacious. After absolution from excommunication has been given in foro externo, the judge sends the person absolved to a confessor, that his sin may be remitted; when absolution from censure is given in the confessional, it should always precede sacramental absolution, conformably to the instruction in the Ritual and the very tenor of the formula for sacramental absolution. It may be noted at once that the principal effect. of absolution from excommunication may be acquired without the excommunicated person’s being wholly reinstated in his former position. Thus, an ecclesiastic might not necessarily recover the benefice which he had lost; indeed he might be admitted to lay communion only. Ecclesiastical authority has the right to posit certain conditions for the return of the culprit, and every absolution from excommunication calls for the fulfillment of certain conditions which vary in severity, according to the case.
Excommunication, it must be remembered, is a medicinal penalty intended, above all, for the correction of the culprit; therefore his first duty is to solicit pardon by showing an inclination to obey the orders given him, just as it is the duty of ecclesiastical authority to receive back the sinner as soon as he repents and declares himself disposed to give the required satisfaction. This satisfaction is often indicated in the law itself; for instance, usurpers of ecclesiastical property are excommunicated until such time as they make restitution (Council of Trent, Sess. XXII, c. xi); and again, it is determined by the judge who grants absolution or the indult for absolving. Besides expiatory practices habitually known as “penance”, such satisfaction exacts opportune measures for the reparation of the past, as well as guarantees for the future. It is not always necessary that these measures be executed prior to absolution, which is frequently granted on the solemn promise of the excommunicated party either to accomplish a specified act, such as coming to an agreement with the Church for the property usurped, or simply to abide by the orders of ecclesiastical authority (standi mandatis ecclesioe). In such cases absolution is not unusually given under pain of “reincidence” (ad reincidentiam), i. e., if within a definite period the person censured has not accomplished a certain specified act, he reincurs the same excommunication; his status is just as if he had never been absolved. However, this clause of reincidence is not to be presumed; when occasion requires, it is inserted in the sentence of absolution or in the indult granted for that purpose.
The formula of absolution from excommunication is not strictly determined, and, since it is an act of jurisdiction, it suffices if the formula employed express clearly the effect which it is desired to attain. The formula for remitting the excommunication in foro externo should be such as to absolve validly from public excommunication. Similarly, an excommunication imposed by judicial sentence is to be revoked by an absolution in the same form; occult excommunication may be revoked in the confessional by the sacramental formula. The Roman Ritual (tit. III, c. ii) gives the formula of absolution used in foro externo and states that in foro interno absolution is given in the usual sacramental form.
Who Can Absolve from Excommunication?—The answer is given in the customary rules of jurisdiction. The right to absolve evidently belongs to him who can excommunicate and who has imposed the law, moreover to any person delegated by him to this effect, since this power, being jurisdictional, can be delegated. First, we must distinguish between excommunication ab homine, which is judicial, and excommunication a jure, i.e. latae sententiae. For the former, absolution is given by the judge who inflicted the penalty (or by his successor), in other words by the pope, or the bishop (ordinary), also by the superior of said judge when acting as judge of appeal. As to excommunication latae sententiae, the power to absolve is either ordinary or delegated. Ordinary power is determined by the law itself, which indicates to what authority the censure is reserved in each case. Delegated power is of two kinds: that granted in permanency and set down in the law and that granted or communicated by personal act, e.g. by authority (faculties) of the Roman Penitentiaria, by episcopal delegation for special cases, or bestowed upon certain priests. Of this second kind of delegation there is no need to speak, as it belongs to each one to verify the power (faculties) that he possesses. Delegation of the first kind carries with it the power to absolve from excommunication without special request or particular faculties. Such power is in this case conferred by the law itself. Nevertheless this power is subject to the general law that governs delegation and is valid only for the cases and under the conditions mentioned in the concession. Thus faculties granted for the forum internum cannot be extended to the forum externum, nor can those granted for simply reserved excommunications be used for specially reserved cases, and so on. However, the faculties proceeding from both kinds of delegation may be “cumulated”, i.e. may be held and exercised in favor of the same person.
These principles admitted, we must remember that with reference to reservation or the right to absolve, excommunications are divided into four classes: excommunications specially reserved to the pope; excommunications simply reserved to the pope; excommunications reserved to the bishop (ordinary); and, finally, excommunications that are not reserved (nemini reservatoe). According to this classification, as a general rule, only the pope can absolve from the first two kinds of excommunication, although his power extends to the others; bishops (ordinaries), but not other priests, can remove excommunications of the third class; finally, those of the fourth class, and those only, can be revoked by any approved priest, without further special delegation. At this point, however, must be considered certain concessions of the law that may be grouped in three categories: the permanent faculties of bishops; concessions for urgent cases; and concessions for the point of death.
(I) The Faculties of Bishops.—The Council of Trent (Sess. XXIV, c. vi, De ref.) authorizes bishops to absolve their own subjects in their own dioceses from all excommunications, consequently from those reserved to the Holy See, when occult or, rather, not pertaining to the forum externum. They can exercise this power either in person or through a special delegate of their choice, but in the tribunal of conscience only. However, the Constitution “Apostolicae Sedis” restricted this provision of the council to excommunications simply reserved to the pope, so that, without special indult, bishops can no longer absolve from specially reserved cases, even in foro interno. On the other hand, the indults they receive are more or less liberal and widely communicable.
(2) Urgent Cases.—In the chapter “Nuper” (xxix, de sent. excomm., lib. V, tit. xxxix), Innocent III sets forth the principle that governs such cases: “When it is difficult for the excommunicated person to go to him who excommunicated him, he may be absolved by his bishop or even by his own priest, on promising to obey the orders of him by whom excommunication was pronounced.” This is the principle that moralists and canonists formulated as an axiom: Impedito casus papalis fit episcopalis: in case of one who is prevented from presenting himself to the pope, the excommunication reserved to the pope may be removed by the bishop. But most authors carried the analogy still further: for him who is prevented from presenting himself to the bishop, the excommunication may be removed by any confessor. In regard to the obligation of submitting to the orders of the pope or the bishop, the moralists and canonists generally taught as follows: First, no one was obliged to apply in writing (correct as to the removal of excommunication, though Innocent III says nothing of this kind concerning a request for information). Then they distinguished between obstacles that were more or less prolonged: perpetual obstacles were such as exceed five years; obstacles of long duration were those lasting over six months; and obstacles of short duration, those continuing for less than six months. When the obstacle was perpetual the bishop or, if he could not be reached, any priest might absolve without appealing to the superior; this could also be done, but not without obligation of recourse to the superior on the cessation of the obstacle, when the latter was of long duration, provided there were urgency. Finally, the authors drew up a long list of those who were supposed to be unable to present themselves in person to the pope; and this list included almost every one (Gury, Theol. Moralis, II, nn. 952 and 375). This practice, far more lenient than was intended by Innocent III, has been recently profoundly modified by a decree of the Congregation of the Inquisition (Holy Office) dated June 23, 1886. Henceforth “in urgent cases when absolution cannot be deferred without danger of grave scandal or infamy, which is left to the conscientious appreciation of the confessor, the latter, after having imposed the necessary satisfaction, can absolve, without other faculties, from all censures, even those specially reserved to the Holy See, but under pain of reincidence under the same censure if, within a month, the penitent thus absolved does not recur to the Holy See by letters and through the medium of the confessor.” This new method has been more precisely explained and even rendered easier by subsequent papal decisions. The absolution thus given is direct (Holy Office, August 19, 1891), and although recourse to the Penitentiaria is obligatory, its object is not to ask a new absolution, but only to solicit the order of the Church, the penitent, as stated above, having had to make a serious promise to conform to them (standi mandatis Ecclesiae). The power thus granted in urgent cases is valid for all cases, without exception, reserved by law to the pope or the ordinary, even for the absolution of an accomplice (Holy Office, June 7, 1899).
As to what constitutes a state of urgency, the reply of June 16, 1897, is very reassuring, since it permits absolution from censures “as soon as it becomes too distressing to the penitent to remain in the state of sin during the time necessary for soliciting and receiving from Rome the power to absolve”. Now, according to the moralists it is too much to remain even a day or two in the state of sin, especially for priests. The appeal, though usually made through the medium of the confessor, can be made by the penitent himself if he be capable; indeed he should write himself if he cannot easily return to the same confessor (Sacra Penitentiaria, November 7, 1888). Finally, if both confessor and penitent find it impossible to appeal by letters, these may be dispensed with (Holy Office, August 18, 1898). The letters should be addressed to the Cardinal Penitentiarius and should contain information concerning all necessary circumstances, but under a false name (Sacr. Pen., November 7, 1888). If the interested party, though able to appeal to the Holy See, fails to do so within a month from the time of receiving absolution, he or she incurs the former censures, which remain effective until there is a new absolution followed by recourse to Rome. There would, however, be no reincidence if the interval of a month were to expire through the confessor’s fault. It is to be noted that this sanction of reincidence applies to all censures reserved to the pope, but not to those reserved by law to the ordinaries. Finally, this method is not obligatory for censures reserved to ordinaries by diocesan law. Bishops, however, could profitably apply it to such censures, and some have already done so.
(3) In Danger of Death.—It is a principle repeatedly set forth in canon law that at the point of death all reservations cease and all necessary jurisdiction is supplied by the Church. “At the point of death”, says the Council of Trent (Sess. XIV, c. vii), “in danger of death”, says the Ritual (tit. III, cap. i, n. 23), any priest can absolve from all sins and censures, even if he be without the ordinary faculties of confessors, or if he himself be excommunicated; he may do so even in presence of another priest properly authorized (Holy Office, July 29, 1891). The Constitution “Apostolicae Sedis” expressly maintains this merciful concession, merely adding, for the case in which the moribund is restored to health, the obligation of having recourse to the Holy See, if he has been absolved from excommunication specially reserved to the pope, unless he prefers to ask absolution of a confessor provided with special faculties. This recourse, although identical with that of which we have just spoken for urgent cases, nevertheless differs from it on two points: it is not imposed for the absolution from excommunications simply reserved, and the short delay of a month is not counted from the time of receiving absolution, but from the time of recovery.
VII. EXCOMMUNICATIONS LATAE SENTENTIAE NOW IN FORCE.—In the preamble of the Constitution “Apostolicae Sedis”, Pius IX stated that during the course of centuries, the number of censures latae sententiae had increased inordinately, that some of them were no longer expedient, that many were doubtful, that they occasioned frequent difficulties of conscience, and finally, that a reform was necessary. On this head Pius IX had anticipated the almost unanimous request of the Catholic episcopate presented at the Vatican Council (Collectio Lacensis, VII, col. 840, 874, etc.). The number of excommunications latae sententiae enumerated by the moralists and canonists is really formidable: Ferraris (Prompta Biblioth., s.v. Excommunicatio, art. ii-iv) gives almost 200. The principal ones were destined to protect the Catholic Faith, the ecclesiastical hierarchy and its jurisdiction, and figured in the Bull known as “In Coena Domini” read publicly each year in Rome, on Holy Thursday. In time, this document had received various additions (Ferraris, be. cit., art. ii, the text of Clement XI), and from it the Constitution “Apostolicae Sedis” derives excommunications specially reserved, with exception of the tenth. The Constitution of Pius IX deals with no penalties other than censures; it leaves intact all censures ferendae sententiae but suppresses all censures latae sententiae that it does not retain. Now, besides those which it enumerates it retains: (I) the censures decreed (and not simply mentioned) by the Council of Trent; (2) the censures of special law, i.e. those in vigor for papal elections, those enforced in religious orders and institutes, in colleges, communities, etc. As to the censures enumerated, they should be interpreted as if pronounced for the first time, and ancient texts should be consulted for them only in so far as such texts have not been modified by the new law.
Thus the excommunications latae sententiae enforced today by common law in the Catholic Church proceed from three sources: (A) those enumerated in the Constitution “Apostolicae Sedis”; (B) those pronounced by the Council of Trent; and (C) those introduced subsequently to the Constitution “Apostolicae Sedis”, i.e. later than October 12, 1869. We enumerate them here with a brief commentary.
A. Excommunications of the Constitution “Apostolicoe Sedis”.—These are divided into four categories: (a) those specially reserved to the pope; (b) those simply reserved to the pope; (c) those reserved to the bishop (ordinary); (d) those not reserved to anyone.
(a) Excommunications Specially Reserved to the Pope.—These are twelve in number and are imposed upon the following persons:
(I) “All apostates from the Christian Faith, heretics of every name and sect, and those who give them credence, who receive or countenance them, and generally all those who take up their defense.” Strictly speaking, an apostate is one who goes over to a non-Christian religion, e.g. Islam; to such apostates are assimilated those who publicly renounce all religion; this apostasy is not to be presumed; it is evident that both kinds of apostates exclude themselves from the Church. A heretic is one who rejects a Catholic dogma. The first to be considered is the heretic who becomes such of his own volition; who, being in the Catholic Church, obstinately repudiates a truth of faith. Excommunication is incurred by him, if, with full knowledge, he exteriorly formulates an heretical proposition; and if he seeks to propagate his error he is dogmatizans and should be denounced. Next comes the heretic who belongs to an heretical association; for such a person his heretical membership alone is sufficient to bring him under sentence of excommunication. In his case the penalty is incurred by adhesion to the heresy, notably by willful and active participation in sacris (i.e. in public worship) with heretics; hence the excommunication of those who contract a mixed marriage before an heretical minister as such (Holy Office, August 28, 1888). Finally, the penalty extends to those who believe in heretics (credentes) and join their ranks; to those who receive them, i.e. who give them shelter in their homes, so as to protect them from the pursuit of authority; and to those who countenance or defend them as heretics and in view of the heresy, provided it be a positive and efficacious assistance.
“All those who knowingly read, without permission of the Apostolic See, books by these same apostates and heretics and upholding heresy, as also the books of any authors whomsoever specifically prohibited by Letters Apostolic, and all who keep, print, or in any way defend these same books.” After heretical persons come heretical books. The act that incurs excommunication is, first, reading done to a considerable extent and culpably, i.e. by one who knows the nature of the books and of the excommunication, and who, moreover, has not the necessary permission. The secondary acts punishable with the same penalty are the keeping in one’s possession, the printing (rather the publishing), and, finally, the defense, by word or by writing, of the books in question. These books are of two kinds: first, those written by apostates, or heretics, and which uphold and commend heresy, two conditions that must exist simultaneously; second, books specifically condemned, i.e., by mention of their titles, not by decree of the Index, but by Letters from the pope himself, Bulls or Briefs, and under pain of excommunication (for a list of these books see Hilgers, “Der Index der verbotenen Bücher”, Freiburg, 1904, p. 96; and “Die Bücherverbote in Papstbriefen”, Freiburg, 1907).
(3) “Schismatics and those who elude or obstinately withdraw from the authority of the reigning Roman pontiff.” The schismatics here referred to are of two kinds: those who are such because they belong to separated Churches which reject the authority of the pope, and those who, being Catholics, become schismatics by reason of obstinate disobedience to the authority of the pope as such.
(4) “All those, of no matter what state, rank, or condition, who appeal from the ordinances or mandates of the reigning Roman pontiff to a future ecumenical council, and all who have given aid, counsel, or countenance to this appeal.” The appeal from the commands of the pope to a future ecumenical council, not only implies the superiority of the council over the pontiff, but is preeminently an act of injurious disobedience to the Head of the Church. Were this appeal efficacious it would render all church government impossible, unless it be accepted that the normal state of the Church is a general council in perpetual session, or at least meeting at short intervals. This extreme Gallicanism is justly punishable with excommunication. The penalty is visited upon all those who have influenced such act of appeal, either by aid, counsel, or support. This excommunication, however, is to be strictly interpreted; it would not be incurred in consequence of an appeal made to a future pope, the Holy See being vacant, or to a general council actually assembled.
(5) “All who kill, mutilate, strike, seize, incarcerate, detain or pursue with hostile intent, cardinals, patriarchs, archbishops, bishops, legates or nuncios of the Holy See, or drive them from their dioceses, jurisdictions, estates, or domains, as also those who ratify these measures or further them by aid or countenance.” The object of this penalty is not so much to protect the members of the clergy, like the celebrated excommunication of the canon “Si quis suadente diabolo”, of which we shall speak below, but rather to safeguard the prelates or superiors in whom the Church has lodged her jurisdiction. The text clearly indicates the acts punished by excommunication, i.e. all violent attacks on the person of a prelate as such; it likewise specifies the culprits, i. e those who perpetrate such assaults and those who are responsible for them, as also their active accomplices.
(6) “Those who directly or indirectly prevent the exercise of ecclesiastical jurisdiction, either in foro interno or in foro externo, and who, for this purpose, have recourse to the secular tribunal; also those who provoke or deliver the orders of this tribunal or lend it their aid, counsel, or support.” The preceding article protects those who are the depositaries of jurisdiction; the present article protects the exercise of said jurisdiction. It punishes any obstacle raised against the delivery or execution of a sentence or decision of the ecclesiastical authority. It is not question here of the power of order (potestas ordinis) or of facts that do not really imply jurisdiction, e.g. a simple contract. Nor is it question of measures taken with prelates so as to influence them into exercising their jurisdiction in a given direction, e.g. to confer a benefice on Caius or withhold one from Titius; this censure is meant to punish any obstacle that really prevents action on the part of a prelate who wishes to perform an act of jurisdiction or to carry it into effect. He is directly prevented when violence is used against him; indirectly, when his subordinates are prevented from acting. The chief opposition here considered is recourse to secular and especially judicial authority. Excommunication is therefore incurred under this head by all who provoke the intervention of secular tribunals, provided such intervention actually follow; by all who deliver orders or directions intended to prevent the exercise of ecclesiastical jurisdiction; finally, by all who cooperate in these acts with aid, counsel, or support, unless under compulsion. Moralists and canonists exempt from this penalty the clerks and servants of the secular courts.
(7) “Those who directly or indirectly oblige lay judges to cite ecclesiastical persons before their tribunal, except in cases provided for by canonical agreements, also those who enact laws or decrees against the liberty or rights of the Church.” The first part of this article has for its object the protection of the privileges of the ecclesiastical forum, i.e. of those ecclesiastics whose right it is to be judged by ecclesiastical tribunals; consequently, those are excommunicated who oblige lay judges to summon clergymen before their tribunal in cases where this ecclesiastical privilege (privilegium fori) should be respected. But the judges themselves, who act by virtue of their office, are not excommunicated (Holy Office, February 1, 1870). Those who thus force lay judges to violate the privilegium fori are of two kinds: namely, those who actually cite ecclesiastics before secular judges, and the legislators or makers of laws detrimental to the rights of the Church. The first are not excommunicated provided they have no other means of obtaining justice, i.e. when the laws of the country in question do not recognize the aforesaid ecclesiastical privilegium fori (Holy Office, January 23, 1886). There remains, therefore, of this censure little more than the second part of the article, which now affects chiefly the legislators responsible for laws and decrees against the liberty and rights of the Church.
(8) “Those who have recourse to lay power for the prevention of Apostolic Letters or Acts of any kind emanating from the Apostolic See or from its legates or delegates; those who directly or indirectly prohibit the promulgation of these acts or letters, or who, on the occasion of such promulgation, strike or terrify either the parties interested or third parties.” This article should be compared with number 6 (above), from which it differs in that it protects, not all exercise of ecclesiastical jurisdiction, but that which the Holy See exercises in its official letters, it being eminently important to ensure the free communication of the faithful with Rome. The letters in question are: first, Apostolic Letters, in which the pope himself speaks, Bulls, Briefs, Encyclicals, etc.; second, the Acts of the Holy See emanating from Roman Congregations or other organs of the Curia, which constitute but one authority with the pope (Holy Office, January 13, 1892); finally, the acts of the official representatives of the pope, e.g. papal legates and delegates. The excommunication considers not only Letters that concern all the faithful, but also those regarding individuals, e.g. grants of benefices, dispensations, etc. This admitted, the penalty applies to three classes of persons, namely: those who resort to secular power, not only judicial but administrative, to prevent these Letters from being published or from producing their effect; those who, by means of authority, prevent such publication or execution; and finally, those who, on the occasion of these Letters, strike or terrify either the beneficiaries or even third parties who take part in their publication or execution. According to the more probable opinion, excommunication is incurred even if these measures of opposition do not produce the intended results.
(9) “All falsifiers of Apostolic Letters, even in the form of a Brief, and of petitions concerning matters of grace or justice signed by the Roman pontiff, or by cardinal vice-chancellors or those who replace them, or simply by command of the pope; also those who falsely publish Apostolic Letters, even in the form of a Brief; and finally, those who falsely sign petitions of this kind with the name of the Roman pontiff, of the vice-chancellor, or of those who replace them.” This excommunication punishes what is generally known as forgery, not in all its forms, but in so far as it affects such pontifical letters or grants as are issued through the tribunals known as the “Signatura Gratiae” and the “Signatura Justitiae”, i.e. whence issue papal favors purely benevolent or connected with litigation. It does not therefore attain forgeries affecting the letters of grants of the Roman Congregations or of prelates. It may be somewhat of a surprise to know that this excommunication does not include those who fabricate an entire Apostolic Letter, the definition of falsification (falsum) meaning only a notable alteration of authentic Letters either by suppression, erasures, writing over, or substitution. Petitions addressed to the pope, when granted, are first signed by him, or by the vice-chancellor, or other officers. The grant does not thereby become official, but the petition thus signed serves as a basis for the wording of Apostolic Letters (Bulls or Briefs) that actually grant the favor requested. In this process three acts are punishable with excommunication: the false signing of a petition; the falsification of Apostolic Letters, and the publication of Letters thus falsified, in order to use them.
(10) “Those who absolve an accomplice in a sin against chastity, and that even at the moment of death, provided another priest, although he be not approved for confession, can hear the confession of the dying person without serious danger of infamy or scandal.” This excommunication is not derived from the Bull “In Coena Domini“, but from the celebrated Constitution of Benedict XIV, “Sacramentum Poenitentiae” (June 1, 1741), completed by his Constitution “Apostolici muneris” (February 8, 1745). By these Bulls the pope, with a view to protecting the Sacrament of Penance from sacrilegious abuse, withdraws all jurisdiction from a confessor for absolving from sins against chastity which he may have committed with another person, whether man or woman; the absolution he might impart for such sin would be null, and the mere attempt to absolve would incur excommunication. The sin thus withdrawn from the jurisdiction of the confessor is any grievous exterior sin against the Sixth Commandment, but it must be such on both sides. The confessor accessary to it cannot pardon it, but, this sin once pardoned, he incurs no penalty by again hearing the confession of his accomplice. This being the case, excommunication is incurred by the confessor if he pronounce the formula of absolution after his accomplice has accused himself or herself of this sin, even though he had not the intention of absolving, or even if he only feign to absolve (Holy Office, December 5, 1883), thereby allowing the penitent to suppose that he has absolved him or her; or again if he be the cause of the penitent’s refraining from accusing himself or herself of this sin (S. Peniten., February 19, 1896). Neither gross (crassa, supina) nor affected ignorance excuses from the censure (Holy Office, January 13, 1892). There are but two cases in which excommunication is not incurred: first, under absolutely exceptional circumstances where the penitent could not approach another confessor, as the human law does not bind at the cost of such serious disadvantage; again, at the moment of death. But even then Benedict XIV does not restore the power of absolving nor exempt from excommunication, unless it be morally impossible for the dying person, without grave danger of slander or scandal, to call in another confessor; this condition, however, should be interpreted broadly.
(11) “Those who usurp or sequester the jurisdiction, property, or revenues belonging to ecclesiastical persons by reason of their churches or benefices.” To usurp is to take as if it legitimately belonged to oneself that which belongs to another; hence it is that this article does not apply to thieves of ecclesiastical property (Holy Office, March 9, 1870). To sequester is formally and authoritatively to place in the custody of a third party property withdrawn from the possession of a previous owner. The rights and property protected by this article do not include all church property but only the rights and property of beneficed clergy as such; they are, as a matter of fact, the principal possessions of the Church. Other property, e.g. that belonging to pious establishments (opera pia) or confraternities and that intended for the maintenance or reparation of churches, is protected, indeed, by distinct censures, but its usurpation or sequestration does not incur the excommunication contemplated by this article, which was declared applicable to intruded parish priests in Switzerland (Pius IX, Encyclical of November 21, 1873; S. Cong. of the Council, May 23, 1874) and in Prussia (February 25, 1875). It applies quite certainly to governments that despoil the Church of her property.
(12) “Those who themselves or through others, invade, destroy, or detain cities, lands, places, or rights of the Roman Church, those who hold possession of, disturb, or detain its sovereign jurisdiction, and all who give aid, counsel, or countenance to these offenses.” This penalty applies to the authors and accomplices of the invasion and detention of the temporal domains of the Holy See.
(b) Excommunications Simply Reserved to the Pope.—Before enumerating those it intends to retain, the Constitution “Apostolic Sedis” pronounces a first excommunication of this kind against “those who presume to absolve, without the requisite faculties and under any pretext whatsoever, from excommunications that are specially reserved”. This article is directed against those who dare to absolve in bad faith or rashly; a well-founded doubt, however, and even gross ignorance may be pleaded as excuses. Then follow seventeen excommunications simply reserved, declared against the following persons:
(I) “Those who either publicly or privately teach or defend propositions condemned by the Holy See under pain of excommunication latae sententiae; likewise those who teach or maintain as lawful the practice of asking the penitent the name of his or her accomplice, a practice condemned by Benedict XIV in his Constitutions ‚ÄòSuprema (July 7, 1745), `Ubi primum’ (July 2, 1746), and `Ad eradicandam’ (September 28, 1746).” This article contains two distinct parts. In the first it is not question of all propositions condemned by popes or councils in terms less condemnatory (e.g. rash, offensive, etc.) than the specific stigma heretical (to defend heretical propositions being heresy itself and already declared a chief cause of excommunication, see above), but only those which the popes have specifically forbidden to be maintained under pain of excommunication latae sententiae. These propositions are: (a) the forty-one errors of Luther condemned by Leo X, May 16, 1520; (b) the seventy-nine theses of Michael Baius condemned October 1, 1567, January 29, 1579, and March 16, 1641; (c) the thesis on confession and absolution by letter or messenger, condemned by Clement VIII, June 20, 1602; (d) the twenty-eight propositions condemned by Alexander VII, September 24, 1665; (e) the seventeen propositions condemned by the same pope, March 18, 1666; (f) the sixty-five propositions condemned by Innocent XI, March 4, 1679; (g) the sixty-eight propositions of Miguel de Molinos condemned by the same pope, November 20, 1687; (h) the second of two propositions condemned by Alexander VIII, August 24, 1690; (i) the thirty-one propositions condemned by the same pope, December 7, 1690; (k) the five propositions on duelling condemned by Benedict XIV, November 10, 1752; (I) and finally the sixty-five Modernistic propositions condemned by decree of the Holy Office, July 3, 1907, according to the Motu Proprio of Pius X, November 19, 1907. The text of all these propositions will be found in Denzinger’s “Enchiridion Symbolorum, definitionum et declarationum”, etc. (10th ed., Freiburg, 1908), also, the last series excepted, in Pennachi’s “Comment in Const. Apost. Sedis”, I, 168. The second part of the article aims at the abusive practice of requiring the penitent, under pain of being refused absolution, to divulge the name of his or her accomplice in any crime, a dangerous practice and opposed to the conditions of secrecy under which sacramental confession is made. Benedict XIV denounced it, notably in Portugal, by the aforementioned Constitutions. It is to be noted, however, that this excommunication is not incurred by the confessor who asks a penitent the name of his or her accomplice, but only by him who teaches or maintains that this practice is permitted. Moreover, the expression “to teach or maintain” implies more than merely to affirm or share the condemned opinions.
(2) “Those who, at the instigation of the devil, violently lay hands on ecclesiastics or religious of either sex, exception being made, as regards reservation, in behalf of cases and of persons that the law or privileges allow the bishop or others to absolve.” This is the celebrated privilege or immunity “of the canon” (privilegium canonis), so called from the canon “Si quis, suadente diabolo” (Decretum of Gratian, C. xvii, q. iv, c. xxix), enacted by the Council of Lateran in 1139 and intended to protect the honor of the clergy from material violence and injury. The persons protected are all who belong to the clergy in the broad sense of the word, i.e. both minor and major clerics, tonsured persons, monks, nuns, novices, and even tertiaries living in community. This privilege is to be interpreted broadly. The acts punished are all injurious corporal violence, such as blows and wounds, a fortiori mutilation; also pursuit, imprisonment, and arrest, likewise insulting acts, such as a slap in the face, etc. The penalty is not imposed for acts that are not grievous, for verbal injuries, for excusable violence, e.g. in the case of legitimate defense, or finally when one is unaware that he is dealing with a cleric. Nowadays only the real perpetrators of these deeds are excommunicated, not accomplices nor those who are morally responsible. Once the fact is publicly known the culprits are vitandi even without being denounced by name. Absolution from this excommunication is regularly reserved to the pope, but the text of the article maintains the faculties possessed by bishops and others, such as we have heretofore indicated.
(3) “Those who fight duels, those who challenge or accept challenge thereunto, all accomplices, all who help or countenance such combats, all who designedly assist thereat, finally all who permit duelling or who do not prevent it in so far as lies in their power, no matter what their rank or dignity, be it royal or imperial.” This severe discipline against duelling dates from the Council of Trent (Sess. XXV, c. xix, De ref.); here, however, only the excommunication in question is considered. It aims at duelling, properly so called, by challenge and on accepted conditions, not at other single combats or altercations. University duels, so common in Germany, are included (S. Cong. of the Council, August 29, 1890). The malice of the duel lies in the fact that it makes right depend upon the fate of arms; this penalty is extended to all who take any part whatever in these detestable combats. The excommunication is incurred, first, by the duellists themselves, not only when they actually fight, but as soon as they have proposed or accepted a challenge; next, by the official witnesses or seconds, also by physicians expressly brought upon the scene (Holy Office, May 28, 1884), and by all spectators not accidentally present; likewise by those who permit these affairs, when such permission is necessary, e.g. in the army, and by those who, although able to prevent duelling, refrain from so doing.
(4) “Those who become members of the Masonic sect, of the Carbonari, or of other similar sects that plot either openly or secretly against the Church or legitimate authorities; all who countenance these sects in any way whatever, and finally, all who do not inform against the occult chiefs or leaders, i.e. until they have made such denunciations.” Certain associations are prohibited because of their evil or dangerous object; this article deals only with those to which it is forbidden to belong under pain of excommunication latae sententiae. These are known by their aim, which is to plot against the Church or legitimate authorities, obviously by illicit or criminal means; this excludes at once purely political groups. It matters little whether or not these societies exact secrecy from their members, though the element of secrecy constitutes an unfavorable presumption. The article names two of these sects, the Freemasons and the Carbonari; to these we must add the Fenians (Holy Office, January 12, 1870). There are four prohibited American societies: the Independent Order of Good Templars (Holy Office, August 9, 1893), the Odd Fellows, the Sons of Temperance, and the Knights of Pythias (Holy Office, June 20, 1894), but not under pain of excommunication. In regard to the sects of which our article treats, three distinct acts incur excommunication: the inscribing of one’s name as a member, the positive favoring of the sect as such, and failure to denounce the occult leaders. For this last act censure is not incurred if the leaders be not occult, or if they be not known with sufficient certainty. The denunciation, if imperative, must be made within a month; once it is made the excommunication is no longer reserved, and one is in a condition to receive absolution from any confessor without further formality.
(5) “Those who command the violation of or who themselves rashly violate the immunity of ecclesiastical asylum.” Immunity, or right of sanctuary, protected criminals who took refuge near the altar or within sacred edifices; it was forbidden to remove them from such places of refuge either by public or private force. This immunity, although formerly beneficial, has disappeared from modern life; the excommunication here retained has hardly more than the value of a principle; it may be noted that the article is cautiously worded. By its terms excommunication would be incurred only by those who rashly, and without being constrained thereto, violate the right of sanctuary as such (Holy Office, February 1, 1871; December 22, 1880).
(6) “Persons of any kind, condition, sex, or age who violate the clausura [i. e. canonical enclosure] of nuns by penetrating into their monasteries, those introducing or admitting them, also nuns who leave their clausura, except in the cases and in the manner provided for by the Constitution `Decori’ of St. Pius V.” The reader will find in the article Cloister further details; here it suffices to add that the enclosure in question is that of the papal enclosure (clausura papalis), or that of religious women with solemn vows. The Constitution “Decori” (January 24, 1570) limits the reasons of egress to fire, leprosy, or an epidemic; even in the two latter cases it is necessary for such nuns to have the written authorization of the bishop.
(7) “Women who violate the enclosure [clausura] of male religious and the superiors and others who admit them.” Here also it is question of religious with solemn vows; moreover, it has not seemed necessary to provide for exceptional cases nor for permission.
(8) “Those who are guilty of real simony [simonia realis] for the obtaining of any benefices whatever, and their accomplices.” (For this article and the two that follow see Simony.)
(9) “Those who are guilty of confidential simony [simonia confidentialis] apropos of any benefice or any dignity whatever.”
(10) “Those who are guilty of real simony for the purpose of entering a religious order.”
(11) “All who traffic in Indulgences or other spiritual favors are excommunicated by the Constitution of St. Pius V, `Quam plenum’ (January 2, 1569).” This Constitution enumerates the abuses that the pope wished to remedy. Certain Spanish bishops were accustomed to issue public grants of Indulgences or various other spiritual favors, but in a manner for which they were unauthorized; the abuse consisted mainly in the pecuniary conditions they imposed for obtaining these favors (Indulgences, choice of a confessor for the absolution of reserved cases, Mass and burial in time of interdict, dispensation from abstinence, the right to present several sponsors at baptism, etc.). To overcome these abuses St. Pius V inflicted two kinds of penalties: bishops were punished by being forbidden entrance into church and by suspension of the “fruits”, or revenues, of their benefices; culprits of inferior rank were excommunicated. The penalties against bishops have been suppressed; excommunication, however, is retained to punish those who would reap unlawful profit from the publication or granting of Indulgences or of the other spiritual favors enumerated.
(12) “Those who collect stipends for Masses and make profits out of them by having the Masses celebrated in places where the stipends are not so high.” The object of the penalty is to remedy all shameful traffic in Mass-stipends; to incur it two things are necessary: not only must the stipends for Masses (called missoe manuales) be collected, but a portion of them must be withheld when remitting them to the priests who are to fulfill the obligation of saying the Masses. Despite the wording of the article, it is not necessary that both conditions, the quest of stipends and the celebration of the Masses, occur in different places (Holy Office, August 19, 1891, ad 4).
(13) “All those excommunicated by the Constitutions of St. Pius V, `Admonet nos’ (March 29, 1567); Innocent IX, `Quae ab haec Sede’ (November 4, 1591); Clement VIII, `Ad Romani Pontificis curam’ (June 26, 1592); and Alexander VIII, ‘Inter caeteras’ (October 24, 1660), concerning the alienation and enfeoffment of cities and places belonging to the Holy Roman the value of a principle; it may be noted that the Church.” This article deals with the temporal domains of the Church and calls here for no special comment.
(14) “Religious who, without permission of the parish priest, venture to administer extreme unction or the Eucharist as Viaticum, to ecclesiastics or laymen, except in cases of necessity.” The penalty affects religious with solemn vows and professed, but is not incurred if they have at least the presumed permission of the parish priest, if they be in ignorance, finally if it be a case of necessity. Those to whom these religious must not administer the sacraments are seculars, ecclesiastics or laymen; they may, however, administer them to persons domiciled in their convents.
(15) “Those who without legitimate permission take relics from the cemeteries or catacombs of Rome or its territory, and those who give such persons aid or countenance.” The permission is to be sought from the Roman Vicariate, and excommunication is incurred only by carrying away from the catacombs genuine relics, not other objects. Relics are the remains, not of anyone happening to be buried in the catacombs, but only of martyrs or of those regarded as such by reason of the “signs of martyrdom” that distinguish their tombs, notably the phial of blood, according to the Sacred Congregation of Rites, April 10, 1668, and November 27, 1863.
(16) “Those who hold communion in criminal crime with a person whom the pope has excommunicated by name, that is, those who give him assistance or countenance.” The “criminal crime” (crimen criminosum) is the very one for which the culprit was excommunicated; the article, of course, does not contemplate participation in the offensive act itself, since excommunication by name is necessarily posterior to such an act. The penalty is inflicted for subsequently assisting or countenancing the excommunicated person. This is a survival [see above, II (5)] of the penalties incurred by intercourse with the excommunicated. It must be noted that this censure is not imposed for intercourse with all excommunicated persons, but only with vitandi, those whom the pope has excommunicated by name, not such as have been excommunicated by a Roman Congregation (Holy Office, June 16, 1897) or by the bishop.
(17) “Clerics who knowingly and willfully hold communion in divinis with persons whom the pope has excommunicated by name and receive them at Divine service.” The excommunicated in question are the same as in the preceding article, and they cannot be admitted to Divine worship; however, the penalty incurred concerns ecclesiastics only, when acting freely and with full knowledge [see above, II (5)].
(I) “Ecclesiastics in Holy orders and regulars or nuns who dare to contract marriage after having made a solemn vow of chastity, also those who dare to contract marriage with one of these persons.” The ecclesiastics whose marriage is null in consequence of the impediment of Holy orders are subdeacons and those in still higher orders; the nuns and male religious whose marriage is null through the impediment of vow are members of the great orders. Nevertheless, the impediment does not exist from the tine of their first profession that follows the novitiate, but only from the solemn profession made three years later. The penalty is incurred by an attempt at marriage, not by an act of betrothal; such an attempt is recognized in any contract having the figura matrimontii, i.e. which would constitute a marriage if there were no impediment; consequently the penalty is incurred for civil marriage (Holy Office, December 22, 1880), even if there were other impediments, e.g. consanguinity (Holy Office, January 16, 1892).
(2) “Those who efficaciously procure abortion.” The fruitless attempt is not punished with excommunication; authors do not agree as to whether the woman guilty of self-abortion is excommunicated.
(3) “Those who knowingly make use of counterfeit Apostolic Letters or who cooperate in the crime.” [See above, (a) (9).] This article is not directed against forgers but against those who endeavor to profit by falsified letters. Petitions signed by the pope or in his name are not mentioned. Accomplices are also punished; but the culprits must act knowingly, and be fully aware that they are using falsified papal letters.
(d) Excommunications That Are Not Reserved (Nemini Reservatoe).—These are four in number and are pronounced against the following persons:
(I) “Those who command or oblige the giving of ecclesiastical burial to notorious heretics or to persons excommunicated by name or placed under interdict.” The article does not consider funeral ceremonies, but only material interment in consecrated ground. Those who admit heretics or others to ecclesiastical burial are not punished, but only those who, by authority or force, compel such an interment, thereby violating the prohibition of the Church. Nor is it question here of all who, according to the Ritual, should be deprived of ecclesiastical burial, but merely of the two categories indicated.
(2) “Those who wound or terrorize the inquisitors, informers, witnesses, or other ministers of the Holy Office; those who lacerate or burn the writings of this tribunal and all who give to the aforesaid assistance, counsel, or countenance.” This excommunication does not apply in countries where the Holy Office has no organized tribunal; the inquisitional functions devolve in such countries on the bishop, who is protected by the specially reserved excommunications described above, under (a) (5), (6), (8).
(3) “Those who alienate and those who have the audacity to receive church property without Apostolic authorization, according to the terms of the Constitution `Ambitiosae, de rebus eccl. non alienandis’.” The author of this Constitution (Extravagantes, lib. III, tit. iv, inter comm.) was Paul II (March 1, 1467). It forbids under pain of reserved excommunication and of the nullity of the acts, not only alienations (properly so called) of ecclesiastical property, sales, donations, etc., but also all contracts savoring of alienation, such as mortgages, emphyteusis or perpetual lease, long-term leases, etc. For the manifest benefit of the Church these contracts must be authorized by the pope; only objects of small value are excepted (see Third Plenary Council of Baltimore, no. 20
(4) “Those who, through their own fault, neglect or omit to denounce within a month the confessors or priests by whom they have been solicited to immodest acts, in all the cases set forth by our predecessors Gregory XV in the Constitution `Universe’ (August 20, 1622) and Benedict XIV in the Constitution `Sacramentum poenitentiae’ (June 1, 1741).” This excommunication is not intended to punish those solicited to sin (they are not therefore guilty), but to protect the administration of the Sacrament of Penance. Persons thus solicited are strictly obliged to make known to the inquisitor or the bishop those priests who have solicited them to the aforesaid acts; if, through their own fault, such denunciation is not made within S. month they incur excommunication, which ceases only when they have made known in the aforesaid manner the guilty party. The solicitation here alluded to is not any provocation to evil, but to sins against chastity on the part of confessors or priests, and in connection with the Sacrament of Penance, this being the abuse that the legislator especially seeks to punish. Said connection exists when the solicitation takes place “during the very act of sacramental confession, immediately before or after, on the occasion or under the pretext of confession, or finally, in the confessional”.
B. Excommunications Pronounced by the Council of Trent.—These are eight in number, the first being simply reserved to the pope and the other seven non-reserved:
(I) Sess. XXII, c. ii, De ref.: against usurpers, whether ecclesiastics or laymen, of any kind of church property, until the time of restitution and absolution. This penalty protects all ecclesiastical property, properly so called, i.e. of which the administration belongs to ecclesiastical authority, such as real and personal property, revenues, etc. Excommunication is incurred by usurpers, namely by those who claim for themselves the ownership of this property, and passes on to the successive acquirers of such property until restitution or composition (agreement) is made. This penalty was applied at the time of the recent spoliations in Italy and France.
(2) Sess. IV, De editione et usu sacrorum librorum.—The excommunication pronounced by the council was restricted by the Constitution “Apostolicae Sedis” to those who, without the approbation of the bishop, print, or have printed, books treating of sacred things; this must here be understood solely of the text of Holy Writ and of notes and commentaries on the same (Holy Office, December 22, 1880).
(3) Sess. XXIV, c. vi, De ref. matr.: against those who are guilty of the crime of abduction, in regard to any woman, with a view to marriage, and all who lend them advice, aid, or countenance.
(4) Sess. XXIV, c. ix, De ref. matr.: against temporal rulers and magistrates who directly or indirectly oppose obstacles to the liberty of their subjects in the matter of contracting marriage.
(5) Sess. XXV, c. v, De regul.: against secular magistrates who at the request of the bishop, do not give the support of the secular arm in reestablishing the clausura or enclosure of nuns. This excommunication is abrogated in practice or at least is inapplicable.
(6) Sess. XXV, c. xviii, De regul.: against those who unjustly oblige a woman to enter a monastery unwillingly, or to take the habit, or make a profession, and those who thereunto give their counsel, aid, or countenance, as also against those who, without good reason, prevent a woman from taking the veil or making her profession.
(7) Sess. XXIV, c. i, De ref. matr.: against “those who deny that clandestine marriages [before the legislation of the council] are true and valid; as also those who falsely affirm that marriages contracted by the children of a family without the consent of their parents are invalid and that parents can make such marriages valid or invalid.”
(8) Sess. XIII, can. xi: “This council ordains and declares that sacramental confession, when a confessor may be had, is of necessity to be made before Communion by those whose conscience is burdened by mortal sin, how contrite soever they may think themselves. But if anyone shall presume to teach, preach, or obstinately to assert, or even in public disputation to defend the contrary, he shall be thereupon excommunicated.”
C. Excommunications Pronounced or Renewed Since the Constitution “Apostolicoe Sedis”.—These are four in number, the first two being specially reserved to the pope, the third to the ordinary; the fourth is non-reserved.
(I) The Constitution “Romanus Pontifex” (August 28, 1873), besides other penalties, declares specially reserved excommunication: first, against the dignitaries and canons of cathedral churches (or those having the administration of vacant cathedrals) who would dare to concede and transfer the administration of their church with the title of vicar to the person elected by the chapter, or named or presented to said church by lay power; second, against those so elected or presented; and third, against all who aid, advise, or countenance the aforesaid offenders.
(2) Excommunication specially reserved against the members of the “Catholic Italian Society for the restoration of the rights of the Christian and especially of the Roman people”, and against its promoters, supporters, and adherents (S. Peniten., August 4, 1876; Acta S. Sed., IX, 352). Amongst other rights this society proposed to restore popular participation in the election of the sovereign pontiff.
(3) Excommunication reserved to the ordinary against laymen (for ecclesiastics the penalty is suspension) who traffic in Mass-stipends and trade them with priests for books and other merchandise (S. Cong. of the Council, decree “Vigilanti studio”, May 25, 1893).
(4) Excommunication, non-reserved, against missionaries, both regulars and seculars, of the East Indies (Farther Orient) or the West Indies (America) who devote themselves to commerce or who participate in it, and their immediate superiors, provincial or general, who fail to punish the culprits, at least by removal, and even after a single offense. This excommunication comes down from the Constitutions of Urban VIII, “Ex delicto” (February 22, 1633), and Clement IX, “Sollicitudo” (July 17, 1669), but was suppressed by reason of non-mention in the Constitution “Apostolicae Sedis”; it was reestablished, however, at the request of the S. Cong. of the Inquisition, December 4, 1872. This excommunication is non-reserved, but the culprit cannot be absolved prior to making restitution, unless he be at the point of death.