Question VII: Whether excommunicated judges sin in judging, and judge invalidly

Any Iudex whatsoever, excommunicated after the Extravagant of Martin V. and the Council of Constance, from which it was extracted, if he be a hidden excommunicate, judges validly and licitly.

Before these, however, some held that such a one sinned and acted invalidly. So the Glossa in §. verum tamen, in cap. infamis, 3. quaest. 7., Sylvester verbo excommunicatio 1. num. 6.

The opposite, however, they assert even before the Council of Constance: Suarez de censuris, disp. 14. sect. 1. num. 8., Sotus 4. dist. 22. quaest. 2. art. 1., Navar. summa, cap. 27. num. 21., Covar. in cap. Alma mater, part. 1. §. 11. num. 4., Richardus dist. 18. art. 7. quaest. 1., Paludanus quaest. 2. art. 3. et quaest. 4., Fagundez in octavum praeceptum Decal. lib. 8. cap. 28. num. 3.

But if he be a public excommunicate, formerly before the Council of Constance and the Extravagant of Martin V. Ad evitanda, all judges sinned by judging, were bound to restitution, and their acts were null. Today, however, after the Council of Constance and the Extravag., it is probable that a Iudex does not sin by force of the censure, and his acts are valid, unless he be to be avoided, namely, denounced by name, or a public striker of a cleric; so teach Lessius lib. 2. cap. 29. dub. 7., who adds another condition, unless he thrust himself spontaneously into judgment; Filliucius tomo 2. tract. 40. in octavum praeceptum Decal. cap. 6. num. 167., Navar. cap. 27. num. 7., Henriquez de excomm. cap. 7., Sotus in 4. dist. 22. quaest. 2. art. 1., Suarez de censuris, disp. 14. sect. 1. num. 13., Fagundez Lib. 8. cap. 28. num. 5., Bassaeus V. Iudex, num. 4.

THAT such an excommunicate to be avoided sins by judging, and that his acts are irritus, is proved, because he lacks jurisdiction, in accord with cap. ad probandum de sent. et re iudicat. cap. Audivimus, et cap. Miramur dist. 24. quaest. 1. et cap. Nos sanctorum, dist. 15. quaest. 6. And that this also holds of a secular judge they assert: Lessius lib. 2. cap. 19. num. 61., Tanner. disp. 4. quaest. 4. num. 20. iuxta cap. Exceptionem, de exceptionibus, et citato cap. Nos sanctorum.

They EXCEPT, however, if the judge migrates to another place, or is not held to be to be avoided in the place of his jurisdiction; Then his acts are said to be valid, although he sins by thrusting himself into judgment.