II. On Excommunication

What is excommunication, and how many kinds are there? Excommunication is a censure through which someone is deprived of communion with the Church. "It is a penalty, the gravest which the Church can inflict, and in itself it contains by force the other censures of suspension and interdict, as those which deprive one not so fully, but only partially, of the goods of the Church, or of their use." Pichler, book 4, title 39, n. 23. An excommunicated person who, after legitimate warnings, has not repented, and has grown filthy in excommunication for a year, or has persevered obstinately, incurs suspicion of heresy, because he seems to despise the authority of the Church. Council of Trent, sess. 25, chap. 3, de Ref. It is twofold: one is minor, the other major. This major excommunication is evident in two ways. For one is that by which someone is an excommunicated tolerated person, whom the faithful are not bound to avoid; the other is that by which someone is an excommunicated person not tolerated, whom they are bound to avoid.

What is to be said about an excommunicated tolerated person? As regards an excommunicated tolerated person, by canon law it is forbidden to anyone, even one secretly excommunicated, to communicate with others both in divine and in human things. But the faithful can communicate with him both in human and in divine things, even without necessity, although they are not bound to. Hence spiritual things, such as sacraments, can licitly be given to an excommunicated person; likewise sacraments can licitly be sought from an excommunicated person, even without necessity, precisely by force of excommunication; for if he is in mortal sin, a just cause is required. Therefore indirectly it has also been granted to an excommunicated person that he may be able to communicate without sin with those by whom he is asked. The same is to be said of one suspended and one interdicted, as regards those matters in which it is forbidden to communicate with them. Constitution of Martin V in the Council of Constance, Ad evitanda; Schmalzgrueber, nn. 121-125; L. 135, 138-140, 160.

What is to be said about an excommunicated person to be avoided? Only two excommunicated persons to be avoided are reckoned. The first is anyone excommunicated by name who at the same time has been specially and publicly denounced. By name, i.e., with the name expressed by words or indubitable signs, so that he cannot be confused with another. Hence we are not bound to avoid heretics, e.g., even if it is publicly known that they are excommunicated by law. Specially denounced, i.e., not denounced generally, but also denounced by name. Hence if it is said: We excommunicate Peter the arsonist and his accomplices, only Peter is to be avoided, but not the others, although they are publicly known; for the sentence as regards them is only general, and not special against a certain person. Publicly denounced, i.e., the denunciation must be made in a public place, according to the usage of the region. But here it must be noted that although it suffices that one excommunicated by law be denounced only as such, so that he is now to be avoided, nevertheless it does not suffice if the guilty person is declared by sentence only to have committed the crime to which excommunication is attached; rather, the excommunication itself must be denounced by the judge. The second is a notorious striker of a cleric. Notorious, i.e., according to St. Alphonsus, not only by notoriety of law, but also by notoriety of fact, at least commonly or ordinarily speaking. By notoriety of law: namely, that it is known either by sentence of the judge, or by confession of the guilty person in judgment, or by sufficient judicial deposition. By notoriety of fact: namely, that it is really known to many, so that the fact can no longer be hidden by any evasion. Otherwise the fact could always be excused by some favorable consideration. Hence probably the striker of a cleric, notorious in one place, is not to be avoided in another where he is not notorious. And the same is to be said of the former case, i.e., of one excommunicated by name and already publicly denounced in some place, who is entirely unknown in another place. And "unless at least it is publicly established by the fact itself that the striker advertently willed (knew and contemned) to incur the censure, he is probably never to be avoided" before the very sentence of the judge specially denouncing him. L. 144. This is established from the constitution of the Council of Constance, Ad evitanda; Holy Office, January 9, 1884.

L. 134, 146; Diana, tome 5, tract 1, de Excommunic., resolution 50, nn. 4, 5; Lugo, Resp. Mor., book 2, disp. 5; Laymann, chap. 4; Ferraris, Bibliotheca, v. Excomm., art. 9, nn. 5, 7; E.M.

What is to be said about minor excommunication? Minor excommunication deprives one per se only of the passive use, or reception, of the sacraments, and consequently of passive election to benefices and dignities of the Church. C. Si quem 59, de Sent. exc.; C. A nobis 2, de Except.; C. Si celebrat 10, de Cler. exc. min. It was incurred for only one cause, namely if someone communicated with an excommunicated person to be avoided, and it could be absolved by any confessor. C. Nuper 29, de Sent. exc. Cf. St. Thomas, Suppl., q. 23, aa. 1, 2; L. 147, 156; Suarez, disp. 24; Laymann, chap. 3, n. 6; Schmalzgrueber, nn. 198-211. Minor excommunication today has been removed by the constitution Apostolicae Sedis.

Thus the Holy Office, December 5, 1883, Leo XIII approving and fully confirming. Yet this does not prevent "a Bishop (even at present) from being able, in penalty of some crime, to forbid someone by name the passive use of the sacraments, or at least of Communion." L. 148. But because of communication with an excommunicated person, in certain peculiar cases major excommunication, suspension, and interdict are now incurred. Constitution Apostolicae Sedis, art. 16 and 17 of Excommunications reserved simply to the Roman Pontiff, art. 1 of Excommunications reserved to no one, art. 6 of Suspensions, and art. 2 of Interdicts. Holy Office, January 9, 1884. Synod of the Diocese of Albano, year 1880, appendix n. 10, sec. XI, n. 3; Pichler, nn. 34, 35; E.M.

What is to be said about major excommunication? Major excommunication has the following effects. It deprives one of receiving and of the passive use of the sacraments. C. A nobis 28, de Sent. exc.; C. Cum illorum 32, ibid.; C. Sacris 38, ibid.; C. Si quem 59, ibid.; C. final, de Cler. excomm. ministr. Hence "no excommunicated person, whether tolerated or not, can licitly receive them (but he validly receives them, except penance, unless he approaches in good faith) under mortal sin, unless invincible ignorance, fear of death, infamy, loss of goods, etc., excuses, because censure does not oblige with so great rigor." L. 158. Schmalzgrueber, nn. 146-153; Pichler, n. 29; Coninck, dub. 5.

It deprives, at least the non-tolerated, of the common suffrages and prayers of the Church, namely those which are made in the name of the Church by her ministers; likewise it deprives one of the fruit of indulgences. Common suffrages and prayers of the Church: therefore it does not deprive one of private suffrages and prayers, namely those which are made in one's own name. "Hence not only any private person, but even a priest can pray as a private person for the excommunicated, even in public prayers and the sacred rite; indeed, he can offer the action of sacrificing insofar as it depends on the private merit of the one operating, or remember him in particular in the Memento. This is certain with St. Thomas." L. 162. At least the non-tolerated, because, as the same Holy Doctor teaches, probably sacrifices, etc., can be offered for an excommunicated tolerated person even in the name of the Church. "The reason is that favorable laws are to be understood with every amplitude; therefore, while it was granted to the faithful to communicate with tolerated persons, it was also granted to offer public prayers for them; for to communicate also imports this, etc." L. 164. CC. cited; Schmalzgrueber, nn. 126, 134-139; Pichler, nn. 29, 33; Coninck, dub. 6; Engel, n. 38; Laymann, chap. 1, n. 4; Salmanticenses, tract 10, chap. 3, n. 56; Suarez, disp. 9, secs. 4, 5; St. Thomas, III, q. 82, a. 7, ad 3; Suppl., q. 21, a. 1, ad 2; a. 3. Cf. 610.

It deprives one of the active use, or administration, of the sacraments. C. Latores 4, de Cler. excomm. ministr.; C. final, ibid. Administration: for a non-tolerated person this is altogether illicit, except in the case of extreme necessity or grave inconvenience; nevertheless he validly confers the sacraments, except penance, which requires jurisdiction, and of this he lacks, unless there is common error of fact, or there is question of the article of death. But for an excommunicated tolerated person, it is sometimes licit, namely if he does not thrust himself in, but the faithful demand and ask; and thus he can celebrate if he is a pastor whose subjects are bound to hear Mass and there is no other who celebrates, for they are tolerated for the favor of the faithful, not in their own favor. Hence he also validly administers penance, since he is not deprived of jurisdiction; for this is expedient for the usefulness of the faithful. L. 165-170; St. Thomas, III, q. 64, a. 9; Schmalzgrueber, nn. 144-146; Laymann, chap. 2, n. 5; Ithur., case 42.

It deprives one of the use of divine offices, so that an excommunicated person, whether to be avoided or tolerated, not only lacks their fruit, but also under mortal sin cannot celebrate them or assist at them in a notable part, so that morally he is judged to communicate with others, unless ignorance or necessity of avoiding scandal excuses. Although the same law applies to those to be avoided and to those tolerated, nevertheless as regards the latter, since today there is scarcely a confessor who keeps an excommunicated person away from the divine offices and there is no excommunicated person who thinks that he must abstain from the divine offices, the rigor of the law in this matter seems to some to have been tempered. Similarly others sin who participate with an excommunicated person to be avoided by assisting at divine things with him, e.g., at the same Mass; and although this sin from its genus is mortal, nevertheless from smallness of matter it is venial, as if only a small part of the Mass, e.g., only up to the Gospel, is heard with him.

Moreover, by divine offices are understood the sacrifice of the Mass, public prayer, procession, chanting of the hours, blessing of oil, water, candles, palms, ashes, and the other things annexed to the clerical order by the institution of Christ or of the Church, which are done publicly and solemnly with proper ornaments, excepting a sermon. L. n. 177. Hence an excommunicated person, whether tolerated or to be avoided, can also, during the time when divine things are not celebrated, enter the church to pray privately, and separately from others in a distinct chapel, and even in the same chapel where others pray, pray privately, because by praying privately he by no means communicates with others. Indeed, although from C. Excommunicatos 17, q. 3, c. 11, it is forbidden for an excommunicated person to communicate with others even in private prayer, nevertheless, scandal and contempt set aside, it does not seem to be grave matter to use him as a companion for privately reciting the office, just as for saying the Rosary. One obliged to the canonical hours is not free from reciting them. But in reciting them he must not say Dominus vobiscum, but Domine, exaudi orationem meam, because that formula imports a certain salutation to the people; whence otherwise he would sin venially. L. 173-178; Schmalzgrueber, nn. 131-133, 178; Pichler, l.c.

Now if an excommunicated person assists at divine offices and is to be avoided, and when warned does not wish to withdraw from the Church, clerics are bound to expel him if they can; or, if they cannot, or if a graver inconvenience is feared, to cease from the office; otherwise they sin gravely. If the sacrifice of the Mass is being celebrated, the celebrant, if the Canon has not yet been begun, must break off the Mass; if he has begun, he can, with the others departing, continue the sacred rite or break it off, because of the probability of each opinion; if he has consecrated, he must, with only the minister remaining, proceed up to and including Communion, and complete the remaining things in the sacristy or another decent place. But the excommunicated person must be expelled by the work of lay persons if they are present; but if they are lacking, clerics also must expel him. As regards those assisting, some more probably say that they also sin gravely unless some necessity or smallness of matter excuses; others not improbably say that this communication of those standing by does not exceed venial fault, because such communication seems too remote and accidental, unless they themselves are also the cause that the excommunicated person is present. But the common doctrine is that if those standing by hear another Mass different from that which the excommunicated person hears, neither they nor the celebrant are bound to withdraw, because then there is no formal communication. C. Veniens 16; C. Significavit 18; C. Nuper 29; C. Responso 43, de Sent. exc.; Clementine Gravis 2, e.t.; Laymann, chap. 2, n. 6; Engel, nn. 57, 59; Pichler, n. 33.

It deprives one of the conferral of a benefice, or ecclesiastical dignity having jurisdiction; and this conferral made to an excommunicated person, such as presentation, election, institution, confirmation, is null, and this even if the excommunication is unknown; for although ignorance can excuse from fault, it nevertheless does not supply the defect of a condition required for the validity of the act. For a benefice is given because of the office. But an excommunicated person, whether to be avoided or tolerated, is incapable of exercising office; for he cannot communicate in office. C. Postulatis 7; C. final, de Cler. exc. Hence he cannot make the fruits his own. But he is not deprived of another benefice already obtained, nor before the sentence of a judge is he bound to restore the fruits, if by himself or by another he fulfilled its burdens. For penalties requiring action on the part of the delinquent always need the sentence of a judge, at least declaratory. L. 179-183; book 1, nn. 148-149; Schmalzgrueber, nn. 147-162; Engel, nn. 60, 61. It also deprives one of Apostolic Rescripts. An excommunicated person is incapable by the law itself of obtaining these rescripts both of grace and of justice, which consequently will be null. C. Dilectus 26, de Rescriptis; C. Ipso iure 1, e.t., in VI. Except unless they were granted knowingly, motu proprio, or after absolution from censures was prefaced, as is customary; which will also have to be understood concerning the conferral of a benefice, if in the concession there is a clause of absolution from censures. Pichler, n. 29; Coninck, dub. 9, 10; L. 180, 182; Laymann, chap. 2, nn. 7-12. Likewise the minor Rescripts of the Holy See are valid, although obtained by excommunicated persons, for the forum of conscience only. Sacred Penitentiary, September 9, 1898, A.S.S., vol. 35, p. 754; E.M.

Several, not improbably, deny that a tolerated person is incapable of obtaining benefices. Cf. Commentary, n. 103, 5.

From the constitution Vacante Sede Apostolica, for the effect of electing the Supreme Pontiff no Cardinal can be impeded from active or passive election by force of any excommunication, suspension, interdict, or other ecclesiastical penalty, which meanwhile all remain suspended. Sec. 29.

With those things observed which are prescribed by the constitution Sapienti consilio, "graces and dispensations granted by the Holy See, even to those entangled in censure, are ratified and legitimate, unless there is question of those who are excommunicated by name, or likewise by name struck by the Holy See with the penalty of suspension from divine things." Order to be observed in the Roman Curia, September 29, 1908, part 2, chap. 3.

It deprives one of forensic communication, or every act pertaining to judgment, both in the ecclesiastical forum and, per se, also in the civil forum. C. Decernimus 8, de Sent. exc., in VI. Per se: for today it has no place in the civil forum. Hence an excommunicated person cannot be judge, advocate, procurator, plaintiff, notary, witness, tutor, curator, executor of a will, etc. But one must distinguish between an excommunicated person tolerated and one to be avoided. An excommunicated tolerated person is deprived by the very fact of no forensic communication, whence he acts validly if he uses it, and also licitly if he is required. But he can be juridically repelled by exception, both by adversaries and by the judge. But an excommunicated person to be avoided acts illicitly; yet he can except, appeal, and defend himself. Besides, the sentence of a judge to be avoided is not only illicit but invalid, since he lacks jurisdiction. C. Ad probandum 24, de Sent. et re iud.; C. Cum inter 5, de Except.; C. Pia consideratione 1, ibid. Moreover he cannot licitly enter contracts or make a will, although he does so validly, even when he institutes an excommunicated person as heir.

It deprives one of ecclesiastical jurisdiction. C. Ad probandum 24, de Sent. et re iud.; C. Romana 1, de Suppl. negl. praelat., in VI; C. Romana 1, de Offic. vicar., in VI; C. Si is cui 10, de Off. deleg., in VI. But the reason is that the exercise of jurisdiction is the principal communication with the faithful. Hence an excommunicated person to be avoided would absolve, elect to benefices, etc., both illicitly and invalidly. But an excommunicated tolerated person, even a notorious one, also a heretic from a sect and a schismatic, validly exercises jurisdiction, but acts illicitly, unless either from a grave cause, or when asked, he exercises acts of jurisdiction; in which cases he is excused from mortal sin even while administering the sacraments. Illicitly; but his acts can be annulled through exception, by sentence of a judge. L. 185; Ithur., case 42; Laymann, chap. 2, n. 13; Schmalzgrueber, nn. 163-166; Pichler, l.c.; Coninck, dub. 10; Lugo, De Iustitia et Iure, disp. 37, n. 6 ff.

The crime of simony in the election of the Supreme Pontiff is subject to a most special excommunication; nevertheless the aforesaid simoniacal election is not invalid. Pius X.

Constitution Vacante Sede, December 25, 1904, secs. 51-79.

It deprives one of ecclesiastical burial, namely that which is done in a sacred place destined for the burial of the faithful. Hence an excommunicated person to be avoided and one tolerated cannot be buried in a sacred place, and if they have been buried in a sacred place, they must be extracted from it. But this difference intervenes between one to be avoided and one tolerated: 1. if each, when dying, has given signs of repentance, the tolerated person can be buried in a sacred place, although it is fitting that he first be absolved from excommunication. Indeed a tolerated person, if he is occult, can certainly be buried in a sacred place; if known, he can still probably be buried in a sacred place, because if it is licit to communicate with them while living, it is also licit to communicate with them when dead, and because in practice, especially at present, several scandals are thus avoided. 2. If an excommunicated person to be avoided has been buried in a sacred place, that place is judged polluted by such contact and must be expiated; but if an excommunicated tolerated person has been buried in a sacred place, the sacred place is not judged polluted, and therefore does not need expiation. C. Sacris 12, de Sepult.; Pichler, n. 29; Coninck, dub. 8; L. 186, 187.

It deprives one of civil society, which involves five things: mouth, prayer, greeting, communion, table. Therefore excommunicated persons cannot live together with other faithful, cohabit, converse, transact business, etc. This deprivation of civil association is to be understood only for those to be avoided; for tolerated persons, by today's custom, no longer sin by communicating with the faithful in civil matters, even if they have not been asked by them. Sacred Penitentiary, July 5, 1867. In civil matters: for in divine matters they can communicate only when asked. Pichler, l.c.

Moreover, there are grave causes in which it is sometimes lawful to communicate even with one not tolerated. C. Si vere 34, de Sent. exc. These causes are: 1. Useful, i.e., usefulness whether spiritual or temporal, both of the excommunicated person himself and of another. 2. Law, i.e., the matrimonial bond, unless the spouses are separated by divorce; or this excommunication is because of doubt about the validity of the marriage; or also the other spouse is excommunicated because of heresy. But whether someone can communicate even in divine things with an excommunicated spouse, there is a twofold opinion. The first affirms; the second, truer, denies. 3. Humble, i.e., the state of subjection. Hence children, even emancipated and adoptive, grandchildren, great-grandchildren, and relatives by affinity in the same kind, can communicate with a parent. Likewise male and female servants can communicate with a master, if they were in service before the excommunication; religious with a prelate; soldiers with an excommunicated commander. And conversely parents, husbands, masters can communicate with excommunicated children, wives, and household servants. But this communication does not extend also to divine things, unless that communication is necessary for furnishing due service. Hence servants licitly accompany their master to Mass, and licitly, if commanded, minister to an excommunicated person celebrating, or recite the office with him, if by force of service they are bound to this. 4. Unknown matter, i.e., ignorance whether of law or of fact, both invincible and also quite probably vincible and crass. 5. Necessity, i.e., grave necessity whether of soul, of body, or of temporal goods; whether of the one communicating, or of the excommunicated person, or of others. For the laws of the Church of themselves do not oblige with grave inconvenience. C. Responsio 43, de Sent. exc.; C. Inter alia 31, ibid.; C. Si vere 35, ibid.; C. Cum voluntate 54, ibid.; C. Quoniam multos 103, c. 11, q. 3; Schmalzgrueber, nn. 183-194; Pichler, n. 32; St. Thomas, Suppl., q. 23, a. 1; Engel, nn. 47-52; L. 200-206.

Now Os, "mouth," means conversations, letters, and generally signs of benevolence, such as sending or accepting gifts, etc. But whether it is lawful to show signs of civility to an excommunicated person: the first opinion denies it, and it is probable; the second opinion, also probable, affirms it, provided that those signs, such as rising, uncovering the head, yielding place, are done so that a mark of discourtesy or the indignation of the excommunicated person may be avoided, and are not shown as signs of friendship or communication. Orare, "to pray," is any communication in divine things, e.g., to assist at Mass or at public offices of the church, concerning which above, or communication in private prayer. Vale, "greeting," comprehends all salutations shown by word or another sign for the sake of honor, unless these are done for avoiding harm and the indignation of the excommunicated person himself. Hence it is probably lawful to return the greeting of an excommunicated person; for returning a greeting is not an exhibition of honor, but rather the payment of a debt and merely an act of civility. But it seems more probable that it is not lawful to write back to an excommunicated person, according to St.

Alphonsus, who cannot acquiesce in the opposite opinion, "because writing back seems to be true communication." Communio, "communion," comprehends every contract, which nevertheless is valid if it is made, and every society, and therefore cohabitation and cooperation. Mensa, "table," comprehends banquets, yet by way of society and commerce, such as is certainly not had if by chance you fall into the same journey, lodging, table, indeed bed. L. 188-195; St. Thomas, Suppl., q. 21, a. 1; Laymann, chap. 2, nn. 16, 17; Schmalzgrueber, n. 177; Pichler, l.c., n. 31; Coninck, dub. 12.

Is it grave to violate excommunication? Communication in divine things is judged mortal, unless smallness of matter, grave harm, custom, or the fact that they communicate only privately excuses. Cf. 1114, 1120. But although they sin, nevertheless neither the excommunicated person communicating with others nor others communicating with him incur any penalty, except in the cases already indicated. Cf. 1109. Communication in civil matters, contempt set aside but without just cause, is only venial. But this is understood, speaking per se and abstracting from contrary custom, which excuses tolerated persons from every sin; and therefore it still applies as regards those to be avoided. Holy Office, August 2, 1893. But whether frequently and continuously communicating in civil matters is again, speaking per se, mortal: there is a twofold probable opinion, one affirming, the other denying.

Finally communication in a criminal crime, i.e., in the same crime or contumacy because of which excommunication was imposed, is a mortal sin. It would be so, e.g., if, after excommunication imposed because of theft, someone still communicated with the excommunicated person in order to furnish counsel or help to him so that he would not restore those things. But the penalty of excommunication is incurred because of this communication in the case indicated in the constitution Apostolicae Sedis, Excommunications reserved simply to the Roman Pontiff, art. 17. C. Significavit 18, de Sent. exc.; St. Thomas, Suppl., q. 23, aa. 2, 3; Quodlibet 11, a. 9; L. 196-199, 207; Laymann, chap. 3, nn. 1-3; Schmalzgrueber, nn. 178-182, 195-197; Pichler, n. 31; Coninck, dub. 14.