Case XXIII: Concerning the Excommunication Incurred by Those Who Injure the Rulers of the Church Either in Body, in Their Liberty, or, in Their Dignity

Applied correction from Woywod's opening insert: CASE XXIII.—The Bull "Apostolicae Sedis" is revoked by the New Code but the censure of excommunication specially reserved to the Holy See for the crime mentioned in this case has been retained as can be seen from Canons 2333, 2334 and 2343.

Sempronius, an excommunicated (vitandus) citizen, died and was buried in consecrated ground. The bishop, hearing of this, caused the body to be exhumed and reinterred in a non-consecrated cemetery. This angered the mayor of the town, who commanded that the bishop and his vicar-general (who was a bishop in partibus) should be expelled from the town.

Titius, a friend of the mayor and at the same time hostile to the bishop, left no stone unturned to carry out the wishes of the mayor. So the bishop was compelled to fly from the episcopal city. The people, roused to anger by the action of the mayor, would not suffer him to depart from the diocese. Yet, fearful of the consequences if the order of the mayor was not obeyed, he retired by night to the residence of a neighboring bishop. The vicar-general took up his residence at the end of the diocese with a friend.

Now the question is, what crime is punished by excommunication in Part I, Article V, of the constitutions of the bull Apostolicae Sedis.

The crime which merits the aforesaid penalty is the crime of personal sacrilege committed by the contumelious treatment of the Officials of the Church. In the bull Apostolicae Sedis there are two excommunications fulminated against all who injure ecclesiastics. The first is contained in Article V, the second in Part II, Article II, Violentas manus, etc. Although the two penalties were intended to punish the selfsame crime, yet there is a wide difference between them. The first was established to safeguard the person, liberty and dignity of the hierarchy; that is of the cardinals, patriarchs, archbishops, bishops and apostolic legates. The other to protect all ecclesiastics. Again the excommunication contained in Article V is reserved to the Pope modo speciali; while that in Article II is reserved simpliciter.

Thirdly, while the first ordinance is to be interpreted strictly according to the principle “odiosa sunt restringenda” the second has a most broad application. Accordingly the first excommunication is not merited by other persons or by other crimes than those specifically designated by the article in question. Hence one who would kill a bishop-elect but not yet consecrated, or who would throw mud at a consecrated bishop, would not be affected by this canon.. The second ordinance, on the contrary, since it contains a privilege which is not personal but applies rather to the clerical order, is designed to protect all who have received tonsure, even though they be excommunicated or suspended or under interdict.

From this it is evident that it may sometimes happen that one may escape the excommunication fulminated in Article V and yet by reason of his crime be affected by the excommunication attached to the violation of Article II, as, for instance, would be the case with one, who, at the instigation of the devil, would hurl some mud at his bishop.

Again it might be asked, who are affected by this excommunication? The answer is simple—all who inflict any injury on the person, or who interfere with the liberty or dignity of the tonsured cleric, in other words all who maltreat those that are protected by the two canons in question.

(a) Those who injure the person; that is those who kill or mutilate or strike such persons as are made sacred by holy tonsure. Would they be subjected to this penalty who plucked the hairs of a bearded priest or bishop? No, for this is not mutilation in the proper sense, since the beard is not a member having a function distinct from the other parts of the body.

(b) Those who interfere with the liberty, either by seizing, incarcerating or detaining a cleric. He, however, who seizes such an one and yet immediately dismisses him has escaped the condemnation of this canon.

(c) All who with hostile intention pursue or exile the prelate or the cleric. So that this censure is incurred by all who pursue with such intent even though their wicked purpose is not realized. Yet it must be borne in mind that the mere pursuit, say, with intention of terrifying, is not sufficient to bring the censure of this canon, It must likewise be remembered that to prevent a bishop from entering his allotted diocese is not the same as to exile him or eject him, and hence the censure is not merited in this instance. However, it must likewise be said that the sentence of excommunication contained in Article V falls not only upon those who kill or mutilate directly, but in like manner and with equal severity upon all who command these deeds, who approve of them, or who render help by deed or counsel or reward for the fulfilment of the wicked design.

Lastly, it may be asked, did the mayor of the town and his friend Titius, who aided him, fall under the ban of this censure, as contained in Article V of the Apostolicae Sedis? From one point of view it might seem that they did. For, by virtue of the decree of the mayor and the hostility of Titius, the bishop was forced to leave the episcopal city. Yet, on the other hand, it must not be forgotten that the bishop left of his own free will. Had the mayor recalled his decree, even if this were done merely because of the uprising of the populace, he would certainly have avoided the censure. Hence since the bishop departed of his own free will and was not driven out by force, and since the vicar, who was likewise a bishop but not residing in his own diocese, did not even leave the diocese, we think there is room to doubt as to the incurring of the excommunication. Because of this we are inclined to give the benefit of the doubt to the mayor and to his friend Titius and pray that God may be as merciful to them as we are.