Chapter IV — On censures severally, namely on the greater and lesser excommunication

I. QUESTION I. What is excommunication, and of how many kinds is it? ANSWER. It is a censure by which a man is separated from the ecclesiastical communion of the faithful. It is distributed into greater and lesser. The greater is a censure by which a man is not only deprived of the participation of the sacraments, but is also segregated from the communion of the faithful. The lesser is called a censure by which a man is deprived of the participation of the sacraments and of the administration of the same, and of passive election to dignities and benefices of the Church. The greater deprives a man of all things which lie subject to the jurisdiction of the Church, but by no means of all spiritual goods which are above the jurisdiction of the Church. Wherefore if an excommunicate recover the state of grace, he communicates with the other members of the same mystical body. The ecclesiastical goods of which an excommunicate is deprived are of two kinds. Some are civil, which regard human society, as cohabitation, salutation, conversations, and so forth. Others are spiritual and sacred, which similarly are distributed into two kinds. Some are exterior, as ecclesiastical burial, and attendance at the celebration of the divine offices. Others are called mixed, as participation of the sacraments, the use of the sacrifice, communication in prayers, and so forth.

II. Ten effects of the greater excommunication are wont to be recounted: 1. Privation of the suffrages of the Church; 2. Privation, both active and passive, of the sacraments; 3. Privation of sacred things; 4. Unfitness for receiving Orders and for their use; 5. Privation of ecclesiastical jurisdiction; 6. Unfitness for exercising legitimate acts in judgment; 7. Unfitness for conferring ecclesiastical benefices; 8. Incapacity for obtaining the same and their fruits; 9. Unfitness for obtaining a privilege; 10. Privation of civil and forensic communion with the rest of the faithful.

III. All these effects excommunication does not beget if it be unjust and invalid. And if it were publicly established to be null, then the excommunicate could bear himself as if he were not such, both in the external and in the internal forum. If it be doubtful whether it be valid or not, the excommunication is to be obeyed.

IV. QUESTION II. Who are called excommunicates tolerated, and who to be shunned? ANSWER. Those only are called to be shunned, by the constitution of Constance, who are excommunicated by name and denounced, or are notorious strikers of clerics. All the rest are tolerated. But that a man may be called excommunicated by name so that he must be shunned, two things are required: 1. That in the excommunication the name of the excommunicated person be expressed; 2. That it be publicly declared that such a one is excommunicated: which declaration ought to be made in a public place, either amid the solemnities of the Masses, or by affixing a paper in a public place. Before an excommunicate be denounced as such, he is to be cited that he may defend himself, unless the delict be public and notorious. He who has been declared to have incurred excommunication, if within a congruous term he lawfully appeal, can bear himself as tolerated.

V. Public and notorious strikers of clerics are called those who are known with a notoriety of right and of fact. Those excommunicated in one place are to be shunned also in another place where the excommunication is secret, as the more probable opinion holds. Excommunicates who are tolerated cannot communicate in divine or human things with others; but the rest of the faithful can communicate with them in human things. Wherefore the constitution of Constance is for the benefit of the faithful, not of the excommunicated. An excommunicate sins mortally if he administer, if he celebrate, and so forth. The sacraments nevertheless are valid, the sacrament of Penance excepted, which administered by an excommunicate to be shunned is null. Wherefore the faithful who should confess to an excommunicate to be shunned would have to repeat their confessions. Whether in the article of death absolution is to be sought from the same has been said above.

VI. Very many teach that in danger of death a priest excommunicated and to be shunned can assist at a marriage for the consulting of the honour of a woman known by a man, and for constituting the sons legitimate, if there were no other priest. The Salmanticenses, no. 37, with others teach that a tolerated excommunicate can validly and lawfully administer the sacraments except Penance. Nay they add that he can validly administer the sacrament of Penance itself, and, if he be asked, even lawfully: because when he is tolerated, he does not lose the power of administering the sacraments for the utility of the faithful, as is drawn from the Council of Constance. Which opinion does not approve itself to me, nor should I judge that believer well disposed who, having the store of a confessor, should wish to confess to a tolerated excommunicate.

VII. QUESTION III. What penalty does an excommunicate incur who unlawfully administers the sacraments? ANSWER. An excommunicate, whether to be shunned or tolerated, incurs irregularity when he unlawfully administers the sacraments, as the common opinion teaches. An excommunicate also, whether to be shunned or tolerated, sins mortally if he receive the sacraments. Ignorance nevertheless, invincible inadvertence of the excommunication, necessity, scandal, and infamy can excuse. In these cases the common opinion teaches that either the one to be shunned or the tolerated can receive the sacraments. They dispute only concerning the sacrament of Penance, whether it be validly received by an excommunicate ignorant of his own excommunication, or that he may avoid a grave inconvenience. The more common opinion affirms it, whether he be one to be shunned or tolerated, provided the ignorance of right and of fact be invincible, and he approach with the due dispositions.

VIII. QUESTION IV. What harms does the third effect of excommunication bring? ANSWER. It deprives one, whether to be shunned or tolerated, of the office of celebrating the divine offices and of assisting at them. But by the name of offices are understood all the sacred functions which are performed publicly by the Church, as the celebration of Masses, the canonical hours, public prayers, processions, blessings, consecrations of chrism, and accompanying the Eucharist when it is carried to the sick. Excommunicates nevertheless can hear a sermon, and enter the church privately and pray there; nay they are bound to pour forth prayers and to recite the canonical hours if they be clerics, otherwise they would carry off a convenience from their iniquity. They cannot nevertheless in reciting the hours employ a companion without venial fault, a just cause being taken away. Neither those to be shunned nor the tolerated can hear Mass; nay, if one to be shunned were present, he would have to be admonished to withdraw; and if, being ordered, he did not withdraw, he would incur a new excommunication. And when he could not be expelled, the faithful ought to withdraw, lest they communicate with him. If the priest have not begun the canon, he ought to interrupt the Mass and go away. If he have begun the canon, he ought to pursue the Mass with one minister up to the taking of the chalice, and omit all the rest, or perform the same in the sacristy, if a fit place be there.

IX. Excommunicates sin mortally if they defer to obtain absolution, as I said above, that they may be able to hear Mass on a feast day: because by the same precept by which they are bound to hear Mass, they are obliged to remove impediments.

X. Excommunicates are deprived of ecclesiastical burial, or in a sacred place. By the name of a sacred place are understood temples, cemeteries, cloisters, and other places deputed to celebrating the divine offices and to divine worship. This nevertheless is understood of excommunicates to be shunned, who, if they have been buried in a sacred place, are to be exhumed and cast forth; and the sacred place is to be purged by aspersion. Those who bury these men in a sacred place incur the greater excommunication. But those commanding and procuring it contract the lesser excommunication. But those who bury tolerated excommunicates, even heretics, who have not been specially denounced, do not incur excommunication, as authors commonly teach. But he who should bury a heretic condemned by a judge's sentence would incur the greater excommunication.

XI. The fifth effect deprives an excommunicate, whether to be shunned or tolerated, of all use of ecclesiastical jurisdiction. A tolerated excommunicate nevertheless, if he be sought out by the parties, can lawfully and validly exercise acts of jurisdiction, as to elect, present, and confer benefices, on account of the faculty which the constitution of Martin V affords the faithful of communicating with a tolerated excommunicate. But if the faithful litigants should reject a tolerated excommunicate, then his acts would be of no value. Those giving the exception would have to manifest within eight days the species of the excommunication. Things done through ecclesiastical jurisdiction by an excommunicate to be shunned are unlawful and invalid, nor are subjects bound to obey him.

XII. QUESTION V. Whether an election is null to which an excommunicate to be shunned concurs? ANSWER. It is null if without the suffrage of the excommunicate to be shunned it could not be concluded. But if his suffrage be not necessary, and the electors either be ignorant of the excommunication or cannot repel the excommunicate, the election is not to be abrogated.

XIII. The resignation of a benefice made by a tolerated excommunicate is valid; nay even that made by one to be shunned, if it be simple and not in favour of another: because such a resignation is not an act of ecclesiastical jurisdiction, but a simple cession of a benefice. The things which are done by an excommunicate to be shunned as a private person are valid, although unlawful, if he communicate with others. A testament nevertheless made by an excommunicate on account of heresy, or of the striking of a Cardinal, would be null, from chapter Felicis on penalties in the Sixth. They assert also that instruments made by a notary excommunicated and to be shunned are invalid.

XIV. QUESTION VI. What unfitness do excommunicates incur by force of the seventh effect? ANSWER. Those bound by the greater excommunication are unfit for ecclesiastical benefices. Wherefore election, presentation, postulation, nomination, collation, and the impetration of letters in favour of an excommunicate are null; and both those electing and presenting, and those receiving a benefice whether by cause of commutation or of resignation, sin mortally; and besides the lesser excommunication which those conferring a benefice upon an excommunicate to be shunned incur, they also contract a suspension from the collation of such a benefice. And these things extend also to the suspended, the interdicted, and the irregular. A collation made by the Pontiff is excepted, because the one conferring is presumed to dispense, unless a man be excommunicated for heresy, which is not taken away by a general clause. If anyone were vincibly ignorant of his own excommunication, or of the absolution from the excommunication, the collation of the benefice would be null, as the common opinion teaches. An excommunicate receiving a benefice does not make the fruits his own, but is bound to restore them. When nevertheless he receives it in good faith, being ignorant of his own excommunication, when he recalls it he ought to dismiss the benefice, and to restore that in which he has been made richer.

XV. QUESTION VII. Whether an excommunicate loses the fruits and the benefice? ANSWER. The eighth effect deprives an excommunicate not of the benefice, but of the fruits of the benefice only, from the time at which he was excommunicated, whether to be shunned or tolerated. And by the name of fruits are understood all revenues, pensions, and distributions; but by no means the patrimony. Theologians dispute keenly whether an excommunicate ought to restore the fruits before or after the judge's sentence. To me it seems the more probable that an excommunicate ought to restore the fruits before the judge's sentence. Since the cause of the restitution is the excommunication. Therefore, the excommunication being posited, the restitution necessarily follows.

XVI. QUESTION VIII. What is forensic and civil excommunication? ANSWER. The ninth effect of excommunication is that an excommunicate cannot be a judge, plaintiff, advocate, witness, notary, or procurator in the forum. If nevertheless he be tolerated, he can defend a client, provided he be not repelled, just as he can be repelled if his excommunication be known. Wherefore judgments of a forum are valid in which the plaintiff, witness, or notary is a tolerated excommunicate; on the contrary, if he be one to be shunned, and if the judge himself have been such, all the acts of such a forum are void, as the more common opinion teaches. The testimony of an excommunicate, if it be admitted by a judge, is valid. An excommunicate nevertheless can be cited, and act as defendant in judgment. He ought nevertheless to do this through a procurator, unless he be poor.

XVII. The tenth effect of excommunication is a privation of political communication by way of commerce or society, unless necessity excuse, or unless the excommunicate be requested. He who communicates in civil things with an excommunicate to be shunned sins venially, in sacred things mortally. Communication with a tolerated one includes no fault. A continued civil communication nevertheless with one to be shunned, according to the more probable opinion, is not free from grave fault, and carries with it the lesser excommunication. Nevertheless: 1. When the excommunication has been passed by the Pope by a singular sentence, by name, he who knowingly communicates with such an excommunicate incurs the greater excommunication reserved to the Pope himself, if nevertheless he be a cleric and communicate in divine things. 2. When the excommunication has been passed against participants: for then he who communicates is bound by the same excommunication with which the excommunicate is entangled, from which he can be absolved only by him by whom the excommunicate can be absolved. He does not nevertheless incur this excommunication by communicating, unless a threefold admonition or one equivalent to three precede. 3. When someone communicates in the criminal crime — that is, in that crime for which a man has been excommunicated — affording him help, counsel, or favour. That I may comprehend all things in few words, there are five cases in which it is not lawful to communicate with an excommunicate, contained in these verses:

If for delicts anyone be struck with anathema, Mouth, prayer, greeting, communion, table are denied.

By mouth are forbidden words, signs, embraces, nods, letters, messages, and so forth. Prayer forbids communication in sacred things. Greeting forbids a salutation for the cause of honouring. Communion forbids cohabitation, cooperation, and counsel in any business whatsoever. Table forbids communication in food, drink, banquets, assisting and sitting together, and so forth.

XVIII. QUESTION IX. In what cases is it lawful to communicate with an excommunicate? ANSWER. They are contained in this single verse:

Use, law, lowliness, a thing unknown, and necessity.

Use signifies every true and not feigned utility, spiritual and temporal, whether of the excommunicate or of the one excommunicating. Law signifies matrimony, by force of which a wife can ask the debt from an excommunicated husband, and can communicate with him in the rest also, as in the government of the house and in other businesses, sacred things being excepted. And this is understood even if both were excommunicated, unless the excommunicates contracted the matrimony, or the excommunication was passed for the cause of matrimony, or lastly unless they were separated by divorce. In these cases they would not enjoy the privilege of communication. Lowliness signifies the communication which sons legitimate, adoptive, and illegitimate, grandsons, great-grandsons, and the rest in the degree of the direct line can have; and affines, as a son-in-law, daughter-in-law, stepson, and stepdaughter, can mutually communicate, and wards with guardians. A thing unknown signifies ignorance or inadvertence. Necessity indicates some grave necessity, whether temporal or spiritual, whether of the excommunicate, or of the one excommunicating, or of a third person.

XIX. QUESTION X. What is the lesser excommunication, and what are its effects? ANSWER. It is an ecclesiastical censure depriving one of the passive reception of the sacraments; and this privation is the chief effect of the lesser excommunication. Wherefore he sins mortally who, entangled in this excommunication, receives any sacrament. Concerning the administration of the sacraments they differ whether such an excommunicate sin mortally or venially. Nay very many defend that he does not sin even venially. But it is difficult to exempt this man from venial fault. All nevertheless affirm that he sins mortally if he celebrate, because then he receives the sacrament. Another effect of this excommunication is a privation of passive election to ecclesiastical benefices. Any approved confessor can absolve from it.

XX. QUESTION XI. When is the excommunication of the canon incurred for the striking of a cleric? ANSWER. “If anyone, at the devil's persuading, shall have laid violent hands upon a cleric or a monk, let him lie under the bond of anathema, and let no bishop presume to absolve him, save when the peril of death urges, until he be presented to the apostolic sight and receive his mandates.” This is the canon which is had in cause 17, question 4. That at the devil's persuading signifies a striking which is a mortal sin by reason of the injury inflicted upon a clerical person. The gravity of which injury is to be taken with regard to the dignity and religious state. Although this be reserved to the Apostolic See, regular Prelates can absolve their own subjects who are strikers of Religious.

XXI. By the name of a cleric or monk come even those marked with the first tonsure, provided they wear the clerical habit; all Regulars of either sex, clerics, novices, and lay brothers enjoy this privilege of the canon. Likewise the Knights of St. James, of St. John, of Calatrava, of Alcántara, of St. Lazarus in Savoy, of St. Stephen of Florence, of the Order of Christ in Portugal, as very many authors teach. Of this privilege married clerics do not enjoy, unless they wear the tonsure; nor the tertiaries of St. Dominic and St. Francis; excluded also from this privilege are clerics who, ecclesiastical garments being cast off, mingle themselves in secular businesses and, being thrice admonished by the Superior, are not corrected.

XXII. All possessed of reason of either sex, who lay violent hands upon a cleric, incur this excommunication of the canon. Youths guilty of this striking before puberty can be absolved by a bishop. Likewise those commanding, inducing, counselling, nay consenting, affording help, and those who by guile, fraud, or malice do not hinder it, incur this excommunication. Likewise he who holds as ratified a striking made in his own name, although he neither gave a mandate nor afforded help. It is nevertheless required: 1. That the striking be made in his name, the striker judging that it will be pleasing to him; 2. That by an exterior sensible sign he betray his approbation; 3. That when the striking was committed to execution, he himself was habitually fit for affording the mandate or counsel: because if he had then been demented, he would not incur it. Sleep nevertheless and drunkenness do not hinder him from contracting it.

XXIII. QUESTION XII. What acts are called violent against a cleric, on account of whose striking excommunication is incurred? ANSWER. All lay violent hands who with some part of the body — as with mouth, foot, arm, or hand — strike a cleric or a thing adhering to him, whether immediately or by means of a staff, sword, or poison; if they violently detain a cleric; if they thrust him into prison; if they pursue him, urging him to injury or to a precipice; if they cast spittle or dust upon him; if they tear his garments; if they beat him with a reed; if they hurt the very horse on which he sits, or break the bridle and stop it: which actions all injure either the person or his honour, and dishonour him, as is clearly gathered from chapter Nuper on sentences of excommunication; and so they suffice for contracting excommunication. But by no means do they contract it who offend a cleric with words only, who brandish a stroke that they may hurt him, but in fact touch neither him nor a thing adhering to him; nor those who without violence filch or steal a cleric's clothes, a horse on a journey, or money, although it should follow thence that he could not pursue his journey. Those who give poison to a cleric are excommunicated. If a nun should drink poison to kill the foetus, she would not be obnoxious to this censure, because she would inflict injury upon the foetus, not upon herself; but he who should by force give poison to a pregnant nun would contract excommunication, because he would inflict violence both upon the nun and upon the foetus to be killed.

XXIV. QUESTION XIII. What causes excuse those laying violent hands upon a cleric from contracting excommunication? ANSWER. Ignorance of right and of fact, grave fear, just defence, and all the rest which exempt from grave fault; the title of correction, by force of which masters, prelates, and parents can strike disciples and sons, and exercise all those things which are prudently judged opportune for their amendment. Similarly immune from this censure are those who should strike a cleric basely handling their own wives, mothers, sisters, or daughters, whether that they might avenge the injury or turn him from the crime, provided they strike him in the very crime or immediately after, even if he do not fornicate with them, but only dishonour them with base kisses, touches, and embraces. A woman also solicited and provoked by a deed by a cleric, if she should repel him by a violent striking when she cannot with words alone, would be free from the censure. Clerics who, being thrice admonished, do not wear the tonsure and the clerical habit, if they act as soldiers or footpads, lose the privilege of the canon.

XXV. Of the excommunication contracted on account of a duel it has been said above, on the fifth precept of the Decalogue. It would have to be said also of the censures contained in the Bull of the Supper. But I have given that entire in Vol. I of the Apparatus, and touched upon a synopsis of the same in Vol. X, Book 1, dissertation 2, chapter 2, § 3. Wherefore if you desire more, see there.