point — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Point II. *Latae Sententiae* Excommunications Reserved to Bishops or Ordinaries
- Concerning these the Constitution Apostolicae Sedis declares thus:
We declare to be subject to latae sententiae excommunication reserved to Bishops or Ordinaries:
I. Clerics constituted in Sacred Orders, or male or female Regulars after a solemn vow of chastity, presuming to contract matrimony; and also all presuming to contract matrimony with any of the aforesaid persons 1.
II. Those procuring an abortion, the effect having followed 2.
1 Briefly and at the same time excellently concerning this matter, the Rieti Commentary (no. 115) says: In order that this excommunication bind those of whom there is discussion in the article, it is necessary that a matrimony of this kind could otherwise have been valid, apart, namely, from the statute of the Church which prohibits and invalidates the marriages of those persons and punishes those presuming to contract with this penalty. Suarez well says (On Censures, disputation 11, section 3, no. 15): It is not necessary that the act be valid in reality, or have an effect; but it is enough that, insofar as it is done by the agent, it be such; for this is what the law prohibits and intends to punish. Moreover, as the same Suarez says elsewhere (ibid., disputation 4, section 3, no. 3), for the action to be such, it must be complete; but it is not complete when (as he himself says), although it was attempted or begun externally, nevertheless in reality it not only does not accomplish the final effect intended by the sinner, but has not even effected anything which would suffice for such an effect.
Therefore (as the Rieti Commentary continues most excellently), the excommunication is not incurred: either 1. if legitimate consent is lacking, whether on both sides or on either one, as if one contracted fictitiously, or was induced by error, or compelled by fear; or 2. if the legitimate form is lacking, as if they contracted without the pastor and witnesses where the Tridentine Decree has been promulgated; or finally, 3. if any other diriment impediment stood in the way, for example, if they contracted with a consanguineous or affinal relative, or an accomplice in crime, or an infidel. Therefore those things by which Avanzini (no. 35) extends this sanction to marriages which would be invalid from another cause must be altogether disregarded, as Cretoni also shows (Note to this article).
The praised Rieti Commentary adds pertinently that, since the excommunication strikes those presuming to contract, if for this reason either both or one of them labored under ignorance, whether of law or of fact, even crass and supine ignorance, the excommunication does not bind the ignorant person, even if afterward, when the matter has become known, he perseveres in cohabitation; as Sanchez also clearly proves (On Matrimony, book 7, disputation 48, no. 20).
2 By those procuring are understood those who directly, studiously, or deliberately seek something or intend it by action; and we see them thus designated in the Constitution Effraenatam of Sixtus V (section 1): All who by themselves or through intermediate persons have procured an abortion or the ejection of an immature fetus by blows, poisons, medicines, etc. And since in the same Constitution (section 7) from these, as principals, there are distinguished those who knowingly gave assistance, counsel, favor, a potion, or other medicines of any kind for committing such a crime, etc., it ought to be evident that these latter are not contained in the class of procurers. Therefore, since the Article strikes only procurers, the excommunication does not bind these latter.
Avanzini (no. 40), after he said that those procuring an abortion are comprehended under the censure without distinction, and therefore that all fall under this censure, whether the woman herself procures an abortion upon herself or anyone else does so, adds: Others hold the contrary concerning the woman. Yet even in the Constitutions of Sixtus V and Gregory XIV the censure was imposed without distinction upon those procuring an abortion. Nevertheless, it is very well known that St. Alphonsus (book 3, no. 395) wrote: The second opinion, very probable and, with the intrinsic reason considered, more probable, denies that pregnant women incur excommunication, etc. And he concludes: Since it is doubtful whether this excommunication was imposed also upon pregnant women, they are very probably excused from it. And see that the Rieti Commentary, Cretoni, Del Vecchio, etc., have agreed in this opinion.
Avanzini adds: In this article no distinction is made between an animated and an inanimate fetus, and therefore neither ought we to distinguish. It would have been more expeditious to conclude that no one is now excused from the censure under the pretext of an inanimate fetus. For that the Constitution, in some manner presupposing that ancient distinction, willed to cast aside the moderation of Gregory XIV so as to recall the matter to the severer limits of Sixtus V is altogether improbable. It must therefore rather be said that no distinction of this kind is made in the Article because the hypothesis of an inanimate fetus is to be held as altogether obsolete.
III. Those knowingly using false Apostolic Letters, or cooperating in that crime 3.
3 You have a clear explanation of this Article in the Rieti Commentary (no. 121): He who falsifies Apostolic Letters incurs excommunication reserved in a special manner to the Roman Pontiff; he who uses false letters, and he who cooperates with him, whether laics or clerics, themselves incur excommunication, but one reserved only to the Bishop. And if someone has committed both, that is, if he falsified the letters and afterward used them, he is entangled in both excommunications. Moreover, by false letters we must understand either altered or supposititious letters; but by users, those who exhibit them so that they may have an effect; finally, by cooperators, those who furnish assistance to the user, not to the falsifier.