§ III. On Excommunications *latae sententiae* Reserved to Bishops, or Ordinaries

(Cf. n. 1401. q. 2°. R. 2°.)

1733. - I. "Clerics constituted in Sacred Orders, or Regulars or Nuns, after a solemn vow of chastity, presuming to contract Matrimony; and also all presuming to contract Matrimony with any of the aforesaid persons." Clem. L. IV. T. unic.

1° "Matrimony," and not only betrothals, nor even these if in a place where the Decree Tametsi is not in force, copula followed; for copula does not induce a presumed Matrimony unless the betrothals were valid (n. 1546. 3°).

2° "To contract Matrimony." Therefore the censure is not incurred a) by those who live in concubinage, even though publicly they are thought to live in legitimate Matrimony; nor b) if consent was lacking either on both sides or on one side, as, for example, if one contracted fictitiously, or was induced by error, or compelled by fear. - Whether, in order that the censure be incurred, it is also required that the consent not be vitiated by an impediment distinct from the impediment of Order or solemn vow, e.g., of bond, consanguinity, affinity, disparity of cult? Not a few among more recent authors affirm;³ others deny;⁴ and to their opinion, the matter having been weighed again, we adhere; for no sufficiently solid reason, nor any authority except that of more recent authors, militates for the affirmative opinion.⁵ - Whether at least it is required that a Matrimony of this kind be contracted before the Pastor and witnesses? I answer that this certainly is not required in places where the Decree Tametsi is not in force; for in those places clandestine Matrimony, although illicit, nevertheless has the figure of Matrimony, which suffices so that the parties, as far as depends on themselves, are judged to "contract Matrimony." Outside places of this kind there was dispute.¹ That one must adhere to those denying² can today, after the Response of the S. R. and U. Inquisition, Feria IV, December 22, 1880, no longer be doubted (P. Bl. für N. Amer. 1881. S. 106, ad I.).

3° "Presuming to contract." See n. 1664. q. 3°.

1734. - II. "Those procuring abortion, the effect having followed." Sixtus V. c. Effraenatam, October 29, 1588. § 7.

Of this censure:

1° The matter is abortion directly voluntary, not merely in cause, as if someone gravely struck a pregnant woman out of anger, hatred, jealousy, etc., foreseeing the abortion indeed, but not intending it, as is clear from the Sixtine Constitution. - A moral cause, however, suffices, such as terror struck into a pregnant woman. Nor is any distinction any longer to be made between an animated or inanimate fetus.

2° The condition is the effect having followed, having followed, I say, not from some accidental cause, e.g., from the fact that, after taking an abortive drug, the woman fell from a height, but from a cause efficient per se. Nor is excommunication incurred as long as it seems probable that the abortion followed from another cause.³

3° The subject is all procuring abortion, whether by themselves or through others: therefore both those commanding and those executing commands; but not those counseling, nor those who furnish help to the procurer; for here procurantes are understood as in the Sixtine Constitution, § 2. Therefore one who counsels, teaches, writes down (even if he is a physician), or prepares a drug for the procurer, does not incur the censure.⁴ Besides, as the anonymous Annotator of Gury, Roman edition 1873,⁵ says: "The opinion still seems probable of those who, with St. Doctor Alphonsus,⁶ thought that this excommunication is by no means incurred by pregnant women who procure an abortion for themselves. For in the Pian Constitution those procuring abortion are indicated, not all without any exception whatever, but generally those who procure abortion; these words are indeed general, but they can admit a benign interpretation. But that they in fact admit it is elicited from the following arguments. 1. The nature of penal law persuades this, because odious things are to be restricted. 2. It is confirmed from the purpose of the Supreme Pontiff, who wished by prudent dispensation to moderate the old censures. 3. This censure, as regards the subject, was enunciated in the same way by Doctors before the Constitution Apostolicae Sedis was published, as it is enunciated in that Constitution itself. Thus in the Medulla Theologiae Moralis of Hermann Busembaum, L. VII, Cap. I, Art. 2, among the excommunications reserved to Bishops under n. 3, it is read: 'Against those procuring abortion of an animated fetus, the effect having followed.' And nevertheless the Holy Doctor, who took the enumeration of censures from Busembaum exactly, and reported the excommunication of which we are treating in the very same words,¹ defended that milder opinion. 4. Finally, concerning a censure of this kind only this much change seems to have been introduced, namely that the distinction between an animated and an inanimate fetus was omitted. Accordingly, in that which pertains to the subject, the Constitution Apostolicae Sedis is to be understood more mildly, as, according to the probable, indeed more probable, opinion, according to the Holy Doctor, the Sixtine and Gregorian Constitution was understood, unless we wish, the spirit being neglected, to cling to the letter more tenaciously than is fitting. But the reason why Theologians judged that Sixtus V exempted pregnant women from this censure is that he is presumed to have had compassion on the weakness of women who, when driven by vehement fear of damage about to come to themselves, namely infamy, attempt to expel an immature fetus, and, while they do not shrink from so great a crime, would easily also make little of excommunication; therefore, to avoid a new snare of the soul and other dangers, especially of sacrilegious Confessions, the Pontiff did not wish to comprehend them. Moreover it still seems at least to be considered that St. Alphonsus with Ronc. noted in the cited place: 'Since it is doubtful whether this excommunication was laid down also against pregnant women, very probably they themselves are excused from it.'"²

1735. - III. "Those knowingly using false Apostolic Letters, or cooperating with the crime in that matter." From L. V. Decr. T. XX. c. 7.

1° "False," see n. 1714.

2° "Using," i.e., those who exhibit them so that they may be able to have effect. Concerning the falsifiers themselves, see n. 1714.

3° "In that matter," i.e., in the said use, "cooperating."