§ 3. EXCOMMUNICATIONS RESERVED TO ORDINARIES.1

1348. THREE are stated in the Constitution Apostolicae Sedis, in these words:

"We declare subject to excommunication latae sententiae reserved to Bishops or Ordinaries:

I. "Clerics constituted in sacred orders, or regulars or nuns, presuming to contract marriage after a solemn vow of chastity; as well as all presuming to contract marriage with any of the aforesaid persons." Clement V, de Consang.

To incur this censure it is required: 1. That at least one of them be marked with sacred Order, or bound by a solemn vow of chastity, although another impediment is present, for example of affinity or consanguinity, from which the marriage is null (Holy Office, 13 Jan. 1892). 2. That they presume to contract marriage, that is, that both furnish matrimonial consent concerning the present, and that they do this with presumption, that is, with perfect knowledge of fact and law, and with full liberty. But so-called civil marriage suffices, as is clear from the Decree of the Holy Office, 22 December 1880.1

1349. II. "Those procuring abortion, the effect having followed." Sixtus V, Const. Effraenatam, § 7.

To contract this censure three things are required:

1. That the abortion be true and certain (cf. n. 741). Whence excommunication is not incurred unless both conception or existence of the fetus, and its premature ejection from the maternal womb, were certain.2 - But the ancient distinction (Gregory XIV) between an animated and unanimated fetus is removed; wherefore, at whatever time after conception a true and certain abortion is procured, the censure is contracted. Otherwise as regards irregularity (cf. n. 1946). Craniotomy, as we said n. 745, does not induce censure; because it is not abortion strictly so called.

2. That it was procured, that is, sought by industry and directly willed, whether by oneself or through interposed persons, as the Bull of Sixtus V has it. Hence by the censure are punished the physician, maidservant, companion, offering a potion; likewise the father of the family, husband, fornicator, who strike while intending abortion, or who by command or threats compel a woman to inflict abortion upon herself. Exempt from it is he who gravely strikes a pregnant woman from anger, hatred, or jealousy, perhaps foreseeing abortion, but not intending it. Likewise exempt is the physician giving mere counsel, or indicating suitable means; the pharmacist preparing or selling the remedy, although from a gravely evil intention; for they are not reviewed in the article, as formerly in the Constitution Effraenatam, "those who knowingly gave aid, counsel, or favor."

3. That it truly followed from the cause placed for this end. But otherwise, if it is established or at least probable that the abortion happened from another cause; for example from the fact that after taking the abortive the woman fell from a height. Otherwise also, if the guilty person repents before the effect follows (cf. n. 1264, 2).

Note. The woman herself who procures abortion for herself, according to a very probable opinion and, with attention to intrinsic reason, the more probable, does not incur the censure. The reason is that generally women take medicaments "driven by vehement fear of harm to come... and while they do not shrink from so great a crime, they would easily also make little account of excommunication; and therefore the Pontiff, and this is most important, in order to avoid a new snare of the soul and other dangers, especially of sacrilegious confessions, did not wish to comprehend them." Thus St. Alphonsus on the Bull Effraenatam of Sixtus V, in which the word procurantes is the same.3 And among more recent authors D'Annibale,1 Cretoni, Avanzini,3 Ballerini, Del Vecchio, Vecchiotti, Ninzatti,1 Pennacchi, Konings, Haringer, Sabetti, Lehmkuhl, etc., teach the same.

1350. III. "Those knowingly using false Apostolic Letters, or cooperating in the crime in this matter."

Users are those who exhibit false Letters, changed or supposed, so that they can obtain the effect which they intend, whether they actually obtain it or do not obtain it; cooperators, those who furnish work to the user, not to the falsifier. But if someone publishes false Letters and uses them, he incurs a double excommunication (cf. n. 1323).

1350bis. - IV. Laymen offending with rash daring against the decrees by which traffic from Mass stipends is prohibited are bound by excommunication latae sententiae reserved to Bishops. Decree Vigilanti of the Sacred Congregation of the Council, 25 May 1893 and Decree De observandis of the same Sacred Congregation, 11 May 1904.

Base traffic from Mass stipends has always been most severely prohibited; now the sanction of penalties has been added, namely excommunication for laymen, suspension for priests and clerics, as will be said n. 1615-1619.