§ 3. How Irregularity Is Incurred

1929. Principles. I. No irregularity is incurred unless it is EXPRESSED IN LAW, that is, in a decree of the Supreme Pontiff, or in a general Council. This is clearly established from cap. Is qui, 18, de sent. excom., in 6.²

Hence: 1. Irregularity is incurred by the law itself or by the fact itself, before the sentence of a judge; and also, according to the truer opinion, on account of an occult defect, or occult crime.³ 2. In this matter, an argument from similar to similar does not avail, nor from the greater to the lesser. "But IN DOUBT whether some irregularity is or is not expressed in law, one must stand by the common sense of the Doctors and by custom."⁴

II. Irregularity FROM DEFECT is always incurred, while the defect expressed in law stands. The reason is, because an irregularity of this sort does not have the nature of a penalty, but only of an impediment; and therefore ignorance and inculpability do not excuse from incurring it.⁵

III. Irregularity FROM DELICT is incurred only through grave, external, and consummated fault. - The reason is, both because a grave penalty requires grave fault; and because the Church does not punish merely internal acts, but only external ones, and these consummated, unless it is expressed otherwise in law. - Hence, if the act on account of some circumstance is excused from mortal sin, it is likewise excused from irregularity.⁶ - Recall what was said in nn. 1263 and 1769.

1930. Questions. Q. 1. Whether, for incurring irregularity FROM DELICT, KNOWLEDGE OF THE ecclesiastical LAW prohibiting is required?

Resp. "The more probable and very common opinion affirms:... because such an irregularity has the nature of a penalty; and since it is a penalty, knowledge at least of the prohibiting law is required. And this is proved from can. Proposuisti, dist. 82, where Innocent I decreed that certain incontinent Clerics were not to be deposed, because they were ignorant of the Constitution of Pope Siricius."⁷ - Yet crass or supine ignorance does not excuse, as all admit (cf. nn. 219-220).

Q. 2. Whether knowledge OF THE PENALTY, or of the irregularity itself, is also required?

Resp. There is a twofold probable opinion. The first, very probable, denies; because irregularity is not a medicinal penalty, but is an incapacity, or a merely punitive penalty: wherefore, it suffices that such a penalty has been imposed by law on that forbidden act, which the guilty one now commits knowingly and culpably, although he is ignorant of the penalty. - The second, sufficiently probable, affirms; and the reason is, because irregularity from delict is a true penalty, and indeed extraordinary, which cannot be foreseen even confusedly, and therefore it is not judged to be incurred by one ignorant.⁸ (Cf. n. 220.)

Hence however,

Q. 3. What is to be done IN DOUBT concerning contracted irregularity?

Resp. 1. If a positive doubt arises, or one resting on grave reasons, the doubter must apply prudent diligence to investigate the truth; and meanwhile conduct himself as if he were irregular, namely lest he expose himself to the danger of violating irregularity. - Except with the Salmanticenses,⁹ "if grave necessity urges, namely if an occasion occurs of receiving Orders, or a Benefice."¹⁰

Resp. 2. If a negative doubt is given; or if, after sufficient diligence has been applied, a positive doubt on each side, or truly suspensive doubt, remains: then, whether the doubt is of law, namely if it is doubted whether an irregularity is or is not assigned by law for such a case; or of fact, that is, if it is doubted whether the crime designated in law was truly committed: from the common and truer opinion, no one ought to hold himself as irregular; both because odious things are to be restricted, and because in doubt no one is to be despoiled of his right.¹¹

Except, if someone doubts whether he has perpetrated HOMICIDE; for this case is expressly declared in law,¹² where it is read: "Since it is more advisable in a doubt of this sort to abstain, than to celebrate rashly." But it must be noted 1) that this runs when someone is certain concerning the homicide, e.g., concerning the abortion of a certainly animated fetus (cf. n. 744, q. 4), and only doubts whether he himself by his action (of itself deadly) was its cause. But if he doubts concerning the homicide itself, whether it followed or not: in that case, according to a very probable opinion, he is not to be judged irregular.¹³ - It must be noted 2) that this irregularity, which binds clerics alone, is not to be extended to all effects, but to the sole incapacity of celebrating, and to the obligation of seeking dispensation.¹⁴