Excommunications Reserved to the Ordinary

The third series from the constitution Apostolicae sedis contains three excommunications, to which a fourth was added from the decree Vigilanti of Leo XIII, May 25, 1893. These censures, since they are reserved by the Roman pontiff, are properly to be called papal; nevertheless bishops can absolve from them by force of power delegated to them by ordinary law.¹

¹ The Sacred Congregation of Propaganda, on August 18, 1893, extended also to the faithful of the Eastern rite the censure established by the decree Vigilanti.

Fourth ordinary reserved excommunication. They incur excommunication:

1. Booksellers and other lay merchants collecting Mass stipends in any way whatever, who repay to the priests to whom they commit Masses to be celebrated not money, but books or other merchandise.

2. Likewise lay persons handing over Mass alms received from the faithful or from pious places to booksellers, merchants, and other collectors, whether they receive or do not receive anything from the same persons by name of reward.

96. It does not excuse from incurring the penalty that the number of Masses corresponds to the collected alms without any diminution having been made, or that poor priests lacking Mass alms are assisted in such a way, or that the profit from the exchange of merchandise with alms is expended not for the private advantage of those collecting, but for the use or increase of pious institutions and good works.

a. By the decree Vigilanti, May 25, 1893, several actions concerning Mass stipends are punished by penalties, either because through them commerce is exercised, or because an occasion is easily furnished for illicit commerce. But the penalties are:

a. For priests (cardinals and bishops are not comprehended), suspension from divine things simply reserved to the pope;

b. For clerics who are not priests, suspension from orders received and inability to receive higher orders, likewise simply reserved to the pope;

c. For lay persons, excommunication reserved to the bishop.

b. By the decree Ut debita, May 11, 1904, the same penalties are renewed and the actions prohibited under censure are determined more accurately, so that the following incur the censure:

a. Those knowingly handing over obligations of Masses and their alms, received from the faithful or from pious places, to any persons whatever, even ecclesiastical men, who request Masses not taxatively that they may celebrate them, whether by themselves or through priests subject to them, but for any other end, although best; likewise those knowingly accepting them.

b. Those separating the alms of manual Masses and Masses after the manner of manual Masses from their celebration, or commuting them into other things, or diminishing the alms, namely by not handing them over to the celebrant whole and in their own kind.

c. Those selling books, sacred utensils, or any other things whatever, or buying them, and entering into associations with newspapers and periodicals by means of Masses to be celebrated or celebrated, whenever this latter thing passes into a usage by habit and turns into support of some commerce.

d. Those subtracting anything from the alms of Masses which the faithful are accustomed to hand over to more celebrated sanctuaries, so that provision may be made for their dignity and ornament.

Canon 2319 I. Subsunt excommunicationi reservatae catholici: (1) Qui matrimonium ineunt latae sententiae Ordinario coram acatholico ministro contra praescriptum Can. (Catholics are subject to an excommunication latae sententiae reserved to the Ordinary: (1) who enter marriage before a non-Catholic minister against the prescription of Canon 1063 § 1.) 1063, sec, 1.

(2) Qui matrimonio uniuntur cum pacto explicito vel implicito ut omnis vel aliqua proles educetur extra catholicam Ecclesiam.

(3) Qui scienter liberos suos acatholicis ministris baptizandos offerre praesumunt, (4) Parentes vel parentum locum tenentes qui liberos in religione acatholica educandos vel instituendos scienter tradunt. ((2) Those who are joined in marriage with an explicit or implicit agreement that all or any of the offspring shall be brought up outside the Catholic Church. (3) Those who knowingly presume to offer their children to be baptised by non-Catholic ministers. (4) Parents, or those who take the place of parents, who knowingly hand over their children to be educated or instructed in a non-Catholic religion.)

Four classes of persons are punished by this censure reserved to the Ordinary: (1) Catholics who contract marriage before a non-Catholic minister, not acting as a civil officer but as a minister of religion, whether only one or both of the parties are Catholics, whether or not a Catholic marriage is also contemplated before or after. Canon 1063 is as follows: "' Etsi ab Ecclesia obtenta sit dispensatio super impedimento mixtae religionis, conjuges nequeunt, vel ante vel post matrimonium coram Ecclesia initum, adire quoque sive per se sive per procuratorem ministrum acatholicum uti sacris addictum, ad matrimonialem consensum praestandum vel renovandum. (there be a dispensation from the impediment of mixed religion, the spouses may not, either before or after the marriage entered into before the Church, approach also, whether in person or through a proxy, a non-Catholic minister acting as such in sacred things, in order to give or renew matrimonial consent.)" Section 2 of this Canon forbids the parish priest to assist at a marriage if he knows that the parties have transgressed or are going to transgress this law. Section 3 allows the exception when the non-Catholic minister acts as a civil officer, and the law requires it.

(2) Catholics who marry with an explicit or implicit agreement that all or any one of the offspring of the marriage are to be brought up outside the Church. 'The censure would not be incurred if the agreement were made after the marriage had been contracted.

(3) Catholics who knowingly presume to offer their children to non-Catholic ministers for Baptism. Ignorance of the law or only of the censure, or of the fact that those to whom the children are offered are non-Catholic ministers, will excuse from the censure, though it be crass and supine.

(4) Parents or those who hold the place of parents who knowingly give their children to be educated or trained in a non-Catholic religion. Again, even crass ignorance excuses from the censure. Educated means taught and brought up in general, trained means taught in some special branch or branches when the general education has been completed. Canon 2326 II. Qui falsas reliquias conficit, aut scienter vendit, distribuit, vel publicae fidelium venerationi exponit, ipso facto excommunicationem Ordinario reservatam contrahit. (Whoever manufactures false relics, or knowingly sells, distributes, or exposes them to the public veneration of the faithful, contracts ipso facto an excommunication reserved to the Ordinary.)

Scienter affects only those who sell, distribute, or expose false relics to the public veneration of the faithful, not those who make them. Canon 2343 manus injecerit in personam III. Qui violentas aliorum clericorum vel utriusque sexus religiosorum, subjaceat ipso facto excommunicationi Ordinario proprio reservatae. (Canon 2343 III. Whoever lays violent hands on the person of other clerics or of religious of either sex is ipso facto subject to an excommunication reserved to his own Ordinary.)

Clericorum.—The inferior clergy, comprising all who have received the first tonsure up to bishops.

Religiosorum.—Religious of both sexes, whether under solemn or simple vows, perpetual or temporary, lay brothers and lay sisters, and also novices, but not postulants. Members of communities living together in common under the rule of superiors according to approved constitutions, but without vows, enjoy the privileges of clerics, according to Canon 680, and this among the rest. Tertiaries who satisfy this condition enjoy the privilege, but not otherwise.

Canon 2350 IV. Procurantes abortum, matre non excepta, incurrunt, effectu secuto, in excommunicationem latae sententiae Ordinario reservatam.

Procurantes—Using physical or moral means with the intention of prematurely causing the ejection of the foetus— i.e, before the seventh month of gestation.

Matre.—Before the Code some authors excepted the mother.

Effectu.—F or the censure to be incurred, it must be certain that abortion followed from the means used. Canon 2385 V. Religiosus, apostata areligione, ipso jure incurrit in excommunicationem proprio Superiori majori, vel, si religio sit laicalis aut non exempta, Ordinario loci in quo commoratur, reservatam.

Apostata a religione dicitur professus a votis perpetuis sive sollemnibus sive simplicibus, qui e domo religiosa illegitime egreditur cum animo non redeundi vel qui etsi legitime egressus, non redit, eo animo ut religiosae obedientiae sese subtrahat. Malitiosus animus jure praesumitur si religiosus intra mensem nec reversus fuerit, nec Superiori animum redeundi manifestaverit (Can. 644, secs. 1, 2). Canon 2388 VI. Professi votorum simplicium perpetuorum tam in Ordinibus quam in Congregationibus religiosis [matrimonium etiam civiliter tantum itemque cum aliqua ex praedictis personis contrahere praesumentes] omnes excommunicatio tenet latae sententiae Ordinario reservata. See above, p. 277.

First recall these words of canon 198, § 1: In law, by the name of Ordinary are understood, unless someone is expressly excepted, besides the Roman Pontiff, for his own territory each residential Bishop, Abbot or Prelate nullius and their Vicar General, Administrator, Vicar and Prefect Apostolic, and likewise those who, when the aforesaid are lacking, meanwhile succeed to governance by prescription of law or from approved constitutions; but for their own subjects, major Superiors in exempt clerical religious institutes.

Moreover, the following contract an excommunication reserved to the Ordinary:

I. Catholics: 1° who enter marriage before a non-Catholic minister against the prescription of canon 1063, § 1; 2° who are united in marriage with an explicit or implicit agreement that all or some of the offspring be educated outside the Catholic Church; 3° who knowingly presume to offer their children to non-Catholic ministers for baptism; 4° parents or those holding the place of parents who knowingly hand over children to be educated or instructed in a non-Catholic religion (canon 2319, § 1).

1. The prescription of canon 1063, § 1 is this: "Even if a dispensation has been obtained from the Church over the impediment of mixed religion, the spouses cannot, either before or after the marriage entered before the Church, also approach, whether by themselves or by proxy, a non-Catholic minister as one dedicated to sacred rites, in order to give or renew matrimonial consent." Hence it is not prohibited, indeed as § 2 has it, "it is not disapproved that, when civil law commands it, the spouses present themselves, even before a non-Catholic minister, performing only the function of a civil official, and that only for accomplishing the civil act, for the sake of civil effects." The censure is contracted, however, whether matrimonial consent is entered or renewed before a non-Catholic minister as one dedicated to sacred rites.

2. An implicit agreement is had, for example, when the Catholic party obliges himself to fulfill all the wishes of the non-Catholic party concerning religious education. The excommunication is incurred at the moment at which the marriage is contracted with the agreement, whether previously entered and not retracted or now entered.

3. On the word "knowingly" see what was said in n. 858. Since it is said "their children," for example, a midwife who offered another's offspring to a non-Catholic minister for baptism would be immune from the excommunication. For the rest, the excommunication is incurred also in a case in which baptism would probably be conferred invalidly.

4. Those holding the place of parents can be tutors or even others who are endowed with the right and office of looking after education or instruction.

Note. Those mentioned under 2, 3, and 4 are moreover suspected of heresy (canon 2319, § 2).

II. Whoever makes false relics, or knowingly sells, distributes, or exposes them to the public veneration of the faithful (canon 2326). The word "knowingly" refers to the acts of selling, distributing, and exposing to public veneration. Since it concerns false relics, one does not incur the excommunication who distributes or exposes for veneration relics whose document of authenticity has perished, or concerning whose genuineness he doubts (cf. canon 1285).

III. Whoever has laid violent hands on the person of other clerics, that is, clerics inferior to Bishops, or of religious of either sex (canon 2343, § 4). What violent laying on of hands imports, see p. 766 under X. For the excommunication to be incurred, it is required that the delinquent lay hands on the person of another, not on his own person, and that he know that person to be a cleric, religious, etc. The persons whose violent handling is punished with excommunication are:

1. Clerics, that is, those who by at least first tonsure have been assigned to divine ministries (canon 108, § 1), and have not been deprived of the privileges of clerics; hence even excommunicated, suspended, interdicted, and deposed clerics (cf. canon 2303, § 1), but not those perpetually deprived of the right of wearing ecclesiastical habit (canon 2304, § 2), the degraded (canon 2305, § 1), and all who have legitimately been reduced or have returned from the clerical state to the lay state (canon 213, § 1).

2. Religious of either sex, that is, those who have pronounced vows, whether solemn or simple, perpetual or temporary, in some religion (canon 488, 7°).

3. Male and female novices (cf. canon 614), but not postulants.

4. Members of either sex without public vows, living in common under the governance of Superiors according to approved constitutions (canon 680).

Note. The Ordinary should moreover punish the delinquent with other penalties, if the matter requires it, according to his prudent judgment (canon 2343, § 4).

IV. Those procuring abortion, the mother not excepted, the effect having followed (canon 2350, § 1).

1. Abortion is to be taken in the strict sense, that is, for the ejection of a fetus not yet viable (volume I, n. 733). Therefore the so-called acceleration of birth, the ejection of a dead fetus or a mere mole, and the expulsion of received semen, likewise embryotomy and similar illicit operations, are excluded. But no distinction is to be made between an animated and an unanimated fetus.

2. Those procuring abortion are understood to be the mother and others, whether female or male, who intend abortion and either physically cause it, or by command or by fear induced cause another to cause it. It is said, who intend abortion; hence one is immune from excommunication who, not intending abortion, for example, strikes his wife from anger, even if he foresees abortion. It is said, either by command or etc.; but if you were to deny that those commanding and those inducing fear come under the name of procurers, nevertheless one commanding, as the principal author of the delict, and one inducing fear, as inducing to the delict, are subject to the excommunication. Counselors and others concurring proximately are not counted among procurers, although as cooperators they contract the excommunication if the delict would not have been committed without their work (canon 2209, § 3). Those selling means do not ordinarily incur excommunication, both because ordinarily even without their work, namely with another selling the means, the delict would have been perpetrated, and because the concurrence is remote.

3. The effect having followed, that is, certainly followed; hence in doubt whether a fetus or a mere mole, whether a living or dead fetus, was ejected, the excommunication does not hold.

Whether one whom it repents of the committed crime before the effect follows incurs the excommunication, see p. 723.

Note 1. If the delinquent is a cleric, he is moreover to be deposed (canon 2350, § 1).

Note 2. Those who have procured the abortion of a human fetus, the effect having followed, and all cooperators, are irregular from delict (canon 985, 4°).

V. A religious, apostate from religion, incurs by the law itself an excommunication reserved to his own major Superior, or, if the religion is lay or non-exempt, to the Ordinary of the place in which he is staying (canon 2385).

1. One is called an apostate from religion who is professed from perpetual vows, whether solemn or simple, and who illegitimately leaves the religious house with the intention of not returning, or who, though having left legitimately, does not return with the intention of withdrawing himself from religious obedience (canon 644, § 1). The malicious intention mentioned in § 1 is presumed by law if the religious within a month has neither returned nor manifested to the Superior his intention of returning (canon 644, § 2).

2. The excommunication is reserved to his own major Superior if the religion is clerical exempt; if the religion is lay or non-exempt, it is reserved to the Ordinary of the place in which the delinquent is staying (canon 2385), that is, actually staying, even if he has domicile or quasi-domicile elsewhere.

Note. A religious apostate from religion is excluded from legitimate ecclesiastical acts and deprived of all privileges of his religion; and if he returns, he perpetually lacks active and passive voice, and moreover must be punished by the Superiors with other penalties according to the gravity of the fault, according to the norm of the constitutions (canon 2385).

VI. Professed members of perpetual simple vows, both in Orders and in religious Congregations, who presume to contract marriage even only civilly, both they themselves and all who contract with them (canon 2388, § 2). Note that the excommunication does not affect professed members of temporary vows. For the rest, see p. 772 under IX.

976. • 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.

Lambertus, a priest, owed Iovinus, a priest, 1000 lire, and always deferred their payment. Iovinus cited Lambertus before the bishop, but profited nothing. For Lambertus confessed the debt, promised payment, but did not stand by his promises. Hence Iovinus cites Lambertus before the lay judge. Two priests, associates, are called as witnesses. And thus Iovinus finally obtained payment of the debt. But Lambertus was saying everywhere that Iovinus and the other two priests were excommunicated.

It is asked: What to the Case?

R. A priest can be cited, whether as defendant or as witness, both in a civil cause and in a criminal cause, before a lay judge, yet with permission first obtained from the bishop, who must permit that he be examined in the secular forum, on account of the good of public and private justice. S. C. EE. et RR., Apr. 14, 1616; July 19, 1619. Wherefore Iovinus, since he already cited Lambertus in vain before the ecclesiastical judge, is not to be disturbed if he now cites him before the lay judge, permission first having been obtained from the bishop. Likewise those two priests, witnesses in the lay judgment, are not to be disturbed if they have first obtained the bishop's permission. Moreover, although Iovinus omitted to seek permission from the bishop, he would not therefore have incurred excommunication; and the same is to be said concerning the two priests who were witnesses. Nor indeed does that excommunication fall upon the judge himself, who pronounced sentence against Lambertus. That indeed is clear from the tenor of art. VII of the first series of excommunications in C. Apostolicae Sedis, and from various Declarations of the Holy Office. Cf. Commentar. in cit. Const., ed. 5, n. 20 seq.; I. M. 1170.

Lupus threw a stone at the face of Trepidantius, a priest, who, terrified by the imminent blow, fell, and from the fall poured out no small quantity of blood from his nostrils, although the stone did not touch him. Did Lupus incur the excommunication of the Canon?

R. Negatively. For first, Lupus indeed wished to lay violent hands, but in fact did not lay them; for the stone did not touch Trepidantius. But that Trepidantius fell and poured out blood was beyond the intention of Lupus. Besides, there are two opinions on this matter, and consequently the matter is uncertain, and the excommunication is doubtful; and therefore it cannot be affirmed. St. Alph., l. 7, n. 274; D'Annib., Comment. in Const. Apost. Sed., ed. 4, n. 109, note 12.

1196. I. "Those procuring abortion, the mother not excepted, when the effect has followed."⁴

⁴ Code, c. 2350.

Thus the opinion hitherto probable, which excepted the mother from excommunication, is rejected.

Moreover, in order to incur this censure, it is required that the abortion have been procured, that is, sought deliberately and directly willed, and that it truly follow. Properly so called accomplices likewise incur it, from what has been said, n. 1163.

1197. II. "Catholics who enter marriage before a non-Catholic minister against the prescription of c. 1063; who are united in marriage with an explicit or implicit pact that all or some offspring be educated outside the Catholic Church; who knowingly presume to offer their children to non-Catholic ministers to be baptized; parents or those holding the place of parents who knowingly hand over children to be educated or instructed in a non-Catholic religion."⁵

⁵ Code, c. 2319.

All these things will be explained in the Treatise on Marriage. Let it only be noted that excommunication is incurred by those who, either by themselves or through a procurator, enter marriage before a non-Catholic minister against can. 1063.

1198. III. "Those who make false relics, or knowingly sell, distribute, or expose them publicly to the veneration of the faithful."⁶

⁶ Code, c. 2326.

1199. IV. Those who lay violent hands on the person of other clerics (i.e., below bishops), or of religious of either sex.⁷

⁷ Code, c. 2343, § 4.

1200. V. Those professed of perpetual simple vows, both in Orders and in religious Congregations, and likewise all those presuming to contract marriage, even only civilly, with any one of the aforesaid persons.⁸

⁸ Code, c. 2388.

1201. VI. "A religious apostate from religion incurs by the law itself excommunication reserved to his own major Superior, or, if the religion is lay or not exempt, to the Ordinary of the place in which he is dwelling."⁹

⁹ Code, c. 2385.

1202. Scholion. Here we have judged it opportune to observe that Superiors having coercive power, in applying penalties ferendae sententiae, must attend to can. 2223:

"§ 1. In applying penalties the judge cannot increase a determined penalty, unless extraordinary aggravating circumstances demand it.

"§ 2. If the law, in establishing a penalty ferendae sententiae, uses facultative words (e.g., let him punish according to his prudent judgment), it is committed to the prudence and conscience of the judge to inflict it, or, if the penalty has been determined, to temper it.

"§ 3. But if the law uses preceptive words (e.g., let him be suspended, let him be declared incapable, etc.), ordinarily the penalty must be inflicted; but it is committed to the conscience and prudence of the judge or Superior: 1. to defer the application of the penalty to a more opportune time, if greater evils are foreseen as about to arise from a too hasty punishment of the accused; 2. to abstain from inflicting the penalty, if the accused has been perfectly amended and has repaired the scandal, or has been sufficiently punished or is foreseen to be punished sufficiently by penalties sanctioned by civil authority; 3. to temper a determined penalty, or to apply some penal remedy in place of it, or to impose some penance, if there is a circumstance notably diminishing imputability, or if indeed amendment of the accused is had or punishment inflicted by civil authority, but the judge or Superior judges some milder punishment to be opportune besides.

"§ 4. To declare a penalty latae sententiae is generally committed to the prudence of the Superior; but whether at the instance of the party whose interest is involved, or when the common good so demands, a declaratory sentence must be given."

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.

Nine are numbered:

1º Catholics who enter marriage before a non-Catholic minister against the prescription of can. 1063,

from can. 2319 § 1 n. 1. Formerly these and the three following incurred an excommunication reserved to the Supreme Pontiff in a special way, because they were favorers of heresy; cf. in the author n. 1314, 3º.

2º Catholics who are joined in marriage with an explicit or implicit pact that all or some offspring be educated outside the Catholic Church,

from can. 2319 § 1 n. 2. By this canon all those are punished who, e.g., contract under the condition that males be educated in a heterodox religion and females in the Catholic religion. It is also incurred when this condition is prescribed by civil laws, and then the promise is not expressly made to educate all offspring Catholicly.

3º Catholics who knowingly presume to offer their children to be baptized by non-Catholic ministers,

from can. 2319 § 1 n. 3. Observe that there is added: knowingly and presume, and see can. 2229 § 2 by which these are explained.

4º Catholics, parents or those holding the place of parents, who knowingly hand over children to be educated or instructed in a non-Catholic religion,

from can. 2319 § 1 n. 4. Observe again that there is added: knowingly. That this censure may be incurred, the education or instruction must be such that it has as its scope the embracing of a non-Catholic religion. Therefore they do not of themselves incur the censure who send children to a non-Catholic school, or make them be educated in profane matters by non-Catholic instructors.

5º He who makes false relics, or knowingly sells, distributes, or exposes them to the public veneration of the faithful,

from can. 2326. This censure is new. Note that knowingly pertains both to selling and to distribution and to public exposition. The rest is clear.

6º He who shall have laid violent hands upon the person of other clerics or of religious of either sex,

from can. 2343 § 4; cf. the things said above and in the author n. 1392. Formerly this censure was simply reserved to the Roman Pontiff.

7º Those procuring abortion, the mother not excepted, the effect having followed,

from can. 2350 § 1. Therefore the sentence which formerly said that the woman herself did not incur the censure is no longer probable; cf. in the author n. 1349. Nor are those exempted, as it seems, who cooperate proximately, from can. 2231 and can. 2209 §§ 1-3.

8º A religious apostate from religion,

from can. 2385. This excommunication is reserved to the major Superior of the religious himself, or, if the religion is lay or non-exempt, to the Ordinary of the place in which he is staying. Formerly it was had from privileges; henceforth it is in force from the law itself, but only as regards apostates, not as regards fugitives. Cf. in the author, vol. II n. 2172.

9º Professed of perpetual simple vows both in Orders and in religious Congregations, and likewise all presuming to contract marriage, even only civilly, with any of the aforesaid persons.

from can. 2388 § 2; cf. the things said above III, 9º and in the author n. 1348. The censure which formerly was in force only for professed of solemn vows is now also incurred by professed of perpetual simple vows.

(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."

522. 1. a) "Catholics who contract marriage before a non-Catholic minister contrary to the prescription of can. 1063, § 1."

b) "Those who are joined in marriage with an explicit or implicit agreement that all or some of the offspring be educated outside the Catholic Church."

c) "Those who knowingly presume to offer their children to non-Catholic ministers to be baptized."

d) "Parents or those taking the place of parents, who knowingly hand over their children to be educated or instructed in a non-Catholic religion" (can. 2319, § 1).

All these delicts constitute favor toward heresy and before the new Code of Canon Law were punished with an excommunication reserved to the Holy See in a special manner. But since these delicts are customarily public and brought to the external forum of the Ordinary, the same Ordinary can absolve from them; indeed, the censure now imposed by the common law is reserved to the local Ordinary. In some regions the non-Catholic minister is constituted an official of the civil government, before whom all marriages are commanded to be celebrated. Then, certainly, those contracting marriage before such a minister as a civil official do not incur the censure.^185a

In the first case there is question only of mixed marriage, concerning which c. 1063 establishes the law. Therefore, if two Catholics contracted marriage before a non-Catholic minister, they indeed sinned gravely, but they are not excommunicated. It is otherwise in the second, third, and fourth cases. Since in the celebration of marriage before a non-Catholic minister and in the agreement to educate offspring outside the Catholic Church there is manifestly contempt for ecclesiastical authority, grave fear does not appear to excuse from the censure. Hence, for example, if a Catholic girl who has already become pregnant consents to such a celebration and agreement because otherwise she gravely fears that she will be abandoned by her betrothed, she nevertheless appears to incur these censures.¹⁸⁶

Those who are joined in marriage with an agreement (whether explicit or implicit) that the offspring be educated outside the Catholic Church and afterward presume actually to execute this agreement by handing over the offspring to be educated in a non-Catholic religion contract a twofold excommunication; indeed, they are furthermore suspected of heresy and therefore, if within six complete months from the penalty contracted they have not amended themselves, they contract an excommunication reserved to the Holy See in a special manner.¹⁸⁷ Catholics who have dared to enter a mixed marriage without a dispensation of the Church, even if valid, remain by that very fact excluded from legitimate ecclesiastical and sacramental acts until they have obtained a dispensation from the Ordinary.¹⁸⁸

See below, n. 783, for how one is to proceed in the absolution of these four censures. Besides, particular norms are customarily observed in individual dioceses.

2. "One who fabricates false relics or knowingly sells, distributes, or exposes them for the public veneration of the faithful" (can. 2326).

This newly introduced excommunication does not need explanation, since it is clear in itself.

^185a Code of Canon Law, c. 1063, § 3.

¹⁸⁶ Cappello, De cens., n. 371, teaches the contrary.

¹⁸⁷ Code of Canon Law, c. 2319, § 2, and c. 2315.

¹⁸⁸ Ibid., c. 2375.

523. 3. "One who has laid violent hands upon the person of other clerics (not adorned with cardinalitial or episcopal dignity) or of religious of either sex."¹⁸⁹

This excommunication protects the privilege of the canon both in clerics constituted below bishops and in religious. We treated the violation of the privilege of the canon more broadly above in II, n. 541. Clerics who have laid hands upon themselves do not incur any latae sententiae censure, but are to be punished with ferendae sententiae penalties according to can. 2350, § 2.

4. "Those procuring an abortion, with the effect ensuing, the mother not excepted."¹⁹⁰

The controversy concerning the exemption of the mother from the censure, therefore, is now ended. Clerics procuring an abortion are furthermore to be deposed. The procuring of abortion was treated more broadly above in II, n. 137 ff.

5. "A religious who is an apostate from religion incurs by the law itself an excommunication reserved to his own major superior or, if the religion is lay or non-exempt, to the Ordinary of the place in which he resides" (can. 2385).

Apostasy from religion occurs when a religious illegitimately leaves the religion in which he emitted perpetual vows, with the intention of not returning.¹⁹¹ In exempt clerical religions this apostasy induces an excommunication reserved to the major superior of the religious himself;¹⁹² but in other religions the excommunication is reserved to the Ordinary of the place where the apostate resides, not where his monastery or convent is situated. Such apostates are furthermore excluded from legitimate ecclesiastical acts, are deprived of all privileges of their religion, and, if they return, perpetually lack active and passive voice; they must moreover be punished with other penalties by their superiors according to the norm of the constitutions. See below, n. 536, concerning penalties against fugitive religious.

6. "Those professed with simple perpetual vows both in Orders and in religious Congregations, and likewise all those presuming to contract marriage, even merely civilly, with any of the aforesaid persons" (can. 2388, § 2).

If these professed persons are clerics constituted in sacred orders, they contract an excommunication reserved simply to the Holy See, as was already said above in n. 515.

V. Excommunications reserved to no one.

¹⁸⁹ Ibid., c. 2343, § 4.

¹⁹⁰ Ibid., c. 2350.

¹⁹¹ Code of Canon Law, c. 644, § 1.

¹⁹² Major superiors are the Abbot Primate, the Abbot superior of a monastic Congregation, the Abbot of a monastery sui iuris, the supreme moderator of a religion, the provincial superior, their vicars, and others having power after the manner of provincials (Code of Canon Law, c. 488, n. 8).

Clerics enjoy certain privileges from canon law, indeed according to many from divine law.

All the faithful owe reverence to clerics, according to their different grades and functions, and they stain themselves with the crime of sacrilege if at any time they have inflicted real injury upon clerics (Can. 119).

§1. Clerics in all causes, whether contentious or criminal, must be summoned before an ecclesiastical judge, unless provision has been legitimately made otherwise for particular places.

§2. Cardinals, Legates of the Apostolic See, Bishops even titular, Abbots or Prelates nullius, supreme Superiors of religions of pontifical right, major Officials of the Roman Curia, on account of business pertaining to their function, cannot be summoned before a lay judge without the permission of the Apostolic See; others enjoying the privilege of forum, without the permission of the Ordinary of the place in which the cause is carried on; which permission, nevertheless, the Ordinary, especially when the plaintiff is a layman, should not deny without a just and grave cause, especially when he has given effort in vain to settling the controversies between the parties.

§3. If nevertheless they are summoned by one who has had no previous permission, they can, by reason of necessity, appear in order to avoid greater evils, yet after the Superior from whom permission was not obtained has been informed (Can. 120).

All clerics are immune from military service, and from civil public functions and offices foreign to the clerical state (Can. 121).

For clerics who are compelled to satisfy creditors, let those things be safe which, according to the prudent judgment of the ecclesiastical judge, are necessary for honorable support of themselves, yet with the obligation of the same clerics to satisfy creditors as soon as possible remaining firm (Can. 122).

A cleric cannot renounce the aforesaid privileges; but he loses them if he is reduced to the lay state or is punished with perpetual privation of the right of wearing ecclesiastical garb, according to the norm of can. 213, §1, 2304; but he recovers them if this penalty is remitted or he himself is again admitted among clerics (Can. 123).

Religious of either sex, even lay religious, enjoy the privilege of the canon. Cf. Can. 2343, §4.

Question 3. Is a mother procuring abortion for herself subject to excommunication?

Resp. Affirmatively. The mother is no longer excepted.

The delict is supposed as explained by Sixtus V, and consummated by the effect having followed, and indeed in such a way that the very ejection of the fetus, or the abortion itself, is the effect of the procurement by the various means employed - which must be carefully noted. - Cf. Pius IX, Const. Apostolicae Sedis, § 3, n. 2.

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.

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.

Applied correction from Woywod’s opening insert: Case XXXVII, page 180.—The Code makes no change in the solution of the case. Canon 2350 declares that those procuring abortion, including also the mother, fall into excommunication reserved to the bishop.

A physician confesses that he has frequently resorted to craniotomy to save the life of a mother. He adds that in his previous Confession he had been warned that craniotomy is prohibited under penalty of excommunication, but that he could not see its unlawfulness in case of necessity. How is this physician to be dealt with?

Whereas formerly some theologians, such as Ballerini and Avanzini, held that in a case of utmost necessity craniotomy might be allowed, this view has now, after repeated decisions of the Holy Office, been discarded. As early as May 28, 1884, the Holy Office answered to a query of Archbishop Caverot, of Lyons, with the direction: It cannot safely be taught in Catholic schools that the surgical operation which they call craniotomy is lawful. This decision created a great stir and much theological dispute. It was asserted that, craniotomy being a dangerous thing, Rome had intended in this decision to discourage the view that this operation were generally permitted, and that its abuse was chiefly aimed at by the prohibition. Especially was this view held by some professors at the University of Lille. The Archbishop of Cambrai, within whose jurisdiction this university is situated, therefore, proceeded to submit the details of six different cases of craniotomy to the Congregation and requested it to pass upon them. The six cases^* were supposed to include the whole variety of conditions likely to occur in such instances. It took the Holy Office three years to give its answer, which, at last, on August 19, 1889, came in the following terms: It cannot safely be taught in Catholic schools that the surgical operation which they call craniotomy is lawful, as was declared on May 29, 1884, nor that any surgical operation directly causing the death of the fetus or of the pregnant mother is lawful. This disposed finally of craniotomy as also of similar operations that destroy the life of the fetus, such as Cephalotripsia, Embryotomia, Decollatio, Exenteratio, Embryothlasia, etc. Although both answers were worded Tuto doceri non posse, this expression may not be construed so as to mean that, while its lawfulness cannot be taught, yet in single cases there may be justification. The term, Tuto doceri non posse, means in the language of the Congregation that the matter is finally and entirely condemned.^* Hence, all theologians of the present time put the ban upon craniotomy. A physician, unless exonerated by conscientia erronea, commits, without doubt, a grave sin if he performs craniotomy or a similar operation. But does such a physician fall under the censure reserved to the bishop, if he was aware of the excommunication proclaimed against the procurantes abortum effectu secuto? Theologians differ in this matter. Some,, as, for instance, Berardi (Praxis Confess. IV., n. 1094), Haine (Element. Theol. Mor., ed. 4, IV., p. 476), Genicot (Theol. Mor., ed. 5, II. 608) and others hold that craniotomy and kindred practises, while direct murder of the child, are in reality neither the procuration of premature birth nor abortion. Thus Haine: nor does craniotomy or embryotomy belong here (under abortion), because it differs from abortion not only in terminology, as is clear in itself, but also in reality, since it is not the expulsion of the fetus but rather the killing of the fetus, which is followed by the expulsion of the corpse. Moreover, in penal matters an argument from parity, and still less an argument a fortiori, is not valid. Nevertheless, the majority of theologians teach that craniotomy, and similar destroying operations, fall under the censure. A physician performing craniotomy kills the child no less than the one who produces abortion. Keeping in mind the aim of the prohibition of abortion: protection of the child life, it must be admitted that the same aim would demand the prohibition of craniotomy. Indeed, the physical action is much the same in both proceedings. Notwithstanding all this we are inclined to take the milder view of Haine, Berardi and Genicot, for the following reasons: (1) Excommunication is obviously a poena, an odiosum. Here applies the principle: In odiosis quod minimum est, tenentum est, and, odiosa sunt restringenda. Whatever does not with abso- Jute certainty fall under the excommunication must be regarded as (ecclesiastically) not liable to the punishment. Strictly speaking, however, the definition of abortion violenta et culpabilis ejcctio foetus immaturi ex utero materno, does not apply to craniotomy. For, in case of the latter, there is the mature fruit. (2) A rigidly formal interpretation of censures is customary also in the case in other matters. For instance, while the perusal of heretical books falls under the penalty of excommunication, it is the general opinion that this penalty is not incurred by those who make others read such books aloud to them. It cannot be claimed that there is any great distinction between reading such books and listening to someone else reading them. With the same right it might be said that procuratio abortus incurs the censure, but not craniotomy. (3) Since the issue of the bull Apostolicae Sedis there has been a marked tendency by ecclesiastical legislature to lessen censures and to facilitate absolution. It is very likely that the pending codification of Canon Law will work further in this direction. On the strength of these three reasons the view of the authors cited above should be supported. Hence, every confessor may (de jure communi) absolve a physician who accuses himself of having performed craniotomy. It is understood, of course, that the physician positively promises to omit such operations in the future. If the physician is still bona fide in regard to craniotomy, the confessor should be careful not to disturb this bona fides, because by such course there is usually nothing gained, and very likely much lost. In this respect we agree with Noldin, who states (Sum. Theol. Mor. II., n. 333, ed. 6a.), Yet since the demonstration by which craniotomy is shown to be unlawful from natural principles is not so plain and evident, it can easily happen that physicians practice it in good faith. Therefore, unless the confessor is expressly questioned about this matter, let him beware of disturbing their good faith. Dr. Prümmer, O.Pr.

^* Stated in full in Eschbach’s Disputationes Phys. Theol., ed. alt. pp. 464-467.

^* Compare the answer of Cardinal Patrizzi in Eschbach, l. c., p. 462.

Applied correction from Woywod’s opening insert: Case LVIII.—This case must be corrected as far as the mother is concerned, for Canon 2350 of the Code explicitly states that the mother is included in the penalty of excommunication for abortion.

As exempt from the censure is considered a mother who for fear of infamy procures the abortus on herself. In a prudent, and it appears very proper way, this exemption has been restricted to theone case where an otherwise reputable woman who commits this crime in fear of disgrace is concerned. The reason for this exemption may here be explained. The words of the censure, as issued by Pius IX., reads quite generally: procurantes abortum effect secuto. And Ballerini states: atqui etiam in Constitutionibus Sixti V. et Gregorii XIV. indistincte in procurantes abortum censura forebatur. If, then, vi huius censurae, mothers are included, they may for another reason be exempted, namely, on account of fear of disgrace, because, in the first place, metus gravis generally frees from papal censures (Gury, II. n. 940; Lehmkuhl, III. n. 867), and the exception may be accepted all the more as safe because authors like Lehmkuhl (JJ, ». 970), probabiliter exempt all mothers. Also St. Alphonsus, inasmuch as he exempts the mother, seems to have based his opinion upon the ground of fear of disgrace, since he says attenta ratione intrinseca probabilior (lib. 4. n. 395). There is, however, no interior reason valid except the fear of infamy, because the other reason, the fear of many children, can in the married state be no valid reason, since this state was instituted to that very end.

1. For this reason it is my opinion that unmarried, reputable, women, who for fear of disgrace, procure abortion on themselves, are exempt; but not disreputable women in places where it is not considered as disgrace, nor married mothers. (Vide Bucceroni, Comment. Const. Apost. Sedis.)

2. Further, there are exempt from this censure those who, without guilt, are not aware of the same. This applies in general to all papal censures (as Gury, Lehmkuhl, etc., teach), but not to censures reserved to the bishop. If, therefore, this sin is not reserved to the bishop in a diocese, and the person in question had no knowledge of the papal censure, any priest can give absolution, and this case very frequently occurs.

3. In order to incur this or any other papal censure there is commonly presumed a culpa gravis, a mortal sin (Gury, II. n. 934). If the confessor can reasonably conclude that the penitent has acted in confusion, without sinning grievously, he may also grant absolution.

4. Further cases and exceptions are suggested by a consideration of the wording of the censure: procurantes abortum effectu secuto. By procurantes the theologians (Gury, Lehmkuhl) understand those who directa voluntate, studiose, ex industria proxime causam foetus ejicientem ponunt, those, therefore, who actually intend to directly bring about the abortus. In consequence there are exempted: (a) those who are merely aware of the operation being performed, for knowing of a fact does not mean to actually bring it about; (b) those who merely make the mental resolution of procuring the abortus; for this is only desiring the abortus, not actually procuring it. Further, (c) druggists and venders who know of the intended act and supply the necessary drugs for it, because their aim is not to bring about the abortus, but to make the sale and to gain profit from it. Finally, (d) those who advise or suggest the act (Lehmkuhl, n. 970). It is to be well remembered here, in order to prevent misunderstanding, that one may sin very grievously by such participation without, however, incurring the censure. To be guilty of a censure it is necessary that one has committed the crime which falls under the censure. This censure, however, presumes the procurare, and procurare means studiose, directe, proxime causam foetum ejicientem ponere.

5. The censure, furthermore, reads procurantes abortum; therewith it is supposed that the abortus is intended, and not some other result, as would be the case, for instance, if on account of illness drugs are given by the doctor’s orders which directly cure the sickness, but, at the same time, indirectly bring about the abortus; this remark is all the more important here, as this may be done in certain cases without sin (compare Gury-Ballerini, I. n. 402).

6. What does, finally, effectu secuto mean? It means that a person who endeavors to procure the ejectio foetus does not incur the censure if the ejectio does not take place, because the decree says effectu secuto. A person will incur the censure only after this effect takes place; this is conveyed in the words effectu secuto. If such a person, before this result takes place, comes to Confession, he or she may be absolved. This is the logical conclusion of our argument: (e) Finally, the words of the decree provide that the abortus must be the actual result, effectus procurationis, because the words are effectu séecuto, and here the odiosa interpretatio must be allowed to rule. The case may happen that a person who had actually intended to cause the abortus on herself suffers a bad fall, or gets into a condition that of itself is sufficient to effect the ejectio foetus. Under such circumstances the abortus is procured, but not as a result of the sinful intention and preparation, and as effectu secuto is not true here, this person does not incur the censure.

Still other cases may be imagined, but these suffice for the practise of the priest, so that he may readily give a correct answer to such questions. As is evident from the discussion, the full literal meaning of the censure procurantis abortum effectu secuto is not often present in a case. Dr. Anton Pauritsch.

Bertha is urged by her husband Titius to take a certain kind of medicine in order to procure an abortion. She hesitates for sometime, and finally consults her mother about it. The mother is more or less non-committal. She prefers not to interfere. She does not advise the abortion, fearing the consequences to her daughter; neither does she endeavor to persuade the daughter against committing the act. Finally, Bertha makes up her mind to take the medicine, to the satisfaction of her husband. The consequence is that an abortion follows, and Bertha very nearly loses her life. The experience has been a very dear one, and all three are very repentant. They are all Catholics. Are they all excommunicated? Are special faculties required to absolve them?

Answer.—Let us consider, first, the case of Bertha, who takes the medicine and causes the abortion. Does a mother who procures an abortion on herself incur excommunication? It seemed probable that she does not. It is quite true that Pius IX., in the bull Apostolicae Sedis, 1869, expressly says that "procurantes abortum, effectu secuto" incur excommunication, and that the excommunication is reserved to the bishops. Now it would appear that if any one ought to be numbered among the procurantes abortum, it surely would be the mother who procures an abortion on herself. Nevertheless, there are very grave theologians, among others St. Alfonsus, who maintain that the mother herself is not included among the "procurantes abortum" whom the papal decrees punish by excommunication.

They do not affirm that it is altogether certain that the bull Apostolicae Sedis of Pius IX. does not include the mother herself among the "procurantes abortum" who incur excommunication, but they do maintain that it is probable that the bull does not include her. Their line of argument is this: In all the papal bulls anterior to the bull Apostolicae Sedis of Pius IX., 1869, in which excommunication is decreed against procurantes abortum, a distinction is made between the mother herself and the other procurantes abortum, and the mother was never included among those who incurred excommunication for procuring abortion, even though the term "procurantes abortum" was always employed in such papal decrees. St. Alfonsus considers the opinion which says that the mother herself does not incur the excommunication as altogether probable, by reason of the number and weight of the theologians who defend it; and if the reasons on which it rests be considered, he thought it far more probable than the opinion which maintains that the mother does incur the excommunication.

At the time that Pius IX. issued the bull Apostolicae Sedis in 1869, and long before it, the term "procurantes abortum" had come to have a very special and restricted meaning, excluding the mother from the number of those who were included in the term procurantes abortum. When Pius IX., therefore, used the term procurantes abortum, in the bull Apostolicae Sedis, he was cognizant of this special and technical sense in which it was generally used and understood by the theologians and canonists, and as he used it in his decree without any qualification or explanation, he is justly supposed to have used it in the peculiar sense in which it was used in the law, and, therefore, that he used it in its sense of excluding the mother. Weight is added to this view, if we bear in mind that the purpose of Pius IX. in publishing the bull Apostolicae Sedis in 1869 was to curtail both the number and the application of the excommunications at that time prevailing in the Church.

It is probable, therefore, that Bertha did not incur the excommunication decreed by Pius IX. against "procurantes abortum." Would a simple confessor be justified, therefore, in absolving Bertha without first procuring special faculties, at least ad cautelam, in case, de facto, Bertha did incur the excommunication? In that case, a simple confessor would not require any special faculties to absolve Bertha, neque ad validam, neque ad licitam absolutionem. There exists here a dubium juris, that is, a doubt about the interpretation of the law. Now whenever there exists a dubium juris, that is, whenever the theologians do not agree as to the meaning and interpretation of a law, whether, namely, the law deprives the confessor of jurisdiction in the confessional in certain cases or not, then the confessor may absolve validly and licitly in such cases, and if, de facto, the case should be reserved, then the Church supplies the necessary jurisdiction to absolve from it. In this way the jurisdiction of the simple confessor which is in Bertha's case theoretically doubtful, became practically certain; and Bertha is absolved not jurisdictione dubia, sed jurisdictione practice certa. In dubio juris, Ecclesia supplet.

So much as to the history of the case as it refers to the mother. The new Code besides repeating the words of the Bull "Apostolicae Sedis," adds that the mother is not excepted from the excommunication. Thus Canon 2350. The other principles here explained are not changed by the Code.

But, again, let us suppose that the woman or mother who procures an abortion on herself is included in the Bull of Pius IX. The case is a papal reservation and ignorance of the reservation saves a person from incurring papal censure. For what the Pope reserves is not the sin, but the censure; in our case, the excommunication. The purpose of the Holy See is to deter from the sin of abortion by punishing it by excommunication and reserving the excommunication. But if a woman does not know of the excommunication attaching to abortion or that it is reserved, how can the excommunication act as a deterrent? If the purpose of the censure fails, then the censure itself fails, for it becomes useless. In the case before us, although Bertha may have been fully aware of the gravity of the sin she was committing, still if she did not know that she incurred excommunication by it or that the excommunication was reserved, she did not, in fact, incur the excommunication, and no special faculties are required to absolve her.

2. In regard to the husband, Titius, who urged his wife to take the medicine for the purpose of causing an abortion, it is certain, that under the law, as it existed up to the time of Pius IX., he incurred the excommunication. For in the bull Effraenatam, of Sixtus V., not only procurantes abortum incurred excommunication, but also all persons who by assistance, or counsel, or favor, aided or abetted in procuring abortions, provided they acted knowingly. In the Bull Apostolicae Sedis, Pius IX. restricts this excommunication to the procurantes abortum. Therefore, all those who only cooperate but do not procure the abortion, do not incur the excommunication.

According to Pope Sixtus V., these are to be considered as procurantes abortum, "who henceforth, either personally or through intermediaries, shall procure the expulsion of an abortion or an immature fetus by blows, poisons, medicines, potions, burdens and labors imposed upon a pregnant woman, and by other means, even unknown or most carefully devised, so that an abortion actually follows from them." The sense of the procurantes abortum of the bull of Pius IX. must be gathered from these words of the Bull Effraenatam of Sixtus V. According to these words of Sixtus V., it would be difficult to include Titius among the procurantes abortum, since all he did was to urge his wife to take the potion. He must be numbered among the cooperantes ad abortum, but not among the procurantes abortum.

These latter, however, are the only ones now who incur excommunication. No special faculties are required, therefore, to absolve Titius.

3. There can be no question about Bertha's mother. She incurred no censure. She was scarcely a cooperans negative. Of course, she sinned mortally. So did the others; but sin and censures are two very different things.

What has been dedicated in a special manner to the service of God belongs to him in a special manner, and should be treated with reverence and respect. The reverence and respect which is due in the first place to God is transferred in some measure to what has been dedicated to him. It is right and proper to treat churches with reverence for the sake of him to whom they are dedicated. Persons and places which have been dedicated to the service of God by lawful authority are called sacred. The Catholic Church uses special rites when she dedicates persons and places to the service of God. These are either consecrations, in which holy oil is used, or constitutive blessings, in which holy oil is not used. Clerics are dedicated to the service of God by the tonsure, and thereby they become sacred persons, to be treated with reverence by the faithful, as Canon 119 declares. The same Canon declares that those who inflict a real injury on clerics are guilty of sacrilege. Religious are dedicated to the service of God by the profession of the evangelical counsels; they thereby become sacred persons, and personal sacrilege is committed by inflicting any real injury on them.

This was understood by the faithful in the earliest ages of the Church. Crimes of violence committed against the clergy and religious had a special heinousness attached to them. In the Penitential Book attributed to St Theodore, Archbishop of Canterbury, towards the close of the seventh century, we read: “If a layman kills another layman out of hatred and does not wish to lay aside his arms, let him do penance for seven years, three without flesh-meat and wine.” If anyone killed a cleric or monk the laying aside of his arms was no longer optional. The next decree of the same penitential prescribed that he should do that, and, moreover, enter a monastery or do penance for seven years.

In the twelfth century would-be reformers, like Arnold of Brescia, excited great hostility against clerics and monks by denying their right to own property. Crimes of violence against them increased, and Innocent II, in the Second Council of the Lateran, not only condemned Arnold of Brescia, but made a celebrated law for the protection of clerics and religious which came to be known as the privilege of the Canon. As far as concerns our present purpose, this law enacted that if anyone at the instigation of the devil incurred the guilt of sacrilege by laying violent hands on a cleric or monk, he was by the very fact excommunicated. This law was maintained in its rigour until the issue of the new Code. Notorious breakers of it derived no advantage from the mitigation of the effects of excommunication introduced by Pope Martin V. The absolution of the old censure was simply reserved to the Pope. The new Code increases its rigour as far as the higher clergy are concerned; as far as regards the lower clergy and religious, its rigour is somewhat mitigated. It will be well to give a translation of the new law as it stands in Canon 2343:

Section 1.—Anyone who lays violent hands on the person of the Roman Pontiff:

(1) Incurs excommunication by the very fact reserved in a most special manner to the Holy See, and by the very fact he is to be avoided as excommunicate.

(2) He is infamous by law.

(3) If he is a cleric he is to be degraded.

Section 2.—Anyone who lays violent hands on the person of a Cardinal of the Holy Roman Church or a Legate of the Roman Pontiff:

(1) Incurs by the very fact excommunication in a special manner reserved to the Holy See.

(2) He is infamous by law.

(3) Let him be deprived of benefices, offices, dignities, pensions, and any post which he may have held in the Church.

Section 3.—Anyone who lays violent hands on the person of a Patriarch, Archbishop, Bishop, even though only titular, incurs excommunication by the very fact specially reserved to the Holy See.

Section 4.—Anyone who lays violent hands on the person of other clerics or of religious of either sex incurs by the very fact excommunication reserved to his own Ordinary, who besides according to his prudence should punish him with other penalties if the case require it.

By way of explanation it will be sufficient to say a word or two on some of the technical terms employed in this Canon.

To lay violent hands upon a cleric means any external and grievously sinful action which in any way injures the person, the liberty or the dignity of the cleric. The person is thus injured by killing, wounding, beating, or knocking down. The cleric’s liberty is injured by unlawful imprisonment or detention against his will, even in a private place. His dignity is thus injured by knocking off his hat, by spitting on him, by tearing his clothes. The phrase signifies an injurious action, not mere words or threats. However, as the examples given sufficiently indicate, it is not necessary that a physically serious - injury should be inflicted on a cleric in order that the censure may be incurred. It will be sufficient if it is an action which is seriously contrary to the reverence and respect due to the cleric or religious and unjustly inflicted on him.

It will be noticed that the censure which protects the personal inviolability of the Roman Pontiff is most specially reserved to the Holy See, while that which protects Cardinals, Archbishops, and Bishops is specially reserved to the Holy See, and that which protects the inferior clergy and religious, even novices, lay brothers, and lay sisters, is reserved to their own Ordinary. In the case of religious men this will be their own higher Superior.

On a former occasion we have seen what is implied by infamy of law.

In general, in order that an excommunicated person must be avoided by the faithful, he must be excommunicated by name and by the Holy See, the excommunication must be made public, and in the decree it must be said expressly that he is to be avoided. These conditions are not required in the case of one who has laid violent hands on the Roman Pontiff. He is to be avoided by all who are aware of his crime.

The Church does her best to maintain, strengthen, and sanctify Catholic family life. She well knows how much depends on it for time and for eternity. She knows, too, that it can only be preserved and sanctified by the spirit of religion. Religion must be at the base of it, and religion must provide its guiding principles and aims. Unless the Lord build the house, they labour in vain who build it. A Catholic marriage is the foundation of the Catholic family, and the Catholic education of children is its end and object. There are many disruptive influences which threaten the Catholic family with ruin in modern society, and the Church has deemed it well to provide some additional sanctions for its preservation in the new Code of Canon Law. Some of these are set down in Canon 2319, which may be translated as follows:

“Those Catholics by the very fact incur excommunication reserved to the Ordinary:

“1. Who contract marriage before a non-Catholic minister against what is prescribed in Canon 1063.

“2. Who contract marriage with an explicit or implicit agreement that all or any of the children are to be brought up outside the Catholic Church.

“3. Who knowingly presume to offer their children to non-Catholic ministers to be baptized.

“4. Parents or those who hold the place of parents who knowingly hand over their children to be educated or brought up in a non-Catholic religion.”

According to the teaching of the Catholic Church marriage between baptized Christians is a sacrament, and she alone has the duty and right to see that the Sacraments are properly administered and received. The parties to the contract are themselves the ministers to each other of the sacrament of marriage, but the Church requires for its validity that it be contracted before the parish priest or his delegate. Moreover, divine and ecclesiastical law forbid all communication in sacred rites between Catholics and non-Catholics. Accordingly Canon 1063, referred to above, prescribes that, although a dispensation for a mixed marriage may have been obtained from the Church, the spouses must not either before or after a marriage has been contracted before the Church appear also either in person or by proxy before a non-Catholic minister acting as such, in order to give or renew their matrimonial consent. Any Catholic who violates this law incurs the penalty of excommunication by the very fact, and the power of absolving him is reserved by the Holy See to the Bishop by Canon 2319, section 1.

By the law of England it used to be necessary for Catholics to contract marriage before the Anglican minister in order that their marriages might be recognized by the State. If similar circumstances exist anywhere at present Canon 1063 expressly provides that Catholics may comply with the law to secure the civil effects of marriage.

When a mixed marriage was contracted it used to be no very uncommon thing for the parties to come to an understanding that the children should follow the religion of the parents according to sex. The boys were brought up in the religion of the father and the girls in that of the mother. The Church never approved of such understandings. They infringed the law of God and of the Church, which require a Catholic parent to bring up all his children in the religion which he believes and knows to be the only religion that is pleasing to God. To prevent such arrangements the Church requires both parties when a dispensation for a mixed marriage has been obtained from the Church to sign a written promise that all the children will be brought up Catholics. To ensure the faithful observance of this promise Canon 2319, as we have seen, inflicts the sentence of excommunication on all Catholics who contract marriage with an explicit or implicit agreement that all or any of the children are to be brought up as non-Catholics. The absolution of this censure is reserved to the Ordinary by the Holy See.

An unpleasant feature of the Protestant propaganda in some Catholic countries is the giving of clothes or money to such parents as are willing to bring their children to the Protestant ministers for baptism. Large sums of money are collected in England and America and spent on such unworthy ways of corrupting poor Catholics. Catholics who knowingly presume to offer their children to non-Catholic ministers for baptism incur thereby excommunication, and the absolution of this censure is reserved to the Bishop. It is possible that by the very ignorant poor such a thing might be done in good faith. In that case the censure would not be incurred.

Similarly parents and those who are in the place of parents incur excommunication, reserved to the Bishop, if they knowingly hand over their own children or those committed to them to be educated or brought up in a non-Catholic religion. Sending children or permitting them to be sent to a non-Catholic school would not of itself be sufficient to draw down upon parents or guardians this excommunication. The essential condition for incurring the censure is handing the children over to be indoctrinated, trained, and brought up in a non-Catholic religion.