Violence to other clerics and religious (Can. 2343 § 4)

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.

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.

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.

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.

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.