Distinction 25

(The Text of the Master of the Sentences.)

On Those Ordained by Heretics.

It is also customary to ask whether heretics who have been cut off and condemned by the Church can confer sacred Orders, and whether those ordained by them, upon returning to the unity of the Church, ought to be reordained. The words of the Doctors make this question perplexing and almost insoluble, for they appear to disagree on many points. Some seem to maintain that heretics cannot confer sacred Orders, and that those who are seen to have been ordained by them do not receive grace. For Innocentius says: “The clergy of the Arians are not to be received with the dignity of the priesthood or of any ministry; only their Baptism, which is conferred in the name of the Father and of the Son and of the Holy Spirit, is permitted to be valid.” He also says that they “cannot give the Holy Spirit, whom they have lost”; and that “those ordained by heretics have a wounded head; and that he who has lost his honor cannot give honor, nor has the recipient received anything, since there was nothing in the giver that the other could have received.” He also holds that “to those coming from the heretics by the laying on of hands only lay communion is to be granted, and not one of these is to be admitted even to the smallest clerical honor.” Gregorius likewise

says that the consecration of the Arians is sacrilegious, when communion is received from their hand. Cyprianus too says that whatever heretics do is carnal, vain, and sacrilegious, and that their “altars are false, their priesthoods unlawful, and their sacrifices sacrilegious,” who “after the manner of apes, which, though they are not men, imitate the human form, lay claim to the face and authority of the Catholic Church, although they themselves are not in the Church”; and although they are sacrilegious, they administer the priesthood and set up an altar, although no oblation can there be sacrificed where the Holy Spirit is not present; nor can the Lord profit anyone through the prayers and entreaties of one who has violated God himself. Hieronymus likewise asserts that “everything offered by heretics is defiled in the sight of the Lord; for although these things may appear holy in their outward form, yet because they have been touched by one who is polluted, all are polluted.” Again: “God hates the sacrifices of heretics and casts them away from himself; and as often as they gather together in his name, he detests their stench and closes his nostrils.” Again: “They offer sacrilegious bread,” and so forth. Leo also testifies that “outside the Church there are no valid priesthoods, nor are there true sacrifices.” He likewise says: “Through the most cruel madness, in

the See of Alexandria the light of all the Sacraments has been extinguished; the offering of sacrifice has been cut off, the sanctification of chrism has failed, and all the mysteries have withdrawn themselves from the parricidal hands of the impious.” By these and other testimonies it seems to be established that the Sacraments of the Church, especially of the Body and Blood, of Ordination and of Confirmation, cannot be ministered by heretics.

He sets forth authorities that seem to oppose what has been said.

On the other hand, others seem to hold that even by heretics who have been cut off, sacred Orders, like Baptism, can be conferred; nor are those who have been ordained or baptized there, when they return from the heretics, to be ordained again, just as they are not to be baptized again. Hence Augustinus: “As to what some say concerning even condemned heretics, that ‘one who departs from the Church does not lose the Baptism he received, but loses the right of conferring what he received,’ this appears in many ways to be said in vain. First, because no reason is given why one who cannot lose that Baptism should be able to lose the right of conferring it. For each is a Sacrament, and each is given to a man by a certain consecration: the former when he is baptized, the latter when he is ordained. For this reason it is not permitted in the Catholic Church for either to be repeated. For if at any time those who come from that side, even prelates, are received for the sake of peace, with the error of schism corrected, and if it has seemed necessary that they should perform the same offices which they were exercising, they are not to be ordained again; but as Baptism in them, so or-

dination has remained intact, because the defect was in the separation, which has been corrected by the unity of peace, and not in the Sacraments, which are themselves wherever they are. And when it seems expedient to the Church that the prelates among them, on coming over to the Catholic communion, should not exercise their honors there, the very Sacraments of ordination are nevertheless not taken away from them, but remain upon them; and therefore hands are not laid upon them, lest injury be done not to the man but to the Sacrament itself. As in Baptism there is the right that it may be conferred through them, so in ordination there is the right of conferring — each indeed to their own ruin. But it is one thing not to have, another to have unto ruin, and another to have unto salvation.” The same: “Concerning those who are separated from the unity of the Church, there is now no question that they both have and can confer [the Sacraments]; but they have them unto ruin and confer them unto ruin, because they are outside the bond of peace. Injury must be done to neither Sacrament. As one does not rightly possess it because he has withdrawn from unity, yet he does possess it, and therefore it is not restored to him when he returns; so too one who has withdrawn from unity does not rightly confer it, yet he does confer it; and therefore, whoever receives from him, when he comes to unity, is not reordained.” The same: “It is one thing not to have something, another not to have it rightly, or to usurp it unlawfully. The Sacraments of Christ and of the Church are therefore not on that account not Sacraments, because not only heretics but even all the wicked use them unlawfully; but those persons are to be corrected and punished, while the Sacraments themselves are to be acknowledged and venerated.” Likewise Gregorius: “What you say, that one who has been ordained should be ordained again, is quite absurd. For just as

one who has been baptized once ought not to be baptized again, so one who has been consecrated once in the same Order is not to be consecrated again.” By these and other authorities it seems to be asserted that in all the wicked, even in heretics who have been cut off and condemned, the Sacraments of Christ remain along with the right of conferring; for they can confer them, though unto ruin, and those upon whom they have conferred them are not to be ordained again. These passages seem to stand in opposition to what was said before.

Resolution of the foregoing contradiction of authorities.

Some resolve the matter in this way. They say that heretics, having received the priestly or episcopal unction, when they withdraw from the Church retain indeed the right of conferring Baptism, but do not have the power of conferring sacred Orders or of consecrating the Lord’s Body, after they have been cut off and condemned by the Church; just as a degraded Bishop has no power to bestow sacred Orders, although he has not lost the faculty of baptizing. What Augustinus says is understood to apply to those heretics who have been divided from the truth of the faith and from the unity of doctrine not by the sentence of the Church but by the perversity of their own opinion; though such, they nevertheless have the right of ordaining and consecrating. And those who are ordained by them before manifest excision, even if they have openly departed with them and have been condemned by the sentence of the Church, are nevertheless not to be ordained again if they return. And wherever it is read of those ordained by heretics, that they may minister with their Orders preserved,

or that they are not to be ordained again, this they say is to be understood of such persons. For after they have been cut off and condemned by the judgment of the Church, they assert that the right of ordaining and consecrating is taken away from them, just as from those who have been degraded or excommunicated. Others, however, say that the Sacraments celebrated by heretics and by those cut off according to the form of the Church are true and valid, because in withdrawing from the Church they have not lost the right of conferring and consecrating; and those who are ordained in this way by heretics, when they return, are not to be ordained again. But those things which are done by heretics otherwise than in the Church are false and empty; and those who appear to be ordained by such persons receive not a gift but a wound. And it is according to this distinction that the Doctors speak variously about these matters. Some, however, say that the same Sacraments can be celebrated by heretics who have been cut off as by Catholics, if the form of the Church is observed by them, and that the Sacraments celebrated by them are true and valid in themselves, but as to their effect are false and empty, both in those who handle them wrongly and in those who wrongly receive them; therefore they are called vain and false, because they do not bestow what they promise and are believed to confer; they are also called damnable, because for those who unlawfully give or receive them they are unto judgment; they are also called polluted, not in themselves, but on account of the unworthy handling by the heretics. Hence Gregorius calls the communion of Arius an execration, and Innocentius calls the ordination of Bonosius a damnation, not that they are so in themselves, but because they make those who wrongly give or receive them such; just as Hieronymus also calls their sacrifices the bread of mourning,

not in themselves, but as to their effect. Some, however, hold that those heretics who were ordained in the Church have the right of ordaining and consecrating, even after they have been separated; but those who, being established in schism or heresy, have been ordained and anointed by them, lack that right, and therefore, when they wish to ordain, they inflict a wound rather than confer grace.

On Simony: whence it is so called, and what it is?

Concerning simoniacs there can be no doubt that they are heretics, who nevertheless, before the sentence of degradation, both ordain and consecrate. And although those properly are called simoniacs who, after the manner of Simon Magus, wish to procure for a price the grace that cannot be priced, while those who, after the manner of Gehazi, receive a price for a sacred ministry ought to be called Gehazites; nevertheless all both the givers and the receivers are called simoniacs, and both are struck with the same sentence.

On Those Ordained by Simoniacs, Whether Knowingly or Not.

There is a difference, however, between those who are ordained by simoniacs knowingly and those who are so ordained unknowingly. “For those who have knowingly allowed themselves to be consecrated by simoniacs — or rather to be execrated — their consecration is entirely null. But those who are ordained by simoniacs, whom at the time of their ordination they do not know to be simoniacs, and who are then reckoned as Catholics, their ordination is mercifully sustained.”

On Those Who Say They Are Buying Bodily, Not Spiritual, Things.

“If some should object that they are not buying the consecrations but the very things which proceed from the consecration, they are shown to be utterly foolish. For whoever sells one of these, without which the other is not had, leaves neither unsold.”

On the Distinction of Simoniacs.

The simoniac heresy admits of a threefold distinction. For some are ordained simoniacally by simoniacs; others are ordained simoniacally by non-simoniacs; others are ordained non-simoniacally by simoniacs. Hence Pope Nicolaus: “We have established a decree concerning the threefold simoniac heresy, namely, concerning simoniacs who ordain simoniacally or are simoniacally ordained, and concerning simoniacs ordained simoniacally by non-simoniacs, and concerning those non-simoniacally ordained by simoniacs. Simoniacs simoniacally ordained or ordaining are, according to the Canons, to fall from their own grade; simoniacs also simoniacally ordained by non-simoniacs are likewise to be removed from office; but those simoniacs non-simoniacally ordained by simoniacs we mercifully permit, by the laying on of hands, to remain in office, for the necessity of the time. This is to be understood of those who are ordained by simoniacs without knowing them to be simoniacs. These persons it is not the guilt of a crime that makes simoniacs, but the ordination by a simoniac.”

Concerning those who are ordained by force by heretics or simoniacs.

Likewise, when Pope Alexander decrees that “simoniacs are altogether to be condemned and deposed,” one must understand: unless someone has been compelled by force. For concerning such persons, and those ordained under violence by any heretics whatsoever, Innocentius says that they can have some color of excuse, provided they at once withdraw from them and renounce their detestable conventicle.

Concerning the age of those to be ordained.

On the age of those to be ordained, Pope Nicolaus decreed thus: “The sacred Canons have established that a subdeacon should not be ordained before fourteen years of age, nor a deacon before twenty-five, nor a presbyter before thirty. Thereafter, if he be worthy, he may be elected to the episcopate.” We likewise command this to be observed in the same way. So too Fabianus: “If anyone has not completed his thirtieth year, let him on no account be ordained a presbyter, even though he be highly worthy”—because the Lord himself was baptized at thirty years of age, and so began to teach.

(End of the Master’s text.)

Question 1

Whether canonical punishment impedes the reception and conferral of Orders?

D. Thomas, 2-2, q. 100, art. 6. Richardus here, art. 2, qq. 3 and 4. D. Bonaventura, art. 2, throughout. Suarez tom. 5, disp. 11, sect. 3, and disp. 12, sect. 2, n. 25, where he treats of excommunication,

and disp. 33, sect. 3, on Interdict; disp. 34, on one who has received Orders while under a censure.

Concerning this twenty-fifth distinction, I ask two questions about the one receiving Orders. The first is whether canonical punishment impedes the reception and conferral of Orders. That it does not: an excommunicate, or an irregular, if he attempts to consecrate, does in fact consecrate; therefore by parity an excommunicate or irregular bishop, if he attempts to ordain and to do what the Church does, ordains; and the one who receives, if he intends to be ordained, is ordained. The consequence is plain by the topic of similarity, since the cases appear similar on both sides; and also by the topic from the lesser, since what does not impede the carrying out of the more noble act does not seem to impede the carrying out of the less noble act.

Moreover, an irregular is not excluded from the reception of the other sacraments, but, if he intends to receive, he receives them; therefore not from this one either. The consequence is plain by parity. The antecedent is plain, because an irregular can receive the sacrament of penance—otherwise the way of salvation would be closed to him.

Moreover, no canonical punishment excludes from any ecclesiastical grade or act more than heresy does; but heresy does not exclude, as is held in C. 1, q. 1, Quod quidem.

The opposite is in C. 1, q. 1, De caetero, and in the next chapter: “We altogether condemn simoniacs,” and after: “We have decreed such a reception or conferral to be void”; and the c. Si qui: “Those who knowingly have permitted themselves to be consecrated by simoniacs, we have decreed their consecration to be wholly void.”

Moreover, the Church can give the power of conferring Orders, as

is plain in the case of consecrating a bishop; therefore she can take it away; therefore she can inflict on a bishop some other canonical punishment on account of which he is unable to confer Orders.

Moreover, the Church renders persons illegitimate for contracting marriage, in such a way that if they attempt it they accomplish nothing; therefore much more can she render a bishop unfit for a spiritual act, in such a way that if he attempts it he accomplishes nothing. The consequence is proved thus: those things which belong to positive law appear to be more subject to the Church than those which belong to natural and divine law. But every ecclesiastical ordering by way of these dignities of the episcopate and the like seems to pertain to the positive law of the Church; at any rate it does not appear to belong to natural and divine law in the way that marriage does.

Scholium.

He defines canonical punishment, and divides it into seven species: deposition, degradation, infamy, irregularity, excommunication, interdict, and suspension; and he sets out each one precisely, in the brevity he aims at.

In (a) this question, the first matter to be considered concerns the canonical punishments about which the question inquires. The second is how they exclude from the conferral or reception of Orders. As to the first (b): canonical punishment, as we understand it in the present matter, is a penalty inflicted through the Canons, prohibiting or restraining the one punished from some ecclesiastical grade which would otherwise be lawful to him. This last clause is added because, if it would not otherwise be lawful to him, it is not a punishment—for it is no punishment to a layman

that he is unable to consecrate, since this does not otherwise belong to him; but it would be a punishment to an ordained priest. I said according to the Canons, because whether it is inflicted by a Canon or by a judge—and not by a Canon—still, in order that it be just, it must be inflicted according to the Canons. I said prohibiting or restraining, because the punishment of which we speak is either understood to restrain only as a prohibition, or, if in some further mode (which is spoken of in the second article), this mode is contained under “to restrain” or “to constrict.”

In particular there are seven such canonical punishments, namely deposition, degradation, infamy, irregularity, excommunication, interdict, and suspension. Of these we must speak in order: each one in itself, how each is incurred, and by what remedy each is removed; and we must compare them with one another according to their gravity and permanence.

The first (c), namely deposition, is the greatest, because it is total removal from the clerical state. If degradation be a removal from every clerical grade, then deposition and degradation are the same. But if degradation be deposition only from a determinate grade, with another grade nevertheless reserved—as when, from the priestly grade, the clerical grade remains—then degradation is a kind of partial punishment in relation to deposition.

But in what way is the deposed person removed from the clerical state and grade? I reply: not that the character of Orders is taken from him, nor consequently the Orders he has received, but rather the license of exercising the act of any Order is taken away, and likewise the privi-

lege which belongs to the ordained. Hence such a one is handed over to the secular court, so that with regard to ecclesiastical acts, the protection of ecclesiastical persons, and the forum, he is wholly excluded from the number of ecclesiastical persons.

How is this (d) punishment inflicted? I reply: never by the law itself, but precisely as inflicted by a judge. The form, however, according to which it is to be inflicted, is found in Extra, de poenis, c. Degradatio, and is today in the sixth book. The causes (e) on account of which it is to be inflicted are enormous crimes, such as heresy, schism, and revealing the confessional. On the first, see Extra, de haereticis, Ad abolendam; on the second, Extra, de schismaticis, Ad scindendos, in the sixth book; on the third, Extra, de poenitentiis et remissionibus, Omnis utriusque sexus.

In what way (f) is this punishment remitted? I reply: only by restitution to the whole, by him who can restore—which is set down as the Pope alone—although one legitimately deposed is not, as a rule, read of as afterwards restored.

The second (g) punishment is infamy, which is a state of injured dignity as to life and morals, just as good reputation (fama) is a state of unimpaired dignity as to life and morals. This injury is incurred in different ways. Where it must be observed that to be infamous (infamis) and to be defamed (infamatus) are not the same. The defamed person is one who is publicly accused of some crime. The infamous person, however, is not such on account of such imputation of a crime, but either because of a public crime publicly committed—as, for example, if he has perjured himself publicly, or has publicly committed any other crime, on account of which the Law deter-

mines someone to be infamous; or because, by a judge before whom his crime is proved, he is judged infamous—so that every infamous person is publicly noted for a crime which the Law punishes with the penalty of infamy. But sometimes he has not been convicted of this in court, and then he is infamous from the Law only, and not from a judge; sometimes he has been convicted and punished by the judge with such a penalty, and then he is infamous in both ways, both from the Law and from a judge. From these things the second point is plain, namely how infamy is contracted: the first kind of infamy is contracted from the imputation of a defamatory crime; the second is incurred from the Law or from a judge punishing such a crime with such a penalty.

But (h) what is the cause on account of which infamy is incurred in the second way? I reply: C. 6, q. 1, Infames: “We say that all are infamous whom the secular laws call infamous”; therefore those secular laws which punish a crime with infamy are canonical; and those laws are found in Digest, de his qui notantur infamia, throughout.

What (i) is the remedy against this punishment? I reply: against infamy in the first way—when someone is defamed—it is canonical purgation, as is held in Extra, de purgatione canonica, Ex tuarum; for that purgation wholly removes that infamy or defamation. Against infamy in the second or third way, which are nearly the same, though from different sources—the Law and a judge—there is no remedy except restitution to the whole by him who can so restore, Extra, de testibus, Testimonium, in the gloss Arcetur. This punishment is simply more grievous, as to civil life, than deposition, unless the deposition in-

cludes this one, because this prohibits from every legitimate act, even after penance has been performed, since such a person is held vile, Extra, de regulis juris: “The gates of dignity ought not to lie open to the infamous.”

The third (l) punishment is irregularity; and this is an unfitness for the reception and execution of the acts of Orders. This (m) is frequently incurred from the Law, although it can sometimes be inflicted by a judge in accordance with the Laws. It is incurred (n) by the Law from certain crimes, and from certain non-crimes, and from certain things which sometimes can be crimes and sometimes not. From crimes (o), four pertaining to Orders or to their acts: one of these is simony; another is theft committed in an Order; the third is exercising ministry in an Order not received; the fourth is contumacy in not observing ecclesiastical penalties.

Simony can occur either in an Order or in a benefice. If in an Order and knowingly—that is, such that the ordained person knows himself to be ordained simoniacally—then the Pope alone dispenses: Extra, de simonia, Nobis, and C. 1, q. 1, as was argued for the opposite side; for since the legislator does not altogether annul their consecration, to him alone does it belong to release. But if he is ignorant by invincible ignorance—as, for instance, when someone else, of whom he is wholly unaware, has given a price that he might be ordained—he does not become irregular, unless, after the matter has been made evident to him, he exercises the act of the Order so received. Hence after he becomes aware of the Order so received, he is suspended from the act of that Order, until he is freed from such suspension.

Commentary.

In this distinction the Doctor treats of the impediments or unfitness by which a person is excluded from receiving Orders, or from ministering in those received. It is divided into two questions, the first of which contains unfitness arising from canonical punishment, while the second treats of impediment arising from sex and age.

(a) In this question, etc. He divides the question into two articles. In the first he treats of the definition and division of canonical punishment, briefly and clearly comprehending the foundations of the laws and their resolution. In the second article he treats of the effect of canonical punishment as regards impediments to conferring Orders, or even to ministering in them—which he further explains in his reply to the principal arguments, which touch on the same matter.

(b) As to the first, canonical punishment, etc. Here he takes “punishment” broadly, so as to include both censures properly so called—such as excommunication, suspension, and interdict—and also impediments or privations introduced by the Canons, which apply to spiritual acts or to acts of Orders; and these are called punishments in the broad sense, whether they are incurred for a fault or on account of disobedience. Punishment thus taken is a genus in relation to censure; and so too the word the one punished in the definition is to be understood by correlation to punishment broadly taken. From these things the definition is plain. There are seven punishments taken in this mode, as is plain in the text.

(c) The first, namely deposition, is the greatest, etc. This punishment is found properly in ecclesiastical persons, inasmuch as it is spiritual; for it is the privation of their grade and function—from their Order, from their office, and consequently from their benefice (which is given on account of the office); and when the deposition is total, it also removes their state, that is, the clerical privilege. Excommunica-

excommunication and interdict induce a deprivation of those things which are common to all the faithful; suspension agrees with deposition in one respect, namely that it likewise applies to clerics and is incurred on account of a delict, just as deposition is. Nevertheless deposition renders a person perpetually unfit by the very nature of this penalty, and it can be removed only by restoring the person to the former rank, although a lawfully deposed person is never or only rarely restored; suspension, however, does not render a person unfit absolutely, and can be removed by dispensation. For this reason, then, the Doctor says that this is the greatest penalty, both because in extension it takes away every ecclesiastical rank, and also, when it is complete, the clerical state itself, and because by its nature it is perpetual and irrevocable by the usage of the canons and of the Church, although absolutely it could be revoked by the Pontiff through a restoration of the person to integral standing.

He says further that deposition and degradation, when they extend to every ecclesiastical rank and privilege, are one and the same; but when degradation is from one rank only — as deposition from the priesthood while the remaining ranks abide — degradation is a partial deposition. In the first sense of degradation he speaks in the sense and manner of the canonists and of certain canons, which sometimes take both terms as synonyms, so that degradation accordingly signifies deposition from any rank whatever, whether it is properly an order, or an order taken broadly for any eminent rank in the Church, even of office and dignity, as is clear from chapter 2 De poenis in the Sixth, the chapter Tuae, de poenis, as Abbas [Panormitanus] there [notes] on the chapter Ne Clerici, vel voventes. In the second passage, distinguishing degradation from deposition, he speaks in a theological sense, insofar as degradation is a deposition from a rank of order properly so called, and it inflicts deprivation of that rank with respect to use and exercise, and insofar as it can inflict

it. For just as a rank properly so called denotes the effect of ordination, in ordering one toward the ministry of the sacraments proximately or remotely, and most especially of the Eucharist, so degradation properly so called is a movement toward the removal of the said rank as to its use, but not as to its bestowal absolutely, as the Doctor rightly [says] in the following section, concerning which something has been said in the preceding question.

Others distinguish between these [terms] in this way: that deposition, when it is the total removal from order, office, and the clerical state, stands as a sentence pronounced with a view to a real degradation, which is carried out by a certain solemnity that is the execution of the pronounced sentence, and by it the person is handed over to the secular judge to be punished according to the laws of the civil forum and the gravity of the crime. This distinction is also rightly proved from the chapter Degradatio, de poenis in the Sixth, which the Doctor cites, and from [the chapter] Volumus, de verborum significatione — although it could be said that degradation, or deposition itself, pertains to the solemnity and form of execution.

(d) In what manner this penalty is inflicted, etc. He responds that this penalty is never inflicted by the law itself — that is, as a removal from every state and ecclesiastical privilege — but [that it is] inflicted by a judge; which is the common opinion, and is evident from the form handed down in the chapter cited, Degradatio, de poenis, which requires the action of a judge and a sentence; such is the form: By the authority of God almighty, of the Father and of the Son and of the Holy Spirit, and of our own, we take from you the clerical habit, and we strip you of every order, benefice, and clerical privilege, etc. Moreover the ecclesiastical judge ought to intercede effectively for him, so that, short of the peril of death, the civil judge may moderate the sentence imposed on the accused, from chapter Novimus, de verborum significatione.

For the deposition of a bishop, besides the metropolitan, twelve bishops are required

to pronounce sentence; if a priest is to be deposed, six, besides his own bishop. Panormitanus on the chapter Non potest etc. de re judicata. If he is a deacon or subdeacon, three, C. 15 q. 7 c. Felix etc., Degradatio in the Sixth de poenis. If he is not in sacred orders, the bishop with his chapter suffices. Panormitanus, as above; Sylvester, under the heading Degradatio. This number is required only for the pronouncing of sentence; once it is pronounced, the bishop or metropolitan can proceed to execution by real degradation, as Panormitanus teaches in chapter Qualiter 3, de Accusationibus. See c. Si quis, c. Felix, c. Si autem, C. 15 q. 7.

Most recently, the Council of Trent, session 13, de reformatione, c. 4, decreed that for the degradation of a presbyter and of the others of lower rank, other persons may be substituted, when the number of bishops prescribed by the canons cannot be had. To verbal deposition the bishop’s vicar general may proceed; but to real deposition the bishop alone, as is also decreed there.

(e) The causes, however, on account of which it is to be inflicted, etc. He enumerates certain causes for which it is to be inflicted by the canons; but in the third case real degradation from the clerical state is not understood, because the text does not include this, since it says that one deposed from the priestly rank is to be thrust into a monastery to do perpetual penance. Penalties are to be restricted; he intends, therefore, degradation from order, and verbal [degradation], as is simple and perpetual deposition, not relative to actual and real degradation. For he wished to provide an example of each kind of degradation from the canons, without comprehending every case; for since this penalty is pronounced by a judge, many circumstances can concur which make a crime otherwise simple deserve this penalty, nor can a fixed rule be established — which is supposed

also by the Doctor, when he says that the crime must be heinous, and supplies those examples. The doctors also add the crime of falsifying apostolic letters: Ad falsariorum, de crimine falsi. Likewise, grave slander against a bishop, c. Si quis Sacerdotum, C. 11 q. 1. Although the gloss on c. Ad abolendam says that, beyond the three cases of heresy, falsification of papal letters, and reviling of a bishop, [clerics] are not usually handed over to the secular court, Panormitanus, on c. Novimus, says that for a heinous and pernicious crime degradation can take place; and this seems to be presupposed by Trent and by practice. Akin to this penalty of degradation, as regards the effect of deprivation of clerical privilege, is the penalty of a diffidatus (outlawed) cleric, in c. Pro humani, de homicidio, in the Sixth, as Geminianus teaches on the same passage; for such a one is outside all ecclesiastical protection, and [the penalty] has the same effect that degradation and handing over of the person to secular judgment have — indeed more, since one who is diffidatus can sometimes be killed even by a private person.

(f) In what manner is this penalty remitted? etc. This resolution is common, and is evident from D. 50 cc. 1 and 2. [The deposed person] is restored by the solemn handing back of all the instruments and other things which were taken away by degradation. The degraded man, moreover, is not relieved of the burdens of sacred orders, since he remains unfit for marriage, and is bound to the divine office, because the penalty takes away honors but not burdens.

(g) The second penalty is that of infamy, etc. Concerning infamy and good name some things have been said generally in d. 15 q. 4, with reference to the restoration of one’s good name. Here, however, infamy is treated of as it is a canonical impediment, and induces irregularity.

First he defines what infamy and good name are; and the definition is clear from the book Cognitionem, ff. de variis et extraordinariis criminibus, where it is said that good name is the status of unimpaired dignity,

approved by life and morals, and in nothing diminished; infamy, however, by argument from the contrary, is the status or quality of impaired dignity, reproved by life and morals.

Second, he distinguishes the infamous person from infamy itself; for one can be defamed by being accused of some crime, yet not for that reason be infamous — that is, one does not incur the penalty of infamy — unless the sin itself is public and notoriously committed, and beyond this it is required that it be such a sin to which a penalty of this kind is annexed by law or by a judge. Thus, as the Doctor says, every infamous person is publicly marked for some crime which the law punishes with the penalty of infamy; for even if someone commits some notorious crime to which by law such a penalty is not annexed, he will indeed in the opinion of men be unworthy of offices and dignities by the nature of the thing, yet not through the canonical or civil penalty of infamy; and without the assistance of a law inflicting a penalty on account of such a deed, the conferral of office and dignity upon him will be valid.

Third, he says that infamy is sometimes incurred by the law itself, sometimes by the sentence of a judge, sometimes by both — where he touches on the common division of infamy into that which is of fact and that which is of law. Concerning the former one finds the chapter Licet, etc., de testibus, and the chapter Licet, etc., de probationibus. Concerning the infamy of law one finds c. Infames, C. 3 q. 7, in books 1, 2, 3 ff. de his qui notantur infamia. What is called infamy of fact is called by the Doctor infamy of law, because it is incurred by the sentence of the law without the sentence of a judge or judicial order. The same is called [infamy] of fact, namely from the delict itself, to which it is annexed by the sentence of the law pronounced, and it is incurred without any action of a judge, as when the law says: ipso jure, ipso facto, eo ipso, without any other declaration, etc. To incur this in-

famy, public knowledge is not required, but only the commission of the delict, even though it be occult; an exception is made if the law brands the penalty ipso facto on account of a notorious and manifest delict, for then the penalty does not extend beyond the matter expressed, since penalties are to be restricted. But if the delict becomes public and notorious, then the penalty of the law is incurred, which is also drawn back to the time of the commission of the delict as regards the effect of nullity of acts, because the law annuls them, as being done by an infamous person. There are excepted the acts of public administration, which hold by reputed title, lest the commonwealth, or others, suffer harm through the fraud of a private person; particular acts, however, which concern personal favor, are declared void, as ordination already received, as to its use, D. 81 c. Tantis, Daniel, etc., [the chapter] Cadit [a] dignitatibus, de excessibus Praelatorum, c. Inter dilectos, the rule Infamibus, de regulis Juris in the Sixth, and C. 3 q. 7.

But what is to be done in such a case, when the crime is occult? The answer is given according to Panormitanus on c. Ut si Clerici, etc., de Judiciis: that a prelate ought to renounce [his office] in order to escape the sentence of infamy. This indeed is well, if he can renounce without betrayal and disgrace of himself; he is bound to abstain so far as he can from those acts for which by the incurred penalty he is rendered unfit ipso facto. Nevertheless no one is bound to execute this penalty of the law against himself with such grave detriment; he ought therefore to seek his restoration prudently, in a way which provides for himself and for his conscience. For although by the sentence of the law he is deprived of the lordship of his good name, yet he is not deprived of the use and factual possession [of it], until the crime becomes notorious — although the law also induces, on a crime perpetrated in any manner whatever, a penalty of this kind, for which the consciousness of the deed suffices, and in reality it induces the legal effects, namely the deprivation of dignity already acquired and the unfitness for acquir-

ing them. Because, however, to these is annexed the actual possession of good name, which no one is bound by himself to renounce before he is convicted by the notoriety of the fact or by a sentence, with the judicial order observed, he is not bound to execute the penalty of the law to the prejudice of the actual possession of his good name, but he is bound, so far as he can, to abstain from legitimate acts and to provide for himself by procuring restoration.

Our [author] Castro, book 2 De lege poenali, c. 15, although in conclusion 4 he holds that a civil penalty pronounced ipso jure against a crime, even an occult one, holds, makes an exception at the end for the penalty of infamy, on the ground that infamy depends on common opinion, which remains intact for him whose crime is not notorious but occult. But infamy, as it is taken here as a penalty depriving of offices and dignity and rendering one unfit to acquire them, differs greatly from infamy by which one is defamed before others for a crime committed, as the Doctor rightly notes at the beginning of this text. The crime perpetrated, therefore, consummates the cause of the penalty through the sentence pronounced of the law itself, and the public knowledge of it that subsequently arises has this effect: that it takes away also the actual possession of good name, as far as the legitimate acts of which such a person is deprived.

Infamy of law is when a sentence and a judicial process intervene; moreover a definitive sentence is required to incur it, nor does an interlocutory one suffice, l. Verbum, c. Ex quibus causis, and the final chapter de temporibus ordinandorum, where the gloss and commonly the doctors [so hold], and on c. Vestra and the last chapter de cohabitatione clericorum et mulierum, c. 1 de exceptionibus, etc. For infamy as a canonical penalty a judicial process is required, from the chapter cited de temporibus ordinandorum: If the crimes proposed, it says, are proved by judicial order, etc.; a judicial order, however, requires accusation. Whence Abbas on c. *Inqui-

sitionis, etc., de accusationibus says that a sentence given by way of inquisition without judicial order is not valid. There is required, therefore, for incurring this infamy, a deed marked by the law with such infamy, and a sentence inflicting the penalty, so that it is actually incurred. This, however, happens either when the delict is not notorious except through a judicial process and a declarative sentence; or when the law does not impose the penalty ipso facto, but prescribes that it be imposed by the sentence of a judge.

From this is clear the threefold manner of incurring this penalty, which the Doctor prescribes, namely by the law itself, or by a judge, or by both together. By the law itself, when the law itself draws and applies the penalty ipso facto without the sentence of a judge; by a judge, however, when the law does not comprehend a pronounced sentence but one to be pronounced by a judge. In both ways, when the delict is occult, from which the penalty is incurred ipso facto, and is proved by judicial process, and is made notorious by a public and declarative sentence — because then good name is completely lost as to lordship and even factual possession, so that without injustice anyone may speak of the crime in public, which otherwise would not be lawful so long as the crime had not been proved and a sentence pronounced, although against charity one could be offended in this in certain circumstances.

(h) But what is the cause on account of which? etc. This text is clear from the law alleged; he cites moreover two texts, c. Infames, and c. Omnes vero infames, etc., which are found in C. 6 q. 1, and c. Beatus Petrus, in the same [cause]. It is to be noted, with the gloss on c. Omnes, that not every infamy induced by civil law is received by canon law, such as that which a widow incurs by marrying within the period of mourning.

This infamy of civil law constitutes a canonical impediment insofar as it is received by the canons in order to this ef-

[this effect]. Moreover, there are other crimes on account of which the canons themselves directly inflict infamy, and these are enumerated in the chapter Infames. From this arises the well-known division of infamy into civil and canonical, etc.

(i) What is the remedy against this penalty? etc. The common resolution is this: canonical purgation removes infamy arising from suspicion of a crime, which is called popular suspicion and is not legitimately proven. Infamy arising from a public sin is removed through penance, provided the sin is not otherwise specially marked with the penalty of infamy. This too is canonical, in accordance with the said chapter, so long as the person perseveres in that state. Civil infamy can be removed directly by the prince, and when it ceases the canonical impediment ceases indirectly as well — unless the sin on account of which it is incurred is otherwise specifically marked with infamy by the canon; in such case penance does not suffice to remove the infamy that is a special penalty by law, but full restitution (restitutio in integrum) is required, as the Doctor and the common opinion rightly hold. This penalty is greater than deposition as regards civil life, says the Doctor, unless the deposition itself includes infamy. Real deposition, indeed, on account of a crime, and verbal deposition indirectly, include infamy or carry it with them ipso jure — though not every deposition from some grade entails infamy. For instance, if someone is wrongly promoted in good faith on his own part, even though a defect creeps in from elsewhere — e.g., if one suspended from orders ordains a man ignorant of his suspension. It can also be understood in another way: namely, that deposition, taken directly and in the intent of the law that imposes such a penalty (speaking of complete deposition), indirectly entails the infamy which the concurrent law of infamy directly inflicts. But if the deposition is not complete, it does not necessarily entail this penalty, unless the same cause of deposition and of infamy concurs by law or by fact. On this material the Doctors may be consulted at the texts cited, and in the matters of accusation, witnesses, election, exceptions, infamy and the irregularity flowing from it, and censures, where Suárez treats this material at length in disputation 48.

(l) The third penalty is irregularity, etc. This definition is to be understood as follows: irregularity, of itself and directly, is an inability to receive orders — even the first tonsure — and renders a person, by ecclesiastical law, unfit for the clerical state and for orders. This inability affects the person directly and per se with regard to orders, whether for receiving an order or for ministering in one already received. From this we may gather the difference between this impediment and others, first from deposition and even perpetual suspension from an order — with which irregularity has more in common — because irregularity regards the person first and per se, in such a way that it is incidental whether one is a layman or a cleric; it renders the person positively incapable of an order and of ministry, as directly as the Church can manage. Real and verbal deposition, however, like even perpetual suspension by way of privation, operate by taking away the grade and its use (deposition does this), or only the use (as suspension does), without establishing a positive impediment by way of inability through which the subject would be rendered positively incapable, but only privation of the grade he had, or at least of its use. Therefore, just as in physics it is one thing for a subject to be made incapable of a form — which denotes a defect of the proximate potency for receiving it — and quite another for the subject merely to be deprived of a form which it has, so too in moral matters it is one thing to render a subject positively incapable by taking away the very capacity for the form, and another for a subject already informed to be deprived of the form it has, whether by privation as to its being or as to its use. I always understand

inability and privation as they can be introduced by the Church, since we are not dealing with what pertains to the sacrament, character, and its power by divine institution — a point it suffices to have noted once or twice, so that what has been or will be said is not referred to those things. Irregularity, then, is a positive inability, as I said, for an order and the use of it, in general or in particular, according to the nature of the order, as it is prescribed by law with respect to one or to many.

(m) This is frequently incurred by law, although, etc. He divides this penalty, in relation to its efficient cause, into that which is inflicted by law and that which can sometimes be inflicted by a judge. About the first member there is no controversy. About the second — whether it can be imposed by man — there is doubt. The negative is held by Soto on book 4, distinction 22, question 3, article 1; Ledesma, question 26, article 2; our Castro in book 2 On Penal Law, last chapter; Navarrus in his Summa, chapter 27; Covarruvias on the Clementine unique On Homicide, in part 1; Suárez, disputation 40, section 4, doubt 2. In the same opinion may also be cited the Doctor, as we explained there at distinction 13, question 3, § It remains therefore to be seen at the end, where he says that the penalty of irregularity is not incurred by a concubinary celebrating, by a usurer, by an infamous person who has repented, or by one who celebrates before making restitution — that such a one does not become irregular, because such a penalty is not expressed by law and consequently is not to be extended. Holding this opinion, then — which is more common among the jurists, and is founded on the chapter Is qui, On the Sentence of Excommunication, in the Sext, and on the usage of the Church — the Doctor understands that, as far as the nature of the penalty goes, there is no absolute repugnance to its being imposed by a judge according to the laws, since no law prohibits it; but the cited chapter can be understood as referring to irregularity incurred by law, about which alone the question was inquiring — namely, whether one celebrating in a polluted church became irregular. Nor is this peculiar to

irregularity, but is common to all penalties, none of which is incurred by force of the canon unless it is expressly included in the canon itself by a sentence already issued, as is the common opinion.

Since, then, the judge is a living law, and his power is not limited by the canons with respect to this penalty more than with respect to any other, and since he does not otherwise exceed his ordinary power unless a limitation or reservation of this power is shown — which is not found among the canons — it follows from this head that it can be imposed by a judge according to the laws, that is, in a similar crime in which the law imposes such a penalty. And at the very least there is no doubt that the Roman Pontiff can impose this penalty by way of sentence for this or that offense of a private person. The only thing that stands in the way is that by usage and custom this penalty is inflicted by the canon alone. Whether this usage carries the force of law is uncertain, although in practice it is to be followed, and it now seems that this penalty should be reserved to the Roman Pontiff alone. Nor do I see why some of the aforesaid Doctors should so strongly oppose this opinion — those who say that some irregularity is properly a censure, like Soto and Córdoba and certain other more recent authors. For whether it be called medicinal or truly vindictive, it does not seem to exceed the power of a judge, no more than do other censures, such as even perpetual suspension from an order. Whatever may also be said about irregularity for the reception of orders, irregularity from the use of orders does not seem, in its character as a penalty, to exceed perpetual suspension or removal (dispositio) from an order, which can be inflicted by man.

Nor, moreover, are there lacking certain examples from the law which can conveniently be understood of this penalty and which contain a privation of an order through a verb in the future tense — which is a mark of a sentence yet to be passed, just as the present and

past tense are marks of a sentence already passed (from the common opinion on l. Si quis major, C. de transactione, Abbas, Decius on chapter At si Clerici, etc. de Judiciis, Tiraqueau on l. Si unquam, C. de revocatione donationis); the chapter Si qui Episcopi, on those wrongly ordaining — ”they shall no longer have the right of ordaining,” etc.; the chapter Si de his, in the same place — ”the ordination is to be held void”; the chapter Quoniam, distinction 47, on usurious clerics, etc. — ”let him be cast down from the clergy and be alien from the rule,” that is, outside the ecclesiastical rule, which on the common interpretation of the word means to be irregular; the chapter Quoniam, distinction 48 — ”let him cease from the clergy, let him be cast down from the state of his clergy”; chapter Clericus qui, distinction 46, as Maiolus understands it — these denote an irregularity yet to be inflicted, not already inflicted; chapter Cum illorum, On the Sentence of Excommunication, where the matter concerns those ordained while excommunicate, who are to be perpetually deposed. Likewise in causa 41, question 3, chapter Si quis Episcopus, where the penalty of irregularity is decreed against a bishop, presbyter, or deacon who, while excommunicate, has presumed to make oblation, or the morning and evening sacrifice, or to act in his office as before: ”It shall not be lawful for him to have hope of reconciliation in council, nor to be gathered back further,” etc. In these words is not understood reconciliation from excommunication, since this is not denied to one who repents, but dispensation from irregularity, as the common opinion with the Gloss holds; the same is canon 4 of Antioch and in the council of Pope Martin, canon 37. Likewise the chapter Theagualdum, under the same title, where in a council Pope Nicholas, having deposed the bishops of Cologne and Trier from every ecclesiastical dignity, established the same penalty: ”We define,” he says, ”that if, in accordance with their previous custom, they dare as bishops to touch anything of the sacred mystery, in no way shall it be lawful for them to have, in any other synod, hope of restitution or place for satisfaction.” This sentence, although here pronounced by a judge according to the canons, is also understood of irregularity.

The Doctor can be understood in another way, namely that he does not here mean irregularity to be imposed by a judge’s sentence except in a broad sense — that is, in a doubtful case, by way of a declarative sentence, by which the judge determines that in this or that doubtful case irregularity intervenes according to the laws. This interpretation agrees both with the Doctor himself in the place cited above and with the common opinion and practice, and therefore is to be held. Hence those words of his — ”although it could sometimes be inflicted by a judge according to the laws” — import only this. For since the laws do not introduce, nor make mention of, irregularity to be incurred but only of irregularity incurred by a sentence already passed (as the interpreters commonly take the cited chapter), so a judge would not sometimes impose this penalty according to the laws, nor could he according to the laws, since it is neither arbitrary, nor do the laws place it under the judge’s discretion, as they do other penalties which can be imposed by man. Hence his saying only sometimes and according to the laws must be referred to this alone — that in a doubtful case his declarative sentence is required.

It could also, thirdly, be explained that he here understands perpetual suspension, which is equivalent to irregularity, since when treating of suspension he seems to hold that it lasts only for a time; whereas irregularity is by its nature perpetual, and difficult to dispense.

(n) It is incurred by law from which crimes? etc. He divides irregularity, secondly, by the matter or cause on account of which it is incurred, into three members: first, as it arises from a crime; second, as it arises from what is not a crime; third, as it arises from things which are sometimes a crime, sometimes not. This third member can be reduced to the first two by a general division, as St. Thomas reduces it in II-II, q. 64, a. 7, ad 3, and q. 108, a. 4, ad 2, and Richard at the present distinction, article 4, question 3, ad 1, and the common opinion; for

nevertheless, with respect to the moral effect and dispensation, a different account is had of irregularity when it is joined with fault than when it is had without fault, and therefore he distinguishes it as a third member.

It is commonly asked whether irregularity arising from fault is a censure. The affirmative is taught by Soto in distinction 22 at the place cited, and by others. From this he infers that, when in the Bull of the Crusade the faculty is given of absolving from censures, irregularity arising from fault is included.

The opposite, however, is to be held, as is clear from the chapter Quaerenti, etc. On the Signification of Words, where under “censure” are included only excommunication, suspension, and interdict — under which irregularity is not comprehended. Second, because from censures power of absolving is given, whereas irregularity is not removed by absolution but by dispensation, as is plain. Third, because in the Bull of the Crusade and other similar grants, the concession or faculty of absolving from censures and reserved sins is expressed as distinct from the faculty of dispensing in vows and irregularities, for which a new confession is required.

You will say: the favors of a prince are to be interpreted most amply (l. de beneficio, de constit. Princip.); privileges are to be extended (chapter Olim, etc. On the Signification of Words). The reply is that privileges are limited by the form of the words, by their proper rigor, and by the subject matter. Irregularity does not come under the name of “censure,” and its removal does not come under the appellation of “absolution” but of “dispensation.” Therefore, just as the power of absolving from a censure cannot be extended to what is not a censure, and just as the power of absolving cannot be exercised except by absolution — which is in another form and manner, different from dispensation, by which irregularity is removed — so too the power of absolving from censure does not include irregularity, in which,

by the power given, one dispenses, not absolves.

(o) From four crimes pertaining to orders, etc. The first crime is simony in an order, knowingly committed. That this entails irregularity he proves from causa 1, question 1, chapter De caetero, and from the places cited in the argument to the opposite, under the same title. Several chapters carry the same penalty. Next, he says that dispensation belongs to the Pontiff alone, from the chapter Nobis, On Simony; thus the Doctor’s allegation is to be sorted out. Third, he says that if simony has been committed by another, in the candidate’s favor and unknown to him, who gave the price, the candidate is not made irregular — unless after the error has been established [he continues to act], because in that case he remains suspended from his order until he is released. But if in that state he performs an act of his order, he remains irregular.

As to the first point: those who hold, from the chapter Is qui, On the Sentence of Excommunication, in the Sext, that irregularity is not incurred unless the penalty is expressly stated by law — and likewise that consequently it cannot be imposed by man — deny that those laws comprehend irregularity, but [say] only the penalty of deposition, or degradation, or suspension. And this consistently, since, as is clear from that title, several of these contain a sentence even of a judge, and the same form of words expresses the mode of the penalty; otherwise it would have to be said that this penalty can sometimes come from a judge. But from this an inconvenience arises: namely, that the penalty of irregularity can scarcely be proven to have been in use in the ancient decrees, since they make no mention of it under its proper name but use the words deposition, suspension, ejection, voiding, and the like.

Second, they say that by simony irregularity is not incurred per se in an order, but by another reason — that of the excommunication or suspension or interdict attached to it. This too does not seem to stand, because the ancient decrees speak expressly of simony itself,

on account of which they impose penalties, as is evident from running through that title at Cause 1, question 1. Either, then, this penalty is not included in the ancient decrees, or it is incurred on account of the sin of simony. Likewise, Extra de Simonia, chapter Nobis, etc., near the end, where a simoniacal election is said to be rejected, and that the bishop cannot dispense with the one elected; but dispensation presupposes irregularity. Likewise, the chapter Per tuas, etc., decrees that a deacon ordained simoniacally is not to ascend to the higher orders, nor is he to minister in those already received, unless he has been dispensed; the chapter Si quis ordinaverit, etc., near the end: one ordained simoniacally remains suspended from the order until he has been dispensed; and by that suspension irregularity can be understood, since a suspension is not properly dispensed with, as a censure is. From which it is clear that one ordained simoniacally incurs this penalty on account of simony itself, and not only on account of the censure annexed to it.

In the new law, however, as in the Extravagans of Paul II, Cum detestabile, real simony is punished by excommunication and by the other censures and penalties imposed against simoniacs in any manner whatsoever. The Council of Trent, session 21, chapter 1, established the same penalties against those who ordain simoniacally. Likewise, by the decrees of Sixtus V against those who promote and are promoted wrongly, which, although Clement VIII reduced others to the terms of the common law, nevertheless as to the penalty against those promoted and promoting simoniacally, he left it in force. Through these laws, therefore, the penalty of irregularity is revived, if it ever was imposed against simoniacs in an order. It seems, therefore, that one must say that the suspension by way of penalty imposed in the ancient law against those wrongly promoted by simony, and which is by some called perpetual, does not differ from irregularity, nor is it properly a censure; rather, that medicinal and temporary suspension which presupposes contumacy is a censure.

The third saying of the Doctor is held by Felinus in the chapter Per tuas, de Simonia, who asserts that it is the common opinion. And it is evident from the argument of the chapter Nobis fuit, etc., de Simonia, which the Doctor cites in the gloss on the chapter de Simoniace, under the same title. The contrary view is taught by some on the basis of the foundation alleged above, namely because that penalty is not expressed in law; thus Navarrus in his Summa, chapter 25, and other later authors. But, on the contrary, although he himself does not contract irregularity, yet because simony intervenes through the fault of others, these things seem to have been expressly enacted in odium of it, as is contained equivalently in the title de Simonia in various chapters concerning benefices and offices in which simony intervenes through the fault of others without the promoted person’s knowledge, which offices must be relinquished and resigned when the simony is established. Now these laws are not new decrees, but a declaration of the ancient ones, and they likewise comprehend, or rather a fortiori, simony committed in an order in any manner whatsoever, unless it is done in fraud of the one ordained, and they declare the ordination itself invalid. See the Gloss with its addition on chapter At si Clerici, etc., de judiciis, where it understands those penalties as referring to irregularity.

Scholium.

That one who receives a benefice simoniacally is bound to make restitution [is established by] Extra. Cum detestabile, de Simonia, chapter Si quis 1, question 1. He is not, however, bound to this by divine law; both because otherwise, if simony were committed without his knowledge, he would be bound to it; and also because by other sins a man is not rendered, by divine law, incapable of a benefice. Thus Navarrus, chapter 23, numbers 103, 104; Covarruvias, reg. Peccatum, part 2, § 9. Other spiritual things accepted simoniacally, however, one is not bound to relinquish before sentence, since this is not had by law. Lessius, book 2, chapter 35, dubia 29, 30. The Doctor teaches whether irregularity is incurred in the surreptitious reception of orders, and in administering in an order not received, or in a censure, and [he proves this] by clear and express laws.

A simoniac (p), however, is not punished so gravely in respect of a benefice; yet from the moment it is established that he obtained it simoniacally, he is bound to resign it, and for the whole time during which he holds it, he holds it unjustly, and he is bound to make restitution of everything he has received. These points are proved from various chapters de Simonia.

Concerning theft in an order, I distinguish: for either it is forbidden under excommunication that anyone approach unless he be of that bishopric, and unless he has first been lawfully examined and received; or there is no such excommunication or prohibition. In either case, one who furtively intrudes himself is irregular, but in the first case indispensably, except by the Pope; in the second case dispensably by the bishop. This is proved by Extra, de eo qui furtive Ordines suscepit, in the first and second chapters, in the text and in the gloss.

Concerning the third crime, that irregularity follows upon it, this is had in Extra, de Clerico non ordinato ministrante, throughout. Concerning the fourth, this is had in Extra, de Clerico excommunicato vel deposito ministrante, throughout. And understand this of major excommunication, because, as is had in the same place, chapter Si licet, one who celebrates while under minor excommunication sins gravely, yet incurs no mark of irregularity. Understand also: after he has known himself to be excommunicated. For if he had invincible ignorance, he is not bound to abstain from the acts of orders; nor, in exercising them, does he incur irregularity, as is had in the same place, Extra, Apostolicae, in the gloss; for instance, if someone excommunicated another by letters, and from the moment of the letter’s sealing wished him at once to be excommunicated, that man

is not bound to regard himself as excommunicated until the letter has reached him.

If, however, the ignorance is not invincible, nor is there total uncertainty — as when notice of the excommunication has come to him by common report or public rumor — he is irregular, although he is dealt with more mildly. This is proved by Extra, de translatione Episcoporum, Inter corporalia. So too if the penalty of interdict is not observed, as is had in Extra, de excessibus praelatorum et subditorum, Tanta; though that chapter could well be expounded otherwise. The same follows for one who does not observe a suspension, as is had in Extra, de sententia et re judicata, Cum aeterni, and Extra, de sententia excommunicationis, Cum medicinalis.

Commentary.

(p) A simoniac, however, in a benefice, etc. Here he deals with one upon whom a benefice has been conferred simoniacally, without his knowledge; he says that, as soon as he knows, he is bound to resign the benefice and to make restitution of the fruits, since he did not make them his own, the conferment having been by the law itself null. See the Scholium and the authors whom it cites on Extrav. Detestabile. The rest of this passage is clear from the canons alleged. Some, holding the higher opinion, deny that one who, while bound by a censure, receives orders becomes irregular properly speaking, but only suspended — thus Suarez, disputation 42, de censuris, section 3, case 7. But the laws dispose otherwise and are to be interpreted as the common opinion of the doctors and the gloss understand them.

Scholium.

He explains exactly how slaves, illegitimates, and those shamefully mutilated or infirm are irregular, by express laws. See the Summists, v. Irregularitas; Henriquez, book 14, chapter 8; Suarez, tome 5, disputation 49, and the two following.

There follow (q) also irregularities from three non-crimes, namely servitude, distinction 54, as in Extra, de servis non ordinandis, throughout. The reason is that a slave is the property of his master, and therefore ought not to be taken from him against his will. When, however, he is ordained, he becomes incapable of certain servile acts, because if he was in fact ordained without his master’s knowledge, and without his subsequent consent, he must be returned to him; nevertheless, the master ought not to apply him to acts unbecoming his order, but he ought to serve his master in acts becoming his state.

There follows (r) also illegitimacy, Extra, de filiis Presbyterorum non ordinandis, chapters 1 and 2. The reason is that they are presumed imitators of their fathers’ incontinence; such men are also presumed to be ill-mannered, since ill brought up; nevertheless, dispensations are granted in their case with sufficient ease. Hence Benedict XI, in the case of a certain such man who had been ordained without dispensation and was ministering in orders, afterward dispensed easily — as I myself saw the bull of dispensation.

There follows (s) also a third non-crime, namely shameful or enormous mutilation, or infirmity, as is had in Extra, de corpore vitiatis non ordinandis, chapter Exposuisti, and distinction 55, Si Evangelica, and the preceding chapter, and Extra, de Clerico debilitato. But if the mutilation is not deformi-

ng, nor was the man himself at fault for the mutilation, he is not excluded, as is had in distinction 55, Si quis a medicis, and the two following chapters. But if he was at fault — for instance if he mutilated himself, as is had in the same place, Si quis absciderit — dispensation is scarcely granted in such a case. Hence Nicholas IV, with great difficulty, dispensed for a certain such man, although a religious. The like is to be said of enormous or non-enormous infirmity.

Commentary.

(q) There follow also irregularities from three non-crimes, etc. From the condition of servitude, as opposed to freedom, irregularity arises, so long as the slave is bound to a master, that is, subject to servitude. This is clear from distinction 54, from the whole title de servis non ordinandis, from the Authentica Si servus, C. de Episcopis et Clericis, and from the common opinion of theologians on this distinction. The reason which the Doctor assigns is from the first epistle of Pope Leo, chapter 16, found at chapter Generalis, and chapter 1. One ordained without his master’s knowledge and against his will, if he is reclaimed, must be returned, unless he is a priest, chapter Ex antiquis; but he must restore his peculium. This irregularity is removed by manumission, or by whatever means the slave is restored to freedom.

(r) There follows also illegitimacy, etc. This irregularity is clear from the text cited, and in the Sext, chapter Consuluit, etc., according to the gloss, de servis non ordinandis; chapter Per venerabilem, etc., Qui filii sint legitimi; and distinction 56, through many texts at the beginning. Those are understood to be illegitimate who are not born from a true or probable marriage, even from the good faith of one of the spouses — which suffices for the legitimation of offspring — provided the marriage was not clandestine; chapter Ex tenore, Qui sint filii legitimi; chapter Cum inhibitio,

etc., de clandestino desponsato. Those born of an unmarried man and an unmarried woman who were eligible for marriage are legitimated when that marriage supervenes, chapter Tanta, etc., Qui sint filii legitimi.

(s) There follows also the third, etc. Irregularity from mutilation is sometimes with fault, sometimes without fault. It is with fault even through indirect voluntariness, as when the man himself gave cause for the mutilation of a part or of a whole member, even covertly — for example, if he cut off for himself a part, some member or part of a member; then he is irregular, as is clear from chapter Qui partem, distinction 55. As to the cutting off of a part that is not notable, direct volition is required, and indirect volition does not suffice, as Navarrus teaches, chapter 27. So that if in a duel some part of a finger has been cut off by another, this does not make him irregular, because it is far more atrocious that someone should turn the iron against himself than that he be cut by another. Direct volition, therefore, insofar as it has its act, is what is punished in that text. But if he gave cause, and a member — even a hidden one — is entirely cut off, as when one is made a eunuch as a penalty for a crime, he becomes irregular, according to the same author, who cites Hostiensis and Joannes Andreae, and the common opinion. And it is clear from chapter Ex parte, etc., de corpore vitiatis, etc.

The opposite of this is also probable, if the rigor of the canons and their proper sense be considered, which always seem to speak of direct volition, as indicating a certain ferocity against oneself, as is clear from canons 22 and 23 of the Apostles, chapter Hi qui, distinction 55, and chapter Maritum, distinction 33, etc., chapter Qui partem. The former opinion, since it is the common one, is safer. For irregularity from direct culpable volition it suffices that a part of a member be cut off. For irregularity from indirect volition, the whole member must be cut off. If the mutilation occurs without fault, irregularity is incurred when, from the lack of a member, a notable deformity and indecency is brought about, or certainly an unfitness for the sacred ministry. This is

the common opinion, and it is clear from the titles cited by the Doctor.

When, however, neither of these is brought about, irregularity is not incurred. Canon 22 of the Apostles, where it is said that eunuchs made so without their fault are not irregular; chapters 1 and 2 de corpore vitiatis, where it is defined that those defects which do not bring about an impediment to the ministry, or a deformity, do not bring about irregularity. Likewise, chapter Si partem, chapter Lator, chapter Praecepta, distinction 55. An impediment to the use of an order and a deformity in a layman bring about irregularity simply; in a cleric, so that he may not ascend to the higher orders; in one already ordained, with respect to use, if it supervenes, only with respect to the use of that order to which he is impeded, or which he cannot exercise without scandal. If, however, he can exercise some act of the order without scandal, he does not become irregular for that act — for example, if a priest, lacking hands, cannot celebrate, he can nevertheless hear confessions. If he is deaf, he cannot do the latter, but can the former; he can solemnly exercise the office of deacon and subdeacon, unless he is impeded for these.

An incurable disease likewise induces irregularity, when it has attached to it a perpetual impediment or deformity. This is clear from the canons cited de corpore vitiatis and de clerico aegroto, distinction 55. It is required that it be incurable, in order that it may bring about this irregularity, and that the impediment or deformity be perpetual. As for the irregularity which is incurred from a bodily defect, the dispensation belongs to the Pope alone, as the common opinion holds.

Scholium.

This passage contains several statements. First, he teaches that killers and mutilators are irregular. Second, he says that one who kills in his own just defense becomes irregular — which Thomas Aquinas holds, 2.2, q. 64, art. 7, ad 3; the gloss on chapter Sicut dignum, § Clericus, de homicidio; and the Council of Trent, session 14

on homicide, chapter 7. This is true under the old law, but the opposite holds under the new law in the unique Clementine, De legibus, and is the common view: Covarruvias, ibid. part 3, § 1; Navarrus, ch. 27, n. 207; Castro, book 2, De lege poenali, ch. 4; the Summists under the word homicidium. Third, he says that one who kills by accident, if he is engaged in some unlawful act, becomes irregular. Understand this to mean: if the act in which he is engaged is forbidden because of the danger of homicide, but not otherwise. So Thomas Aquinas, 2a 2ae, q. 64, art. 8, where Cajetan, Sylvester under the word homicidium, 2, § 2; Angelus, n. 1; Suárez, vol. 5, disp. 45, sect. 6, citing many; Covarruvias, De homicidio, part 2, § 4, n. 9-10; Herrera, In 2 Sent., dist. 32, q. 15; Emanuel, Summa, ch. 166; Soto, De iustitia, q. 1, art. 9. Of these, Thomas and others hold this teaching without any limitation; and it is found in cap. Dilectus, cap. Joannes, cap. fin., De homicidio; likewise cap. Continebatur, in the same title. The opposite opinion is highly probable: Henríquez, book 4, ch. 11, § 11, citing many; Salón on 2a 2ae, q. 64, art. 8; Báñez, and others. Fourth, he says that the irregularity arising from voluntary homicide is not removed except by Baptism — understand: unless a dispensation supervenes, as he explains below at dist. 33, q. 2 at the end. For certain other irregularities are removed in other ways, as when an infirmity ceases, or childhood, or ignorance.

There follow (f) also two further cases, which sometimes can occur with fault and sometimes without fault, namely homicide and bigamy. Under homicide is included the active and serious mutilation of another human being; on this matter see the Extra title De homicidio voluntario et involuntario, and dist. 55, cap. ultim.; dist. 50, cap. Miror, and this on account of the horror of shed blood. Whence God also did not allow David to build a house for his name, because much blood had been shed (2 Samuel 7). But on this matter distinguish between voluntary and involuntary homicide. Voluntary homicide is never wiped away except by Baptism, and there the reason is fitting, because the ground is wiped away, since one is no longer held in horror, having now been made a

new man through Baptism. If, however, the homicide is simply involuntary — for example, another person threw himself onto this man’s sword — it does him no harm, dist. 28. If, however, it is involuntary only in a qualified sense — for example, he could not escape death except by killing — he is irregular, ibid. dist. 50, De his; but dispensation is easy. If, however, it is accidental, and he was engaged in a lawful act and exercised due diligence, he incurs no penalty; but if either of those conditions is lacking, he incurs the penalty. As for bigamy, which simply induces irregularity (as will be said below in the treatise on matrimony), see the Extra title De bigamis.

Commentary.

(f) There follow also two further cases, etc. He treats of the irregularity arising from homicide and bigamy; he says, moreover, that it occurs sometimes from fault, sometimes without fault. The distinction of this category from the preceding rests on this: although mutilation of oneself can occur with fault, as he supposed above, yet because it rarely occurs, and in moral matters account is taken of what occurs frequently, he therefore in the general division reduces it to the irregularity arising from indecency and deformity, from which it primarily results, although fault itself is also punished in the mutilation of oneself in part or in a whole member.

But this irregularity, which arises from a defect of the Sacrament or of its signification, as in bigamy, or from a defect of leniency, as in homicide, is frequently accompanied by sin; sometimes also without sin — which is enough for the present distinction, which is accidental and not substantial. For it is accidental that fault be joined to it, although with a view to obtaining a dispen-

sation, very much is taken into account both the fault and the manner of the fault by which one commits homicide directly or indirectly.

The Doctor distinguishes three kinds of homicide, namely simply voluntary, voluntary in a qualified sense, and accidentally voluntary. Simply voluntary homicide occurs when the killing is intended in itself, or in its proximate and inevitable cause of death — for example, when someone directly intends to kill another, or even if he does not directly conceive of inflicting death, he nevertheless intends an action which of itself inevitably brings about death, such as striking someone with a sword, and as forcefully as he can, and wherever he can, or hurling him from a tower, or administering a poison lethal of itself; for he who wills the proximate cause also wills the effect, if it follows so far as is in his power. In voluntary homicide, however, in the style of the Law, the Doctors distinguish homicide as it is against justice, and homicide lawful, or at any rate unlawful as being against charity — for example, when a judge kills a guilty person according to justice, when such a penalty is owed by law, it is lawful homicide. But when he kills someone out of hatred, yet according to justice and because of demerit, he sins against charity and not against justice, because such a penalty is owed by law. Voluntary homicide in either mode, however, induces irregularity, as the Doctor says, and is clear from the laws cited.

But with respect to irregularity and its reservation, “voluntary homicide” is understood as homicide unjustly committed, which is reserved to the Pope alone, as appears from the terms of the Jubilee, the Bull of Crusade, and the Privileges, in which the faculty of dispensing in this kind of homicide is reserved to the Pope; and from the Council of Trent, session 24, ch. 6, even though the homicide be occult. Whence the Doctors gather that when the faculty of dispensing in all irregularities is granted, except that which arises from homi-

cide, is to be understood only of homicide unjustly perpetrated and directly willed in itself or in its proximate cause, and consequently that in other cases, where the offense is occult, dispensation can be granted by others — as the Doctors commonly hold — unless they are brought before the public forum. A case is brought to the public forum by denunciation and accusation with judicial process instituted; but when the crime cannot be proved, it falls back to the same state in which it was before, with respect to the faculty of dispensing, because his state is not changed, as some would have it, especially when full and semi-full proof is lacking.

The Doctor speaks of voluntary homicide in this sense when he says that voluntary homicide is never wiped away except by Baptism, because below at dist. 33, q. 2 he supposes that it is removed by dispensation, just as bigamy also remains after Baptism, as he teaches there. Indeed even with regard to the Supreme Pontiff this dispensation is reckoned impossible in the sense that it is exceedingly difficult to grant, and not to be granted except for the most weighty causes. Whence the Council of Trent cited wished to signify this very thing in session 14, ch. 7, saying: “he may at no time be promoted to sacred Orders, etc.; he is perpetually deprived of every Order, etc.” See cap. Miror, dist. 50; cap. Inquisitionis etc., De accusationibus; cap. Non ab homine etc., De iudiciis.

To voluntary homicide in this way is reduced homicide which is sometimes indirectly willed by presumption of the forum: for example, if someone wounded or struck another, not intending to kill or mutilate him, but death or mutilation followed, he incurs the irregularity of voluntary homicide by presumption of the forum, which is founded on the deed; nevertheless, in conscience he is not a voluntary homicide in this way, because the truth of the matter according to conscience is what is regarded — and the will of the one striking, which can be inferred from circumstances and from his own confession,

namely from the manner and other concurrent circumstances. Although therefore by presumption of the forum he is held to be a voluntary homicide from deliberate purpose — because the will is presumed from the deed itself — yet in the forum of conscience it is to be judged otherwise. Although he is irregular by reason of the offense in both forums, nevertheless he is not a homicide from deliberate purpose or intention, which is required for voluntary homicide, provided he employed restraint conformable to his intention; nor could or ought he, from the nature of the action, have foreseen the death or mutilation that would follow. Otherwise in both forums he would be a voluntary homicide, because that intention would be feigned when sufficient caution is not adjoined, or the manner whereby, from the nature of the action, the effect of death or mutilation which follows from the case is to be guarded against.

The Doctor further adds that voluntary homicide in a qualified sense induces irregularity, as when it is done in self-defense (inculpata tutela). This was true at the time when he wrote, under the old law, but afterwards this irregularity was abolished by the unique Clementine, De homicidio, etc. This homicide is called by the canonists “homicide from necessity”: the Gloss on cap. De his, dist. 50; the Archdeacon and the Provost there; the Gloss on cap. Sicut dignum, De homicidio; the Council of Trent, sess. 14, ch. 7. They divide this necessity into avoidable, which does not excuse from irregularity, and unavoidable, which does excuse — for example, if one could escape by maiming, then by killing he would become irregular and would sin; likewise if the defense passes over into aggression, he is not excused, because in that excess there is no longer defense, nor is it necessary for escaping death; nevertheless one who kills even in that case is not reckoned a voluntary homicide in the first mode. Whence the irregularity which is incurred from such homicide is reduced by some to that which arises from accidental homicide.

As for the third species, which is accidental homicide, the doctrine which the Doctor sets forth on this is the common one. See cap. Dilectae, etc., with the three following, cap. Joannes, cap. ultimo, De homicidio, where Doctors and Theologians treat it in this distinction and on 1a 2ae, q. 73, and 2a 2ae, q. 64, art. 8; Covarruvias, on the Clementine Si furiosus, part 2; Navarrus, ch. 27. Here is chiefly blamed the negligence in avoiding homicide and its danger. Concerning the irregularity arising from homicide in these three modes, general rules and particular cases are framed by the Doctors in detail, which occur throughout in the Summists; I therefore pass them over here for the sake of brevity, since it is enough to say some things in general for the clarification of the text, since an entire treatise cannot be set out without prolixity. There is, moreover, another irregularity of homicide which is not from offense, but from a defect of leniency or of the signification which is called sacramental — as when a judge kills evildoers according to the penalty of the law. On all these matters see Suárez, De censuris, disp. 44 and following, where he treats this material at length. As for general rules and particular cases concerning the irregularity arising from bigamy, the Doctor treats this below at dist. 33, q. 2, which we shall briefly explain there.

Scholium.

Excommunication is by Law and by man, but it cannot be inflicted except for a grave mortal sin accompanied by contumacy. This is the common view, and the first part is found at C. 11, q. 3, cap. Nemo Episcoporum, and Leo teaches it in epistle 89. The same applies to suspension and interdict, as Suárez holds, vol. 5, disp. 4, sect. 4, against Navarrus, ch. 27, n. 165, and others. The second part, concerning contumacy, is held by Thomas Aquinas, In 4 Sent., dist. 18, q. 2, art. 1, quaestiuncula 3; Soto, book 5, De iustitia, q. 6, art. 2; Navarrus, ch. 27, nn. 9 and 11; Covarruvias, on cap. Alma mater, part 1, § 9, n. 4 and following. From excommunication imposed by a man, only the excommunicator or his superior absolves;

from excommunication of the Law that is not reserved, any confessor may absolve, by cap. Nuper, De sententia excommunicationis: Richard of Mediavilla, In 4 Sent., dist. 18, art. 9, q. 3; Gabriel, q. 3, art. 3; Bonaventure, q. 6 at the end; Soto, dist. 22, q. 3, art. 2; the Summists under the word Absolutio; Sylvester; Angelus; Cajetan; Suárez, vol. 5, disp. 24, sect. 4; and it is the common opinion. Scotus, however, makes little of the text cited for this purpose.

The fourth (u) penalty is excommunication. What it is has been said in distinction 19, in the fifth article of the solution. And this concerns major excommunication, which is simply excommunication; for minor excommunication is not excommunication except in a qualified sense, because in a qualified sense it excludes from the communion of the faithful — namely, in the Sacraments.

Whence also it is incurred, is clear: because sometimes it is by Law, sometimes by a judge. And as for that which is by Law, it was once possible to state the number — indeed it was a small number — when the Decretals were compiled under Gregory IX; but today who could count them, and as they grow to infinity with the increasing perversity of human heads, there is no need to fill up parchments on this matter.

This, however, I do say: that neither by Law nor by a judge ought it to be inflicted except for mortal sin, nor for just any such sin, but for a grave one accompanied also by contumacy; because as long as anyone is ready to make satisfaction for his fault, and listens to the Church,

why is he to be regarded as a heathen and a publican? — since according to Christ that penalty is inflicted, as it were, as a last resort, on him who refuses to hear the Church, who is finally contumacious.

Now who is the minister of the Law in inflicting this penalty has been said above in dist. 19, in the same place: because for simply excommunicating, no one suffices except him to whom all the faithful are subject; therefore no one else either, except as a commissioner by his authority.

How (r) is it relaxed? I reply: by absolution given by him who excommunicated, if it is excommunication by a judge or by his superior. If, however, it is by Law, by the absolution of him who enacted it — and this not only, as many say, but by the absolution of any priest whatsoever, when the legislator has not reserved that absolution to himself; and they prove this by the chapter Nuper of the Extra, De sententia excommunicationis. But that proof has little force, because it does not follow: “he does not reserve, therefore he conceded” — speaking of the form of consequence, and even according to the Laws — because the power of absolving falls under this rule: “What is not granted is to be considered prohibited,” because it does not belong to anyone to absolve from a sentence imposed by a superior unless it has been granted to him.

Comparing, however, this penalty with the preceding, this is simply more grave in respect of its intention, because it excludes from every otherwise lawful communion, whereas the other excludes only from those things which pertain to Orders; but this is reckoned lighter, because it is more easily remitted. But this turns to the opposite [conclusion]: for it is more easily remitted precisely because it is most grave, and excludes from more things. The other two penalties, however, namely of irregularity and of excommunication, can be both public and private; and

insofar as they can be private, they are less serious than either of the preceding penalties, both of which are always public.

Commentary.

(u) The fourth penalty is excommunication, etc. See the Scholium, which summarizes the foundation of this teaching; for the number [of censures] see Toletus in his Summa, book 1, ch. 14 and following; Suárez, vol. 5, On Censures; Reginaldus, In praxi, book 9; Sayrus, On Censures, book 3; and Navarrus in his Summa, ch. 27; the Summists under the word Excommunicatio. It is inflicted on account of a mortal and grievous sin to which contumacy is joined, and the same holds for interdict and suspension. Council of Trent, sess. 25, ch. 3 De reformatione; ch. Praesenti, C. 5 q. 2; Veritatis etc. De dolo et contumacia; ch. 2 De testibus cogendis; ch. Honoratus, dist. 75; Augustine, De correptione et gratia, ch. 15; ch. Nullus, C. 11 q. 3. It is the common opinion: Abbas on the last chapter De cohabitatione clericorum et mulierum; Felinus on ch. Apostolicae etc. De exceptione. Therefore it is not to be inflicted for every sin, even mortal, but for a grave one to which contumacy is joined, as the Doctor says. And the reason he assigns is conclusive, because this power given to the Church is set forth in that passage to which the Doctor alludes, Matthew 18, and its exercise is declared to be directed against those who do not hear the Church, who are contumacious, as St. Thomas teaches in Sentences IV, dist. 18, q. 2, art. 1, quaestiuncula 3. Our Castro, On Penal Law, book 2, conclusion 4; Covarruvias on ch. Alma mater; Navarrus, Summa, ch. 27, nn. 9 and 11; Soto, In IV, dist. 22, q. 1, art. 2, and On Justice and Right, book 5, q. 6, art. 2; Suárez, disp. 4, sect. 5. Indeed, this censure ought not to be imposed except in the case in which

other remedies and admonitions have no effect. Hence the Council of Trent, sess. 25 De reformatione, ch. 14, in the case of concubinage of clerics directs the procedure thus: first, they are to be admonished; second, unless they have amended, they are to be deprived of a third part of their revenues; third, by deprivation of benefice, office, portions, pensions, and they are to be rendered ineligible for dignities, offices, benefices; fourth, finally they are to be excommunicated, if they cling to the offense or resume the abandoned association. But who is the minister of right? etc. — see dist. 19.

(x) How is it relaxed? etc. He holds the common opinion concerning absolution from non-reserved excommunication, drawn from ch. Nuper etc. De sententia excommunicationis. But he says the proof from that chapter is not conclusive as regards the force of the inference, because it does not simply follow: “the framer of the canon does not reserve, therefore he concedes.” It does not follow, I say, by the laws themselves, on the basis of the rule: “What is not granted is deemed to be prohibited.” And it is clear that the aforesaid reasoning does not hold universally in matters of jurisdiction, neither from the nature of the matter nor universally in law — which is what is required for the force of the inference. Not from the nature of the matter, because an inferior cannot dispense in the law of a superior, as the parish priest cannot in an episcopal statute, nor the bishop in a pontifical law; nor consequently can he by his own authority remove the effect of a law, or a penalty which exists by law, on his own authority. Nor does the same inference follow universally according to the laws, as is plain in the case of dispensations from laws and from irregularities; otherwise it would follow that a bishop could dispense in the prohibited degrees, for instance, for contracting matrimony, simply by the fact that dispensation is not prohibited. For often in a law there is no express mention of concession; for example, in ch. Dilectus etc. De temporibus ordinationum it is expressly said that

the Archbishop could not dispense with the Bishop, so that the latter might confer three sacred orders on the same day: “Because such a dispensation,” says the Pope, “is by no means permitted by the canon,” where the Gloss gathers that bishops cannot dispense in the ordinary law, except in cases permitted to them. But before that papal declaration, no special prohibition in that case is recorded, nor any express reservation of the power, beyond that alone which arose by force of the law as emanating from a higher authority. Similar is that of Trent, sess. 7, De sacramentis in genere, canon 13, where it is denied that bishops or other prelates of the Church have the power to change or innovate the common rites of the Church for administering the sacraments. See the doctors on ch. Et si Clerici etc. De judiciis, etc., with the Gloss. The Pope’s reasoning therefore in ch. Nuper, De sententia excommunicationis is to be understood with reference to absolution from excommunication, because this is granted, or presumed to be granted, from the usage and practice of the Church, whose best fittingness is that which the Doctor hints at below, in the section Comparando etc., concerning the ease of remission or absolution from excommunication: therefore, he says, it is more easily remitted, because it is the most serious and excludes from more things; on account, therefore, of the peril of souls, and because absolution ought not to be delayed when the offender makes satisfaction and disposes himself (ch. Qua fronte etc. De appellationibus), it is therefore by the intention of the Church to be removed; and this power flows to the ordinary prelates, not from their own authority, but from the indulgence of the Church and of the Pope. The power of dispensing in a law or in other penalties has a different rationale from this. And therefore that axiom does not hold: “Whatever the Pope can do in the universal Church, the bishop can do in his own diocese, unless he is prohibited,” etc. For it fails in many things, because the Pope can do many things regarding the invalidat-

ing of certain acts which the bishop cannot; he can establish more impediments and disabilities which the bishop cannot. Likewise, he can establish more things concerning the administration of the sacraments which the bishop cannot. The same is evident also in dispensations.

Scholium.

He defines interdict, divides it, and posits its efficient and removing cause. For it is sometimes imposed and removed by law, sometimes by a human authority. He likewise defines and divides, and posits in the same way, the effective and destructive causes of suspension. All things are clear and settled by express laws. See the Summists, under Interdictum and under Suspensio.

(y) The fifth penalty is interdict, which is a restriction from exercising certain ecclesiastical acts, or from attending certain such acts. And although this penalty can sometimes be inflicted on a place and not on a person, sometimes on a person and not on a place, sometimes on both; and just as it is inflicted, so is it to be observed — nevertheless, insofar as it is a penalty distinct from the others, it is more frequently inflicted on a place and not on persons, except while they are in the place: namely, that in such a place it is not lawful to celebrate the divine offices solemnly, nor for others to be present.

And this penalty of interdict is sometimes contracted from the law itself, sometimes from a judge. An example from the law itself is found concerning those who harbor foreign usurers, Extra, De usurariis: Usurarum voraginem, and is today in book 6. From a judge it is imposed for innumerable causes; more commonly on account of the common disobedience of the people of a land. It is relaxed (z) by him who imposed the interdict; sometimes also it is relaxed in certain cases by law,

as is plain Extra, De sententia excommunicationis, ch. Alma mater Ecclesia, and is today in book 6.

(a) The sixth penalty is suspension, which is a prohibition from something otherwise fitting, and this for a time; in this respect this penalty is specifically distinguished from the others. (b) This penalty, moreover, is manifold, because one is a suspension from office; another from benefice; another from entering the church; and further, it is sometimes incurred ipso jure, as is found Extra, De sententia et re judicata: Cum aeterni, and Extra, De sententia excommunicationis: Cum medicinalis. And also in receiving orders from a bishop who has renounced such a place and dignity, because he who does not have the exercise [of office] does not confer the exercise; and so if he confers the order, nevertheless the recipient does not have the exercise, and therefore he is suspended. On this see C. 1 q. 7 Daibertum, and Extra, De ordinatis ab episcopo qui renuntiavit, ch. 1, in the gloss. Likewise concerning one knowingly ordained simoniacally, as has been said above; frequently, however, it is inflicted by a judge, now one form, now another. It is removed by the relaxation of such a suspension made by him who imposed it, or by his superior.

Commentary.

(y) The fifth penalty is interdict, etc. He defines interdict as a restriction from exercising certain ecclesiastical acts, or from attending those acts. It is called a restriction, or prohibition, or privation, which is common to all penalties. It is said from exercising certain ecclesiastical acts, or from attending etc., so as to comprise both active and passive use, because this penalty sometimes includes both modes —

for laymen, passive; for clerics, active also. He also says from certain acts, etc., because certain acts are excepted, such as conferring baptism and chrism, penance, viaticum; extreme unction, burial are prohibited, and according to some, matrimony, and orders if they are to be conferred on laymen, and the divine offices. This penalty differs from excommunication as regards the acts of which it deprives, in that excommunication is a privation of these by reason of communion. Interdict, on the other hand, deprives directly of the use of those acts, and per se insofar as they are sacred things, and independently of the communion of the members, which excommunication regards. It differs from suspension in that suspension deprives of the active use, and with respect to particular persons, namely ecclesiastical ones. Interdict comprises both uses, and also in common, that is, the use of those things which are common to people and clergy.

He divides interdict into local, personal, and mixed. If it is directed at a place, it will be local; if at a person, personal; either can be general or particular, whose difference and nature can be gathered from the form of the interdict. And because it belongs to the nature of a penalty that it should not include any except those to whom it is directed, then attention must be paid to the propriety of the words, and to what is signified by the subject to which the penalty is directed; for if the clergy is interdicted, the people are not included, nor if the people, is the clergy included, nor even others who are not members of the people, but the penalty includes only all and each of that body. The circumstance of the sentence, and its matter, must be considered, so that its true sense may be grasped; for example, if the clergy is interdicted — because in ecclesiastical usage this word is often taken for the secular clergy alone, and sometimes also as including the regulars — it may be doubtful whether in

odious matters the Regulars come under the appellation of “clergy”; the form of the sentence and its matter must be examined to determine whether the sentence extends also to Regulars; for when in matter or cause they do not share, so too they do not seem to be included in the penalty, unless the form of the sentence declares otherwise. That Regulars are not included under the name of “clergy” in odious matters is taught by Sylvester, Interdictum 5. But on this point no general rule can be assigned; for the form of the sentence must be examined, as in ch. Si sententia, De sententia excommunicationis in book 6, where under the name of “clergy” Regulars are included. But that case pertained to the whole community of a town, whose burdens they were bound to share; but when the cause is particular to the secular clergy, then Regulars do not seem to be included under the name of “clergy,” unless it is otherwise clear from the sentence itself, or unless they certainly share in the cause.

A mixed interdict is when not only a place is interdicted, but also equally specifically a person, determinately or indeterminately, or a community; or certainly when a person is primarily interdicted, such as a prince, and a place wherever he comes; this interdict is called by some “ambulatory” or “perambulatory.” Mention of it is made in ch. Non est vobis etc. De sponsalibus; ch. Dilectis filiis etc. De appellationibus. A general local interdict does not include a general personal interdict, nor vice versa, speaking per se, although they can be conjoined by the judge, as is plain from the cited ch. Si sententia. A particular personal interdict does not entail a particular local interdict; but on the contrary, a particular local interdict entails a particular personal one, namely of him who gave cause for the local interdict, who is simply interdicted everywhere, until the penalty is relaxed for him after he makes satisfaction, from the said chapter, Si sententia etc. Say the same of a ge-

neral local interdict entailing a personal one, as regards those who gave cause for the interdict, because a place is not interdicted except by reason of the offense of persons, whom the penalty primarily includes by its motive and cause; for everywhere the one giving cause is subject to the penalty, unless it is relaxed.

(z) It is relaxed by him who imposed the interdict, etc. Here he also adduces the moderation of Boniface VIII in the matter of interdict, which is found in ch. Alma mater etc. De sententia excommunicationis in book 6. First, as regards the administration of the Sacrament of Penance during the time of interdict. Second, as regards the divine offices and Masses to be celebrated with closed doors, in a low voice, without the ringing of bells, in the place of the interdict. Third, concerning the suspension of the interdict on the feasts of the Lord’s Nativity, Easter, Pentecost, and the Assumption of the Most Blessed Virgin, as is contained in the constitution; and this is what the Doctor intends by the relaxation of the interdict in certain cases.

The penalty of those who violate the interdict, if they are clerics, is found in ch. Is cui De sententia excommunicationis in book 6, and ch. 1 of the same title, and ch. 1 De sententia et re judicata, etc. Whence the doctors gather that they incur irregularity if they celebrate Masses or the divine offices with solemnity, except in the cases granted, and if they administer the sacraments which are prohibited.

(a) The sixth penalty is suspension, etc. He defines suspension as a prohibition from something otherwise fitting, and this for a time, etc. It therefore does not take away the power, but the use of it, and this, he says, for a time, etc. By these words he signifies the distinction of this penalty from the others. He is speaking of suspension which is merely a penalty distinct from the others; for insofar as it is inflicted by way of a censure, it presupposes contumacy and is included in excommunication as a part in a whole; nor does it have a fixed term, since it depends

on a condition that must be supplied on the part of the suspended party — namely, correction or amendment. By contrast, suspension that is merely a vindictive penalty is imposed only for a fixed time. The canonists teach the same: Innocent on c. 1. de excessibus Praelatorum, the Abbot on cap. Reprehensibilis and c. Saepe, de appellat. This is also clear from c. Eos, de tempor. ord. in 6., c. fin. eod., cap. Si quis ordinaverit, de Simonia, c. Cum in cunctis, de elect., c. cum Medicinalis, de sentent. excom. in 6., c. Sacro, de sentent. excomm., c. 1. de sentent. et re judicata in 6., c. fin. de offic. judic. delegati, in 6., Clem. Multorum, de haereticis, and Clem. de vita et honestate clericorum. From these it is clear that this penalty, as a rule, is laid down by law as temporary, except in cases of contumacy and where satisfaction must be made — as in the case set down at cap. Quia saepe, de elect. in 6., c. Praesenti, de officio judicis ordin., cap. Exigit, and cap. Felicis, de censibus in 6.

But if perpetual suspension is imposed, it has more the character of deposition than of suspension; or at any rate it does not differ greatly from deposition or from the other perpetual penalties. And if someone wishes to allow perpetual suspension along with the others, then the Doctor must be understood as noting a difference that for the most part belongs to suspension, and to it alone — which is sufficient in a moral matter. For the other penalties do not limit their time by their nature: excommunication and interdict last as long as their cause lasts, and are not lifted except by absolution or relaxation upon satisfaction being made. Irregularity and infamy by judicial sentence are likewise perpetual by their nature, as are deposition and degradation, and they do not cease of themselves but by dispensation and restoration. Temporary suspension, however, by its very nature

has a definite term, and when the time has run out the penalty also ends — without any sentence of a judge, official act, or declaration. Thus the Doctor rightly establishes this difference in a moral sense, for the other features that belong to suspension also belong, wholly or in part, to the other penalties, apart from the difference noted.

(b) This suspension is manifold, etc. — from office, from benefice, from entry into the church, from the exercise of an order received from one who could not confer its exercise, and likewise from an order knowingly received from a simoniac. The Doctor does not mention suspension from the order itself, because this is included in suspension from office laid down absolutely, which deprives one of all use of order, jurisdiction, and ecclesiastical office, as is commonly taught: cap. Cum dilectus, de consuetud., Panormitanus, Clement. Capientes, Caveant. de sentent. excomunic. in 6., cap. ultim. de cleric. excommun. injuste. One suspended from office, and likewise one suspended from order, who exercises an act of order becomes irregular: cap. Cum aeterni, de sententia et re judicata in 6. This suspension from office is understood to be from order and jurisdiction, but not from benefice — as the gloss on Clement. Capientes says. This is clear from practice, since suspension from office and benefice together is often imposed, an addition that would be superfluous if suspension from office already included benefice. One suspended from benefice is not for that reason suspended from office: gloss on cap. Unitoniensis, de elect., Panormitanus on cap. Cum dilectus, de consuetud. Navarrus qualifies this: when jurisdiction does not belong only by reason of the benefice (cap. 27 in Summa). One suspended from a benefice is suspended from receiving its fruits. When suspension is imposed simply, the greater is understood — that is, suspension from all things — because nothing limits it, and it must have some determinate effect; otherwise it would be ineffectual.

One suspended from a minor order is suspended from a major order, but not the reverse — Hostiensis on cap. Dilectus filius, de tempor. ordin., with the common opinion. One suspended from minor orders cannot ascend to major orders; one suspended from conferring minor orders cannot confer major ones. Conversely, if suspended only from conferring major orders, he can still confer minor ones (the Abbot on cap. final. de Apostat. and others).

One suspended from entry into a church cannot exercise his order in it, nor hear divine offices in it (John Andreas, Geminianus, and the Ancharanus on c. Is cui, de sentent. excommunic. in 6.); he cannot be buried in it or in its cemetery unless absolved as a penitent. He may, however, receive all sacraments outside it. For more on these matters, consult the Doctors and the Summists.

Scholium.

The last five penalties — namely, infamy, irregularity, excommunication, interdict, and suspension — do not invalidate the conferral of orders. As to degradation, if it concerns a bishop, the matter is doubtful, according to what was said in the preceding distinction, n. 6. For if one holds that [the episcopate] is not an order, it must consequently be said that the conferral of orders by a degraded bishop is null. The Doctor does not hold this view, however, as I noted there, because [the episcopate] is much more an order than are the porter and the lector.

Concerning (c) the second principal article, it is certain with respect to the last five penalties that they do not prohibit the conferral or reception of orders in fact, as is proved by Augustine, 1. q. 1. Quod quidam. The reason is that with these penalties the character of minister and recipient, intention, and the other necessary conditions on either side can stand together. By law, however, they do prohibit, so that the contrary is attempted illicitly; yet if attempted, what is intended is accomplished. The reason

for this denial is that to the Church has been given the power of ordaining her ministers, as can be gathered from the Apostle in 1 Timothy 3, where it is described what kind of men ought to be ordained as deacons. As for the first penalty, namely degradation — especially if it concerns a bishop — it is doubtful whether it precludes the conferral of orders in fact; but the arguments for and against are given in the preceding question, article 2.

To the arguments. To the first, the concession may be granted as to the first five penalties; but if one holds, with respect to the sixth penalty, that a bishop who has been simply deposed is not a bishop, then in that case the parallel in the inference must be denied, because the character of the priesthood cannot be taken away, and consequently neither can the priesthood, as the episcopate can.

To the other: intention does not suffice unless the minister is competent, which a deposed minister is not according to that opinion.

To the third: it is not parallel, because penance is a general sacrament, and so no one is excluded from it, either in fact or by law. The other sacraments, which include something of excellence, may rightly be denied to someone on account of an offense that calls for it.

As to the argument from heresy, it is true that heresy does not exclude in fact, but it does exclude by law, even if such a person is not condemned. But if he has been cut off and condemned by the Church, he does not confer orders — provided the episcopate is not an order and can simply be taken away, as those would have to answer who hold that the episcopate is not an order but a

certain dignity added on top of the orders, which pertains more to jurisdiction.

To the arguments on the opposite side. To the first, I concede that the ordination of a simoniac is invalid as to its exercise; nevertheless he does receive the order, and therefore he needs only that his suspension be lifted.

To the second: the inference does not hold, because it has been given to the minister of the Church to be a minister in conferring, not in taking away.

To the third — it will be touched on below — how the Church can make persons illegitimate and thereby disqualify them, so that they are not competent to contract marriage. But here, once the character has been conferred, there is no comparable power to take it away from them. And when it is argued that the former [marriage] is more according to the law of nature than the latter, this is true insofar as a marriage once contracted is valid, but not insofar as any and all persons, no impediment standing in the way, may contract that marriage. For it is more in accord with the law of nature that what God impresses upon nature, where it is not opposed to sin either formally or as a demeritorious cause, should remain perpetually in the soul, than that any and all persons should be capable of contracting marriage. Therefore, some disqualification of persons for this act is not so contrary to the law of nature as it would be for a character once impressed upon someone to be erased.

Commentary.

(c) Concerning the second principal article, etc. — This conclusion is certain and a matter of faith as to its first member: that these penalties do not

prevent an order from being validly conferred. But that such a person illicitly receives the order — unless ignorance excuses him — is certain from the common opinion of the theologians: he sins mortally, since he transgresses a prohibition of the Church in a most grave matter and sacrilegiously receives a sacrament. This is also evident from the severity of the penalty and of the canons. The Doctor further adds that it is doubtful whether a degraded bishop validly confers orders, on account of the controversy we explained above (preceding distinction, sole question, article 1), where we defended the affirmative side, and elsewhere concerning the minister of the order, in explaining the definition in article 2. I said the same of the episcopate as of the other orders, with the exception of first tonsure — though some hold that even this is validly conferred by a degraded bishop, on the ground that the Church is not found to have annulled his conferral of it. But on the view that tonsure is not an order, and that the power of conferring it belongs to the Church, it must rather be said, looking to the rigor of the law, that the conferral is altogether invalid, since one who is degraded loses the office and the jurisdiction of conferring it. But if a case can be presented in which such a tonsure is not repeated by the Church, it must be said that it becomes valid by ratification, which retroacts upon the act, and not otherwise by virtue of the first conferral by the degraded [bishop].

By this the response to the first and second arguments is clear. The response to the third is clear from the text. The response to the fourth is clear from what has been said: that ordination is valid even if performed by a bishop who has been cut off and condemned. The remaining responses are clear from the text and from what has been said in reply to the last argument, where he takes the law of nature broadly so as to comprise its perfection, whether natural or supernatural, and the mode of action of the First Cause impressing the character as indelible — a character that is not subject to moral corruption nor to natural corruption by a created cause.

Question 2

Whether female sex or childhood age impedes the reception of orders?

D. Thomas, in addit. q. 39. art. 1. et 2., and here q. 1. art. 2. D. Bonaventure, art. 2. per totum. Richard, art. 3. et 4. per totum. Vasquez, 3. part. d. 245. c. 2. and disp. 246. cap. 1. Bellarmine, de Sacram. Ordin., last chapter. Coccius, tom. 2.

Secondly I ask whether female sex or childhood age impedes the reception of orders. That it does not: at Galatians 3, In Christ Jesus there is neither slave nor free, neither male nor female; therefore there is no difference between woman and man in the law of Christ, just as there is none between slave and free. Therefore the sacrament of the evangelical law that a man can receive, a woman can also receive, just as slave and free can.

Furthermore, at distinction 32, Presbyter, mention is made of a presbyteress, and at 27 q. 1, that a deaconess ought not be ordained before forty years of age.

As to childhood age, it is argued likewise: it does not prohibit the reception of other sacraments, such as Baptism and Confirmation. And it seems most to the point with respect to Confirmation, since that sacrament is given for worthily confessing the faith of Christ — an act that cannot belong save to an adult, just as neither can the act of ordination. Therefore, etc.

The opposite — at distinction 23: It has been reported to the Apostolic See that women consecrated to God, or nuns, are touching the sacred vessels or sacred palls, and carrying incense around the altar — all of which is full of reproach and reproof,

as no right-thinking person can doubt. Every ministry of a woman is full of reproach.

Furthermore, at 1 Corinthians 11: It is shameful for a woman to be shorn; therefore also to receive an order, since tonsure accompanies an order as sign accompanies the thing signified. Furthermore, de vita et honest. cleric. cap. Si quis and dist. 23, it is held that clerics should not let their hair grow, but should be tonsured. Furthermore, concerning childhood age, it is held in canon dist. 77: A subdeacon should not be ordained under twenty years of age.

Scholium.

That children and those lacking reason are dishonorably ordained; that children who have the use of reason are licitly ordained to minor orders but not to sacred orders; and that in both cases the ordination is valid, even if the recipient lacks the use of reason. D. Thomas, here q. 1. art. 1. q. 2. Bonaventure, art. 2. q. 2. Richard, art. 4. q. 2. Paludanus, q. 3. Gabriel, q. 1. q. 2. Sotus, q. 1. art. 2. conc. 3. Sylvester, v. Ordo 4. q. 1. Durandus here q. 2. holds that children before the use of reason are incapable of ordination.

Here (a) I say briefly that to be excluded from an order, or from the reception of orders, or to be unable to receive orders, can be understood in three ways: namely, not to be able to receive them duly and honorably; not to be able to receive them licitly, because it is contrary to a precept; or not to be able to receive them in any way at all, even in fact, so that if the attempt is made, nothing comes of it. In the first way, a child and one without discretion cannot receive orders, because he cannot receive with due reverence such a rank as is conferred in an order. In the second way, a child cannot receive a sacred order, although he can in that way receive the lower orders.

The first is proved as follows: to the reception of a sacred order there is annexed a vow of continence, as is held in the Extra; but a child, and one not yet possessing discretion, cannot make this vow either tacitly or expressly. The second is proved because no prohibition is found that bars children from receiving the non-sacred orders.

Concerning (b) the third sense of “cannot,” I say that this is not found in a child, and this with respect to any order whatsoever, even a sacred one. For the power of carrying out some act, or the grade by which a person is able to exercise that act, can precede the act itself, or the proximate power to that act, in duration. An order is nothing but a grade that disposes one to minister in a determinate ecclesiastical grade, as was said in the preceding distinction; therefore that grade can belong to someone before, with the impediments removed, he is in proximate potency to exercising that act. Nor in this case is consent required for the imprinting of the character, just as it is not in the minor orders.

Commentary.

(a) Here I briefly say, etc. He distinguishes a threefold manner of receiving orders. The first concerns reception with due reverence and disposition, that is, honestly and fittingly. The second manner is receiving orders licitly and according to the laws. The third manner is receiving them validly and as to their effect.

The Doctor’s first conclusion is that a child cannot receive an order in the first manner before the use of reason. The second is that he likewise cannot receive a sacred order in the second manner, though he can receive a non-sacred order. The third is that he can receive an order in the third manner.

The first conclusion is self-evident. The second, as to its first part, is the common view—St. Bonaventure on this distinction, art. 2, q. 2; Richard, art. 4, q. 2, ad 3; Major, dist. 24, q. 2; Paludanus on this distinction, q. 3, and others. The Doctor’s argument is clear: the vow of continence which is annexed to a sacred order can be emitted neither tacitly nor expressly before the use of reason and liberty, since it must be a promise made to God in one of those two modes, emitted by the very one who is obligated through his own act. See Vasquez, disp. 246, c. 3, tom. 3, on the third part. Some, however, teach not improbably that, if upon attaining the use of reason a man ratifies the ordination performed and exercises an act of the order, he is bound to continence, because that ratification and exercise involve consent to the order received together with the burden attached to it by law, whether that law be divine or human—and this holds especially if it should happen at puberty.

The second part of the conclusion is clear, because by the ancient law a boy of seven could receive the first tonsure (cap. Nullus Episcopus, de tempore ordinandorum in 6), and thereafter he could likewise be marked with the minor orders (cap. De iis, etc., dist. 28).

(b) Concerning the third sense of “cannot,” etc. Here he establishes the third conclusion, namely, that little ones can be validly ordained before the use of reason. This is the common view. Some of the older writers, however, denied that an infant is capable of an order—in St. Thomas at the place cited in the scholium—and Durandus afterwards followed them on this distinction, q. 2. Peter de Soto, in his lecture on the sacrament of orders, favors this view, but only with respect to the major orders. Paludanus requires the consent of parents or guardians, without which even baptism conferred on an infant would be null—a view which we have refuted above in the same way as we refuted him on the baptism of little ones. St. Thomas and St. Bonaventure deny that the episcopate can be conferred on an infant,

because in the episcopate there is received power over the mystical body and pastoral care, for which the consent of the recipient is required.

The conclusion is clear against Durandus and Paludanus by the Doctor’s reasoning, because for receiving the power of an order it is not required that one be able to exercise that act at once, or that an act of the power accompany the power itself. For an order is a grade disposing one to ministry; therefore the grade can be present and communicated before someone is fit to exercise the act. By a similar reason, in cap. Majores, de Baptismo, the Pontiff teaches, with the common view, that the virtues are infused in baptism into infants as to habit, though not as to use until adult age; therefore in the same way the power of an order can be present as a habit, though its use is impeded during the state of infancy, because in this there is no repugnance on the side of the thing. It is also confirmed that this happens with respect to the divine institution, because no consent is required, as is plain in the minor orders, in which too there is handed over a power ordered to an act to be exercised. And it is proved a posteriori in cap. de Clerico per saltum promoto, etc., where Innocent III commands that someone who received minor orders before the years of discretion, and was afterwards ordained a priest without first having been a deacon, be ordained deacon. He commands, I say, that he be ordained deacon; he does not command that the minor orders be conferred on him again; therefore he presupposes that such ordination was valid before the years of discretion.

Second, the consent of an infant is required for the effect of ordination neither as matter, nor as form, nor as a condition—even speaking of consent in himself or of consent residing in the will of the parents; therefore he is validly ordained. The antecedent is clear, because it is plain that the matter and form do not include such consent, nor is it required even as a con-

dition, since in the matter and form of the sacrament no special dependence of ordination on such consent is to be gathered, any more than there is for the other sacraments. But an infant is capable of baptism, the Eucharist, and confirmation independently of his own consent or that of his parents, as the common view holds; therefore he is also capable of ordination. And, as has been said, the instance drawn from the capacity for minor orders proves that no such consent is required for receiving the power of the character; therefore on no count is it required. The same is to be said of the episcopate, as has been said, since it too can be conferred by consecration on someone to whom no church is conferred as a title—although by this he does not receive proximate power over the mystical body. Furthermore, the power that a priest receives of binding and loosing is a remote power, and according to St. Thomas it is one of dignity and not of order. If, therefore, it can be conferred on an infant, then so too can the episcopal power, even if it were of dignity alone; but we have said above that it pertains to order, and therefore the reasoning is the same concerning it and concerning the others.

Durandus objects that it is absurd for an infant to be made a priest or a bishop.

I reply that it is absurd in the sense of being illicit, but not absurd in the sense of being invalidly done.

He objects, second, that consent is required.

I reply that from what has been said the contrary is clear, as appears in ordination to the minor orders. Therefore, neither from the nature of this particular power nor from the nature of power in general is such consent required, when the conferral of the power takes place by command and independently of the will of the recipient. In an adult, however, something else must be said, because universally there is required his consent, present or past, for the validity of any sacrament whatsoever; and this from divine institution, in general with respect to those sacraments which consist in use—for by the common rule a person is permitted to act at his own

discretion, and the institution of the sacraments does not derogate from this.

Scholium.

That women are by divine law incapable of orders. St. Thomas here, q. 2, art. 1; Bonaventure, art. 2, q. 1; Soto, q. 1, art. 1. And the Fathers report the opposite as a heresy: Ambrose on 1 Tim. 3; Epiphanius, Haer. 49, attributes it to the Pepuzians and Quintillianists; Augustine, Haer. 27. Those, however, who hold that the minor orders are instituted only by the Church would not deny that they can be given to women—on which see Vasquez, third part, disp. 245, c. 2, and disp. 237, c. 2.

This (c) “cannot” in the third sense, however, in the case of a woman, is not to be held as something determined precisely by the Church, but is had from Christ. For the Church would not have presumed to deprive the whole female sex, without any fault of its own, of an act that could licitly belong to it, an act ordered to the salvation of the woman and of others in the Church through her. To do so would seem to be a matter of the greatest injustice, not only against the whole sex but also against the few individuals concerned. But as it now stands, if by divine law an ecclesiastical order could licitly belong to a woman, it could be ordered to the salvation both of women and of others through them. And what the Apostle says in 1 Tim. 2, I do not permit a woman to teach—understanding this of public teaching in the Church—is not said by the Apostle as one laying down a statute, but “I do not permit” because Christ did not permit it either.

The evident proof of this is taken from the fact that he did not place even his own Mother in any grade of order in the Church—she to whom no other woman could or shall be able to be compared in holiness. Natural reason, moreover, agrees with this

teaching, as the Apostle hints in 1 Cor. 14. For nature does not permit a woman, at least after the Fall, to hold an eminent grade in the human species, since it was said to her as a punishment for her sin in Gen. 3, You shall be under the power of your husband.

Against this (d): where the agent and the patient are the same and of the same species, there the effect is the same; but the bishop is the same agent, and I posit that he intends in the same way here and there, and a man and a woman, and the soul of a man and the soul of a woman, are patients of the same species; therefore if, when the bishop does some act, the soul of a man receives the character, it follows that, when he does the same act with regard to a woman, she will receive the same.

I reply: the major is true of an agent that induces a form, and of a natural agent. But if it acts voluntarily and contingently, it is not true that it does the same; rather, it could fail to act. If, moreover, it does not induce the form but only performs a certain act on which another [agent] induces it—an agent that voluntarily introduces [the form] into that patient into which it proposes to introduce it—the major is not true; and so it is in the case at hand. And this argument is good for proving that the minister performs no necessary act on which the effect of the sacrament necessarily follows, but only contingently—as for the most part, by divine pact.

To the arguments. To the first, I say that, as regards attaining glory and possessing grace, there is no distinction in the law of Christ between female and male, since she can have as much grace, and attain as much glory, as he can;

but as regards possessing an excellent grade in the Church, it is fitting that there should be a distinction between man and woman in the law of Christ, because this is consonant with the law of nature.

To the second: perhaps in Greece the wife of a priest can be called a “presbyteress,” where priests licitly make use of a marriage previously contracted. But among us Latins, where chastity—not conjugal but simply such—is annexed to the order, a “presbyteress” might be called some good matron, a widow or one perfect among other women, or perhaps in a community the one who presides over all the others, as an abbess among nuns. But she does not by this hold a higher grade of order, indeed not even any preeminence with respect to any man. In like manner one may answer the point about a “deaconess”: that the woman to whom it belongs by appointment of an abbess or of a community to read the homily at matins may be called a deaconess; but that is not the act of any order.

To the other point, one may say, as Gratian says in dist. 4, that “by the contrary practice of those who use them, certain laws have been abrogated”—as he afterwards proves there by many examples, and especially when the contrary practices rest on a new reason. So it is here. In the primitive Church boys were not at once instructed in the things pertaining to divine worship or office, and so even fully grown adults were quite rude in such matters. But now boys are at once instructed and trained in these things; and so someone today of thirteen is more sufficiently instructed in such acts than perhaps at that time was a peas-

ant of twenty-five; and therefore it is no wonder that those decrees about the age to be observed have been abrogated. And granting that by law they ought to be observed for the wholly fitting maintenance [of the order] (which, however, I do not believe), nevertheless it is not simply necessary by necessity of precept to observe them, nor simply necessary by necessity of fact—such that, if this is set aside and the order is conferred, it is truly received, and the determinate grade of ministering in the Church is conferred by him who at this time, out of the mouth of infants and sucklings perfects praise; to whom be praise unto the ages of ages. Amen.

Commentary.

(c) This “cannot” in the third sense, however, etc. The Kataphryges or Montanists, the Quintillianists, the Pepuzians—who are the same in Epiphanius, Haer. 49—used to ordain women as deaconesses of the altar, indeed even as priests, as Augustine reports in his book On Heresies, c. 27. As for the Pepuzians, who are so called from the village in which Montanus, Quintilla, and Priscilla are said to have been born, false-prophetesses, they are also called Quintillianists and Priscillianists. The Kataphryges [are named] from Phrygia; the Artotyrites from the bread and cheese which they used in their mysteries.

The conclusion proposed is of faith; hence the Fathers cited hold it as of faith with respect to the order of the diaconate, the presbyterate, and the episcopate, condemning the contrary as heresy. The universal tradition of the Church teaches the same, never extending this power to women. The Doctor rightly proves this from Paul, 1 Tim. 2: Let a woman learn in silence with all subjection; but I do not permit a woman to teach, nor to have dominion over the man,

but rather to remain in silence. He adds the reason — namely, that primacy belongs to the man: “For Adam,” he says, “was first formed, then Eve, and Adam was not seduced; but the woman, having been seduced, was in the transgression,” etc.

The Apostle suggests a twofold reason why a woman ought to remain silent in the Church: first, because she is subject to the man from creation, since she was made as a helper to him; and second, in punishment for sin, as appears in Genesis 3: “You shall be under the power of your husband, and he shall rule over you.” Augustine, in book 11 of On Genesis according to the Letter, chapter 37, [says that] by divine institution the woman is subject to the man, and therefore she cannot be capable of an eminent rank in the Church in which she would preside over a man, or publicly teach by virtue of office — from which passage Epiphanius also rightly attacks the aforesaid heresy. So too another passage which he cites, 1 Corinthians 14, proves the same: “Let women keep silent in the churches, for it is not permitted them to speak, but to be subject, as the law also says” (supply Genesis 3); “but if they wish to learn anything, let them ask their husbands at home.” See Ambrose and Anselm [on this]: what [the Apostle] said above, “I do not permit,” he here states as “it is not permitted,” to show that this is a matter of law. Now by law a priest, a deacon, and a bishop teach in the Church by virtue of office; therefore, since women cannot do these things by divine law, it follows that they are in no way capable of this eminence in the Church, either that by which they would preside over others, or that by which they could and ought to teach by law.

The twofold reason for this assigned by the Doctor is most fitting: [first,] because the entire sex could not be excluded from this rank without injury, if it were capable of it; and [second,] because such a rank in the law of the Gospel was conferred upon no woman, not even the most holy Mother, nor in the law of nature, nor under the Mosaic law, was there in women any power of offering sacrifice.

It must be said, secondly, that neither can the Church confer the clerical tonsure

upon a woman — which is against Paludanus and Almainus on the present distinction, questions 2 and 3. For although this tonsure is by the institution of the Church, and is not an Order, nevertheless it is a disposition toward an Order, and accordingly, as such, it ought to be performed upon a capable subject. Therefore, just as the Church cannot exorcize or bless a font of wine, for example, as the matter of Baptism — because it is not capable of that blessing which disposes for the Sacrament — so likewise neither can it bestow the clerical tonsure, which is a disposition presupposed by the rite for the Orders, except upon a subject capable of the Order, because a prior disposition must be made upon a subject capable of the form.

(b) Against this, where the same agent, etc. The answer to this objection, and the difference between a voluntary or free agent and a natural one, is clear from the text: when he says that upon the action of the minister the effect of the Sacrament does not necessarily follow, he excludes natural necessity and inevitable necessity, not necessity from covenant, supposing the requisites on the part of the subject.

To the first argument the answer is clear from the text.

To the second: the nomenclature derived from the order which the husbands had assumed is clear from the Council of Tours, canons 13 and 20; from the Council of Auxerre, canon 21; and from Gregory, book 4 of the Dialogues, chapter 22. In the Latin Church, after the death of their husbands, it was not permitted to a deaconess, subdeaconess, presbytera, or episcopa to pass to second nuptials, because they were bound by a vow of chastity at the time they gave their husbands license to receive Orders, as is clear from the Council of Auxerre and from the Roman Council under Gregory. Of these [women] Peter Lombard, and after him St. Thomas, understand the words of the Apostle in 1 Timothy 3: “The women in like manner chaste,” etc. Chrysostom, Theodoret, Theophylact, and Oecumenius [understand the passage] of deaconesses, whose use was found in the Church. But there were deaconesses

of another condition, who presided over women, and served in those matters which, for the sake of decency, did not befit deacons — concerning whom Chrysostom treats, and the others cited: Clement, book 8 of the Constitutions, chapters 19 and 20; canon 19 of Nicaea; chapter 11 of Laodicea; Ignatius in the epistle to the Antiochenes. Our Medina treats of these more fully in book 4 of On the Continence of Sacred Persons, and Vasquez in disputation 245, chapter 3. In whatever manner “deaconess” is taken, she had no power of Order, as is clear from what has been said, nor could she have had any.

To the third the answer is clear from the text; concerning the age and

quality of those to be ordained, beyond what has been said, see the statute of Trent, session 23, On Reform, chapters 11, 12, 13, 14, etc. Let this suffice concerning the Sacrament of Order. One could linger more at length on this matter, but it has seemed best to us, from our present purpose of expounding the text of the Doctor, not to extend the treatise, because this material can be read everywhere among the Summists, along with its particular cases. And whoever desires more, let him read the Doctors cited both in the scholia and in the commentaries, since the brevity of time and the abundance of the following material call us onward, etc.