c. About the Third Penalty or about Irregularity

24. The third penalty is irregularity, and this is unfitness for receiving and carrying out the acts of Orders.

25. This is incurred frequently by law, though it can sometimes be inflicted by a judge according to the laws. And it is incurred by law from certain crimes and from certain non-crimes and from certain that can sometimes be crimes and sometimes noncrimes.

α. Irregularity arising from Crimes

26. From crimes there are four that pertain to orders or to their acts. One of these is simony, another is theft in an order, a third is ministry in an order one has not received, a fourth is stubbornness in not keeping ecclesiastical penalties.

27. Simony can be either in an order or in a benefice.

But if it is in an order and knowingly, namely such that the one ordained know that he was ordained simoniacally, only the Pope gives dispensation, Gregory IX, Decretals V tit.3 ch.27, as was argued for the opposite [n.6]. For from the fact that the legislator does not altogether invalidate their consecration, it belongs to the Pope alone to relax [the penalty]. But if the one ordained is ignorant with invincible ignorance, as that his father paid the price for his being ordained, he is not made irregular unless, after it has been made clear to him, he carry out an act of the order so received. Hence after the fact about the order thus received is clear to him, he is suspended from act of the order until he is set free from such suspension.

28. But a simoniac in a benefice is not as seriously punished. However from when it is clear to him that he obtained the benefice simoniacally he is bound to resign it, and for the whole time he holds it unjustly he is bound to restitution of everything that he took part of. This is proved in diverse chapters by Gregory IX, Decretals V tit.3 ch.24, 26, 44.

29. About theft in receiving an order, draw distinctions: because either he is prohibited by the excommunication that someone may not come to the order save from that episcopacy and who has first been legitimately examined and received; or because there is no such excommunication or prohibition. And in both cases he who inserts himself furtively is irregular, but in the first case he cannot be dispensed save by the Pope; in the second he can be dispensed by the bishop. The proof is from Gregory IX, Decretals V tit.30 chs.1-2, ‘Of those who receive order furtively’.

30. About the third crime, that irregularity follows on it, is proved in Gregory IX, Decretals V tit.28 chs.1-2.

31. About the fourth there is ibid. tit.27 ch1.1-9, through the whole of it. And understand this with the greater excommunication, because as is contained there, ch.10, “although in a minor excommunication the celebrant sin gravely, yet he incurs the mark of no irregularity” - understand, even after he knew he was excommunicated.

For if he had invincible ignorance he would not be bound to keep away from the acts of order; nor would he, by exercising them, incur irregularity, as is contained in the gloss on Gregory IX, Decretals V tit.27 ch.9, namely if someone has excommunicated another by letter and wanted him to be excommunicated from the time of sealing the letter, he is not bound to hold himself to be excommunicated until the letter reaches him.

But if there not be invincible ignorance, nor incertitude in any way, as that by report or public rumor the penalty of excommunication has come to him, he is irregular, although he is to be treated more mildly. The proof is Gregory IX, Decretals I tit.7 ch.2, tit.27 ch.5. So too if the penalty of interdict not be kept, as is contained in ibid. tit.31 ch.18, ‘About the excesses of prelates and subordinates’, yet the chapter could be given a good exposition; irregularity also follows him who does not keep the suspension, as is contained in Boniface VIII Decretals Book Six V tit.11 ch.1, tit.14 ch.4.

β. Irregularity arising from Non-Crimes

32. Irregularity also follows three non-crimes, as servitude, Gregory IX, Decretals I tit.18 chs.1-8, ‘About not ordaining servants’, the whole of it. Now the reason is that a servant is the possession of the lord, and therefore ought not to be taken from him against his will; and when he is ordained he is unfit for certain servile acts. But if he has in fact been ordained, while the lord does not know and is again not consenting, the servant ought to be returned to him; however the lord should not apply him to acts that are not becoming his order, but he must serve the lord in acts befitting his status.

33. Irregularity also follows illegitimacy, Gregory IX, Decretals I tit.17 chs.1-2. And the reason is plain, because the illegitimate are presumed to be imitators of their father’s incontinence; they are also presumed to be ill compliant and badly educated. However, dispensation can easily enough be made for them; hence Benedict XI [d.1304] made dispensation easily enough for one such who without dispensation was ordained and was ministering in orders; I myself, for example, have seen the Bull of dispensation.A possible reference to a dispensation given by Benedict XI in 1303, but the identification of the relevant Bull is not certain. ⁷³

34. It also follows the third non-crime, namely an unsightly or major mutilation or infirmity, as is contained in Gratian, Decretum, p.1 d.55 ch.13, ‘About not Ordaining the Disfigured in Body’, about someone with a gouged eye, and Gregory IX, Decretals III tit.6 chs.1-6, ‘About a Debilitated Cleric’. But if the mutilation is not disfiguring, and he himself was not at fault in the mutilation, he is not excluded, as is contained in Gratian, Decretum, p.1 d.55 chs.7-9, ‘If anyone by doctors’ and the two following chapters. But if he was at fault, as if he mutilated himself, as is contained ibid., ‘If anyone has cut off’, dispensation is scarcely made for such a one. Hence Nicholas IV [d.1292] with great difficulty dispensed someone such, although he was a religious. The like must be said of an egregious or non-egregious illness.

γ. Irregularity from Two Other Sources, at Times with and at Times without Fault

35. Two others follow, that can sometimes be with fault, sometimes without fault, namely homicide and bigamy.

36. Under homicide is contained egregious active mutilation of another. And on this matter is Gregory IX, Decretals V tit.12 chs.1-9, ‘On Voluntary and Involuntary Homicide’, and Gratian, Decretum, p.1 d.55 ch.13, d.50 ch.4, ‘I wonder’, and this because of the horror of shed blood. Hence even David did the Lord not permit to build a house for his name, by the much blood shed, II Kings [II Samuel] 7.1-17.

37. But distinguish here between voluntary and involuntary. Voluntary homicide is deleted only through baptism, and then there is fitting reason [sc. to allow ordination] because the reason [sc. not to allow it] is deleted, since a man now become new through baptism is not further to be held as an object of horror. But if the homicide is simply involuntary, as when another runs on a person’s sword, he is guilty in nothing; but if involuntary in a certain respect, as that he could not escape death unless he killed, he is irregular, Gratian, Decretum, p.1 d.50 chs.52-54.

38. But if it is accidental, and he was focused on something licit and used due care, he incurs no penalty; when the second of these conditions is not met, he does incur penalty.

39. As to bigamy, which does simply introduce irregularity, as will be said below in the material on marriage [infra d.33 nn.34-39], it is contained in Gregory IX, Decretals I tit.21 chs.1-7.