Question Two. What the Penalty is for Those who Repeat Baptism

169. Following on from this I ask what the penalty is for those who repeat baptism.

170. I reply:

Baptism can be repeated either by conferring it again, or by receiving it again -and doing it, whether this way or that, in ignorance or knowingly.

171. A distinction can be made about ignorance, because one kind is ignorance of the law and another is ignorance of the fact.

172. But it is not necessary for the issue at hand, because ignorance of the law in the case of this fact, whether in the receiver or the conferrer, does not excuse.

173. For either ignorance can be understood as ignorance of the divine law, which prohibits the repetition of baptism, and it is plain that ignorance of such a precept does not excuse from sin, nor from the penalty to be inflicted by God for sin.

174. Or it is understood as ignorance of the canon law that inflicts the penalty. And this ignorance too does not excuse form incurring the canonical penalty; for when a canonical penalty is added to something that is illicit by divine law (so that it may be the more avoided), knowledge of the canon law is not necessary for the canonical penalty to be incurred; but it is sufficient that one be bound to know the divine precept. And if this precept is transgressed, the transgressor incurs the canonical penalty, even if he not know that a penalty is inflicted by canon law.

175. For when, in this way, someone who strikes a cleric does it against the divine precept about fraternal charity, then even if he not know that excommunication is inflicted by the canon that is about such a deed [Gratian, Decretum, p.2 cause 17 q.4 ch.29], yet he would incur excommunication. And he who kills a man, though he not know the canon that punishes a murderer with the punishment of irregularity [id. p.1 d.50 ch.7], yet he would be irregular. And there is the same reason in all these cases, because such a person is giving his attention to an illicit thing, about which he should know that it is illicit; and if he not know, in no way should he carry it out until he consult the experts, from whom he could know it was illicit.

176. Thus one only therefore needs, in the issue at hand, to distinguish between knowingly repeating baptism and doing it in ignorance - when speaking about knowledge and ignorance of fact, that is, that it is known or not known that someone has been baptized and is now being baptized again.

177. I say therefore that if repetition is done knowingly in this way, both the recipient and conferrer are irregular, as is contained in Gregory IX, Decretals, V tit.9 ch.2.

178. But there is, if it be done publicly or in secret, a difference as far as concerns the fact that dispensation in one of these irregularities is easier than in the other; and dispensation is perhaps through a bishop in one, as the private one, and only through the Pope in the other, as is plain there [in the Decretals]. And this is the understanding if the repetition be done absolutely; for if, because of some plausible doubt, someone, without deceit, use about another the form of that chapter ‘Which cases there is doubt about’ [Decretals III tit.42 ch.2; supra n.58], he is not irregular.

179. But if the repetition be done in ignorance, it is saidThis opinion, as here expounded, is put together by Richard of Middleton [Sent. IV d.6 princ.4 q.2] from the statements of glossators, “Some say that he who receives baptism a second time, although he be ignorant he was baptized before, is irregular. Hence Decretum p.3 d.4 ch.117 etc.” ⁴⁵ that he who receives it again, though in ignorance, is irregular. It is proved through Gratian, Decretum part 3 d.4 ch.117 [cf. n.165], where it is said that “Those who are baptized twice in ignorance do not need to do penance for it, save that they cannot be reduced to order according to the canons unless compelled by a heavy necessity.” And it is plain that this chapter is speaking of ignorance of fact; for if the ignorance were ignorance of law, penance would be necessary. Nor does the additional remark “unless compelled by a heavy necessity” take away the fact that such a person is irregular; for that remark is added for this reason, that in such a necessity dispensation would have to be made for him. This is how the canonists would speak.

180. But it does not seem that, according to reason, it has greater weight as to the one baptized than as to the baptizer; because someone baptizing a second time, not knowing that the person was baptized before, would not be irregular; for no priest is bound to make a strict investigation whether an old woman has baptized a child at home. But now it does not seem that he who, in ignorance, is baptized a second time is more to be punished than he who baptizes but less so, because he seems to be seeking his own salvation, lest it be in doubt.

181. Nor even does the authority of the chapter ‘Those who are baptized twice’ [n.179] seem sufficiently certain; for no one can inflict irregularity on the whole Church save the head of the whole Church; but that chapter, as it is there entitled [sc. in the Decretum], is taken from the Penitential of Theodore [I ch.10 n.1], who was bishop of Canterbury; therefore, insofar as it from this author it has no strength to inflict a penalty of irregularity.

182. Therefore it is necessary to say [sc. to give universal authority to Theodore’s decision, n.181] that any chapter whatever incorporated in the body of decrees by Gratian is confirmed by the Pope; or it is necessary to say that many chapters placed there [sc. including that from Theodore] do not bind the whole Church. But whence it could be taught that the Pope confirms all the chapters placed and compiled there is not manifest.

183. Nor either is it manifest in the way it is manifest about all the chapters placed in the Decretals, for there in the preface Gregory IX, writing to doctors in canon law, bids them to be content with this compilation in the schools and courts. And Boniface VIII, in the preface to the Sixth Book [of the Decretals] bids that, among the constitutions edited from the time of Gregory IX up to his own time, only those have force that are there inserted.

184. And if you say, “Although Theodore was not able to establish a law, yet he indicated that the Pope established it when he says ‘according to the canons’ [n.179] - I reply: the glossator should add this, because this gloss is necessary; but he put no gloss showing where a canon on this matter was published. And here, as in many other places, the useless occupation of the glossators on canon law appears, who multiply concordances and authorities for one word, and at their end there is nothing to the purpose - and elsewhere, where there is a word of the greatest weight on which the judgment of the whole chapter depends, they pass over it keeping their feet dry (as is plain about Bernard in many of the Decretals, where is put the remark “under threat of anathema;” for example on ‘About Bowmen’ he disputes whether the words express a sentence that is already passed or whether it carries a threat, and he goes backwards and forwards).Decretals of Gregory IX with glosses V tit.15 ch.1, “Innocent III: The practice of the death-dealing and hateful art of catapultists and bowmen against Christians and Catholics we prohibit from now on under anathema.” Bernard of Pavia in the gloss, “‘Under anathema’: it seems that the canon is of a sentence already passed. Argument: for it matters a great deal whether something is prohibited by a law under anathema. ..or by a man; and then it seems that he is excommunicated. As argument for this: That if a judge say, ‘I command under penalty of excommunication’ or ‘I command under threat of excommunication’ or ‘of anathema’ or ‘under excommunication’ ‘that you do this’, the one who does the contrary is not excommunicated but is to be excommunicated. And everything is understood similarly when excommunication has been thus passed under a condition, ‘I excommunicate everyone who enters [ecclesiastical] orders secretly’, and then he who does the opposite is excommunicated.” ⁴⁶

185. It could, therefore, be said (however much it helps) that, provided the ignorance of fact is not deceitful but probable, it totally excuses him who receives baptism just as it excuses him who confers it; for universally, a canonical penalty is not incurred unless it is imposed by the one who passed the canons. When therefore the penalty is not found inflicted by the force of the words, one must simply then say that there is no penalty; for the words of penal constitutions are not to be extended but restricted, according to the maxim of law [Boniface Sixth Book of Decretals V tit.42 reg.15, “Hatreds are fittingly restricted and favors expanded”].