c. About Penalties Against Ministers who Behave Otherwise

197. And if, as to all the things on the part of the minister, whether required for the power simply (in the first member [nn.185-194]) or required in this second member (about the things required on the part of the minister for power in the way ordained [nn.185-196]), the question is asked what the penalty is for a minister who makes an attempt otherwise, I reply: if he is mute he cannot attempt to speak; if he does not have the use of reason he cannot attempt to have the due intention; if he is not a priest and attempts to do as a priest does, he is sinning mortally but also achieves nothing; he is also irregular, as is contained in the Extra under the heading ‘About a non-ordained cleric who ministers’ [Innocent, ibid.]. And universally, whoever carries out or attempts the act of an Order he does not have is irregular; it is plain from diverse cases under that heading.

198. Now the penalty for one who ministers when under any canonical impediment is that of irregularity, as is plain in Extra under ‘About an excommunicated or deposed cleric’, in diverse chapters - and this most of all if the one ministering knows such a penalty is inflicted on him.

199. But here a distinction can be drawn between ignorance of fact and ignorance of law

Ignorance of law does not excuse, because he who takes so great an act upon himself knows the laws according to which he can perform such and so great act; and therefore such ignorance of law does not excuse, but perhaps it aggravates more.

200. But ignorance of fact does excuse, as is contained in the same title there [Innocent, ibid., n. 198] - and this unless true and public repute make manifest to him that he is prevented by such penalty. This is proved by that chapter, with the same title: “Since he was sure only by repute about the judgment passed against him, he is believed not to sin if he celebrated the divine office as solemnly as possible,” to which is added: “Because in doubtful things the safer way is to be chosen; and though he might be unsure about the sentenced passed against him, yet he ought rather to abstain than carry out the ecclesiastical sacraments.” And at the end is added, “We, exercising mercy toward him, have not thought the penalty should be inflicted on him that the Canon inflicts on those who have, after excommunication, presumed to celebrate divine offices.”

201. From this is plain that the penalty incurred by canon law is mercifully relaxed for one in doubt who, after excommunication passed against him has become known by public repute, has celebrated the divine offices.

202. However, among these impediments minor excommunication is not included, insofar, namely, as the penalty of irregularity follows, because, as is contained under the same title: “although he who celebrates under minor excommunication sins gravely, yet he incurs no mark of irregularity.”

203. However, about one guilty of simony [Decretum p.1 d.33 ch.2] or a public or notorious sinner, there is doubt.

But it first seems to be solved by Decretum p.2 cause 1 q.1 ch.21: among those who must not be promoted is named he who has, in imitation of Simon Magus, offered money for the purchase; and in Decretals V tit.3 ch.2 Pope Gregory condemns simoniacs altogether and decrees by apostolic authority that they be removed from office; and this is spoken of in the text there and in the gloss. Therefore such a person seems, because of canonical penalty, simply unsuitable for acts of Order, just as he must, because of the authority cited, be altogether expelled from the clergy.

204. About a public or notorious sinner, it is certain that, before penance, he sins mortally by confecting, not only because he is in a state of mortal sin but also because he causes scandal.

205. But is he irregular?

A penalty inflicted on him for this is perhaps not found in the canon, for although he is prohibited by Decretum p.1 d.32 ch.5, “Let no one hear the mass of a priest whom he knows without doubt has a concubine” and from this it would seem that he is forbidden to celebrate (because he is more strictly bound to avoid celebrating than the hearer is from hearing, and consequently, if he celebrates, he acts against the precept of the Church), yet this consequence is not necessary in penalties, because ‘penalties are not to be amplified’ [Ord. IV d.6 n.185]. And sometimes communication with him in any act is forbidden, so that he may recover himself and be corrected; but the penalty of irregularity is not inflicted on him if he performs this act.

206. The same could be said of a public usurer, who also persists in his sin of usury.

207. However, about an infamous person who has repented of his sin but has not yet been fully restored, whether he would be irregular when celebrating - one should not say that he would be unless it is found in Canon Law that this penalty is to be inflicted on him.

208. Now as to someone who celebrates without all or some of the ornaments, or celebrates with non-consecrated ones - that the penalty of irregularity is imposed is not found in Canon Law.

209. Briefly, since this penalty is one of Canon Law, it is not incurred when it is not inflicted.

210. No condition, therefore, required on the part of the minister and not observed, makes him incur irregularity save lack of priesthood and some canonical penalty prohibiting or removing him simply from exercise of the priesthood. And consequently someone not prohibited by such penalty does not incur irregularity when confecting. So irregularity is not incurred because of sin (unless it is of the sort that has a canonical prohibition annexed to it), nor because of failure to observe the fast, nor because of lack of due ornaments, nor briefly because of anything else not contained under those stated above.