2. About the Six Canonical Penalties

13. Now there are in specifically six canonical penalties of this sort, namely: deposition or degradation, infamy, irregularity, excommunication, interdict, suspension. About these in order: both about individual ones in themselves (and how they are incurred and by what remedy they are remitted), and by comparing them to each other as to seriousness and permanence.

a. About the First Penalty or about Deposition

14. The first, namely deposition, is the greatest, because it is the total removal from the clerical state. And if degradation be removal from every clerical rank, then deposition and degradation are the same thing. But if degradation is deposition only from a determinate rank, with however some other rank kept (as from the rank of the priesthood with some clerical rank remaining), then degradation is a penalty that is partial with respect to deposition.

15. But how is the one deposed removed from clerical state and rank? I reply: not because the character of order is taken from him, nor consequently the orders he received; but the license to execute the act of any order is taken from him, and he is also deprived of everything that belongs to the ordained. Hence such a one is handed over to secular care so that, as concerns ecclesiastical acts and the protection of ecclesiastical persons and as to forum, he is totally excluded from the number of ecclesiastical persons.

16. How is this penalty inflicted? I say that never by the law, but it has to be inflicted precisely by a judge. And the form according to which it has to be inflicted is contained in Boniface VIII Decretals Book Six, V tit. 9 ch.2. Now the causes for which it is inflicted are enormous sins, as heresy, schism, revealing confession. About the first is Gregory IX Decretals V tit.7 ch.9, about the second Boniface VIII ibid., tit.3 ch.1, about the third Gregory ibid., tit.38 ch.12.

17. How is it remitted? I say only through complete restoration by him who is able to restore, who is posited to be the Pope alone, although someone legitimately deposed is not read to have been restored afterwards.

b. About the Second Penalty or about Infamy

18. The second penalty is infamy, which is the state of injured dignity concerning life and morals, as reputation is the state of uninjured dignity concerning life and morals.

19. And this injury is incurred in diverse ways.

Here one needs to know that being infamous and being defamed are not the same thing. He is defamed who is publicly accused of some crime. But someone is not infamous because of such imputation of crime, but either because of a public crime publicly committed (as that if he has committed perjury or publicly committed any other crime because of which the law determines someone to be infamous), or because he is judged infamous by a judge before whom his crime is proved, such that everyone infamous has been publicly noted of a crime that the law punishes with the penalty of infamy. But sometimes one is not convicted of this in a court, and then one is infamous only by law and not by a judge; sometimes one is convicted and punished with such penalty by a judge, and then one is infamous in both ways, both by law and by judge.

20. From this the second point, how infamy is contracted, is clear. For the first infamy is contracted by the imposition of a crime that makes infamous; the second is incurred by law or judge punishing such crime with such penalty.

21. But what is the cause because of which infamy is incurred in the second way? Gratian, Decretum p.2 cause 6 q.1 ch.2: “We say that all those are infamous whom the secular laws call infamous.” Therefore, those secular laws that punish the crime of infamy are canonical laws, and those laws are contained in the Digest of Justinian, III tit.2, ‘Of those who are noted for infamy’.

22. What is the remedy against this penalty? I say that against infamy in the first way, when someone is defamed [n.19], there is a canonical cleansing, from Gregory IX Decretals tit.34 ch.8, ‘On Canonical Cleansing’. For the cleansing totally takes away the first infamy. Against infamy in the second or third way (which are as it were the same, though from diverse sources, law and judge) there is no remedy save complete restitution by him who can so restore it, ibid. tit.20 ch.54, ‘On Witnesses’, ‘Testimony’ [“He is turned away from testimony who has been convicted of or confessed a crime...; if he has not done penitence, let him be turned away even in a civil case”].

23. This penalty is graver, as to civil life, than deposition, unless deposition include it, because it is a prohibition against any legitimate act, even after penitence has been done, for such a person is base, Boniface VIII Decretals Book Six V tit. 42, “To the infamous the gates of dignity should not be open.”

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.

d. About the Fourth Penalty or about Excommunication

40. The fourth penalty is excommunication, about which there is what was said in distinction 19, the fifth article of the solution [dd.18-19 nn.67-80], and this as concerns the greater excommunication,a which is excommunication simply - for indeed the lesser excommunication is only excommunication in a certain respect, because it excludes from the communion of the faithful in a certain respect, namely in the sacraments.

a.a [Interpolation] The greater excommunication is exclusion of someone from the communion of the faithful - not indeed the bodily exclusion that happens in sequestration or incarceration or exclusion of that sort from others, but by excluding him through prohibiting him communicating with others and others with him.

41. Plain too is it from where it is incurred, because sometimes from the law sometimes from a judge. And indeed, it is sometimes possible to state the number from the law; nay, it was a small number when the Decretals were first compiled under Gregory IX [1234AD; from the Prolegomena to the Collection of Decretals]. But today who is sufficient to number them? And though the numbers are growing to infinity, with the growing movements of heads, it is not necessary to fill up whole pages about the matter.

42. However I say this, that it should not be inflicted by law or judge save for mortal sin, and not for any mortal sin but a grave one, a sin that stubbornness also accompanies; for as long as someone is ready to make satisfaction for fault and hears the Church, why is he to be regarded as a heathen or a publican? - since, according to Christ [Matthew 18.15-17], this penalty is inflicted as the ultimate one on him who does not wish to listen to the Church, who is finally stubborn.

43. Now it was stated above [dd.18-19 nn.66-68] who the minister of law is in inflicting this penalty; and, as for excommunicating simply, no one is suitable as minister save he to whom all the faithful are subject, and therefore no one else save as delegated with his authority.

44. How is excommunication relaxed?

I reply with an absolution given by him who did the excommunicating, if it is excommunication by a judge or by his superior.

45. But if it is by law, through absolution of him who established the law - and not this alone, as many say [Bonaventure, Thomas Aquinas, Richard of Middleton], but through absolution by any priest when the legislator not reserve the absolution for himself. And they prove it [Richard of Middleton] through Gregory IX Decretals V tit. 29 ch.29.

46. But this proof is of little force, because the inference ‘he does not reserve it, therefore he conceded it’ does not hold when speaking of form of consequence according to laws, because ‘able to absolve’ falls under the rule “what is not conceded seems to be prohibited” [a juridical axiom or ‘brocard’ cited, among others, by Henry of Ghent], because to absolve from a sentence of excommunication inflicted by a superior does not belong to anyone unless it have been conceded to him.

47. And comparing this penalty to the preceding penalty [sc. the third, irregularity], this one is simply more serious as to intensity, because it excludes from any communion that is otherwise permitted, while the preceding one excludes from those that pertain to orders; but this one is reckoned lighter because it is more easily remitted.

48. But it is to the opposite effect: for this one is more easily remitted for the reason that it is the most serious and excludes from more things. And these two penalties, namely of irregularity and excommunication, can be both public and private, and insofar as they can be private they are less serious than either of the preceding ones [sc. the first and second penalties of deposition and infamy], which two preceding ones are always public.

e. About the Fifth Penalty or about Interdict

49. The fifth penalty is interdict, which is restriction from exercising certain ecclesiastical acts, or from assisting in certain such acts. And although this penalty sometimes could be inflicted on a place and not on a person, sometimes on a person and not on a place, sometimes on both (and as it is inflicted so must it be kept), yet, as it is a penalty distinct from the rest, it is more frequently inflicted on a place and not on persons not yet in the place, as namely that in such a place it is not licit solemnly to celebrate divine service, or for others to take part.

50. And this penalty of interdict is sometimes contracted by law, sometimes by a judge. An example by law occurs about those who receive usurers from outside, Boniface VIII Decretals Book Six V tit.5 ch.1, “Abyss of usurers,” and for innumerable reasons. More usually, because of disobedience common to the people of a land, it is relaxed by him who imposed the interdict; sometimes it is relaxed in certain cases by law, as is plain in Boniface VIII Decretals Book Six V tit.11 ch.24, “Kindly Mother Church.”

f. About the Sixth Penalty or about Suspension

51. The sixth penalty is suspension, which is prohibition from an act otherwise suitable, and this for a time. And herein is this penalty specifically distinguished from the rest.

52. The penalty is also manifold: for one is suspension from office, one from a benefice, and one from entering a church; and the last is sometimes incurred by the law itself, Boniface VIII Decretals Book Six V tit.14 ch.1 and tit.11 ch.1.

53. And there is also suspension in receiving orders from a bishop who has renounced such place and dignity, for he who does not have the execution of orders does not confer the execution of orders; and so if he confer orders, and yet he who receives them does not have execution of them, he is therefore suspended, Gratian, Decretum, p.2 cause 1 q.7 ch.24, Gloss on Gregory IX, Decretals I tit.13 ch.1, ‘About those ordained by a bishop who has renounced the episcopacy’ [“He is suspended who receives orders from him who is suspended”]. Similarly about someone who is knowingly ordained simoniacally, as was said above [nn.27-28].

54. But it is removed by relaxation of such suspension done by him who put it in place, or by his superior.