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.