Excommunication

EXCOMMUNICATION. - In current canon law it is the censure (v.) by which a baptized person is excluded from the communion of the faithful.

1. HISTORICAL NOTES

1. The censure itself

It has not been demonstrated that it draws its origin from the excommunication inflicted by the synagogue (Jn. 9:22); nor does it seem accurate to affirm that the passage of St. Matthew (18:17) substantially sanctions an excommunication, because there is no mention of a Christian punished with exclusion from the community of the faithful, but of one who by his pertinacious disobedience has placed himself outside the Church of Christ. On the other hand, the measure taken by St. Paul (I Cor. 5:3-5) against the incestuous man is a true medicinal penalty, whose specific nature, however, cannot be grasped, given the obscurity of the phrase tradere satanae in interitum carnis. Nor is the other Pauline expression sit anathema. Maran atha (I Cor. 16:22) any more intelligible to us, although for many it is the formula by which excommunication was pronounced from apostolic times. This, however, is not meant to deny that the anathema sit had indicated excommunication from the earliest centuries. And it must be acknowledged that it was a very appropriate expression, at least in its etymological meaning, whereas the word excommunicatio remained equivocal, because in the early centuries bishops of the same region often deprived some brother of (fraternal) communion without inflicting any penalty upon him, which they could not have done in the case of a non-subject. Even the Roman pontiffs more than once refused to communicate with some bishop or with his delegates, to demonstrate their indignation, without inflicting a penalty.

Excommunication as a true and proper penalty, less grave than anathema and presupposed by it, is mentioned in the Councils of Nicaea (a. 325, can. 5: Hefele-Leclercq, I, 550), of Chalcedon (a. 451, can. 21: ibid., II, p. 808), of Angers (a. 453, can. 10: ibid., II, 885), of Agde (a. 506, can. 34: ibid., II, 994; cf. also Codex canonum ecclesiae Africanae, a. 419, cann. 132-33: ibid., II, 208), of Orléans (a. 549, can. 2: ibid., III, 159). The difference is more marked in the second Council of Nicaea (a. 787, can. 6, 13 etc.; ibid., III, 781, 785 ff.) and clear-cut in certain synods held between the end of the 8th and the beginning of the 9th century. The difference was reaffirmed by John VIII (a. 878), who declares that excommunication separates a fraterna societate, while anathema ab ipso Corpore Christi (c. 12, C. III, q. 4). This difference between anathema and excommunication induced the Fathers of certain provincial councils to determine the crimes that could be punished with one or the other. The Council of Meaux (a. 845, can. 56; Hefele-Leclercq, IV, p. 124) then prohibited pronouncing an anathema not expressly sanctioned in the canons, except with the consent of the metropolitan and the comprovincial bishops, after prior admonition of the one to be censured.

Subsequently anathema indicated the excommunication inflicted or denounced with particular solemnity. It was held that the anathema perpetuum excluded the guilty party from the Kingdom of heaven and condemned him to eternal perdition with the traitor Judas. But already St. Gelasius I (in the De anathematis vinculo, ca. 495) had declared that anathema was perpetual through lack of repentance, not through irremissibility of the penalty (Pl. 59, 103 and 106). Likewise the anathema maran atha (until the Lord comes) indicated a perpetual penalty, not by its nature, but because of the subjects it struck: it was inflicted on those who were so hardened in evil as to give reason to foresee their eternal perdition.

The Decretals established the distinction between major and minor excommunication, the latter entailing only the prohibition of receiving the Sacraments and the incapacity to assume an ecclesiastical office (c. 2, X, II, 25; c. 10, X, V, 27). It has been asserted that from that time the term anathema specifically designated major excommunication. It is true that minor excommunication was never called anathema; this term, however, ordinarily did not designate pure and simple major excommunication (c. 59, X, V, 39), but that inflicted with particular solemnity. Only the excommunication against one who denies a truth of faith was constantly pronounced by the Supreme Pontiff or by ecumenical Councils with the expression anathema sit. Innocent III determined the juridical concept of excommunication, distinguishing it from suspension and from interdict (c. 20, X, V, 40), and Innocent IV, in 1245, recognized in it a clearly spiritual purpose (c. 1, V, 11, in VI). This character is confirmed in the Council of Trent (sess. XXII, c. 11, de reform.): no one can be absolved unless his repentance is established. Since bishops frequently pronounced and inflicted excommunication, often against violators of rights and goods of a temporal order, the same council admonished them not to use so formidable a weapon except with moderation and circumspection (sess. XXIII, c. 3, de reform.).

The first general excommunication for the whole Church was sanctioned in the Third Council of the Lateran (a. 1179, can. 6: Hefele-Leclercq, V, 1092-93); before long others were added. They were gathered and coordinated into a kind of single text, which was solemnly published each year with the reading of the In coena Domini, often modified and last by Urban VIII (a. 1627). In the Pastoralis Romani Pontificis of Clement XI twenty excommunications were pronounced, all reserved specialissimo modo: the excommunicated person could be absolved only by the Roman Pontiff, unless he was in imminent danger of death (L. Ferraris, Prompta bibliotheca, III, Bologna-Venice 1766, pp. 280-84). The same author recalls numerous other excommunications then in force: ninety reserved to the pope: of these 11 struck prelates of the Church, 10 secular and regular clerics, 11 regulars, 7 temporal princes and 51 all the faithful; sixty-nine not reserved, of which 4 struck bishops, 9 clerics, 10 regulars, 6 temporal princes, 8 magistrates and judges and 32 all the faithful (loc. cit., p. 285 ff.). Pius IX published a new single text of the censurae latae sententiae, with the constitution Apostolicae Sedis (Oct. 12, 1869; P. Gasparri, Fontes iuris can., III, Rome 1925, p. 28 ff.), which pronounced excommunication in 38 cases: in 12 reserved speciali modo, in 18 simpliciter to the Holy See, in 3 to the Ordinaries and in 5 not reserved. With the aforesaid constitution minor excommunication ceased (cf. I. D'Annibale, In constitutionem Apostolicae Sedis commentarii, 3rd ed., Rieti 1880).

2. Relations with the excommunicated

From the 5th century onward any relation with the excommunicated was severely forbidden, and already in the 9th century transgression of the prohibition was punished with major excommunication, and, if committed by an ecclesiastic, with deposition. But, from the 11th century, first local legislation and then the popes attenuated the prohibition: Gregory VII declared a long series of persons immune and Urban II substituted a very mild penance for the excommunication (cc. 103 and 110, C. XI, q. 3). These norms became current law by virtue of a constitution of Innocent III, which was received into the Decretals of Gregory IX (c. 31, X, V, 39).

A radical innovation in this matter is owed to Martin V, who was moved by the desire to remove from the difficult situation in which the faithful person compelled to have relations with an excommunicated person found himself; but he did not intend to alleviate the juridical condition of the latter. In the constitution Ad evitanda (a. 1418), according to a reading, perhaps not authentic, but which ended up prevailing in practice (cf. L. Ferraris, op. cit., III, p. 299), he declared that civil relations were forbidden only with those excommunicated by public sentence, or by a special and express declaration of the judge, and with those notoriously guilty of real injury against the person of a cleric. The CIC (cann. 2258 § 2, and 2343 § 1, 1º, second paragraph) was inspired by the cited constitution, although it has reduced the prohibition to very few cases.

II. LAW IN FORCE

The CIC still defines excommunication (can. 2257, § 1) as the censure that excludes the punished person from the communion of the faithful and that produces the effects listed in the following canons (cans. 2258-67). But the separation of the excommunicated person from the communion of the faithful is more a memory of the past than an actual reality: the excommunicated bishop, for example, continues to be the head of his own diocese with all the rights inherent thereto.

1. Effects

Nor is it accurate that excommunication produces inseparable effects and that these are listed in cans. 2258-67. The effects of excommunication are manifold and are established in numerous canons, which are not part of penal law. They are moreover more or less grave, according as the excommunication has merely been incurred, has become notorious, or has been inflicted or declared by sentence or penal decree; they are most grave if the excommunicated person is declared "vitandus" (to be avoided). Any excommunicated person is forbidden: a) to receive the Sa-

Sacraments; b) to celebrate and administer the Sacraments and sacramentals; c) to assist at the Divine Offices; d) to perform the legitimate ecclesiastical acts referred to in can. 2256, no. 2; e) to exercise the functions inherent in an ecclesiastical office or charge; f) to enjoy an ecclesiastical privilege; g) to elect, present, appoint; h) to obtain dignities, offices, benefices, pensions and charges in the Church; i) to perform acts of ecclesiastical jurisdiction. He does not share in the indulgences, suffrages and public prayers of the Church. If he violates the censure by performing an act of order reserved to clerics in sacris, he becomes irregular (can. 985, no. 7). If he then persists for a full year in contumacy, he is suspected of heresy (can. 2340 § 1), for all legal effects. If the faithful person has notoriously incurred excommunication, he cannot lawfully serve as godparent in Baptism (can. 766, no. 2) and in Confirmation (can. 796, no. 3 combined with can. 766, no. 2); moreover he cannot be excused from observing the censure in order to avoid infamy (can. 2232 § 1, last paragraph), nor can he be absolved by a simple confessor, in urgent cases, from the censure, if it is reserved, in accordance with can. 2254 § 1, first paragraph; finally, his active assistance at the Divine Offices must be prevented (can. 2259 § 2, last paragraph). If he has moreover been excommunicated or declared such by sentence or penal precept, he cannot lawfully receive even the sacramentals (can. 2260 § 1, second paragraph); he cannot validly serve as godparent in Baptism or Confirmation, be appointed arbitrator (can. 1931, first paragraph), exercise the right of active electoral vote, presentation or designation, perform acts of jurisdiction (can. 2264, second paragraph), obtain a pontifical grace, if mention of the excommunication is not made in the rescript: he loses the capacity to obtain dignities, offices, benefices and charges in the Churches, to obtain ecclesiastical pensions (can. 2265 § 1, no. 2 combined with § 2), and to acquire the right of patronage (can. 1453 § 1, last paragraph). Moreover he remains deprived of the fruits of dignities, offices, benefices, pensions and charges, if he has previously obtained any (can. 2266). Personally he may stand in judgment only to challenge the justice or legitimacy of the excommunication inflicted; through a procurator, to avert a danger threatening the good of his soul; in all else he lacks procedural capacity (can. 1654, § 1). If he dies without having given signs of repentance, ecclesiastical burial must be denied him (can. 1240 § 1, no. 2) with all the consequences of law (can. 1241). And if, despite this prohibition, he is buried in a sacred place, that place remains profaned (can. 1172 § 1, no. 4 and 1207).

Finally, to the "vitandus" excommunicated person, that is, to one who has been declared such in a sentence or decree of condemnation pronounced by the Holy See and published in the forms established by law, and to the guilty party of real injury against the person of the Supreme Pontiff (can. 2258 § 2), assistance at the sacred functions must be prevented, and if it proves impossible to remove him, these ordinarily cannot take place or be continued (can. 2259, § 2, first paragraph). He remains deprived not only of the fruits, but of the very dignities, benefices, offices or ecclesiastical charges (can. 2266, last paragraph). It is permitted to have relations with him in matters of a temporal order only to parents, spouse, children, dependents and those who have a just reason for doing so (can. 2267). Grave penalties are inflicted on his co-offenders, accomplices, and on clerics who admit him to the sacred functions (can. 2338 § 2).

2. Comparisons with the other censures

It is easy to grasp the profound differences between excommunication and the other censures: the interdict (v.) and suspension (v.). The first excludes the punished person from the communion of the faithful, albeit within the limits indicated above; the second, on the other hand, forbids only certain acts of communion, which differ according to the species of interdict; suspension, moreover, whose effects are separable and almost always separated, prohibits only the exercise of ecclesiastical power inherent in an office or benefice. Furthermore, excommunication is always a censure, whereas interdict and suspension can also be a vindictive penalty (v.). Finally, excommunication can strike only physical persons; therefore if it is inflicted on a moral body, only the individual guilty parties are bound to submit to it. Suspension, on the other hand, can strike either a physical or a collegial moral person, and interdict even a place (can. 2255 § 2).

3. Reservation and absolution of excommunication

In the CIC 37 excommunications are inflicted; of these, 4 are reserved to the Holy See specialissimo modo, 11 speciali modo, 11 simpliciter, 6 to the Ordinary, and 5 are not reserved (v. RISERVA).

The first strike the following most grave crimes: 1) profanation of the Sacred Species (can. 2320); 2) real injury against the person of the Supreme Pontiff (can. 2343 § 1, no. 1); 3) absolution of an accomplice in the sin of impurity, simple or qualified (can. 2367); 4) direct violation of the sacramental seal (can. 2369 § 1, paragraph 1). The second are ordinarily inflicted on those guilty of crimes against the faith or that in any case give rise to a presumption of lack of faith in the guilty party, and in particular of the following: 1) apostasy, heresy and schism (can. 2314); 2) publication, defense, retention and reading of books that uphold apostasy or schism (can. 2318 § 1); 3) simulation of the celebration of Holy Mass and of the administration of the sacrament of Penance by one who is not a priest (can. 2322, no. 1); 4) appeal to an ecumenical council against the laws, decrees and orders of the reigning Supreme Pontiff (can. 2332); 5) appeal to the secular power to prevent the issuance, promulgation or execution of acts of the Holy See or of its legates (can. 2333); 6) issuance of laws, orders or decrees injurious to the liberty or rights of the Church; preventing, by recourse to the secular power, the exercise of ecclesiastical jurisdiction (can. 2334); 7) summoning before a lay judge a cardinal, a legate of the Holy See, a major official of the Roman Curia (assessors, secretaries, undersecretaries or substitutes of the Holy Congregations and other prelates equated with them) for acts of their office, and one's own Ordinary (can. 2341, first paragraph); 8) real injury against the person of a cardinal or of a legate of the Supreme Pontiff (can. 2343 § 2, no. 1); 9) usurpation or detention of goods or rights of the Roman Church (can. 2345); 10) counterfeiting or alteration of letters, decrees or rescripts of the Holy See and fraudulent use of them (can. 2360 § 1); 11) calumnious denunciation to superiors of a confessor for solicitation (can. 2363).

The simpliciter reserved excommunications strike the following crimes: 1) sacrilegious trafficking in indulgences (can. 2327); 2) enrollment in Freemasonry or similar associations (can. 2335); 3) absolution, given with deceit without the necessary faculty, of an excommunication reserved specialissimo or speciali modo to the Holy See (can. 2338 § 1); 4) complicity or participation in a crime for which one is declared excommunicated "vitando," his admission to take part in the divine offices or communication in divinis with him, knowingly and spontaneously on the part of a cleric (can. 2338 § 2); 5) summoning before a lay judge a bishop who is not one's own Ordinary, an abbot or prelate nullius, or a superior general of a religious institute of pontifical right (can. 2341, paragraph 11); 6) violation of the enclosure of nuns or of regulars and the illegitimate departure of the former from the monastery (can. 2342, nos. 1, 2, 3); 7) usurpation or misappropriation of ecclesiastical goods (can. 2346); 8) dueling (can. 2351 § 1); 9) Marriage attempted by clerics in sacris (bishops, priests, deacons, subdeacons), and by regulars or nuns who have made solemn profession (can. 2388 § 1); 10) simony concerning ecclesiastical offices, benefices and dignities (can. 2392, no. 1); 11) removal, destruction, concealment or alteration of a document belonging to the episcopal Curia (can. 2405).

Reserved to the Ordinary are the excommunications imposed for the following crimes: 1) celebration of a mixed marriage before a non-Catholic minister, an agreement made in entering marriage to educate the offspring outside the Church, to have the children baptized by non-Catholic ministers, and to educate them in the non-Catholic religion (can. 2319, nos. 1-4); 2) manufacture, sale, distribution and exposure for public veneration of false relics (can. 2326); 3) real injury against the person of a cleric or religious, not holding one of the dignities referred to in §§ 1-3

(can. 2343 § 4); 4) willful abortion (can. 2350, § 1); 5) apostasy from a religious institute (can. 2385); 6) celebration of marriage by a religious of simple vows (can. 2388 § 2).

Here finally are the five crimes punished with non-reserved excommunication: 1) publication of Holy Scripture and of commentaries or annotations on it without the prescribed authorization (can. 2318 § 2); 2) mandate, order or coercion to give ecclesiastical burial to unbelievers, apostates, heretics, schismatics, excommunicates, interdicts contrary to the provision of can. 1240 § 1 (can. 2339, 1st paragraph); 3) illegitimate alienation of ecclesiastical goods, when the apostolic beneplacitum is required (can. 2347, no. 3); 4) coercion of a man to embrace the clerical state, and of a man or a woman the religious state (can. 2352); 5) omission of the denunciation of a soliciting confessor (can. 2368 § 2).

Can. 2330 then adopts the penalties imposed in the apostolic constitution Vacante Sede Apostolica, promulgated by Pius X, dated 25 Dec. 1904, now replaced by Vacantis Sedis Apostolicae (8 Dec. 1945) of Pius XII (doc. I in the appendix to the CIC). These are reserved specialissimo modo to the Roman Pontiff, not to the Holy See, and therefore cannot be absolved by the Sacred Penitentiary (can. 7).

Excommunications are also imposed by the penal decrees of the Sacred Congregation of the Council dated 22 March 1950 (AAS, 42 [1950], p. 330) and of the Holy Office of 9 Apr. 1951 (ASS, 43 [1951], p. 217). The first punishes with excommunication reserved speciali modo to the Holy See the crime provided for by can. 2380 (engagement in commerce by a cleric, whether secular or regular). The second splits in two the crime provided for and punished in can. 2370. It imposes on whoever confers or receives episcopal consecration, without a prior express provision (appointment or confirmation) on the part of the Holy See, excommunication reserved specialissimo modo.

The degree of the excommunication affects its absolution; the Ordinary can absolve any excommunication, except those reserved to the Holy See in public cases (can. 2237 § 1, 2), those reserved specialissimo or speciali modo in occult cases (can. 2237 § 2). Valid is the absolution, given, through error or ignorance, by a confessor not furnished with special faculty, of an excommunication latae sententiae even if reserved, provided it is not specialissimo modo reserved to the Holy See (can. 2247 § 3). Likewise general absolution removes also an excommunication latae sententiae kept silent in good faith by the penitent, provided it is not reserved specialissimo modo to the Holy See (can. 2249 § 2, paragraph 11). Furthermore, one who has been absolved in danger of death by a confessor not furnished with special faculty is bound to have recourse after recovery or the danger escaped, only if the excommunication remitted was reserved specialissimo modo (can. 2252). Finally, whoever dares to absolve, without the due faculty, an excommunication reserved specialissimo or speciali modo to the Holy See, incurs an excommunication simpliciter reserved (can. 2338 § 1).

Arturo De Iorio