Ivo of
Chartres
Ivo, Bishop of
Chartres (+c.1116), in his Decretum repeated the penalties for abortion
which had been stated by the Councils of Ancyra and Letida, and by St. Martin of Braga," but omitted the
canon Si aliquis, which had been accepted by both Regino and Burchard.
Ivo also included certain statements made by the Fathers relative to abortion,
which statements had not been published in canonical collections before his
time. Thus, none of the following statutes in Ivo's Decretum is to be
found in the collections of Regino and Burchard.
Two canons quote St. Augustine: The one embodies St. Augustine's condemnation
of interference with fetal life; the other contains his distinction between a
formed and non-formed fetus (made in interpreting the Septuagint text of Exodus
on abortion), namely, that the law considers as murder solely the destruction
of a formed fetus. A third canon accepts a pseudo Augustinian text which maintains
that animation of the fetus takes place only after it has attained a certain
stage of development or formation. A fourth canon quotes a text from St. Jerome
to show that there is no question of murder in the matter of fetal destruction
unless the fetus is formed. The remaining canon embodies a letter of Pope
Stephen V in which the Pope presupposes that one guilty of abortion is a murderer.
(Roger John Huser, The Crime of Abortion in Canon Law: An Historical Synopsis
and Commentary [The Catholic University of America Canon Law Studies 162; Washington
D.C.: The Catholic University of America Press, 1942], 38-39, emphasis added)
Concerning the Glossa
Ordinaria:
The Gloss maintains consistently that one who commits abortion is
guilty of murder. It insists, however, upon the distinction based upon the more
or less advanced stages of fetal development. That is, there can be no murder
unless the soul is present; and the soul is not infused until the body has been
properly formed or developed in the mother's womb. But in referring to this
distinction the terminology of the Gloss varies. One finds formed and nonformed,
as used in the early centuries. The expressions vivified, and animatum and
non-animatum are sometimes used. Despite the varying terminology, the
idea is the same: only when the soul is present, that is, after the fetus is formed,
can abortion be reckoned as murder. (Roger John Huser, The Crime of
Abortion in Canon Law: An Historical Synopsis and Commentary [The Catholic
University of America Canon Law Studies 162; Washington D.C.: The Catholic
University of America Press, 1942], 45)
Concerning the
Decretalists (13th century):
St. Raymond of Pennafort (+1275), in his Summa written between 1223
and 1238, asks this question: How is the perpetrator of the actions which are
proscribed by the canon Si aliquis (that is, sterilization,
contraception, abortion) to be judged regarding homicide and irregularity? The
Saint replies that one who causes an abortion is truly guilt of murder and
incurs the consequent irregularity if the fetus is already animated (formed),
for then a human being is killed. If the fetus has not been animated, then the party
responsible for the abortion is not to be considered guilty of murder, which in
its canonical effects would also entail the incurring of the irregularity, but
is to be accounted as guilty of murder only in so far as his action constitutes
the basis for a penance which is identical with the penance entailed by
real murder. The same is to be said of the one who gives a poison or does
anything which has for its effect the prevention of conception or the impeding of
gestation-that is to say, such a party will be held merely to the performance
of the penance that results from the sin of murder. (Roger John Huser, The
Crime of Abortion in Canon Law: An Historical Synopsis and Commentary [The
Catholic University of America Canon Law Studies 162; Washington D.C.: The
Catholic University of America Press, 1942], 52, emphasis in bold added)
ARTICLE III. THE TIME OF ANIMATION
It has been seen that the formation-animation theory was adopted by
Gratian as a juridical norm for judging whether abortion did or did not
constitute homicide. The Decretists, the Gloss on the Decretum of
Gratian, and the Compilationes Antiquae likewise accepted it. In the
Decretals of Pope Gregory IX the distinction between a formed and a non-formed
(animated and non-animated) fetus was admitted for the first time into an
official collection of universal ecclesiastical law. Yet in all these texts on
the question of abortion it is not stated at which precise moment one may judge
that animation has taken place. The same is true of the early Decretalists,
such as Bernard de Bottone, St. Raymond of Pennafort, and Cardinal Hostiensis.
A norm regarding the time of animation could have been deduced from
the gloss of John Teutonicus on a dictum of Gratian, which however did
not deal with abortion. This gloss stated that the male fetus is without life
for forty days before the soul is infused, and the female fetus for eighty
days. The Gloss of Joannes Andreae on a text (in no way related to abortion) in
the Constitutiones of Pope Clement V (1305-1314), promulgated in 1317,
stated that the soul is not infused until the fetus has been organized and developed
to receive it. The Gloss said that some hold this infusion to take place either
on the fortieth or on the eightieth day after conception, in relative
association with the male or female fetus.
The Gloss of Accursius (+1260) on the Digest of Justinian stated that
before forty days the fetus is not a human being-homo-but that after such time
any one who commits abortion is accountable for homicide.
It is certain that many and varied were the times advanced as norms,
yet the 40-80 day norm, as found in the Gloss, seems to have been commonly
accepted. Thus Panormitanus refers only to the latter. And according to Barbosa
(1589-1649) the 40-80 day calculation was the commonly accepted one after the
time of Andrea Alciati (1492-1550). (Roger John Huser, The Crime of Abortion
in Canon Law: An Historical Synopsis and Commentary [The Catholic
University of America Canon Law Studies 162; Washington D.C.: The Catholic
University of America Press, 1942], 55-56)
The Object of Crime
The object of the crime was the abortion of an animated fetus. Abortion
is defined by Pope Sixtus V as eiectio fetus immaturi. This definition,
in sense if not in the exact terminology, became the standard," even to
the present day. Peculiarly, before Pope Sixtus V abortion was not expressly
defined either in the ecclesiastical laws against the crime, or in the
interpretation of these laws by the authors.
The abortion punished by this legislation is the abortion of an animated
fetus. Pope Gregory XIV did not define the precise moment of animation, and
the authors, with great unanimity, held to the common norm: the fortieth day
after conception for males, the eightieth for females. That this was the
commonly accepted norm is stated by Laymann (+1635), Barbosa (+1649), Reiffenstuel
(+1703), Viva (+c.1710), Sporer (+1714), Elbel (+1756), and St. Alphonsus
Liguori (+1787). The Sacred Congregation of the Council referred to it as the
more common and the accepted opinion. In cases of doubt regarding the
sex of the fetus, the norm of eighty days was accepted.
It was pointed out by Pope Sixtus V that the abortion really had to follow-effectu
secuto-that is, mere intention or an unsuccessful attempt was not the
object of the penalties. And the effectu secuto element had to be
verified before any of the penalties were incurred. This restrictive
feature applied not merely to the excommunication, but to other penalties and
punishments as well.
It may be noted here that the qualifying condition inherent in the
phrase "effectu secuto" did not have to be verified to bring
about the reservation of sin, a reservation which the major superiors of religious
could constitute in their religious community. Diocesan and provincial synods sometimes
reserved the sin of abortion effectu etiam non secuto. (Roger
John Huser, The Crime of Abortion in Canon Law: An Historical Synopsis and
Commentary [The Catholic University of America Canon Law Studies 162; Washington
D.C.: The Catholic University of America Press, 1942], 64-65)
