Question — Noldin, Summa of Moral Theology
Only Question. On Ecclesiastical Penalties Themselves.
2. Definition. A penalty is an evil inflicted by legitimate authority because of transgression of law.
a. The evil inflicted by the Church as penalty consists in the privation of a good, either the possession or the use of which depends upon the Church, and of which therefore she herself can deprive the delinquent. Goods of this kind are only external goods; but they are not only spiritual goods, but also temporal goods, such as goods of fortune, reputation, liberty, etc.
b. Although the Church can also inflict temporal penalties, nevertheless ordinarily, especially with respect to lay persons, she does not employ for obtaining her ends except spiritual penalties, which consist in the privation of a spiritual good either already received or afterward to be received; wherefore ecclesiastical penalties are accustomed to be called spiritual penalties.
c. A penalty by its nature supposes fault, because it is inflicted because of a committed fault; wherefore there is no penalty where there is no fault.
3. End of ecclesiastical penalties. The threat of a penalty must be distinguished from the infliction and execution of the penalty.
a. The end of the threat is that subjects be deterred from violation of the law and be compelled by fear of the penalty to its observance.
b. The end of infliction and execution is fourfold: a. that the order which has been injured may be restored and confirmed; b. that the guilty person may be amended; c. that both the delinquent himself and others may be deterred from crime and restrained; d. that by the example of the penalty the scandal given by the crime may be repaired.
In all penalties, indeed, this fourfold end is more or less intended; nevertheless in diverse genera of penalties one end is chiefly regarded before the others. The primary and essential end is restoration of the injured order. For the injury of order, which was made by this, that the delinquent, having despised the good of order, indulged his own concupiscences, demands a certain kind of expiation and satisfaction, because the same delinquent is compelled to yield something from his own goods and to undergo an evil.1
1 Cf. St. Thomas I-II, q. 87, a. 1.
4. The cause of ecclesiastical penalty is a crime or delict. Although the names of crime and delict are for the most part used indiscriminately, nevertheless in law those actions are called crimes which are punished by graver penalties, and those actions delicts which are punished by lighter penalties.
A crime or delict is understood to be an external action or omission which disturbs the social order of the Church. And since ecclesiastical penalties are established against actions which disturb the public order, a crime or delict can also be defined: an action against which an ecclesiastical penalty has been established. But the social order of the Church is preserved by both divine and ecclesiastical laws; therefore a crime or delict is the transgression of a penal law, or of a law in whose transgression a penalty has been sanctioned.
5. Division of penalties. Ecclesiastical penalties are divided in manifold ways.
a. By reason of the subject, into personal penalty, which affects the person only, such as suspension from hearing confessions, fasting; real penalty, which punishes a person in his goods, such as privation of a benefice; and mixed penalty, which embraces both, such as excommunication, suspension from celebration.
b. By reason of quantity, into ordinary penalty, which does not exceed the measure customarily observed in this matter; and extraordinary penalty, which is imposed beyond the measure on account of special circumstances, and therefore cannot be foreseen even confusedly.
c. By reason of the mode by which the guilty person is deprived of the good, into negative penalty, by which he is barred from acquiring a good, such as the impediment of crime, irregularity from delict; privative penalty, by which he is deprived of an acquired good (a right, the exercise of a right), such as privation of active and passive voice, suspension from order; positive penalty, by which an evil is inflicted, such as a monetary fine, beating. The execution of this requires some positive action either of the delinquent himself or of another.
d. By reason of the object, into spiritual penalty, which deprives the delinquent of a spiritual good; and temporal penalty, which deprives the delinquent of a temporal good or affects him in a temporal mode, as by prison or blows.
It cannot be doubted that the Church can also inflict temporal penalties; for since she has the power of applying all means which are necessary for the end, and temporal penalties are sometimes altogether necessary so that external order can be preserved, it is certain that the Church can apply temporal penalties. Nevertheless, concerning the penalty of death and mutilation, almost all teach that the Church herself cannot inflict it; indeed, according to the opinion of many, the Church cannot even demand that it be inflicted by the secular arm: for the axiom is solemn, the Church does not thirst for blood. But according to the discipline now in force, temporal penalties are accustomed to be applied by the Church only to clerics, not to lay persons.
e. By reason of form, into a penalty of a sentence already passed, which is incurred by the very fact, i.e. by perpetration of the crime or transgression of the law; and of a sentence to be passed, which is not incurred unless it is inflicted by the sentence of a judge.
a. Only the Church inflicts penalties of a sentence already passed; the civil penal code contains no penalties of sentence already passed, but only of sentence to be passed.
b. The sentence of a judge is either condemnatory or only declaratory of the crime committed; the former falls upon the penalty which is inflicted by the judge, the latter falls upon the fault against which the penalty has been laid by law.
c. Some penalties of sentence already passed are incurred before, others only after, a declaratory sentence of the crime committed.
Before sentence there are incurred: a. censures of a sentence already passed; b. penalties which only prevent a right from being acquired, and have more the character of an inability than of penalty properly so called, as if non-resident clerics are prohibited from making the fruits their own; c. conditional penalties, which properly are a condition under which something is given; therefore if someone does not fulfill the condition, before sentence he must give up what he received under it; thus one elected bishop, if he is not consecrated within six months, must give up the episcopate.
After sentence there are incurred penalties by which the guilty person is deprived of a right already acquired, as if someone is deprived of a benefice, active and passive voice, etc.1
f. By reason of the internal end which is chiefly intended, into vindicative or punitive penalty, which chiefly tends to the punishment of the crime; and medicinal penalty, which chiefly tends to the amendment of the delinquent.
The distinctions between each must be noted: a. by a vindicative penalty the guilty person can be punished for a past delict, even after he has returned to his senses; but by a medicinal penalty the guilty person cannot be punished if he has already returned to his senses; b. a medicinal penalty is removed by absolution, which remits the penalty to one rightly disposed; but a vindicative penalty does not need absolution, but either ceases of itself when the time has elapsed or is removed by dispensation, which exempts from the penal law.
1 Genicot, Theologiae mor. institut.^2 (Louvain: Polleunis et Ceuterick, 1905), I, n. 140.
6. What ecclesiastical penalties are. All penalties which the Church inflicts can be reduced to three genera:
a. to censures;
b. to vindicative penalties;
c. to penances.
- Censures, which chiefly tend to the restoration of external order and to the amendment of the delinquent, are divided into three species:
a. Excommunication;
b. Suspension;
c. Interdict.
- Vindicative penalties, which chiefly tend to the restoration of external order and to the punishment of the crime, are some inflicted upon all, others upon clerics alone.
a. Vindicative penalties which are inflicted, or can be inflicted, upon all, both clerics and lay persons:
a. Irregularity from delict;
b. Ecclesiastical infamy;
c. Privation of ecclesiastical burial;
d. Privation of particular rights or privileges;
e. Temporal penalties, such as monetary penalty, public correction, canonical admonition.
b. Vindicative penalties which are inflicted upon clerics alone:
a. Penalties of prison;
b. Privation of the fruits of a benefice;
c. Translation to a worse benefice or complete privation of a benefice;
d. Deposition;
e. Degradation.
- Penances are public works of penance enjoined by the Church chiefly for this end, that public scandal may be repaired.1
Exercises of several days are now customarily enjoined upon clerics; but upon lay persons, either revocation before witnesses or use of the sacraments or a pious pilgrimage with reception of the sacraments.
Note. We shall treat here only censures and irregularities, since these are what it is chiefly necessary for the confessor to know, and we shall interpret more accurately only those censures which occur more frequently in the internal forum of penance.
7. On the forum of the Church. 1. By the name forum there is signified: a. both the place in which saleable things are exposed, and the place in which controversies and lawsuits are conducted; b. the territory in which a judge can exercise his jurisdiction.
- Forum is chiefly divided into external, in which public causes pertaining to the government of the Church are treated, and internal, or of conscience, in which matters pertaining to the spiritual salvation of individuals are conducted.
A faculty (of absolving, dispensing) conceded for each forum signifies: a. that a faculty which someone can or must use for the external forum also avails for the internal forum; b. that the faculty can be applied both for the external forum and for the internal forum, according as the subject matter demands it, i.e. according as the matter is public or occult.