Article — Prümmer, Manuale Theologiae Moralis
Article I. On The Notion And Division Of An Ecclesiastical Penalty
469. Notion. A penalty in general can be defined: an afflictive evil inflicted against the will of the sufferer in vindication of his sin;1 or also: an affliction inflicted by legitimate authority upon a guilty person because of the transgression of a law or precept; or briefly: "a penalty is the vindication of guilt."2 But if this evil is inflicted by legitimate ecclesiastical power, there is an ecclesiastical penalty, which is "the privation of some good, inflicted by legitimate authority for the correction of the delinquent and the punishment of the delict."3
The evil which is inflicted as a penalty by ecclesiastical power consists in the privation of some good which falls under ecclesiastical jurisdiction. Such goods are not only spiritual goods, but also temporal goods. Hence the Church has the right to take away the exercise of order, jurisdiction, and union with the Mystical Body of Christ, to deprive one of the revenues of a benefice, to inflict the penalty of imprisonment, and so forth. According to the discipline now in force, however, ecclesiastical penalties are not accustomed (at least for the laity) to consist except in the privation of spiritual goods.
1 Cf. St. Thomas, S. theol. 1, q. 48, a. 5; Billuart, De peccat. diss. 7, a. 4. There is no leisure here to treat the many theories devised by authors concerning the nature of penalty. See Cathrein, Moralphil.4 II, 663 ff.
3 Code of Canon Law, c. 2215.
470. The cause of a penalty is a crime or delict that is a) external; b) grave.
Although the Church perhaps has the power to punish even purely internal evil acts, nevertheless in fact she does not do this, but leaves the punishment of these acts to divine justice. A light delict is not punished with an ecclesiastical penalty properly so called, since otherwise penalties would become too numerous. Therefore the Code of Canon Law, c. 2218, § 2, establishes: "Not only those things which excuse from all imputability, but also those which excuse from grave imputability, likewise excuse from every penalty, both latae sententiae and ferendae sententiae."
According to the usage received in modern penal laws, crimes (Verbrechen) are distinguished from delicts (Vergehen). A crime is a graver evil action, which in modern penal law is customarily punished with a grave penalty of imprisonment; a delict, however, is an external action not so gravely evil, which is punished with a pecuniary fine or other light penalties. In ecclesiastical law, crime, delict, transgression, and wicked deed are not rarely taken interchangeably; but by the name of delict is understood an external and morally imputable violation of law, to which a penal sanction, at least an indeterminate one, has been added.4 - Delicts are distinguished as occult, public, and notorious. A delict is occult when it is known either to the evildoer alone (wholly occult) or to a few discreet persons (nearly occult). A delict is distinguished as materially occult if the very fact of the delict is hidden, and as formally occult if not the fact, but its imputability, is hidden. - A delict is public when it has already been divulged, or at least has occurred or exists in such circumstances that it can, and indeed must, prudently be judged that it will easily be divulged. - A delict is not only public but also notorious: a) after the sentence of a competent judge has passed into a res judicata, or after the judicial confession of the delinquent (notoriety of law); b) if it is so publicly known that neither the fact itself nor its imputability can any longer be concealed5 (notoriety of fact).
The end of an ecclesiastical penalty is twofold, namely, the good of society or the good of the delinquent to be obtained.
First, therefore, and principally, an ecclesiastical penalty intends the good of society. For through a crime public order is injured, and scandal is also often given; but through penalties the order injured and any scandal perhaps given are repaired. Hence St. Bonaventure says: "That which is disordered in fault is best ordered in penalty."6 An end of a penalty is also, by threatening it, to deter from perpetrating a crime. - Besides this end of preserving public order, a penalty often intends the amendment of the guilty person, and thus becomes, as it were, a medicine for recovering spiritual health. All censures properly so called, for example, have such a medicinal character.
4 Cf. Code of Canon Law, c. 2195.
5 Cf. ibid., c. 2197.
6 4, dist. 15, P. 2, a. 1, q. 3. - Since there is a threefold order injured by the delinquent, namely, the order of one's own reason, the order of temporal governance, and the order of divine rule, the delinquent incurs a threefold penalty: "one from himself, which is remorse of conscience; another, however, from man (that is, from a legitimate human superior); a third, however, from God." St. Thomas, S. theol. 1, 2, q. 87, a. 1.
471. Division of Penalties. Among the many divisions of ecclesiastical penalties, the following seem more conducive to our purpose.
- By reason of the end, penalties are distinguished as vindicative and medicinal.
A vindicative penalty (which is also called punitive) principally intends the reparation of the order injured and the instilling of horror. Such penalties are degradation, deposition, privation of a benefice, and so forth. Sometimes they are inflicted for a merely past crime, even if the guilty person has already come to his senses.7 A vindicative penalty is remitted through dispensation. - A medicinal penalty primarily intends the amendment of the guilty person and therefore is never inflicted because of a merely past crime of which the delinquent has already sufficiently repented. Such a penalty is remitted through absolution.
- By reason of the author, penalties imposed a iure and ab homine are distinguished.
Penalties a iure are those which are established by the law itself (whether they are latae sententiae or ferendae sententiae) against determinate crimes. Penalties ab homine are those which a legitimate judge or superior justly inflicts upon a delinquent by way of a particular precept or through a condemnatory judicial sentence. But although some penalty may be ferendae sententiae in the law, for example, suspension from hearing confessions to be inflicted upon a soliciting confessor, nevertheless that same penalty, after the condemnatory sentence of a legitimate judge, is considered as imposed ab homine; and therefore it is reserved.8
- By reason of the object, spiritual penalties, which deprive one of a spiritual good, for example, the suffrages of the Church, and temporal penalties, which afflict the delinquent with a temporal evil, for example, imprisonment or a pecuniary fine, are distinguished.
It cannot be doubted that the Church has the power to inflict temporal penalties also.9 For it can sometimes happen that public order cannot be preserved without penalties of this kind. But the power of the Church extends to all those things which are necessary for preserving her public order. In ancient times the Church not rarely inflicted such temporal penalties, but today she is no longer accustomed to employ them except against delinquent clerics and religious. - It is disputed whether the Church has the power to inflict even bloody punishment, for example, mutilation of members or capital punishment, since according to the common adage, "The Church shrinks from blood." In fact the Church has never employed bloody punishment, but her power to inflict such penalties - if they are truly necessary for preserving public order - can scarcely be denied.10
- By reason of the form, penalties latae sententiae and ferendae sententiae are distinguished.
The former are those which are incurred by the very fact of the transgression or crime, without any sentence of a judge, at least a condemnatory one, being necessary. The latter are not incurred except after and through a condemnatory sentence of a judge.
The penalties of civil codes are customarily ferendae sententiae; but in ecclesiastical law there are several penalties latae sententiae, for example, many censures, of which there will be discussion below. But even in ecclesiastical law a penalty is always understood to be ferendae sententiae, unless it is expressly said that it is latae sententiae, or is incurred ipso iure, ipso facto, without another sentence, or unless other similar words are employed. Penalties expressed by these or similar words, however, are considered ferendae sententiae: let him be excommunicated; we command under the penalty of excommunication, interdict, privation of offices, and so forth.11
Note. Although penalties latae sententiae require no condemnatory sentence of a judge, nevertheless some penalties of this kind still require a declaratory sentence of a judge concerning the crime committed. Thus, for example, penalties of privation of a benefice or of active and passive voice which are to be incurred ipso facto are accustomed to require that a legitimate judge declare that the guilty person truly committed the crime on account of which those penalties were imposed by the law. Such a declaratory sentence, however, carries the penalty back to the very moment when the crime was committed.12
7 Code of Canon Law, c. 2286.
8 Ibid., c. 2217, § 1, n. 3.
9 Hence Pius IX condemned the proposition: "The Church does not possess the right of coercing violators of her laws by temporal penalties" (Denz. n. 1697; cf. Syllab., prop. 24; Denz. n. 1724; Code of Canon Law, c. 2214, § 1). Vacandard, L'Inquisition, 304 ff., spoke less correctly concerning this matter in our times.
10 Cf. Tarquini, Inst. iur. eccl., n. 47.
11 Cf. Code of Canon Law, c. 2217, § 2.
12 Ibid., c. 2232, § 2.
472. List of Ecclesiastical Penalties Existing Today. All the penalties which the Church inflicts can be reduced to three kinds; namely, they are:
Censures or medicinal penalties: a) excommunication; b) suspension; c) interdict.
Vindicative penalties, which are inflicted principally for the reparation of injured public order, for the punishment of the guilty person, and for deterring others from the same crime. Of such vindicative penalties, some are inflicted upon clerics alone, while others are inflicted also upon the laity.
a) Vindicative penalties upon clerics or religious alone, for example, privation of an ecclesiastical benefice or office, privation of active and passive voice, deposition, and degradation. Twelve such penalties are enumerated in the Code of Canon Law, c. 2298.
b) Vindicative penalties which can be imposed either upon clerics or upon the laity, for example, privation of ecclesiastical burial, ecclesiastical infamy, irregularity from a delict, and temporal penalties, such as a pecuniary penalty, public correction, and so forth. Likewise twelve such penalties are enumerated in the Code of Canon Law, c. 2291.
- Penances and penal remedies, which are inflicted as penalties partly vindicative and partly medicinal; they are certain works of penance enjoined by the Church chiefly for this end, that public scandal may be repaired and the delinquent corrected.13 According to the discipline in force, penances of this kind are sometimes employed against delinquent clerics and religious, and consist, for example, in Spiritual Exercises, in correction, in fasting, and in other works which are indeed laborious but not so hard.14
13 Cf. Council of Trent, sess. 24, c. 8, de reform., and Noldin, De poenis eccl.12, n. 6.