Chapter V: False Accusation of Solicitation and the New Code

IN his Constitution Sacramentum Poenitentiæ, issued on June 1, 1741, Pope Benedict XIV. decreed as follows:

"And since wicked men are found who, moved by hatred or anger or other unworthy cause, or incited thereto by the wicked persuasion of others, or by their promises, flattery or threats, or by some other means, setting aside the terrible judgment of God and despising the authority of the Church, falsely accuse innocent priests of solicitation before ecclesiastical judges; therefore in order that such wicked audacity and so detestable a crime may be checked by the fear of the greatness of the penalty, whoever shall have disgraced himself by so execrable a crime, impiously calumniating innocent confessors himself or wickedly procuring that it be done by others, let him perpetually be without hope of obtaining absolution from any priest except when in danger of death, and such absolution we reserve to ourselves and to our successors." By this decree the sin of false accusation of solicitation brought against a priest was reserved in a very special manner to the Holy See. Whatever may be said about the nature of reservation of sins in general, theologians commonly taught that this reservation of false accusation of solicitation at any rate was penal, and therefore they concluded that ignorance of the reservation probably excused a culprit from incurring it.*

I propose in this paper tentatively to examine whether the New Code of Canon Law has made any change in this matter.

It is quite clear that some change has been made. Before the new Code came into force there was no ecclesiastical censure attached to the sin of false accusation of solicitation. Canon 2363 of the new Code punishes the sin by excommunication specially reserved to the Holy See.

Canon 2363 " If anyone in person or through others lays a false accusation before superiors of the crime of solicitation against a confessor he incurs ipso facto excommunication reserved in a special manner to the Holy See, from which he cannot in any case be absolved unless he has formally retracted the false accusation and, as far as he can, repaired the damage done, if there was any, and moreover after a heavy and long penance has been given him." Canon 2229 tells us how far ignorance excuses one from incurring this censure. "Affected ignorance whether of a law or of a penalty excuses from no penalties latæ sententiæ. Ignorance of a law or even of a penalty alone excuses from no penalty latæ sententiæ if it were crass or supine; if it were not crass or supine, it excuses from medicinal but not from vindictive penalties latæ sententiæ"

* Lehmkuhl, II., n. 407, ed. 9.

A censure is a medicinal penalty and so ignorance will excuse one who falsely accuses a confessor of solicitation from the excommunication inflicted by Canon 2363 unless the ignorance be affected or crass and supine.

Hitherto when a sin was punished by a censure reserved to the Holy See, and on account of ignorance the censure was not incurred, the sin itself was not reserved and might be absolved by any confessor. However, by Canon 894 the sin of false accusation of a confessor of solicitation is reserved on its own account

Canon 894. " The only sin reserved to the Holy See on its own account is a false accusation by which an innocent priest is accused of the crime of solicitation before an ecclesiastical judge."

The sin of false accusation of solicitation, therefore, is now reserved to the Holy See both on its own account and on account of the censure of excommunication annexed to it. Even when in a particular case the censure is not incurred, still the sin will be reserved to the Holy See unless there is some reason which excuses from this reservation. Will ignorance of the reservation excuse a culprit from incurring the reservation and enable any confessor to grant absolution without obtaining special faculties? This is a practical question which I wish to attempt to solve.

We may, I think, take it for granted that this reservation of the sin of false accusation of solicitation on its own account is an ecclesiastical penalty. Ordinarily, indeed, reservation of sins is not an ecclesiastical penalty. It is not mentioned among the ecclesiastical penalties contained in the new Code. As explained in Canon 893, reservation is the calling of a case before the tribunal of a superior or of his delegate, limiting the power of inferiors to give absolution in the case. The case is supposed to be one of importance, which can only be tried in a higher court. As a case of murder, for example, cannot be tried by magistrates, so a reserved case cannot be absolved by an ordinary confessor. Neither in one case nor in the other is this provision a penalty inflicted on the culprit. It is rather of the nature of a guarantee that the case will be duly tried on its merits and according to law. However, in the case of false accusation of solicitation, there are special reasons for holding that the reservation of this particular sin is an ecclesiastical penalty. One of the references subjoined to Canon 894 in Cardinal Gasparri's edition is to the Constitution Sacramentum Poenitentiæ of Benedict XIV. quoted above. It is clear from the words quoted above that the Pope intended the reservation of this sin to the Holy See to be of the nature of an ecclesiastical penalty. The difficulty of getting absolution for the sin was intended to act as a deterrent. If anyone were guilty of the sin the reservation deprived him of the power and opportunity of obtaining absolution as easily as for other sins. We may, then, still hold that the reservation to the Holy See of the sin of false accusation of solicitation is an ecclesiastical penalty.

But to what class of ecclesiastical penalties does this reservation belong?

Canon 2215 tells us that "an ecclesiastical penalty is the privation of some good for the correction of the delinquent and the punishment of a crime, inflicted by ecclesiastical authority." By Canon 2216 we are told that delinquents are punished in the Church by (1) medicinal penalties, or censures; (2) by vindictive penalties; (3) by penal remedies and by penances. According to Canon 2306 penal remedies are such preventive measures as Admonition, Correction, Precept, and subjection to Vigilance; while penances are imposed in the external forum that a delinquent may either escape a penalty, or may receive absolution or dispensation from a penalty which he has incurred, as we are informed by Canon 2312. It seems clear that a reservation of sin cannot belong to this third class of ecclesiastical penalties. It must be either a medicinal or a vindictive penalty.

According to Canon 2216, medicinal penalties and censures are synonymous terms. There are three kinds of censure—excommunication, suspension, and interdict. "A censure is a penalty," we are told in Canon 2241, "by which a baptized person, guilty of crime and contumacious, is deprived of certain spiritual goods, or of those annexed to spiritual goods, until, receding from his contumacy, he is absolved." The element which distinguishes a censure from other ecclesiastical penalties is the contumacy of the delinquent. He is formally disobedient to ecclesiastical authority and refuses to submit. As soon as he submits, the contumacy ceases, and he should be absolved. Apart from reservation, any confessor may absolve from a censure, and, on the contumacy of the delinquent ceasing, a confessor should grant absolution. Thus a censure or medicinal penalty is quite different from the reservation of a sin. The absolution of a reserved sin does not depend on the relinquishing of contumacy. It depends on the power of the confessor. If one who has. falsely accused a confessor of solicitation wants absolution, it is not sufficient for him to repent and to abandon his contumacy. He must approach the Holy See or its delegate for such a case and obtain absolution from that source. Reservation of such a sin then, although a penalty, is not a medicinal penalty. It is neither an excommunication nor a suspension nor an interdict. It only remains that it must belong to the class of vindictive penalties.

Canon 2286 defines vindictive penalties as "those which directly tend to the expiation of a crime, so that their remission does not depend on the cessation of the delinquent's contumacy."

The Code does not give us an exhaustive list of vindictive penalties. Canon 2291 gives a list of those which chiefly affect the faithful in general They are: Certain special kinds of interdict, penal translation or suppression of the seat of a bishopric or parish, legal infamy, privation of ecclesiastical burial, privation of Sacramentals, privation or suspension for a time of an ecclesiastical pension, removal from the exercise of ecclesiastical legal acts, inability to receive ecclesiastical favours, privation of a favour already obtained, privation of the right of precedence, and a money fine. Canon 2298 gives a list of vindictive penalties which affect clerics only. They are: Prohibition of the exercise of sacred functions except in a certain place, perpetual suspension or suspension for a definite period, penal translation from an office, privation of a right annexed to an office, inability for certain offices, penal privation of office, prohibition of dwelling in a certain place, precept to dwell in a certain place, privation of the ecclesiastical dress for a time, deposition, perpetual privation of the ecclesiastical dress, degradation.

Although reservation is not mentioned, and, indeed, as we have seen, it is not a penalty of its own nature, yet when inflicted on a culprit as a penalty for crime it is similar to several of the vindictive penalties in the above lists. It approaches the nature of privation of Sacramentals in the first list, and privation of a right annexed to an office in the second. It would seem, then, that in the special case in which by the will of the legislator a reservation was inflicted as a penalty for crime, this reservation is a vindictive, not a medicinal penalty. But according to Canon 2229 ignorance does not excuse from vindictive penalties, and therefore the sin of falsely accusing a confessor of solicitation will be reserved to the Holy See even if the offender knew nothing of the reservation. It may be that this was specially intended by the Holy See, and was at least one reason why this sin alone was reserved to the Holy See on its own account.

My solution of the question is tentative, and if anyone has a different opinion on the matter, I hope he will give us his reasons for holding it.

It is sometimes said that as soon as the Church issues a new law, moral theologians set to work to whittle it away. I believe that the saying is a slander on a great and distinguished body of men. Moral theologians know that the laws of the Catholic Church tend to the sanctification and salvation of souls, and they would as soon attempt to whittle them away as they would attempt to whittle away the laws of Our Lord Himself. Any theologian who is worthy of the name tries to get at the mind of the Church, which is expressed in her laws.