Common Vindicative Penalties

V. Obligation of penal law, although it can be drawn from what has been said, is nevertheless usefully determined in these points:

1. A mixed penal law obliges both to placing or omitting the act and, once the things to be posited have been posited, to undergoing the penalty imposed because of the transgression (St. Alphonsus, I, 145, 147).

2. A purely penal law of itself does not oblige to the act; but it does oblige to a justly inflicted penalty. I said:

a) Of itself does not oblige to the act; since by accident a transgression of the law can involve, and, especially if there is question of the rules of religious, generally does involve, sin by reason either of scandal, or disturbance of order, or the inordinate affection from which the transgression proceeds (St. Thomas, II-II, q. 186, a. 9, ad 1; St. Alphonsus, IV, 1042). Indeed he would even sin gravely who transgressed the law from contempt; this happens "when his will refuses to be subject to the ordinance of the law or rule, and from this proceeds to act against the law or rule" (St. Thomas, loc. cit., ad 3; St. Alphonsus, I, 142; IV, 10). Likewise a religious sins gravely who, by his manner of acting, gives occasion to relaxation of regular observance (St. Alphonsus, IV, 10).

b) But it does oblige to a justly inflicted penalty. For, if this obligation were removed, a purely penal law would cease to be a law, since it necessarily imports some obligation (St. Thomas, II-II, q. 186, a. 9, ad 1; St. Alphonsus, IV, 42). Moreover, the obligation of undergoing a penalty established by civil law is not contracted except after the sentence of a judge. When and to what extent it is sometimes lawful to withdraw oneself from a penalty imposed by a judge is explained in the treatise on the duties of states of life.

Question. Whether an ecclesiastical penalty must be sustained before, or only after, the sentence of a judge.

Preliminary Note I. A penalty, considered with respect to our question, is distinguished into a penalty ferendae sententiae and a penalty latae sententiae. The former is one which is decreed by law to be inflicted by a judge. The latter is one which is inflicted immediately by law.

Preliminary Note II. The sentence of a judge is likewise twofold, declaratory and condemnatory. The former declares that the crime to which a penalty has been attached by law was committed. The latter is that by which the judge, according to the statute of the law, inflicts a penalty on the guilty party. With these things noted:

Response I. A penalty ferendae sententiae is not to be undergone before the sentence of a judge, and that a condemnatory sentence.

Response II. A penalty latae sententiae, whether medicinal or vindicative, holds the delinquent who is conscious to himself of the delict by the very fact in both forums (can. 2232). Hence of itself the sentence of a judge is not required. Nevertheless, if the delinquent cannot undergo the penalty without infamy, he is excused from the penalty unless a declaratory sentence accedes; as long as this has not acceded, no one in the external forum can exact observance of the penalty from the delinquent, unless the delict is notorious. If it does accede, it draws the penalty back to the moment of the committed delict (can. 2232).

IV. Obligation of observing the penalty. A penalty seems to oblige from the motive of the law to which the sanction has been added. Moreover, the obligation is grave of its kind. Nevertheless, fear of extrinsic and proportionate harm excuses; hence, if the delict is not notorious, even infamy excuses from observing a penalty latae sententiae, for then infamy is an extrinsic inconvenience.

From canon 2291, the vindicative penalties which can affect all the faithful according to the gravity of delicts, in the Church, especially,¹ are:

I. A local interdict and an interdict against a community or college, in perpetuity or for a predefined time or at the good pleasure of the Superior.

II. An interdict from entrance into the church, in perpetuity or for a predefined time or at the good pleasure of the Superior.

III. Penal transfer or suppression of an episcopal or parochial see; concerning this notice: 1° penal suppression or transfer of an episcopal see is reserved to the Roman Pontiff; 2° but that of a parochial see cannot be decreed by local Ordinaries except with the counsel of the Chapter (cf. canons 248, § 3; 1421; 1428).

IV. Infamy of law; concerning this note:

1. Infamy is either of law or of fact (canon 2293, § 1). Infamy of law is that which is established in cases expressed by common law (canon 2293, § 2). Infamy of fact is contracted when someone, on account of a perpetrated delict or on account of depraved morals, has lost good reputation among upright and serious faithful, the judgment concerning which belongs to the Ordinary (canon 2293, § 3).² Neither affects the delinquent's blood-relatives or affines; nevertheless infamy of fact arising from the deed of household members or blood-relatives with whom an irremovable pastor lives can be for him a canonical cause of removal (canon 2293, § 4).

2. One who labors under infamy of law is not only irregular from defect, but besides is incapable of obtaining benefices, pensions, offices, and ecclesiastical dignities, of performing legitimate ecclesiastical acts,³ of exercising an ecclesiastical right or function, and finally must be barred from exercising ministry in sacred functions (canon 2294, § 1). One who labors under infamy of fact, as long as it endures in the judgment of the Ordinary, is simply impeded from receiving orders, and must also be repelled from ecclesiastical dignities, benefices, and offices strictly so called, from exercising sacred ministry, and from legitimate ecclesiastical acts (canon 2294, § 2); nevertheless he is not incapable, and therefore he validly acquires and acts.

3. Infamy of law ceases only by dispensation granted by the Apostolic See; infamy of fact ceases when, all circumstances having been weighed and especially by long amendment of the guilty person, good reputation among upright and serious faithful has been recovered in the prudent judgment of the Ordinary (canon 2295).

V. Deprivation of burial; concerning this observe:

1. What both ecclesiastical burial and deprivation of it import was said on p. 733.

2. All baptized persons are to be granted ecclesiastical burial unless they are expressly deprived of it by law (canon 1239, § 3). Catechumens who without any fault of their own die without baptism are to be numbered with the baptized (canon 1239, § 2).

3. Those who have died without baptism are not to be admitted to ecclesiastical burial (canon 1239, § 1); yet in them this does not have the character of a penalty. But by way of penalty, from canon 1240, § 1, the following are deprived of ecclesiastical burial, unless before death they have given some signs of penitence:⁴

a) Notorious apostates from the Christian faith, or those notoriously attached to a heretical or schismatic sect, or to a Masonic sect or other societies of the same kind.

b) Excommunicated or interdicted persons after condemnatory or declaratory sentence; from this it is clear that deprivation of ecclesiastical burial depends not only on common law, but also on particular law, for the Ordinary can establish these penalties.

c) Those who have killed themselves by deliberate plan; this plan is presumed in doubt, according to canon 2200, § 2.

d) Those who died in a duel or from a wound received from it.

e) Those who have commanded their body to be handed over to cremation.

f) Other public and manifest sinners, for example those who for a long time have contemned reception of the Sacraments.

Note. If some doubt occurs in the aforesaid cases, the Ordinary should be consulted if time permits; if the doubt remains, the body is to be handed over to ecclesiastical burial, yet in such a way that scandal is removed (canon 1240, § 2); cf. also the decision of the Sacred Penitentiary handed down on p. 734.

VI. Deprivation of Sacramentals.

VII. Deprivation or suspension for a time of a pension which is paid by the Church or from the goods of the Church, or of another ecclesiastical right or privilege (cf. canons 1429; 2161; 2299, § 3).

VIII. Removal from exercising legitimate ecclesiastical acts.

IX. Incapacity for ecclesiastical graces or functions in the Church which do not require the clerical state, or for obtaining academic degrees by ecclesiastical authority; concerning this notice:

1. If there is question of things for obtaining which capacity is established by common law,⁵ the Apostolic See alone can inflict the penalty of incapacity (canon 2296, § 1).

2. Rights already acquired are not lost on account of supervening incapacity, unless the penalty of deprivation is added to this (canon 2296, § 2).

Note. The things said under 1 and 2 are said generally, and therefore are to be applied to incapacity, whether as it is an effect of infamy of law, or as it is a penalty common to the faithful under IX, or peculiar to clerics (canon 2298, 5°).

X. Deprivation or suspension for a time of a function, faculty, or grace already obtained.

XI. Deprivation of the right of precedence (canon 106), or of active and passive voice, or of the right of bearing titles of honor, vesture, or insignia which the Church has granted.

XII. Pecuniary fine. Pecuniary fines inflicted by common law, the expenditure of which is not predefined by the same law, and other fines established or to be established by particular law, local Ordinaries must expend for pious uses, not for the benefit of the episcopal or capitular table (canon 2297).

¹ Whence it is drawn that the enumeration is not taxative; therefore the Superior, the things to be observed being observed, can inflict a congruous penalty not contained in this series.

² Infamy of law alone is a true penalty, but not infamy of fact, as is also clear from the mode of cessation.

³ "According to the norm of law" is understood (cf. canon 2263), because, for example, before sentence one infamous with infamy of law would be only illicitly a sponsor in the Sacraments, but after it invalidly (cf. canons 765, 766, 795, 796); concerning the right of patronage see canon 1470, § 4.

⁴ It is not enough that one deprived of the senses has received absolution under condition, since this can be given although signs of penitence do not appear.

⁵ For example, capacity for acquiring graces (canon 36).

Meaning of the Expression “Infamous in a Certain Place.”—(a) The place referred to is either a closed community (e.g., a monastery, a college, a family) or an open community (e.g., a village, a neighborhood, a parish, a town, a city); (b) the notoriety referred to is either universal (i.e. known to all the community), or general (i.e., known to the greater part of the community), or sufficient (i.e., known to so many and such talkative persons that the whole community will shortly be made to share in it). A crime known only to one or two, or to a small circle of Christian-living persons, is not notorious.

From defect of good reputation all infamous persons are irregular, chap. Infames 17, causa 6, q. 1, whether the infamy is of fact or of law. Infamy of fact is had in two ways. It is had first through the confession of the accused in judgment, or through at least a declaratory sentence of a judge concerning a crime inferring infamy among honest and upright men, although no infamy is expressly noted in Law. Second, infamy of fact is merely of fact, or popular, and it is likewise from any public crime and from the condition or office of the person obscuring him and rendering him base in the common estimation of men, even without any judicial act. Infamy of law is also had in two ways. For it is had first through a sentence of a judge inflicting the mark of infamy. It is had second without sentence of a judge, by the Law itself, by which the mark of infamy is inflicted; namely, from crime or from the condition of the person it is noted in Law as staining and infaming. Infamy of fact properly renders one unworthy; infamy of law properly renders one irregular; and it is this which properly induces a canonical impediment.

Infamy by the law itself is had first through a qualified, evident, and public delict, or at least one so notorious that it cannot be hidden by any evasion, or when the sentence of a judge accedes, declaring or imposing the penalty of infamy. Qualified, i.e., to which infamy is annexed by Law, either by that very fact or after sentence of a judge. But the crimes to which infamy is annexed by law are the giving of gifts by regulars against the Constitution of Clement VIII Religiosae Congregationes, June 19, 1594; theft; homicide; sacrilegious homicide, chap. Petrus 17, de Homic.; perjury made in judgment; apostasy from the faith, heresy, chap. Excommunicamus 13, § 5, de Haeret.; simony; to practice sodomy, St. Pius V, Constitution Horrendum illud, August 30, 1568; the crime of lese-majesty, chap. Felicis 5, de Poenis in 6; adultery; incest, chap. Coniunctiones 2, q. 2, can. 35; bigamy, chap. Nuper 4, de Bigamis; betrayal; robbery; procuring; the exercise of usuries; Lateran Council II, can. 13; invasion of Cardinals, cited chap. Felicis, or of Bishops; abduction of women, or cooperation toward it, Trent, sess. 24, chap. 6, de Ref.; duel, as regards duellists and their seconds, not others, Trent, sess. 25, chap. 19, de Ref.; preparation of arms against parents; the exercise of actors with shameful representations, so that it is not done without mortal sin; not likewise the trade of butcher, executioner, lictor, etc., since these offices can well be exercised without sin; and other things which induce infamy from Law. Cf. Suarez, de Simon., book 4, chap. 56, n. 21; La-Croix 562 ff.; Salm., chap. 8, n. 78 ff.; Pichler, book 1, tit. 11, n. 21; Trent, sess. 24, chap. 6, de Ref. Matr., sess. 25, chap. 19, de Ref.; Can. 6, q. 1, chap. 17; chap. 4 and final, de Temp. ordin.

Second, irregularity can be incurred by the law itself because of another's infamy, as is incurred by the sons of those who have been condemned for the delict of lese-majesty, the sons born from a prostitute, the sons of heretics, and also grandchildren descending from them through the male line, provided nevertheless that it is notorious that the parents were heretics and died in heresy. Chap. 2, § 2, chap. 15, de haeret. in 6. But in order that all these incur irregularity, it is necessary that they were born after the delict. Sanchez, book 2, chap. 27, n. 14. Benedict XIV, de Syn., book 13, chap. 24, n. 21, reports the Constitution In quibusdam, de Poenis, in which the sons of a patron killing the rector of a Church, up to the fourth generation, become irregular beyond the loss of the right of patronage for all. The sons also and grandsons of those attacking or striking Cardinals of the Holy Roman Church are prohibited from receiving and exercising orders. Constitution Felicis 12, de Poenis. But this is valid only concerning sons born after the crime committed by the father. L., book 1, de His qui not. inf.; Lugo, de Fide, disp. 23, sect. 4; Resp. Mor., book 2, dub. 12; Benedict XIV, Quaest. can., q. 449; Bizzarri, p. 470 ff.