Ecclesiastical Penalties in General

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.

1. 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.

2. 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.

3. 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.

¹ Cf. Council of Trent, sess. 24, c. 8, De reform.

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.

2. 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.

I. To the Church belongs the right, and that native and proper, and independent of any human authority, of coercing delinquents subject to her by penalties, both spiritual and even temporal (canon 2214, § 1). This is drawn from Sacred Scripture;¹ from the practice of the Apostles² and of the Church, even as regards temporal penalties;³ from the Council of Trent;⁴ from the nature of the Church, which is a perfect society and therefore enjoys legislative power. But legislative power carries with it coercive power, or the power of sanctioning laws, since without it legislative power would be unsuitable for securely attaining the end.

II. In the use of coercive power, the warning of the Council of Trent should be kept before one's eyes:⁵

"Let Bishops and other Ordinaries remember that they are pastors, not beaters, and that they ought so to preside over those subject to them that they do not dominate over them, but love them as sons and brothers, and labor by exhorting and warning to deter them from illicit things, lest, when they have offended, they be forced to coerce them with due penalties. Nevertheless, if it should happen that they sin in something through human frailty, that precept of the Apostle is to be observed by them, that they reprove, entreat, and rebuke them in all goodness and patience, since often benevolence does more toward correcting than austerity, exhortation more than threat, charity more than power. But if, on account of the gravity of the delict, the rod will be necessary, then rigor is to be used with meekness, judgment with mercy, severity with gentleness, so that discipline, salutary and necessary for the peoples, may be preserved without harshness, and those who have been corrected may be amended, or, if they are unwilling to come to their senses, others may be deterred from vices by the salutary example of action taken against them" (canon 2214, § 2).

With these things noted beforehand, we will speak first of the notion, division, imposition, and interpretation of penalties; then of the Superior having the power of punishing; then of the subject liable to the power of punishing; finally of the remission of penalties.

¹ Matthew 18:17-18.

² 1 Corinthians 5:3-5; 2 Thessalonians 3:14, etc.

³ Whether the Church can punish certain most grave delicts with death or mutilation is disputed. More commonly it is denied, nor in her own forum has she ever used this power.

⁴ Session 7, canon 14; session 14, canon 4; session 25, chapter 14, etc.

⁵ Session 13, chapter 1.

I. Notion. An ecclesiastical penalty is the privation of some good, inflicted by legitimate authority for the correction of the delinquent and the punishment of the delict (canon 2215). It is said:

1. Of some good, that is, either spiritual or temporal or mixed, as a benefice is.

2. For the correction of the delinquent and the punishment of the delict. The amendment of the delinquent is not always the primary end of an ecclesiastical penalty, although the Church always ultimately intends the salvation of souls, and consequently also the amendment of delinquents. But proximately, besides amendment, she intends: to repair the injured order by taking vengeance concerning the delict; to render the delinquent incapable of further damage; to effect that others may have fear.

II. Division. Penalties are distinguished:

1. By reason of the primary end, into medicinal penalties or censures, vindicative penalties, and penal remedies and penances (canon 2216). Medicinal penalties or censures primarily intend the amendment of the delinquent. Vindicative penalties primarily regard vengeance concerning the delict. Penal remedies intend to forestall true delicts or further delicts; hence they either suppose only a transgression which nevertheless does not reach the nature of a delict, or regard a delict perhaps to be perpetrated, but not one already perpetrated. Especially under this head they are not penalties in the proper sense.

2. By reason of determination, a penalty is called determinate if it is established taxatively in the law itself or precept; indeterminate if it is left to the prudent judgment of the judge or Superior, whether by preceptive or facultative words (canon 2217, § 1, 1°).

3. By reason of the mode by which it is inflicted, a penalty is called latae sententiae if a determinate penalty has been added to the law or precept in such a way that it is incurred by the very fact of the delict committed, that is, without a condemnatory sentence or a new precept of infliction; nevertheless, a declaratory sentence is sometimes added, as will be said below. It is ferendae sententiae if it must be inflicted by a judge or Superior (canon 2217, § 1, 2°), namely through a condemnatory sentence or in the manner of a particular precept. It is clear that an indeterminate penalty is always ferendae sententiae.

4. By reason of the author, a penalty is called a iure, by law, if a determinate penalty is established in the law itself, whether it is latae sententiae or ferendae; ab homine, by man, if it is issued in the manner of a particular precept or by a condemnatory judicial sentence, even if established in the law. Wherefore a determinate penalty ferendae sententiae, added to a law, before the condemnatory sentence is only a iure; afterward it is at once a iure and ab homine, but is considered as ab homine (canon 2217, § 1, 3°). On this consideration depends the competence of remitting the penalty, as will be explained. A penalty latae sententiae to which a declaratory sentence has been added remains a iure.

The question whether a penalty established neither by law nor in the manner of a particular precept, but by a general precept, is a iure or ab homine is not solved by the Code. The more common opinion holds that it is a iure; and this is therefore also preferable, because it is the more benign interpretation (cf. canon 2219, § 1).

Note. A penalty is always understood as ferendae sententiae, unless it is expressly said that it is latae sententiae or contracted ipso facto or ipso iure, or unless other similar words are used (canon 2217, § 2).

III. Imposition of penalty. 1. In decreeing penalties, an equitable proportion with the delict is to be observed, with account taken of imputability, scandal, and damage; wherefore there must be considered not only the object and gravity of the law, but also the age, knowledge, training, sex, condition, state of mind of the delinquent, the dignity of the person who is offended by the delict or who commits the delict, the intended end, the place and time in which the delict was committed, whether the delinquent acted from an impulse of passion or on account of grave fear, whether he repented of the delict and himself strove to avoid its evil effects, and other similar things (canon 2218, § 1).

2. Not only those things which excuse from all imputability, but also those which excuse from grave imputability, likewise excuse from any penalty, both latae and ferendae sententiae, even in the external forum, if the excuse is established for the external forum (canon 2218, § 2), that is, proved.

3. A penalty should not be inflicted in the case of equal mutual injury; for, as canon 2218, § 3 has it: Mutual injury is compensated, unless one party must be condemned on account of the greater gravity of the injury inflicted by the same party, with the penalty diminished if the case bears it.

IV. Interpretation of penalty. In penalties the more benign interpretation is to be made (canon 2219, § 1). And canon 19 says: Laws which establish a penalty are subject to strict interpretation. Hence:

1. In a doubt of law concerning the existence of a penalty, namely, whether a certain penal law regards the fact perpetrated here and now, that penalty, if it is latae sententiae, is not incurred; if ferendae, it should not be inflicted. In a doubt of law concerning the quality of the penalty, namely, whether the law contains a penalty latae or ferendae sententiae, the penalty should be understood as ferendae sententiae; whether it is a iure or ab homine, it should be understood as a iure.¹ In a doubt of law concerning the quantity of one penalty, namely, whether the law prescribes a graver or a lighter penalty, the milder one should rather be decreed. In a doubt of law concerning the number of penalties, namely, whether one penalty or several penalties are to be applied, only one penalty is to be applied. But if it is doubted whether a penalty inflicted by a competent Superior is just or not, the penalty must be observed in each forum, except in the case of an appeal in suspensive. But a manifestly unjust penalty, as regards substance, and therefore manifestly invalid, is to be sustained in neither forum. On a doubt of fact, see n. 858.

¹ A doubt of law in this matter exists concerning a general penal precept, as was said above.

— I. Notions. 1. A censure is a penalty by which the correction of the delinquent is primarily intended. Wherefore it is called medicinal, and is distinguished from a vindicative penalty, which immediately follows upon the punishment of the delict.

But it is defined by the Code: "A penalty by which a baptized man, delinquent and contumacious, is deprived of certain spiritual goods or goods annexed to spiritual things, until, withdrawing from contumacy, he is absolved" (c. 2211, §1).

It always supposes a grave, external delict, consummated in its juridic character, joined with some present contumacy. Wherefore, for a past delict, to which no obligation, at least of repairing consequences, is joined, a censure cannot be imposed; but there lies place only for a vindicative penalty. Thus a thief can be punished by censure not because of the theft, but that he may restore what was taken.

But there are three censures: excommunication, suspension, interdict; but suspension and interdict can also be vindicative penalties.

2. Penalties which are established in the law itself are called from the law, or latae sententiae; while those are from man which have been imposed by way of precept or by a condemnatory sentence. "A penalty of ferendae sententiae added to a law, before a condemnatory sentence, is from the law only; afterwards it is from the law and at the same time from man, but it is considered as from man" (c. 2217). If a merely declaratory sentence is pronounced, the censure remains from the law, and is considered to have been contracted from the moment of the delict.

3. "A penalty is always understood to be of ferendae sententiae, unless it is expressly said to be of latae sententiae, or to be contracted by the very fact or by the law itself, or unless other similar words are used" (c. 2217, §2).

Nevertheless, not once only must censures concerning which those words are lacking be ascribed to penalties of latae sententiae. This happens whenever a censure is declared reserved to the Ordinary or to the Holy See. For a censure of ferendae sententiae is necessarily reserved to him who brought the sentence.

— II. Author and subject of censure. 1. All who possess the power of making laws or imposing precepts by force of jurisdiction can annex censures to their law or precept.

Yet an Ordinary cannot bring another censure reserved to himself against a delict to which a censure reserved to the Holy See is annexed (c. 2247, §1).

2. a) They who hold the supreme principate of peoples, and their sons and daughters or those to whom there is the proximate right of succeeding in the principate; Cardinals of the Holy Roman Church; Legates of the Holy See, are subject only to penalties inflicted or declared by the Roman Pontiff. Nor are Cardinals comprehended by any penal law nor Bishops by suspension or interdict unless they are expressly named (c. 2277).

b) The impubes are exempt from penalties latae sententiae; but the puberes who have induced them to violate the law or have concurred with them in the delict, by physical or moral causality either necessary or principal, themselves indeed incur the penalty established by law (c. 2230). Here impubes can be understood as all who, even girls, have not completed 14 years.

c) Cooperators of the kind described under b) are held by penalties unless the law has expressly provided otherwise, while the other cooperators, by secondary and non-necessary action, escape penalties unless they are expressly named.

d) Affected ignorance, whether of the law or of the penalty alone, excuses from no penalties of latae sententiae; if the law has used words: has presumed, knowingly, studiously, etc., any diminution of imputability whatsoever, whether on the part of the intellect or on the part of the will, exempts from penalties of latae sententiae. If these words are lacking in the law, ignorance which was neither crass nor supine excuses from medicinal penalties, but not from vindicative penalties latae sententiae (c. 2229).

e) Grave fear of itself excuses, unless the delict tends to contempt of faith, or of ecclesiastical authority, or to the public harm of souls (c. 2229, §3, 3°).

f) An ecclesiastical penalty always supposes grave sin (cf. I, 63 and c. 2218, §2).

— III. Obligation of censure. A censure latae sententiae indeed holds the delinquent, conscious of the delict, by the fact itself in both forums; before a sentence, however, he is excused from observing the penalty as often as it cannot be observed without infamy (c. 2232, §1).

— IV. Absolution of censure. 1. A censure once contracted is not removed except by legitimate absolution; yet this cannot be denied as soon as the delinquent has withdrawn from contumacy. But once removed by absolution, it does not revive unless the burden imposed under penalty of reincidence has not been fulfilled (c. 2248).

2. But some censures are not reserved (for absolution), others are reserved.

Concerning the various reservations and absolution, cf. what was said, nn. 473-476.

Only observe that absolution from censure in the sacramental forum is already contained in the customary form of absolution from sins; in the non-sacramental forum it can be given in any manner whatsoever, yet, for excommunication, a form is handed down in the ritual books which it is fitting to observe (c. 2250, §3).

Moreover c. 2252 does not strictly impose in danger of death the admonition concerning recourse to be made, which c. 2255 enjoins to be made by the confessor who in more urgent cases absolves from reserved censures.

— Unless perhaps scandal given or the special gravity of transgression requires otherwise, the violator of a law which has no sanction placed upon it (you may say the same of the violation of a precept) cannot be punished unless first an admonition has been made with threat of penalty.

A vindicative penalty is now recognized by this sign: that it is brought for a definite time or in perpetuity. Brought without a term, or indefinitely, it is equated with a perpetual one. When the day to which it was brought arrives, the vindicative penalty ceases by the fact itself; while a censure is not removed except by received absolution.

— I. On Excommunication. 1. Excommunication is a censure by which someone is excluded from the communion of the faithful with the inseparable effects enumerated in the Code. An excommunication solemnly imposed is called by the special name anathema.

2. Excommunicates: a) some are to be avoided, others not. No one is to be avoided unless he has been excommunicated by name by the Apostolic See, has been publicly denounced, and in the decree or sentence it is expressly said that he must be avoided, or unless he has notoriously laid violent hands upon the person of the Supreme Pontiff; b) some are before such a sentence [printed/OCR: "have avoided the sentence"], others have been marked by a condemnatory or declaratory sentence of censure.

3. Effects of excommunication. It deprives: a) of the right of assisting at divine offices, preaching excepted; b) of the reception of the sacraments (which nevertheless are validly received), and, after a declaratory or condemnatory sentence, also of sacramentals; c) of licit confection and administration of the sacraments, saving the temperaments indicated at n. 211; d) of indulgences, suffrages, and the public prayers of the Church. Yet priests can privately and with scandal removed apply Mass for an excommunicate; but, if he is one to be avoided, only for his conversion. Moreover, an excommunicate is removed from legitimate ecclesiastical acts (e.g., the office of sponsor); he is prohibited from performing ecclesiastical offices, from placing acts of jurisdiction; from electing, presenting, nominating; he cannot obtain ecclesiastical offices. For the validity of acts, an excommunicate who is to be avoided, or who by sentence has been condemned or declared excommunicated, must be distinguished from another excommunicate (cf. cc. 2259-2266).

Communication in profane matters is not imposed as to be avoided except with an excommunicate to be avoided, and the excuse of kinship, service, and reasonable cause is admitted, so that this prohibition is not judged grave (c. 2257).

— II. 1. "Interdict is a censure by which the faithful, remaining in the communion of the Church, are prohibited from the sacred things" enumerated in the Code.

It is distinguished into personal, by which certain persons are directly prohibited from those goods, and local, by which in certain places the dispensation or reception of the same is forbidden. It is subdivided into general, of some territory or people, and particular (cf. cc. 2268-2276).

Interdict from entrance into a church contains the prohibition "that someone celebrate divine offices in church or assist at them or have ecclesiastical burial; but if he assists, it is not necessary that he be expelled, nor, if he is buried, is it necessary that the corpse be removed" (c. 2277).

— III. 1. "Suspension is a censure by which a cleric is prohibited by office or benefice or both" (c. 2278). Therefore it directly deprives at least of the licit use of ecclesiastical power. And it can be total or partial. Suspension brought without addition is understood as total, and it carries with itself all the effects indicated by the canons. Partial is suspension from office, which forbids every act of the power of order and jurisdiction, indeed of mere administration competent from office, except the administration of the goods of one's own benefice (c. 2279, §1); and suspension from benefice. And there are more partial ones. Thus suspension from jurisdiction forbids every act of the power of jurisdiction for both forums, both ordinary and delegated; suspension from divine things forbids every act of power which someone obtains either through sacred ordination or through privilege; from orders, every act of the power of order received through ordination; from sacred orders, every act of the power of order received through ordination in sacred orders; from exercising a certain and definite order, suspension prohibits every act of the designated order, and besides the conferral of the same order and the reception of a higher order and the exercise of this, if it has been received after the suspension (c. 2279, §2, 3°-5°).

2. Suspension from informed conscience is an extraordinary remedy, whose use is not licit if the Ordinary can proceed by the ordinary juridic way without grave inconvenience. But it consists in this, that the Ordinary expressly, by simple decree, declares that he, from causes known to himself, imposes suspension. The Ordinary must be certain concerning the delict and its gravity; he can never act thus on account of a notorious delict (cf. cc. 2186-2191).

Many are enumerated in the Code can. 2291 and 2298. In this tractate we shall refer only those things which, in the matters the author hands down, are confirmed or must be changed, leaving a fuller treatment of the matter to canonists. - 1381 Deposition is described in can. 2303 § 1: "Deposition, the obligations arising from the order received and clerical privileges remaining firm, carries with it both suspension from office and incapacity for any offices, dignities, benefices, pensions, duties in the Church, and also privation of those things which the guilty person has, although he may have been ordained by their title." By this definition and the following § 2 and § 3 those things which are had in the author are substantially confirmed; cf. also can. 2304. - 1382 is confirmed by can. 2305. - 1383 is confirmed by can. 2293 and 2294. Infamy of fact is not an irregularity, but only an impediment; cf. can. 987 n. 7. Infamy of law from can. 2295 ceases only by dispensation of the Apostolic See. - 1384 Concerning cessation from divine things, discourse is no longer made in the new law. Can. 2290 can be added, by which the faculty is given to confessors of suspending in the internal forum for a month the obligation of observing a vindictive penalty latae sententiae, if in more urgent occult cases the guilty person otherwise truly would betray himself with infamy and scandal. Nevertheless the burden of having recourse within a month is enjoined. If this recourse is morally impossible, cf. § 2 of the same canon. - 1385 Concerning privation of ecclesiastical burial, it is treated in can. 2291 n. 5 and in can. 1239, 1240, 1241 and 1242; I 1º is confirmed from can. 1240 § 2. - 1386 is confirmed by can. 1239 § 1 and can. 1240 § 1 nn. 1-2. As regards excommunicates and the interdicted, a sentence is required. - 1387 is confirmed by can. 1240 nn. 3-6. - 1388bis II 2º can. 1240 n. 5.

This chapter is divided into two articles: 1. on the notion and division of an ecclesiastical penalty; 2. on its author and subject.

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.

² L. 131, D. 50, 16.

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.

1. 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.

2. 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

3. 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

4. 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:

1. Censures or medicinal penalties: a) excommunication; b) suspension; c) interdict.

2. 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.

3. 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.

¹⁴ Cf. Code of Canon Law, cc. 2306-2313.

I. All human and divine laws decree that sorcerers are to be punished. God commands (Lev. 20): "A man, or woman, in whom there is a pythonic or divining spirit, dying let them die: they shall stone them with stones." Likewise (Exod. 22): "Wizards thou shalt not suffer to live." There are many civil laws — Book 9, title 18, law 7, "Nemo" — which decree that all soothsayers are to be punished with death. Canon law establishes the same penalty.

II. Theologians dispute whether an excommunication has already been decreed against sorcerers, or whether it must be freshly imposed. The more common and true opinion holds that all such persons are already, in fact, excommunicated by the law itself — which is proven from the chapter Si quis hariolos, where it is stated: "If anyone shall have observed soothsayers, haruspices, or enchanters, let him be anathema." These words, "let him be anathema," signify a censure already imposed, not one to be imposed. For a law does not merely express a wish; it commands. Wherefore, although the aforesaid words might, taken absolutely, be understood as an expression of mere wish, nevertheless, as employed by the law, they absolutely decree and impose the penalty. There is also cited the Extravagant of John XXII, beginning "Super illius," as related by Eymerich in his Directorium Inquisitorum, in which excommunication is expressly established against all sorcerers. Others reject this constitution, since it is not found in the Bullary. Setting aside, then, this uncertain constitution, I will transcribe the constitution of Gregory XV, issued March 20, 1623, beginning as follows: "But by the will of Almighty God... Of our own accord, therefore, and from certain knowledge, and mature deliberation, and from the plenitude of apostolic power, by the tenor of these presents We decree, ordain, and command: that whensoever anyone shall have entered a pact with the devil, and, having apostatized from the faith, shall have injured one or more persons by sorceries or witchcraft, such that death has followed upon such sorceries or witchcraft — even for a first offense, he is to be handed over to the secular court, to be punished with the penalties owed him. But whoever, having likewise apostatized, and entered a pact with the devil, shall have committed sorcery or witchcraft, though death has not followed, yet illness, divorces, impotence to procreate, or notable harm to animals, crops, or other produce has resulted — he is to be confined for life, or perpetually imprisoned, in the strict custody of the Office of the Inquisition, where it exists, to be provided. Those, moreover, who have true knowledge of such offenders are bound to denounce them to the Bishop, or Inquisitor..." etc.

Since, then, sorcery is joined with the crime of apostasy, it pertains to the tribunal of the Inquisition to inquire into and take notice of such sorcerers — nor is there any doubt about this — since, when sorcerers fall into apostasy, or rush headlong into heresy, they thereby become subject to the excommunication latae sententiae pronounced in the Bull "In Coena Domini," or else, if they do not actually fall into heresy, they at least give rise to a strong suspicion of it. Now the signs of a vehement suspicion of heresy are these: an explicit pact with the demon; the abuse of sacred things; the worship of the devil; his invocation, in order to know things that exceed the natural power of knowing. And when either heresy, or a grave suspicion of it, is attached to sorcery, the judges of such a crime are the Inquisitors of heretical depravity. And since it is scarcely found that a sorcerer is not guilty of heresy, or at least vehemently suspected of it, sorcerers are for this reason to be remanded to the Inquisitors.

I. Under the Old Law, blasphemers were punished with death: "He that blasphemeth the name of the Lord, dying let him die: all the multitude shall stone him, whether he be a native or a stranger" (Lev. 24). Likewise, the common civil law decrees that all blasphemers are to be punished with the ultimate penalty. Although these laws, as regards this ultimate penalty of death, have fallen out of use through disuse, nevertheless kingdoms and principalities generally still punish blasphemers with the gravest penalties. In some places, common blasphemers are first flogged, then have their lips branded with a hot iron, and, for a third offense, their tongues are cut out. Elsewhere they are exposed to public derision. Canon law (ch. Statuimus, on maledictions) commands that blasphemers stand before the doors of the church for seven Sundays while the sacred rites are being performed, and, every Sunday, without their cloak, barefoot, a rope bound about their neck, present themselves to public view; and that on seven Fridays they fast on bread and water. If they neglect to do this, they are to be barred from entering a church, before which they must stand; and, living, are to be barred from entering the church, and after death, deprived of ecclesiastical burial. The Fifth Lateran Council (session 9, ch. Abusum) punishes blasphemous Clerics for a first offense with the forfeiture of a year's income from their benefice; afterward it removes them from the benefice; and finally declares them incapable of holding any ecclesiastical revenues whatsoever. For noble laymen, it imposes a fine of twenty ducats for a first offense, fifty for a second, and finally pronounces them stripped of their nobility. Common people who have blasphemed twice must stand before the doors of the church with a shameful miter placed on their head. If they have become habitual blasphemers, they are condemned to the galleys, or to prison.

II. Question I. Is one who hears a blasphemer bound to denounce him to a judge? Response: The common opinion affirms this; and this is prescribed both by Julius III in his constitution beginning "In multis," and by the Lateran Council, in these words: "Whoever shall hear a blasphemer is bound to rebuke him sharply with words, if this can be done without danger to himself; and he is bound to report, or notify, this to an ecclesiastical or secular judge within three days; and if several hear the same blasphemer together, each individually is bound to accuse him, unless perhaps they all agree that one should perform this office on behalf of all." Several points arise here concerning this denunciation, which I prefer, however, to postpone to another place. This much only I will say here: that fraternal correction is enjoined on everyone, and that it is only to be omitted for a truly urgent reason, or under the pretext of a fleshly prudence. Prudence is indeed necessary; I do not deny this in correcting one's brethren; but I would likewise warn that love of earthly things, worldly regard, and considerations of convenience must not be allowed to disguise themselves as Christian prudence. If you hear a blasphemer overcome by anger, correct him once his anger has subsided. Sometimes correction ought to be made immediately, depending on the character of the one blaspheming. If the blasphemies are heretical, they must be denounced to the legitimate judge, in accordance with the pontifical precepts on this matter. The judges of heresy are either the Inquisitors, or the Bishops. But more on this in its proper place.

III. Question II. How ought a confessor to conduct himself with blasphemers? Response: If the blasphemies are simple, the confessor can absolve the penitent of them, since such simple blasphemies are commonly not reserved. The Bishop, however, may reserve even these simple blasphemies, and once such a reservation is made, an ordinary confessor cannot grant absolution.

IV. Blasphemy is sometimes external and heretical in form, insofar as the words uttered smack of heresy; yet the blasphemer harbored no internal error in his mind while blurting them out. In this case, the common opinion teaches that a regular confessor can absolve the penitent in the internal forum, just as he can absolve from sortilege, magic, or sorcery — provided there was no error in the mind. On this matter, see the theologians of Salamanca (tract. 21, ch. 13, punct. 10, n. 131). But more on this in the treatise on penance.

V. Question III. What penance ought a confessor to impose on penitent blasphemers? Response: The Lateran Council decreed that blasphemers are not to be absolved except with a most rigorous penance imposed by confessors. These are the Council's own words (session 9): "To be abolished. In the forum of penance, let no one guilty of blasphemy be absolved, except with a most rigorous penance imposed at the severe confessor's discretion." More recent Probabilist authors answer that this decree is not received in practice. And this is true in a sense. For if blasphemers were subjected to the gravest penalties, as the Council commands, and as the equity of judgment demands, God's holy name would not be blasphemed so frequently. But because not a few confessors absolve false penitents of the crime of blasphemy, as of other crimes, with only a light penance imposed, crimes of every kind run rampant, and flood the whole earth. But it is one thing to say that this decree is not received in practice, or that casuists and confessors, in fact, rarely impose the most severe penances on blasphemers as its prescription requires; it is quite another to say that the decree itself has become obsolete. This latter claim we deny, against Leander (disp. 5, q. 16), the theologians of Salamanca (tract. 21, ch. 13, punct. 10, n. 131), Castropalao (disp. 2, punct. 1, §3, n. 2), Sánchez (Bk. II, On the Decalogue, ch. 32, n. 44), and many others. If you ask them why this decree has no force, they answer only that it is not received in practice. This is their sole reason — which, if it held good, would mean the death and burial of every law that transgressors fail to receive in use, or execution. Ought not satisfaction to God be the graver, the graver the offense? Does not the Council of Trent command that penances be imposed proportionate to the gravity of the crime? Since blasphemy is a most grave crime, why should the gravest penances, which the Council commands, not be imposed on blasphemers? Both divine and natural law prescribe this equality of proportion. See, Christian reader, where the leniency of casuists tends! They make both the prescription itself, and the divine and natural laws themselves, subject to disuse. Away with so cruel a kindness! Let confessors, then, take care not to grant absolution without subjecting penitent blasphemers to worthy penances.

VI. Question IV. Are those bound by a habit of blaspheming obliged to abstain from confession beforehand, until freed from the habit? Response: Leander affirms, according to his custom (disp. 5, q. 17), that it is more probable, in his own view, that blasphemers ought to be absolved even if they have not amended, provided they truly grieve for their sins — even if often admonished, they have not reformed; and for this opinion of his he cites Sánchez, Castropalao, Hurtado, Trullench, and others. How lax this opinion is, everyone can see. They believe they escape every mark of laxity by saying, "provided they truly grieve for the blasphemies committed." But on what basis can you presume that a penitent is affected by sincere sorrow, if, having repeatedly spurned admonition, he has in no way turned to a better way of life, and shown no sign at all of amendment? Let the confessor, then, seriously consider with what zeal, effort, and diligence blasphemers have striven to restrain their tongue. Let him weigh whether they have put into practice the remedies prescribed for their amendment by other confessors. If he perceives progress, if he discerns a real effort at amendment in the penitent, he may absolve him. If not, let him defer absolution, and prescribe remedies more surely by which the penitent may abstain from blaspheming. An inveterate custom of long standing cannot be entirely rooted out all at once. It must, then, be broken and interrupted little by little, until, with the utmost diligence applied, it is entirely uprooted. Let him prescribe an alms to be given at once, if the penitent's means allow, as often as he happens to blaspheme; or let him impose the marking of so many crosses with the tongue on the bare ground, or some similar or harsher penance. If penitents truly grieve by this method, they will quickly amend themselves; and within a week or two, each will find himself reformed. The opinion of Leander and others cited above has been proscribed by Innocent XI, in this proposition: "To one who has a habit of sinning against the law of God, of nature, or of the Church, even though no hope of amendment appears, absolution is neither to be denied nor deferred, provided he says with his mouth that he intends to amend." Our younger casuists will, no doubt, clamor as usual for us to consult the theologians they cite, or will claim that similar teachings are found in other theologians too (which, if true, is only worse), or that their opinions have been reported without due fidelity. This is a rather stale objection, which we have several times, quite rightly, dismissed as ridiculous.

VII. But more on this when we come to discuss proximate occasion [of sin]. For now I will indicate what Comitoli teaches (Bk. IV, ch. 9, q. 9). He was accustomed to require his penitents, habituated to blasphemies against God and the Blessed Virgin, to recite the seven penitential psalms and the litanies with prayers, thirty, forty, or fifty times more or less, on bended and bare knees, touching the ground. He likewise required them to beg pardon of God, the Blessed Virgin, and the Saints ten times, on their knees; to mark a cross with the tongue on the ground ten times each day; and to strike their breast ten times. Confessors may impose these and similar penances on blasphemers, so as to free them from the habit of blaspheming. If they are wealthy, let confessors order them to give twenty solidi in alms for each blasphemy or perjury. If poor, let them oblige them to trace twenty crosses on the ground with the tongue, and to recite as many prayers. By these or similar means, some remedy will be found against this most wicked vice of blasphemy.