Vindicative Penalties

CERTAIN ecclesiastical penalties resemble censures in some respects, and it will be convenient to say a word about them here. Deposition is an ecclesiastical penalty by which a cleric as a punishment for grave crime is for ever suspended from his office and rendered incapable of holding any office, dignity, benefice, pension, or post in the Church, and deprived of those which he has, even though he was ordained on their title (Can. 2303). It differs from a censure in that it is vindictive, not remedial, and it does not endure merely until correction, amendment, and absolution; but of itself it is perpetual. The deposed cleric retains the privileges of the forum and of the canon,

I. Notion. Vindicative penalties are those which tend directly to the expiation of the delict, so that their remission does not depend on the cessation of the delinquent's contumacy (canon 2286).

II. Division. A vindicative penalty is distinguished:

1. By reason of the privation, into spiritual or mixed, or even merely temporal, because sometimes it deprives one of merely temporal goods; otherwise than a censure (n. 862).

2. By reason of the subject, into one common to all the faithful or special to clerics.

3. Finally, just as censure, so also a vindicative penalty is latae or ferendae sententiae, a iure or ab homine, determinate or indeterminate.

Note 1. From inflicted vindicative penalties there is given appeal or recourse in suspensive effect, unless something else is expressly provided in law (canon 2287).

Note 2. In canon law the so-called conditional condemnation is assumed; for canon 2288 establishes: if the guilty person is such that for the first time after a life laudably passed he has offended, it is remitted to the prudence of the judge to suspend the execution of the ordinary penalty inflicted by condemnatory sentence; yet on this condition, that if the guilty person within the next three years commits another delict of the same or another kind, he undergo the penalty due to each delict (canon 2288). With the three years having passed without crime, the guilty person is free from the effect of the condemnation. Nevertheless this conditional condemnation is not admitted: 1° in penalties of degradation, deposition, deprivation of office or benefice; 2° if the necessity of repairing scandal presses (cited canon).

III. Cessation. A vindicative penalty is ended:

1. By its expiation (canon 2289), and this mode corresponds to its nature.

2. By dispensation (cited canon); for this there is required a cause proportionate to the gravity of the penal law, because dispensation in a vindicative penalty is against the intention of the law; it is certainly also required that the guilty person be amended and that he have repaired damages and scandal according to his powers. Nor, when the dispensation sought has been denied, can the guilty person appeal, but only for a grave cause have extrajudicial recourse to the Superior.

Dispensation can be granted by: 1° him who issued the penal law or penalty; 2° his competent Superior or successor; 3° the person to whom the power of dispensing from the penalty or from the penal law has been committed (canons 2236; 2237; 2290). Moreover, this power has been committed as follows:

a) The Ordinary, by force of canon 2237, can by ordinary power: 1° in public cases remit vindicative penalties latae sententiae established by common law, except cases brought to the contentious forum, and penalties of incapacity for benefices, offices, dignities, functions in the Church, active and passive voice, or deprivation of these, perpetual suspension, infamy of law, deprivation of the right of patronage and of a privilege or grace granted by the Apostolic See; 2° in occult cases remit vindicative penalties latae sententiae established by common law and reserved in any manner whatever.

b) Any confessor can in the sacramental forum, in more urgent occult cases, namely, if from observance of a vindicative penalty latae sententiae the guilty person would betray himself with infamy and scandal: 1° suspend the obligation of observing the penalty, with the burden imposed of having recourse at least within a month by letter and through the confessor, if this can be done without grave inconvenience, the name withheld, to the Sacred Penitentiary or to the Bishop endowed with the faculty, and of standing by his commands; 2° dispense, if in some extraordinary case the aforesaid recourse is impossible, nevertheless imposing those things which by law must be imposed and imposing congruous penance and satisfaction for the penalty, so that the penitent, unless within a congruous time to be fixed beforehand by the confessor he has done penance and given satisfaction, falls back into the penalty (canon 2290, § 2, compared with canon 2254, § 3); that is, reincidence, although by its own nature it regards censures, nevertheless of itself does not prevent a Prelate from dispensing from a penalty under the condition that the dispensed person, if he does not perform something, is again bound by the bond of the same penalty.¹

¹ Lega, op. cit., n. 135.

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).

From canon 2298, the vindicative penalties which are applied to clerics alone are:

I. Prohibition of exercising the sacred ministry except in a certain church.

II. Suspension in perpetuity, or for a predefined time, or at the good pleasure of the Superior.

III. Penal transfer from an office or benefice obtained to a lower one; concerning this note: if a cleric obtains an irremovable benefice, he can be deprived of it as a penalty only in cases expressed by law; if it is removable, also for other reasonable causes (canon 2299, § 1).

IV. Deprivation of some right joined with a benefice or office; concerning this canon 2299, § 2, establishes: clerics obtaining benefices, offices, and dignities can also be prohibited for a certain time only from some ministry joined with them, for example the ministry of preaching, hearing confessions, etc.

V. Incapacity for all or for some dignities, offices, benefices, or other functions proper to clerics (cf. canon 2296).

VI. Penal deprivation of a benefice or office with or without pension; concerning this observe canon 2299, § 1, cited under III.

Note. Regarding numbers III, IV, and VI, note canon 2299, § 3: A cleric cannot be deprived of a benefice or pension by title of which he was ordained, unless provision is made from elsewhere for his honorable sustenance, saving the prescription of canons 2303, 2304.

VII. Prohibition of dwelling in a certain place or territory. The Ordinary can command as a penalty that a subject cleric remain outside a certain place or territory and dwell in a certain place or territory of his diocese; but he cannot prescribe that a cleric dwell in a certain place outside the boundaries of his diocese, unless the consent of the Ordinary of that place is added, or there is question of a house of penance or correction destined not only for diocesan clerics but also for outsiders, or of an exempt religious house, with the consent of its Superior (canon 2301). Nevertheless, both prescription and prohibition of dwelling in a certain place and placement in a house of penance or in a religious house, especially if they are going to endure for a long time, are to be imposed only in grave cases in which, in the prudent judgment of the Ordinary, these penalties are necessary for the amendment of the cleric or the repair of scandal (canon 2302).

VIII. Prescription of dwelling in a certain place or territory. See the things said under VII.

IX. Deprivation for a time of ecclesiastical habit. If a cleric gives grave scandals and, having been warned with threat of penalty, does not come to his senses, nor can the scandal be removed otherwise, he can meanwhile be deprived of the right of wearing ecclesiastical habit; this deprivation, while it endures, carries with it the prohibition of exercising any ecclesiastical ministries and deprivation of clerical privileges (canon 2300).

X. Deposition; concerning this we note:

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, functions in the Church, and also deprivation of those things which the guilty person has,¹ although he was ordained by title of them (canon 2303, § 1). But in this last case, if the cleric truly needs it, the Ordinary, according to his charity, should take care to provide for him in the better way possible, lest he be forced to beg with dishonor to the clerical state (canon 2303, § 2).

2. The penalty of deposition cannot be inflicted except in cases expressed by law (canon 2303, § 3); moreover, it must be inflicted before a tribunal of five judges (canon 1576, § 1, 2°).

The penalty of deposition is always ferendae sententiae; therefore a deposed person is subjected to the effects of suspension after sentence as regards the validity of acts of office.

XI. Perpetual deprivation of ecclesiastical habit is a special penalty of a deposed cleric; for if a deposed cleric does not give signs of amendment, and especially if he continues to give scandal and, having been warned, does not come to his senses, the Ordinary can perpetually deprive him of the right of wearing ecclesiastical habit (canon 2304, § 1); but only before a tribunal of five judges (canon 1576, § 1, 2°). This deprivation (canon 2304, § 2) carries with it deprivation of clerical privileges and cessation of the prescription by which the Ordinary according to his charity should take care to provide for him, if the cleric truly needs it. Nevertheless he is bound by the obligation of observing celibacy and the canonical hours.

XII. Degradation; concerning this the Code establishes:

1. Degradation contains in itself deposition, perpetual deprivation of ecclesiastical habit, and reduction of the cleric to the lay state (canon 2305, § 1). A degraded cleric in major orders is not bound to recite the canonical hours, but he is bound to observe celibacy (canons 135; 213, § 2); every degraded cleric besides is prohibited from wearing the tonsure (canon 213, § 1).

2. This penalty can be issued only because of a delict expressed in law, or if a cleric, already deposed and deprived of clerical habit, still continues to give grave scandal for a year (canon 2305, § 2). But there is not an obligation of proceeding in this way immediately after a year.² Besides, it must be inflicted in the same way as deposition and perpetual deprivation of ecclesiastical habit.

3. Degradation is either verbal or edictal, which is imposed by sentence alone, yet in such a way that it immediately has all its juridic effects without any execution; or real, if the solemnities prescribed in the Roman Pontifical are observed (canon 2305, § 3). But this real degradation adds no juridic effect to the penalty already inflicted.

4. Dispensation from the penalty of degradation inflicted on a cleric in major orders is reserved to the Holy See (canon 212, § 2); as regards dispensation from the penalty of deposition, the same is not established.

¹ Wherever, for it is a penalty of common law (cited canon, § 3).

² Against clerics in minor orders the Ordinary can proceed in an easier way, namely by decree; cf. canon 211, § 2, where the penalty of degradation is not even mentioned (cf. § 1). A cleric in minor orders dismissed in this way can be admitted again by the Ordinary according to canon 212, § 1, otherwise than a cleric in major orders (canon 212, § 2).

I. Until the Holy See has dispensed them, the following are suspended by the law itself: the Bishop consecrating someone as Bishop, the assisting Bishops or, in place of Bishops, the assisting priests, and the one who receives consecration without an apostolic mandate against the prescription of canon 953 (canon 2370). Canon 953 prescribes: Episcopal consecration is reserved to the Roman Pontiff, so that no Bishop may consecrate anyone as Bishop unless the pontifical mandate has first been established.

It concerns a generally issued suspension (p. 742), and one inflicted by way of vindicative penalty; this is clear from the fact that a censure or medicinal penalty is removed by absolution, but this suspension by dispensation of the Holy See (cf. canon 2236, § 1 and 2289).

The suspension among assisting priests affects only those who assist in place of Bishops, not others.

II. From canon 2373, the following ipso facto incur suspension for one year from the conferral of orders, reserved to the Apostolic See:

1. Those who, against the prescription of canon 955, have ordained another's subject without dimissorial letters of his own Ordinary. As to the prescription of canon 955, cf. n. 601. The suspension also affects one who confers first tonsure (cf. canon 950).

2. Those who, against the prescription of canon 993, n. 4, and canon 994, have ordained their own subject who had stayed elsewhere for so long a time that he could have contracted a canonical impediment there. Concerning the cited canons, see n. 650. The suspension also includes first tonsure (cf. canon 950).

3. Those who, against the prescription of canon 974, § 1, n. 7, have promoted someone to major orders without a canonical title (cf. n. 618).

4. Those who, without prejudice to legitimate privilege, have promoted a religious belonging to a family which is outside the territory of the ordaining Bishop, even with dimissorial letters of the proper Superior, unless it has been legitimately proved that some one of the cases occurs which are mentioned in canon 966 (cf. treatise on Order, n. 602).

Delinquents are suspended from the conferral of orders, with no order, indeed not even first tonsure and episcopal consecration, excepted (cf. canon 950).

III. A clerical religious whose profession has been declared null because of deceit committed by him, if he is constituted in major orders, remains ipso facto suspended until the Apostolic See has seen otherwise (canon 2387). Under the name of religious also comes a member of a society of clerical men living in common without vows; likewise under the name of profession comes the profession improperly so called, or that emitted by a member of the said society.¹

Note. If the delinquent is constituted in minor orders, he is to be cast out from the clerical state (canon 2387).

IV. Chapters, convents, and all others to whom it pertains, admitting such elected, presented, or nominated persons before the exhibition of the letters, remain ipso facto suspended from the right of electing, nominating, or presenting at the pleasure of the Apostolic See (canon 2394, 3°). It concerns those who admit persons elected, presented, or nominated to an ecclesiastical benefice, office, or dignity, into possession or governance or administration of the same, before the elected, presented, or nominated persons have exhibited the necessary letters.

V. Religious Superiors who, against the prescription of canons 965-967, have presumed to send their subjects to another Bishop to be ordained are ipso facto suspended from the celebration of Mass for a month (canon 2410; cf. treatise on Order, n. 632). Under the name of religious Superiors also come Superiors of a society of men living in common without vows, if the society enjoys the right of granting dimissorial letters to its members.² Major Superiors are understood, and those exempt, to whom, namely, belongs the right of giving dimissorial letters.

The suspension is reserved to no one.

¹ Pontifical Commission, June 2-3, 1918 (A.A.S. 1918, p. 347).

² Pontifical Commission, June 2-3, 1918 (A.A.S. 1918, p. 347).

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.

What are deposition and degradation? Deposition and degradation are usually placed under suspension because of the similarity which they have with it, since each is removal from ecclesiastical order, jurisdiction, and benefice, notwithstanding that the cleric had been ordained under its title or substituted in place of patrimony. Yet they differ far from it, since penalties of this kind proceed still further, and deprive not only of the use of ecclesiastical power but also of the radical right itself, insofar as this can be done, and this in perpetuity; whence they are not censures, but vindictive penalties. They deprive of radical right insofar as by deposition and degradation perpetual incapacity is had for every office and benefice, namely if the deposition is perfect, and not only from office or only from benefice. But if deposition is from office, then consequently it is also from benefice; for a benefice exists because of office. Likewise simple deprivation of benefice is not a censure, but a mere penalty. Once suspension has been removed, by the law itself the suspended person is restored to his office and benefice; but the deposed person needs a new title so that he may be newly placed in it. If deposition casts a cleric down from every office and benefice and clerical dignity, degradation is had; and it is verbal if by the mere sentence of a judge he is cast down from clerical privileges, real if a solemn rite is added by which the insignia of orders are taken away from the cleric, and, when these have been taken away, he is handed over to the secular court. Since penalties of this kind are most grave, they are not incurred before the sentence of a judge. L., book 3, n. 670; book 7, nn. 323, 327; Suarez, De Cens., disp. 13, sect. 2, n. 14; disp. 27, n. 5; Bouix, De Parocho, Paris, 1855, p. 365 ff.; Laymann, part 1, chap. 1, n. 3; part 3, chap. 5; Coninck, disp. 16; Schmalzgrueber, n. 7; Benedict XIV, De Synodo, book 9, chap. 6, n. 3 ff.; constitution Quam grave, August 2, 1757; C. Degradatio 2, de Poenis, in VI; Council of Trent, sess. 13, chap. 4, de Ref.; Roman Pontifical, form of Degradation.

1228. It will not be beside the matter to enumerate the principal other penalties recounted in the Code:

1229. 1. By the law itself these are infamous: (a) those who have given their name to a non-Catholic sect or publicly adhered to it;⁷ (b) those who have cast away the consecrated species, or have carried them away or retained them for an evil end;⁸ (c) those who have violated the corpses or tombs of the dead for theft or another evil end;⁹ (d) those who have laid violent hands on the person of the Roman Pontiff, a Cardinal, or a Legate of the Roman Pontiff;¹⁰ (e) duelers and those who are called their seconds;¹¹ (f) bigamists, i.e., those who, despite the conjugal bond, have attempted another marriage, even only civil, as they say;¹² (g) laymen legitimately condemned on account of graver delicts against the sixth;¹³ (h) besides, clerics constituted in minor orders, guilty of some delict against the sixth, are to be punished according to the gravity of the fault, even by dismissal from the clerical state, if the circumstances of the delict advise this.

⁷ Code, c. 2314.

⁸ Code, c. 2320.

⁹ Code, c. 2328.

¹⁰ Code, c. 2343.

¹¹ Code, c. 2351.

¹² Code, c. 2356.

¹³ Code, c. 2357.

Now, "he who labors under infamy of law is not only irregular according to the norm of can. 984, n. 5, but besides is incapable of obtaining ecclesiastical benefices, pensions, offices, and dignities, of performing legitimate ecclesiastical acts, of exercising an ecclesiastical right or office, and finally must be kept from exercising ministry in sacred functions."¹⁴

¹⁴ Code, c. 2294, § 1. - From can. 2293, "infamy of law is that which is established in cases expressed by common law."

Moreover, he labors under infamy of fact who, "on account of a perpetrated delict or on account of depraved morals, has lost good esteem among upright and grave faithful; judgment concerning this belongs to the Ordinary."¹⁵

¹⁵ Code, c. 2293, § 3.

1230. 2. By the law itself these are held excluded from legitimate ecclesiastical acts: (a) ravishers of women (can. 2353); (b) laymen legitimately condemned because of certain more atrocious crimes (can. 2354); (c) Catholics who have dared to enter a mixed marriage, even valid, without dispensation of the Church (can. 2375); (d) religious who are apostates from religion (can. 2385).

Moreover, by a sentence ferendae sententiae, these must be excluded from legitimate acts: (a) those who incur infamy of fact (c. 2294, § 2); (b) one suspect of heresy who, after warning, does not remove the cause of suspicion (c. 2315); (c) those attempting suicide (c. 2350, § 2); (d) those legitimately condemned because of delicts against the sixth, public adulterers and concubinarians (can. 2357).

1231. "Moreover by the name of legitimate ecclesiastical acts are signified: to exercise the office of administrator of ecclesiastical goods; to act as judge, auditor and relator, defender of the bond, promoter of justice and of the faith, notary and chancellor, summoner and apparitor, advocate and procurator in ecclesiastical cases; to act as sponsor in the sacraments of Baptism and Confirmation; to cast a vote in ecclesiastical elections; to exercise the right of patronage."¹⁶

¹⁶ Code, c. 2256, 2.