ECCLESIASTICAL AUTHORITIES, Crimes Against. - Under this title the CIC (cann. 2331-40) contemplates a category of criminal acts which, being directed at impeding or disturbing the normal exercise of ecclesiastical powers, bear a special character of gravity and therefore merit severe and exemplary sanctions.
The juridical object common to such crimes - which can, grosso modo, be compared to offenses against the internal personality of the State, provided for by secular penal codes - is the interest of the Church, as a perfect unequal monarchical society, in keeping its own ordinances and functions intact and immune from extraneous influences. It follows that, relatively to this category of crimes, the immediate harm (that is, the sensible evil directly brought about by the violation of the penal norm) is always public; which does not, however, prevent the fact that, especially where it is a matter of a complex crime, a private immediate harm sometimes concurs with the public immediate harm, and there may be a plurality of passive subjects.
Given the particular nature and importance of the good that the law intends to protect, there is not required, in general, for the materiality of the crime, the occurrence of an actual harm; on the contrary, a merely potential harm suffices. And this explains how among the crimes against ecclesiastical authorities there are counted certain actions which would, in themselves, have the character of a simple attempt (for example, incitement to disobedience) or, indeed, of preparatory acts that are not punishable (for example, conspiracy). For the same reason, the moment of consummation coincides most often with the commission of the prohibited acts or with the omission of the acts imposed by law, independently of whether or not the event intended by the agent occurs; which, according to a commonly used terminology, even if repudiated by some very modern penalists, is equivalent to saying that these crimes are for the most part formal.
The subjective element can consist, as for every other category of offenses, either in dolus (v.) or in culpa (v.); but it is easy to observe that the hypothesis of culpa - excepting, of course, the case of culpa ex ignorantia legis violatae - appears very rarely configurable. As for the causes modifying imputability, it is to be borne in mind that, since these are crimes which imply an evident contempt of ecclesiastical authority, grave fear, the state of necessity and grave incommodum do not cause the crime to cease (can. 2205, § 3). Grave fear, however, exempts from latae sententiae penalties when, through the formulas praesumpserit, ausus fuerit, scienter and the like, the fullness of dolus is required.
To this species of crimes, whose principal characteristics have been summarized up to this point, the following criminal figures belong:
I. DISOBEDIENCE TO THE PONTIFF OR TO ONE'S OWN ORDINARY
Canon 2331, § 1 punishes anyone, cleric or layman, who renders himself guilty of obstinate disobedience toward the Roman Pontiff or his own Ordinary. It matters little whether the order which the subject fails to obey is positive (to do) or negative (not to do), provided that it appears substantially and formally legitimate, that is, issued by the competent superior within the limits of his discretionary power and in the forms that may be prescribed, so as to give rise in the one who receives it to the juridical obligation to carry it out. This is, as is clear, an offense of omission; which can be consummated by means of an action whenever one fails to comply with a prohibition or does something other than what was commanded. The subjective element is constituted by dolus; indeed, by that more malicious kind of dolus which consists in pertinacity, that is, in the obstinate will to contravene the law. Against the disobedient one, indeterminate penalties are provided for (censures not excluded), which must be inflicted by the judge according to the gravity of the case.
II. CONSPIRACY
A simple criminal agreement between two or more persons does not ordinarily fall within the class of punishable acts, not even as an attempt; but when its object is any aggression whatsoever against the public authorities, in all criminal legislations, for evident reasons of political order, it is customarily regarded as a crime in its own right. Canon 2331, § 2, is also inspired by this criterion; it threatens the application of grave penalties at the discretion of the judge or of the superior (as well as, for clerics, the loss of the dignities, benefices and offices they may happen to hold and, for religious, the deprivation of active and passive voice and of office) against those who "cospirantes contra auctoritatem Romani Pontificis eiusve legati vel proprii ordinarii aut contra eorum legitima mandata".
For the crime to exist, the formation of a true and proper association is not required, it being sufficient that there be a pactum sceleris, to which is added at least a generic preparation of means suited to attaining the end. What actions the conspirators must intend to carry out the Code does not say; but the legislator's will to refer to all those acts that can be directed at impairing the authority of the Pontiff, of his legate or of the ordinary is clear. The crime, which necessarily presupposes the cooperation of several persons (so that all the participants are to be considered co-authors under canon 2209, § 2), is by its nature permanent and does not admit of the hypothesis of negligence.
Equated with conspiracy, for penal effects, is provocation to disobedience, that is, the act of one who in any way incites subjects to disobey the Pope, the pontifical legate or their own Ordinary.
III. APPEAL TO A UNIVERSAL COUNCIL
The error of the so-called theoria conciliaris, advocating the superiority of the ecumenical Council over the Pope (v. CONCILIO ECUMENICO) and the consequent abuse that became established between the end of the 14th century and the beginning of the 15th of having recourse to the Council against the measures of the Holy See, compelled the pontiffs several times, from Pius II (Constitution Exsecrabilis, 18 Jan. 1459) to Julius II (Constitution Suscepti regiminis, 1 July 1509), from Gregory XIII (bull Coenae, 1583) to Pius IX (Constitution Apostolicae Sedis, 12 Oct. 1869), to regard and to punish in the severest of ways this form of open rebellion which was once called "crimen sacrilegii contra primatum Pontificis Romani" and which is today covered by canon 2332 of the CIC.
The crime can be committed not only by natural persons of whatever estate, rank and condition they may belong to — including ruling princes, bishops and cardinals — but also by collegiate moral persons; and it consists in the act of appealing in any form to the universal Council, present or future, against the laws, decrees and mandates of the Pontiff "pro tempore" in existence. No specific intention of offering injury to the supreme authority of the Church is required, it being sufficient that the appellant has the awareness and the will to turn to the Council itself as to a body superior to the Pope. The person responsible becomes "suspect of heresy" and is struck by the excommunication latae sententiae, reserved in a special manner to the Apostolic See. If it is a moral person, the penalty is that of the interdict, likewise reserved in a special manner to the Apostolic See.
IV. VIOLATION OF LETTERS AND ACTS OF THE HOLY SEE
This crime – whose origin is connected with the legal abuses of the royal placet and of the appeal tamquam ab abusu, repeatedly and energetically fought by the Church over the centuries (v. PLACET; APPELLO PER ABUSO) – can be committed in three different ways, to which correspond as many criminal hypotheses (can. 2333). The first consists in having recourse to the lay power, with the determined purpose of impeding, that is, of rendering ineffective, the letters and acts of any kind issued by the Holy See or by its legates; the second in prohibiting directly or indirectly their promulgation or execution; the third in causing personal injury or in instilling grave fear in anyone, for a reason inherent in the aforementioned letters or acts. It is disputed in doctrine whether, for the completion of the offense, in the first case, the actual occurrence of the impediment is required or not; it seems to us that the negative opinion is preferable, as the one that better responds to the letter and the spirit of the law. The penalty to which the guilty party is subject is excommunication latae sententiae, reserved in a special manner to the Holy See.
V. PROVISIONS CONTRARY TO THE RIGHTS OR THE FREEDOM OF THE CHURCH
The civil authorities can make themselves responsible for this crime in the exercise of the legislative and administrative functions entrusted to them. For canon 2334 says, reproducing almost to the letter the content of ancient Decretals (v., e.g., c. 49 and 53, X, de sententia excommunicationis, V, 39; c. 5, de immunitate ecclesiarum etc., III, 23, in VI): "Excommunicatione latae sententiae speciali modo Sedi Apostolicae reservata plectuntur: 1° Qui leges, mandata vel decreta contra libertatem aut iura Ecclesiae edunt"; where the breadth maintained by the law, not by chance, in defining the materiality of the offense is manifest.
Without any need to descend to examples, it appears intuitive that under the sanction of the canon must fall all those who voluntarily cooperate in the formation of the provision in question. If this is a law, the crime is completed at the moment of its promulgation; hence, in order to determine the moment of consummation, one will have to have regard, case by case, to the manner of promulgation in force in the State where the crime is committed.
VI. IMPEDED EXERCISE OF ECCLESIASTICAL JURISDICTION
Whoever, by resorting to any civil authority, directly or indirectly impedes the exercise of ecclesiastical jurisdiction, incurs excommunication latae sententiae specially reserved to the Apostolic See and, if a cleric or religious, is furthermore subject to particular vindictive penalties. Such is the combined effect of cann. 2334, no. 2 and 2336, which substantially confirms the legislative practice formed over the long course of centuries, from the Decretals of Gregory IX and of Boniface VIII (cf., for example, c. 1, X, de officio et potestate iudicis delegati, I, 28 and c. 4, de immunitate ecclesiarum etc., III, 23 in VI) to the constitution Apostolicae Sedis of Pius IX.
By ecclesiastical jurisdiction is meant, naturally, that « potestas publica Superioris, a Christo vel ab Ecclesia per canonicam missionem concessa, regendi baptizatos in ordine ad salutem aeternam », which is customarily divided into legislative, judicial and executive, and which may be of the internal forum or of the external forum, ordinary or delegated, proper or vicarious, contentious or voluntary (v. GIURISDIZIONE); but it is doubtful whether the protection of the penal norm extends also to merely administrative acts.
Any effective impediment to the exercise of such jurisdiction, obtained by means of a recourse to the secular authority, constitutes the objective element of the crime; which, unlike the preceding ones, is material and admits of attempt under the twofold aspect of conato and frustrated attempt. It is to be held that there is a punishable impediment not only in the case in which the superior is placed in the impossibility of performing a legitimate jurisdictional act, but also in the case in which he is constrained to revoke an act already performed or otherwise to use the power of jurisdiction in a manner contrary to his will.
VII. ENROLLMENT IN FREEMASONRY AND OTHER SECTS
It is self-evident that no perfect society – and even less the Church – can tolerate within its bosom the existence of sects or congregations that set out to shake its foundations and subvert its institutions. This is the reason that moved the ecclesiastical legislator to combat secret societies in general, and the Masonic one in particular (v. MASSONERIA), from their very rise, considering membership in them as a grave crime against the powers of the Church (cf. the constitution In eminenti of Clement XII, 28 April 1738; the constitution Providas of Benedict XIV, 18 May 1751; the encyclical Qui pluribus of Pius IX, 9 November 1846, etc.).
According to the CIC (can. 2335), the mere fact of enrolling (nomen dare) in Freemasonry or in other similar associations conspiring against the Church or against the legitimate civil powers is enough to constitute the crime, independently of the further criminal actions that the members may perchance commit. Nor should it cause surprise that by these provisions the ecclesiastical law extends its protection to the organs of state authority, if one keeps in mind, besides the warning of the Apostle: « Non est potestas nisi a Deo... Itaque qui resistit potestati, Dei ordinationi resistit » (Rom. 13, 1-2), the constant teaching of Catholic morality, according to which « Oboedientiam abicere, et per vim multitudinis rem ad seditionem vocare est crimen maiestatis, neque humanae tantum, sed etiam divinae » (Leo XIII, encyclical Immortale Dei, 1 November 1885, § 11).
To establish a priori which associations deserve to be equated with Freemasonry for the effects of the canon under examination is not easy and perhaps not even possible. Authors are accustomed to resort to examples of debatable clarity and scant effectiveness; it suffices here to observe that subversive societies are not to be confused with the «non-Catholic sects», membership in which is provided for and punished as a crime in its own right by can. 2314, § 1 (v. APOSTASIA; ERESIA), and to leave, for the rest, to the prudent discretion of the judge or of the superior the decision in individual cases whether a particular association, political or cultural, must or must not be considered, by its statutes, its purpose and its activity, similar or akin to Freemasonry.
The crime is intentional if the offender acts with the knowledge and will to give his own name to a forbidden sect; but the hypothesis of negligence is not to be excluded, which can occur, for example, if someone enrolls in the association without using due diligence in investigating its nature and purpose. The penalties are the same as those provided for the crime referred to in the preceding number, with the sole difference that excommunication is reserved simpliciter, and not speciali modo, to the Apostolic See.
VIII. SEDITIOUS ACTS IN PARISHES
In order to protect the normal and peaceful functioning of the bodies entrusted with the care of souls, the Code provides for two distinct types of offense. The first (can. 2337, § 1, which has its precedent in the decree Maxima cura, 20 Aug. 1910, can. 18, § 1), consists in the act of a parish priest who, for the specific purpose of impeding the exercise of ecclesiastical jurisdiction (as, for example, to avoid a transfer or to escape a punishment), summons the crowd, promotes public subscriptions, or in any way incites the people to rebellion; the second (can. 2337, § 2) consists in the act of a priest who in any manner instigates the multitude to prevent the taking possession of the parish by the parish priest or the vicar economus legally appointed (v. PARROCO; VICARI PARROCCHIALI). The punishment of both offenses is left to the judgment of the Ordinary, who is given the faculty to inflict, if necessary, even the penalty of suspension.
IX. CONTEMPT AND NON-OBSERVANCE OF CENSURES
In can. 2338 four different penal provisions are grouped together, which have in common the intent of guaranteeing, by the prestige of the [ecclesiastical] authority and the emendatory and exemplary effect of medicinal penalties (v. CENSURA), these categories of offense; they were for the most part provided for by the Council of Trent (sess. xxv, c. 3, de ref.) and in various provisions of the constitution Apostolicae Sedis.
1) A priest who, without having the faculty to do so, dares to absolve someone from an excommunication latae sententiae reserved in a special or most special manner to the Apostolic See (v. ASSOLUZIONE), incurs in turn the excommunication reserved simpliciter to the same Apostolic See (can. 2338, § 1). It is clear that for the offense to exist it must be a true absolution and not a simulated one (the latter being provided for by can. 2322). The subjective element, as the word "praesumentes" indicates, consists in full dolus.
2) The same penalty is incurred by anyone who aids or favors an excommunicated vitandus in the offense on account of which he was excommunicated (can. 2338, § 2. For the notion of vitandus, v. SCOMUNICA). For the rest, it suffices here to observe that the favoring must be given after the commission of the offense; that if it were given, or promised, beforehand, instead of this particular category of offense there would be a form of criminal complicity.
3) Likewise, clerics who knowingly and spontaneously communicate in divinis with an excommunicated vitandus, having him actively participate in the functions of worship, contract the excommunication reserved simpliciter to the Apostolic See.
4) Those who in places struck by interdict knowingly celebrate or have celebrated the divine offices incur the personal interdict ab ingressu ecclesiae (v. INTERDETTO), to remain in force until, in the judgment of the superior whose sentence was violated, they have given suitable satisfaction. The same penalty - which it is not clear whether it should be considered medicinal or vindictive - is provided for against anyone who admits a cleric who is excommunicated, interdicted or suspended by virtue of a condemnatory or declaratory sentence (v. SENTENZA) to celebrate the divine offices forbidden to him by law (can. 2338, § 3).
X. ILLEGITIMATE ECCLESIASTICAL BURIAL
To guarantee respect for the norms that deprive certain categories of persons of the privilege of receiving Christian burial, can. 2339 sets out two criminal hypotheses. The first concerns those who, availing themselves of their own authority or resorting to violence, compel ecclesiastical burial to be given to unbelievers, apostates, heretics or schismatics notoriously known as such, or to persons excommunicated or interdicted after a condemnatory or declaratory sentence; and it entails the penalty of excommunication latae sententiae, not reserved to anyone. The second refers to the act of one who spontaneously gives burial to the persons mentioned above, and is punished with the interdict ab ingressu ecclesiae, reserved to the Ordinary.
It is disputed whether by ecclesiastical burial there should here be understood the simple interment of the corpse, or that complex of acts and rites which is mentioned in can. 1204. The first opinion, followed by a great number of ancient and recent authors, may be regarded as the more probable. (For further details v. SEPOLTURA ECCLESIASTICA).
XI. OBSTINACY IN CENSURES
Whoever, having incurred a censure, gives no signs of repentance but maliciously persists in his contumacy, shows a culpable contempt for the coercive power of the Church. This is the basis of the provisions of can. 2340, by virtue of which: a) the excommunicated person (cleric or layperson, tolerated or vitandus) who lets a year pass without attempting anything to obtain absolution becomes "suspected of heresy," that is, liable, under certain conditions, to the penalties established against heretics (v. ERESIA); b) the cleric who perseveres for six months in the censure of suspension must be gravely admonished (v. AMMONIZIONE); and if, a month after the admonition, he does not desist from his contumacy, he is deprived of the benefices and offices that he may happen to hold. This is a crime of omission, which is consummated in the first case with the completion of a year from the moment when the subject learned of the incurred excommunication, and in the second case as soon as a month has passed since the canonical admonition.