ECCLESIASTICAL AUTHORITIES, OFFENCES against. — Under this title the CIC (cann. 2331–40) considers a category of criminal acts which, being directed at preventing or disturbing the normal exercise of ecclesiastical powers, possess a special character of gravity and therefore deserve severe and exemplary sanctions.
The common juridical object of these offences—which may, grosso modo, be compared with offences against the internal security of the State, as provided for by secular penal codes—is the interest of the Church, as a perfect, unequal, monarchical society, in preserving its own institutions and functions intact and free from extraneous influences. It follows that, in this category of offences, the immediate harm (that is, the tangible harm directly caused by the violation of the penal norm) is always public; this does not, however, prevent a private immediate harm from sometimes accompanying the public immediate harm, especially where the offence is complex, and there may consequently be a plurality of passive subjects.
Given the particular nature and importance of the good which the law seeks to protect, the occurrence of actual harm is not generally required for the material element of the offence; on the contrary, merely potential harm suffices. This explains why among offences against e. a. are included certain actions which would, in themselves, have the character of a simple attempt (e.g., incitement to disobedience) or even of non-punishable preparatory acts (e.g., conspiracy). For the same reason, the consummation of the offence coincides for the most part with the commission of the acts prohibited or with the omission of the acts imposed by law, independently of whether or not the result intended by the agent occurs; this, in accordance with common usage, although repudiated by some of the most recent penalists, is equivalent to saying that these offences are for the most part formal.
The subjective element may consist, as in every other category of offences, either in dolo (v.) or in colpa (v.); but it is readily apparent that the negligent hypothesis—except, naturally, in the case of colpa ex ignorantia legis violatae—can only very rarely be envisaged. As regards the circumstances modifying imputability, it should be borne in mind that, since these are offences which imply evident contempt for e. a., grave fear, the state of necessity, and grave incommodum do not eliminate the offence (can. 2205, § 3). Grave fear, however, exempts from latae sententiae penalties when, through the formulas praesumperit, ausus fuerit, scienter and similar expressions, full dolo is required.
The following criminal offences belong to this species of offences, whose principal characteristics we have sought thus far to summarize:
I. DISOBEDIENCE TO THE PONTIFF OR TO ONE’S OWN ORDINARY
Canon 2331, § 1 punishes anyone, cleric or layperson, who is guilty of persistent disobedience toward the Roman Pontiff or his own Ordinary. It matters little whether the order disobeyed by the subject is positive (to do something) or negative (not to do something), provided that it is substantially and formally legitimate, that is, issued by the competent superior within the limits of his discretionary power and in any forms that may be prescribed, so as to give rise in the recipient to the juridical obligation to carry it out. It is clearly a crime of omission, which may be consummated through an action whenever one fails to comply with a prohibition or does something other than what was commanded. The subjective element consists in malice; indeed, in that more malicious kind of malice which consists in pertinacity, that is, the obstinate will to contravene the law. Indeterminate penalties (including censures) are provided against the disobedient person; these are to be imposed by the judge according to the gravity of the case.II. CONSPIRACY
The mere criminal agreement of two or more persons does not ordinarily fall among punishable actions, not even as an attempt; but when its object is any kind of aggression against the public authorities, in all penal legislations, for obvious reasons of political order, it is customarily regarded as a distinct offense. This criterion is also followed by can. 2331, § 2, which threatens the imposition of severe penalties at the discretion of the judge or superior (and, for clerics, the loss of any dignities, benefices, and offices they may possess, and, for religious, deprivation of active and passive voice and of office) upon those «cospirantes contra auctoritatem Romani Pontificis eiusve legati vel proprii ordinarii aut contra eorum legitima mandata».For the offense to exist, it is not necessary that a genuine association be formed, since it is sufficient that there be a pactum sceleris, together with at least a general preparation of means suitable for achieving the purpose. The Code does not say what actions the conspirators must intend to undertake; but the legislator’s intention to refer to all those acts that may be directed toward diminishing the authority of the Pontiff, his legate, or the ordinary is clear. The offense, which necessarily presupposes the cooperation of several persons (so that all participants are to be regarded as co-perpetrators in accordance with can. 2209, § 2), is by its nature permanent and does not admit the possibility of negligence.
For penal purposes, provocation to disobedience is equated with conspiracy—that is, the act of anyone who in any manner incites subjects to disobey the Pope, the pontifical legate, or their own Ordinary.
III. APPEAL TO THE UNIVERSAL COUNCIL
The error of the so-called theoria conciliaris, advocating the superiority of the Ecumenical Council over the Pope (v. ECUMENICO), and the consequent abuse, which became widespread between the end of the fourteenth and the beginning of the fifteenth century, of appealing to the Council against the measures of the Holy See, repeatedly compelled the pontiffs, from Pius II (Constitution Exsecrabilis, 18 January 1459) to Julius II (Constitution Suscepti regiminis, 1 July 1509), and from Gregory XIII (bull Coenae, 1583) to Pius IX (Constitution Apostolicae Sedis, 12 October 1869), to regard and punish in the severest manner this form of open rebellion, which had already been called « crimen sacrilegii contra primatum Pontificis Romani » and which is now covered by canon 2332 of the CIC.The offence may be committed not only by physical persons, whatever their state, rank, or condition—including reigning princes, bishops, and cardinals—but also by corporate juridical persons; and it consists in appealing in any form to the universal Council, present or future, against the laws, decrees, and commands of the Pontiff « pro tempore » in office. A specific intention to injure the supreme authority of the Church is not required; it suffices that the appellant is conscious and willing to address the Council itself as an authority superior to the Pope. The person responsible becomes « suspect of heresy » and is subject to latae sententiae excommunication, specially reserved to the Apostolic See. If it is a juridical person, the penalty is interdict, likewise specially reserved to the Apostolic See.
IV. VIOLATION OF LETTERS AND ACTS OF THE HOLY SEE
This offense—which is connected in origin with the legal abuses of the royal placet and the appeal tamquam ab abusu, repeatedly and vigorously opposed by the Church over the centuries (v. PLACET; APPELLO PER ABUSO)—may be committed in three different ways, corresponding to as many criminal hypotheses (can. 2333). The first consists in appealing to the secular power with the specific aim of preventing, that is, rendering ineffective, letters and acts of any kind issued by the Apostolic See or its legates; the second in directly or indirectly prohibiting their promulgation or execution; the third in causing personal injury or instilling grave fear in anyone, for a reason connected with the aforesaid letters or acts. It is disputed in legal doctrine whether, for the offense to be perfected in the first case, the actual occurrence of the impediment is required; it seems to us that the negative opinion is preferable, as better corresponding to the letter and spirit of the law. The penalty incurred by the guilty party is excommunication latae sententiae, specially reserved to the Apostolic See.V. PROVVEDIMENTI CONTRARI AI DIRITTI O ALLA LIBERTÀ DELLA CHIESA
Civil authorities may be held responsible for this offence in the exercise of the legislative and administrative duties entrusted to them. Canon 2334 indeed states, reproducing almost word for word the substance of ancient Decretals (v. , for example, 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 »; here the breadth deliberately maintained by the law in defining the material element of the offence is manifest.Without needing to descend to particular examples, it is intuitively clear that all those who voluntarily cooperate in the formation of the incriminated measure must fall under the canon’s sanction. If it is a law, the offence is perfected at the moment of its promulgation; therefore, in determining the moment of consummation, regard must be had, case by case, to the manner of promulgation in force in the State where the offence is committed.
VI. IMPEDING THE EXERCISE OF ECCLESIASTICAL JURISDICTION
Whoever, by having recourse 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 moreover subject to particular vindicatory penalties. Such is the combined provision of canons 2334, n. 2 and 2336, which substantially confirms the legislative practice formed over the course of many centuries, from the Decretals of Gregory IX and 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 Pius IX’s constitution Apostolicae Sedis.By ecclesiastical jurisdiction is naturally understood that « potestas publica Superioris, a Christo vel ab Ecclesia per canonicam missionem concessa, regendi baptizatos in ordine ad salutem aeternam », which is usually divided into legislative, judicial, and executive jurisdiction, and which may be of the internal or external forum, ordinary or delegated, proper or vicarious, contentious or voluntary (v. GIURISDIZIONE); but it is doubtful whether the protection afforded by the penal norm extends also to purely administrative acts.
Any effective impediment to the exercise of such jurisdiction, obtained by means of an appeal to secular authority, constitutes the objective element of the offence; unlike the preceding offences, this is material and admits of an attempt in its two forms, that of conato and that of frustrato. It is to be held that a punishable impediment exists not only when the superior is rendered incapable of performing a legitimate jurisdictional act, but also when he is compelled to revoke an act already performed or otherwise to exercise the power of jurisdiction in a manner contrary to his will.
VII. ENROLMENT IN FREEMASONRY AND OTHER SECTS
It is self-evident that no perfect society—and even less so the Church—can tolerate within its midst the existence of sects or coteries that seek to undermine its foundations and subvert its institutions. This was the reason that moved the ecclesiastical legislator to combat secret societies in general, and the Masonic society in particular, from the time of their emergence (v. MASSONERIA), regarding membership in them as a grave offense 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 act of enrolling (nomen dare) in Freemasonry or in other similar associations conspiring against the Church or against legitimate civil authorities is sufficient to constitute the offense, independently of any further criminal actions that the members may happen to commit. Nor should it be a matter of surprise that, by these provisions, ecclesiastical law extends its protection to the organs of state authority, if one bears in mind, in addition to the Apostle’s admonition: « 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 purposes of the canon in question is neither easy nor, perhaps, possible. Authors generally resort to examples of questionable clarity and limited effectiveness;
it is enough here to observe that subversive societies are not to be confused with «non-Catholic sects», membership in which is provided for and punished as a separate offense by can. 2314, § 1 (v. APOSTASIA; ERESIA), and otherwise to leave it to the prudent judgment of the judge or superior to decide in individual cases whether a given political or cultural association should or should not be regarded, on the basis of its statutes, purpose, and activities, as similar or akin to Freemasonry.
The offense is intentional if the offender acts with the awareness and will to give his name to a forbidden sect; but the possibility of culpability through negligence cannot be excluded, which may occur, for example, if someone enrolls in the association without exercising due diligence in investigating its nature and purpose. The penalties are the same as those provided for the offense mentioned 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 safeguard the normal and peaceful functioning of the bodies entrusted with the care of souls, the Code provides for two distinct forms of offence. The first (can. 2337, § 1, which has a precedent in the decree Maxima cura, 20 Aug. 1910, can. 18, § 1) consists in the parish priest’s summoning the crowd, promoting public petitions, or in any way inciting the people to rebellion, with the specific aim of preventing the exercise of ecclesiastical jurisdiction (for example, to avoid a transfer or evade a punishment); the second (can. 2337, § 2) consists in a priest’s in any way inciting the multitude to prevent the taking of possession of the parish by the lawfully appointed parish priest or parish administrator (v. PARROCO; VICARIO PARROCCHIALE). The punishment for both offences is left to the judgment of the Ordinary, who is empowered, when necessary, also to impose the penalty of suspension.IX. DISREGARD AND NON-OBSERVANCE OF CENSURES
In can. 2338, four distinct penal provisions are grouped together, sharing the common purpose of safeguarding, through the prestige of the a. and the corrective and exemplary effect of medicinal penalties (v. CENSURA); these forms of offence were largely 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, 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 an excommunication reserved simpliciter to that same Apostolic See (can. 2338, § 1). It is clear that, for the offence to exist, the absolution must be genuine and not simulated (the latter being covered by can. 2322). The subjective element, as indicated by the word «praesumentes», consists in full malice.
2) The same penalty is incurred by anyone who assists or favours an excommunicated vitandus in the offence on account of which he was excommunicated (can. 2338, § 2. For the meaning of vitandus, V. SCOMUNICA). For the rest, it is sufficient to observe here that the aiding must be provided after the offence has been completed; had it been provided or promised beforehand, this particular form of offence would instead constitute a form of criminal participation.
3) Clerics who knowingly and spontaneously communicate in divinis with an excommunicated vitandus, by actively allowing him to participate in acts of worship, likewise incur an excommunication reserved simpliciter to the Apostolic See.
4) Those who knowingly celebrate or cause the divine offices to be celebrated in places under interdict incur a personal interdict ab ingressu ecclesiae (v. INTERDETTO), to remain in force until, in the judgment of the superior whose sentence they violated, they have provided adequate satisfaction. The same penalty—which it is unclear whether it should be regarded as medicinal or vindictive—is prescribed for anyone who permits an excommunicated, interdicted, or suspended cleric, by virtue of a condemnatory or declaratory sentence (v. SENTENZA), to celebrate the divine offices which the law forbids him to celebrate (can. 2338, § 3).
X. ILLEGITIMATE ECCLESIASTICAL BURIAL
To ensure respect for the norms that deprive certain categories of persons of the privilege of receiving Christian burial, can. 2339 defines two criminal cases. The first concerns those who, by availing themselves of their own authority or by resorting to violence, compel the ecclesiastical burial of infidels, apostates, heretics, or schismatics notoriously known as such, or of excommunicated or interdicted persons after a condemnatory or declaratory sentence; and it entails the penalty of latae sententiae excommunication, reserved to no one. The second concerns anyone who spontaneously gives burial to the persons mentioned above, and is punished with interdict ab ingressu ecclesiae, reserved to the Ordinary.It is disputed whether ecclesiastical burial here means merely the interment of the corpse, or that complex of acts and rites mentioned in can. 1204. The former opinion, followed by a large number of ancient and recent authors, may be regarded as the more probable. (For further information V. SEPOLTURA ECCLESIASTICA).