PENA. — In general, it is the suffering (the deprivation or diminution of an individual good) imposed by law upon one who violates one of its commands. In the majority of positive legal systems, punishment must be imposed by a judge through judicial proceedings; in canon law, however, there are punishments that are not inflicted by a judge, but are incurred ipso facto, as soon as the offense has been committed (the so-called latae sententiae punishments, on which V. below).
For a broader exposition of the concept of punishment and the corresponding philosophical theories, reference may be made to another entry (v. SANZIONE); here it is sufficient to mention the function of punishment, that is, the effects with a view to which it is imposed. The theories formulated in this regard may essentially be grouped into three categories: those that see the foundation of punishment in retribution, that is, in the malum passionis quod infligitur ob malum actionis. The second group comprises those that regard intimidation as the purpose of punishment, that is, the prevention of offenses through the fear aroused by exemplary punishment. Finally, for the theories of the third group, the function of punishment is reform, and it should therefore be directed toward bringing about the offender’s repentance; already affirmed by the Roman jurist Paulus (D. 48, 19, 20), the theory of reform has recently been upheld especially by Roeder. As for the purpose of ecclesiastical punishment, canonists hold: a) that it is a benefit granted to the offender, through which he can be reconciled with God (Schulte, Geib, Bar); b) that its purpose is the reform of the offender (Mayer, Lega, Cappello); c) that the intrinsic purpose of every punishment, whether ecclesiastical or civil, is the restoration of the social order that has been injured or placed in danger (München, Hinschius, Schiappoli, Wernz-Vidal, Roberti); but that other purposes too may be pursued, and ordinarily are pursued, by the legislator through the imposition of punishment, or by the superior or judge through its application. The Church, moreover, in imposing punishments has never neglected the reform of the offender, and for this reason created a category of punishments, the censures (v.), which directly tend toward this end: they too, however, are genuine punishments and therefore cannot dispense with the restoration of the injured social order.
I. HISTORY
This section gives a brief account of the origin and vicissitudes of ecclesiastical or canonical penalties other than excommunication, interdict, suspension, and censure, for which the reader is referred to the relevant entries.Some of these were imposed indiscriminately on both clerics and laity. Among them were many of the vindicatory penalties prescribed in the CIC.
At first, deprivation of ecclesiastical burial was one of the effects of excommunication; subsequently, of suspension from the rights of the community; and later, a consequence of personal or local interdict. The Council of Braga (a. 561) mentions deprivation of ecclesiastical burial as a penalty in its own right. It affected above all heretics, both clerics and laity.
Incapacity to obtain ecclesiastical offices is found imposed on laymen from the thirteenth century; for certain particularly serious crimes it was extended even to the heirs of the condemned person.
The loss of ecclesiastical rights consisted either in temporary suspension from certain rights, e.g., the right of patronage, or in their deprivation, e.g., deprivation of the episcopal see.
In imitation of temporal sovereigns, in the eleventh century the popes introduced the practice of depriving persons of pontifical grace and pronouncing the indignatio against those who refused to carry out their orders, especially when they were bishops or abbots; the pope not only interrupted all communication with the person punished, but even refused to exercise ecclesiastical jurisdiction in his favour. At first deprivation of the grace of St Peter, of the pope, or of the Roman Church was threatened; later the expression Indignatio Dei et bb. apostolorum Petri et Pauli lost its original meaning and was used as a formula closing pontifical letters.
Some penalties, on the other hand, could be imposed only on ecclesiastics, insofar as they affected them in their juridical position vis-à-vis the Church or in the rights belonging to them by reason of the sacred ministry with which they had been entrusted.
The most deposition (v.) until the thirteenth century, when it degradation (v.), by which the condemned person lost the ecclesiastical state and the rights attached to it, such as the privilegium fori.
Less serious than deposition was deprivation (v.) of a benefice, whereby the person affected lost the office, but neither the clerical incapacity (v.); suspension (v.), since it did not permanently affect the cleric in his rights and ecclesiastical capacity. There were also other penalties, such as the definitive loss of individual rights or faculties attached to an ecclesiastical office, dignity, or rank; of seniority in the latter; of certain privileges or immunities attached to the Order (in the case of those without benefices); demotion to a lower Order; and incapacity to obtain a higher Order or rank.
Finally, mention must be made of corporal penalties, which the Church was accustomed to inflict on both clerics and laity until the State challenged her right to do so. In the early period, clerics of the higher grades were also subjected to corporal penalties, but later this occurred only in cases of very serious offences, and never to the point of bloodletting or mutilation. Today they are no longer prescribed in the penal codes, and their use by the Church would be punished as a crime.
The pecuniary penalty, initially regarded as compensation for damage, entered the canonical penal system through the influence of Germanic law (v. MULTA). The popes made frequent use of it from the eleventh century: it consisted of a fixed sum or of an amount set at twice, three times, or four times the damage caused. Some texts seem to prohibit it, but they were interpreted to mean that this penalty could not be imposed for every offence, nor could it replace spiritual penalties. The prevailing opinion denied the judge the power to impose a pecuniary penalty not expressly prescribed by law. In order, moreover, to remove any suspicion of greed, the judge was forbidden to convert the pecuniary penalty to his own advantage; this prohibition was reaffirmed in the CIC (can. 2297).
More serious was the penalty of confiscation of property, prescribed in the Carolingian period for incest and refusal to pay tithes. Sanctioned from the eleventh century by synods and by general councils themselves, and subsequently by the popes, in the twelfth century it became one of the many penalties for repressing heresy. The condemned person’s property was transferred to the treasury; for this reason the promoter of justice in the tribunals of the Inquisition and of the Holy Office was called the “fiscal attorney” until 1920. Nothing was left to the condemned person’s heirs, but only life, ex misericordia conservata. Later the judge was authorized to leave them what was necessary for their subsistence and to remit the penalty for a heretic who recanted. In addition to afflictive and pecuniary penalties, the Church used those restricting personal liberty, such as exile, banishment, and imprisonment. Exile or relegation is mentioned in the most ancient Carolingian Capitularies as a perpetual or temporary penalty against those who obstinately refused to pay tithes. They were subsequently sanctioned in imperial synods and ordinances for the Peace of God, and finally in ecclesiastical ordinances and pontifical synods. When imposed against heresy, they had more the character of a political or general police measure than that of an individual penalty. Naturally, in order to expel a person from a city or from the State, the Church had recourse to the secular arm.
Related to this was banishment, that is, expulsion from a specific territory (diocese, parish), prescribed by Norman and English councils against prostitutes and the concubines of clerics. Banishment or partial exile is sanctioned as a vindicatory penalty proper to clerics in the CIC (can. 2298, 7°) and in the currently applicable Italian Penal Code as a non-custodial security measure (arts. 215, second part, no. 2, and 233).
In the Frankish Capitularies, incest and magic were punished by deprivation of personal liberty; in the Carolingian period, usurpation of or attempts against ecclesiastical property. It is also found prescribed against the propertyless in place of confiscation of property. Later it was established as a penalty proper to the Church’s servants, and the bishops claimed the right to apply it to the concubines of clerics. From the thirteenth century it was prescribed against heretics and was also applied as preventive detention, not merely to secure the accused for justice, but chiefly to prevent him from contaminating others by spreading error, and even as an investigative measure: in order to be released from that prison, often harsh beyond measure, the accused would end by confessing even a fault he had not committed.
The penalty of imprisonment, even for life, for the gravest offences could be aggravated by treating the condemned person with pane doloris et aqua angustiae. A more severe penalty was the ergastulum (a secluded room in a monastery), in which nuns who had led a shameful or immodest life were confined. The detrusio in arctum monasterium, from which the modern penalty of imprisonment developed, was applied to laymen, ordinarily only men, guilty of rape or adultery. They did not take vows, but performed temporary or perpetual penance for the wrongs they had committed, leading a life segregated from the world.
The penalty of imprisonment, in the modern sense of the term, is not prescribed in the CIC: the requirement to reside in a specified place or territory, mentioned in can. 2298, 8°, is more akin to police confinement than to imprisonment; nor can the measure taken by the judge under can. 1957 be regarded as imprisonment. Only internment in a penitentiary, mentioned in can. 2301, is closely akin to imprisonment. It is true that it is ordinarily ordered for an indefinite period, but indeterminacy in the duration of imprisonment is not unknown in state penal systems, such as that of the United States.
Unlike the others are the infaming penalties, although in many cases they produce identical juridical effects. Infamy (v.) was introduced into canon law by the Pseudo-Isidorian Decretals, which admitted the application of secular penalties in the ecclesiastical sphere and vice versa. Thus, infamy under civil law also entailed canonical infamy. From the eleventh century onward it was more widely applied by the pontiffs. Gratian cites many sources in which infamy was imposed, and distinguishes civil from canonical infamy.
Under the law of the Decretals, it was incurred through calumny, heresy, schism, notorious theft, usury, and false or reticent testimony in court. It entailed incapacity for civil and ecclesiastical dignities and public offices; it is uncertain, however, whether it deprived a person of offices already held. The individual acts of an office obtained before the penalty were nevertheless declared null, and thus the penalty entailed, at the very least, suspension from office. The infamous person could not be a judge, plaintiff, advocate, or witness, receive Holy Orders, or exercise those already received. This penalty also affected children born of incestuous unions and even the grandchildren of those guilty of violence against cardinals. A remnant of this effect is the irregularity established in can. 984, 1°.
Finally, there were penalties which, by their nature, could affect only the laity. As a consequence of the conception that the pope possessed supreme direction of the Catholic world, he was recognized as having the right to depose kings and emperors and to deprive laypeople in general of secular offices and dignities when they obstinately refused to carry out the orders of the ecclesiastical authorities; and from the time of Gregory VII it became customary to declare subjects released
from their oath of allegiance and from their duties toward the sovereign, either as a consequence of deposition combined with excommunication, or as a penalty in its own right.
With regard to the death penalty, it may be observed that the Church has never condemned the use of the death penalty by States, not even after Beccaria declared it an act of violence by society against the individual. Canonists and ecclesiastical public-law scholars have disputed, and continue to dispute, whether the Church possesses the right to inflict the death penalty for offenses of a religious nature. Those who support the negative view generally assert that the Church has never inflicted the death penalty: it would merely have tolerated the secular power (brachium saeculare) pronouncing and carrying out the death sentence against obstinate heretics remanded to it by the ecclesiastical authorities, already degraded if they were clerics. But a careful study of the procedure of the Inquisition shows that, even if the Church never pronounced the death sentence against obstinate heretics, it was not uninvolved in their killing, because whoever performs an act while foreseeing an inevitable effect cannot fail to will that effect.
II. CURRENT CANON LAW
Current canon criminal law is almost entirely contained in the CIC: substantive criminal law in Book V (canons 2195–2414), procedural criminal law in Book IV, Part I, Section II, Title XIX (canons 1933–1959), and, according to the prevailing doctrine, in Titles xxx–xxxiii of Book IV (canons 2168–94). Nor are penal norms lacking in the CIC outside their proper place, such as canons 727–30 and 985–86. Penalties are likewise imposed in the apostolic constitution Pacantis Apostolicae Sedis of 8 December 1945 (Document I in the appendix to the CIC). A true code of criminal law and procedure is also the constitution Sacramentum Poenitentiae of Benedict XIV (1 June 1741), for the repression of solicitation in Confession (Document III). Finally, canon 1555 § 1 declares that the Holy Office has its own criminal procedure, which must also be followed by diocesan tribunals in dealing with cases of solicitation. Nor are exceptional penal laws lacking, such as the penal decrees of the Sacred Congregation of the Council, dated 22 March 1950 (AAS, 42 [1950], p. 330), and of the Holy Office of 9 April 1951 (AAS, 43 [1951], p. 217).An ecclesiastical penalty is the deprivation of a good inflicted by legitimate authority for the correction of the delinquent and the punishment of the delict (canon 2215). Therefore, the evils caused by the delict to the offender himself are not canonical penalties, nor is reparation for the harm inflicted upon the victim; nor are the punishments inflicted upon clerics by a secular judge, unless such power has been granted to him by the competent authority of the Church.
The Church punishes delinquents with penalties, penal remedies (v.) and penances (canon 2216).
Canonical penalties properly so called may be latae or ferendae sententiae: the former are incurred by the simple perpetration of the criminal act, whereas the latter must be inflicted by the judge or Superior through a sentence or penal decree.
The assignment of a penalty to one category or the other entails important juridical consequences: a) in order to inflict a ferendae sententiae penalty, juridical proof of the committed offense must be obtained (material fact and imputability). A latae sententiae penalty, on the other hand, is incurred even if the delict (actually committed) has neither been proved nor can be proved; b) no appeal or recourse suspending its execution may be lodged against a latae sententiae penalty; whereas against the sentence or decree inflicting a vindicatory ferendae sententiae penalty, an appeal or recourse with suspensive effect is ordinarily admitted (canon 2287); c) the offender is always affected by the latae sententiae penalty in force at the time of the delict, even if it has subsequently been mitigated by law or by an equivalent measure; on the other hand, the provision more favorable to the offender is applied where there has been a succession of penal laws between the commission of the delict and the conduct of the trial (canon 2226 § 2); d) since a latae sententiae penalty is not gradual, it is not incurred if the delict is not complete in all its elements (canon 2228), and sometimes not even if imputability is incomplete (canon 2229 § 2); whereas an ecclesiastical Superior or judge may punish even an unsuccessful delict and a mere attempt to commit a delict with a ferendae sententiae penalty (canon 2235); e) after its application, a ferendae sententiae penalty produces more burdensome effects than a latae sententiae penalty (canon 2232 § 1); f) the application of a ferendae sententiae censure must be preceded, on pain of nullity, by a warning; g) a ferendae sententiae censure cannot be inflicted if the law providing for it at the time of the trial has been abrogated, whereas a censure incurred (latae sententiae) does not cease with the abrogation of the law (canon 2226 § 3).
Penalties, whether latae or ferendae sententiae, may be censures (v.) or vindicatory penalties (v.).
Among the principal consequences of this distinction, besides the already mentioned difference in effect with regard to appeal or recourse, are the cessation of vindicatory penalties already inflicted when the law providing for them is abrogated (canon 2226 § 3), and, on the other hand, the persistence of the censure incurred, which ceases only through absolution (canon 2248 § 1). The powers of the Ordinary concerning absolution from censures and dispensation from latae sententiae vindicatory penalties are also different: in occult cases, the Ordinary’s power to dispense from the latter is unlimited (canon 2237 § 2). Conversely, confessors may absolve from danger of death (v.) and from censures that impede the reception of the Sacraments in very urgent occult cases, but may not dispense from vindicatory penalties except when, owing to extraordinary circumstances, recourse to the Sacred Penitentiary or to the bishop proves impossible (canon 2290 § 2).
In current canon law, censures are excommunication, particular personal interdict and, when imposed for an indefinite period, suspension, interdict ab ingressu Ecclesiae, and the interdict by which a community or college is affected. For vindicatory penalties, V. the relevant entry.
It is useful here to highlight certain differences between the penal systems of States and the canonical system.
One concerns the active subject of the penalty: in States it may be established only by the legislative power, whereas in the Church a penalty may be imposed not only by law or legislative decree, but also by a particular precept of the Superior (canon 2310).
Still deeper is the difference in the application of the penalty: canon law authorizes the competent Superior to inflict, per modum praecepti, not only penances, penal remedies and minor penalties, but also suspension, interdict and excommunication itself; only deprivation of an irremovable benefice, deposition, deprivation of the right to wear ecclesiastical dress and degradation require a sentence pronounced by a collegiate tribunal (cf. canon 1576 § 1, 1°–2°).
Moreover, secular penal codes generally (the new Yugoslav Penal Code is an exception) declare that no one may invoke ignorance of the penal law or an error concerning it as an excuse; whereas the Church is very indulgent toward those who are ignorant of the law or even merely of the penalty imposed (canon 2229 § 3, 1°).
On the other hand, as regards the material element of the offense, current canon law accepts almost all the postulates of modern criminal law (cf. canon 2228). The same may be said of the juridical element of the offense: the necessity that the penal norm pre-exist is affirmed in the very definition of the delict (v.) given in canon 2195 § 1. It is true that canon 2222 § 1, first paragraph, seems to exclude it, but Roberti’s opinion is today being followed ever more widely; he advances convincing arguments to demonstrate that the cited canon does not contradict the principle proclaimed in canon 2195.
Likewise, the CIC prescribes a restrictive interpretation of the penal norm and reaffirms this provision in canons 19, 20, 2219 §§ 1, 3. And if the ecclesiastical judge enjoys greater freedom than the secular judge in applying penalties, this operates to the advantage of the offender (canons 2218 § 1, 2223 §§ 2–3, 2224 § 2).
Penances, which have no counterpart in secular codes, are imposed either in place of a penalty or when granting absolution (censure) or dispensation (vindicatory penalty). Although they are not true penalties, they must not be confused with the sacramental penance imposed by the confessor as an integral part of the Sacrament of Penance. In imposing them, the ecclesiastical judge or Superior must attend not so much to the gravity of the delict as to the offender’s repentance, and must also take into account the person’s juridical position and the circumstances of the delict; he is moreover absolutely forbidden to impose a public penance for an occult delict or transgression (canon 2312 §§ 2–3).
The CIC recalls on more than one occasion the obligation or faculty of imposing penances in place of punishment or of mitigating the punishment prescribed by law (cann. 1952 § 2, 2220 § 4). The Ordinary is also authorized to combine penances with the penal remedies of admonition and rebuke.
Those most commonly used are: 1) the recitation of certain prayers; 2) pilgrimages or some other work of piety; 3) fasting; 4) almsgiving in favor of a pious work; 5) spiritual exercises (can. 2313 § 1).