PENA

PENALTY. — In general, it is suffering (deprivation or diminution of an individual good) imposed by law upon one who violates a command of the same. For the most part of positive legal systems, the penalty must be imposed by a judge through a trial; in canon law, however, there are penalties which are not imposed by a judge but are incurred ipso facto as soon as the delict is committed (the so-called latae sententiae penalty, on which see below).

Referring, for a fuller exposition of the concept of penalty and the related philosophical theories, to another article (see SANCTION), it is sufficient here to mention the function of penalty, that is, the effects for which it is imposed. The theories formulated on this subject may be grouped substantially into three: those which see the foundation of penalty in retribution, that is, in the evil of suffering inflicted on account of the evil of the action. The second group holds that the purpose of penalty is intimidation, that is, the prevention of crimes through the fear aroused by exemplary punishment. Finally, the third group maintains that the function of penalty is the reformation of the offender, which should therefore aim at bringing about the offender’s repentance; already affirmed by the Roman jurist Paulus (D. 48, 19, 20), the theory of reformation has been supported recently especially by Roeder. With regard to the end of ecclesiastical penalty, canonists hold: a) that it is a benefit granted to the delinquent, through which he may be reconciled to the community (Schulte, Geib, Bar); b) that its end is the reformation of the offender (Mayer, Lega, Cappello); c) that the intrinsic end of any penalty, whether ecclesiastical or civil, is the restoration of social order, which is endangered (München, Hinschius, Schiappoli, Wernz-Vidal, Roberti); but that other ends may also be pursued, and ordinarily are, by the legislator in the commination, or by the superior or judge in the application of the penalty. The Church, moreover, in imposing penalties has never neglected the reformation of the offender, and for this reason has created a category of penalties, censures (see), which directly aim at this end: these, however, are true penalties and therefore cannot disregard the restoration of social order.

I. HISTORY

Some of these were imposed indiscriminately upon both clerics and laity. Among these are many of the vindictive penalties imposed in the Code of Canon Law.

Deprivation of ecclesiastical burial was at first one of the effects of excommunication, then of suspension from the rights of the community, and later a consequence of personal or local interdict. The Council of Braga (A.D. 561) mentions deprivation of ecclesiastical burial as a penalty in itself. It chiefly affected heretics, both clerical and lay.

Incapacity to acquire ecclesiastical offices was imposed upon lay persons from the 13th century onward; for certain particularly grave delicts it was extended even to the heirs of the condemned.

Loss of ecclesiastical rights consisted either in temporary suspension from certain rights, e.g., the right of patronage, or in their complete deprivation, e.g., of a bishop’s see.

Following the example of temporal sovereigns, in the 11th century the popes introduced the practice of depriving a person of the papal favor and pronouncing the indignation against those who refused to execute their orders, especially if they were bishops or abbots; the pope not only severed all communication with the offender but even refused to exercise ecclesiastical jurisdiction in his favor. At first the deprivation of the grace of St. Peter, the pope, or the Roman Church was threatened; later the expression “indignation of God and of the blessed apostles Peter and Paul” lost its original meaning and was used as a formula of conclusion in papal letters.

Some penalties, however, could be imposed only upon ecclesiastics, inasmuch as they struck at their juridical condition before the Church or at the rights pertaining to them by reason of the sacred ministry with which they were invested.

The most severe penalty against clerics was deposition (see) until the 13th century, when it was distinguished from degradation (see), by which the condemned lost the clerical state and the rights attached to it, such as the privilegium fori.

Less severe than deposition was the privation (see) of a benefice, by which the offender lost the office but not the clerical state nor incurred disability (see); still less severe was suspension (see), because it did not permanently deprive the cleric of his rights and ecclesiastical capacity. There were, however, other penalties, such as the definitive loss of individual rights or faculties attached to an office, dignity, or ecclesiastical grade, of seniority in the latter, of certain privileges or immunities attached to an Order (for non-beneficed persons); reduction to a lower Order; incapacity to obtain a higher Order or grade.

Finally, there are to be recalled corporal penalties, which the Church was wont to inflict upon both clerics and laity until this right was contested by the State. In early times even clerics of the highest grades were subject to corporal penalties, but later only in cases of very grave crimes, and never to the shedding of blood or mutilation. Today they are no longer sanctioned in penal codes, and their use by the Church would be punished as a crime.

Monetary penalty, at first considered as compensation for damage, entered into the canonical penal system under the influence of Germanic law (see MULTA). The popes made frequent use of it from the 11th century: it consisted of a fixed sum or an amount calculated at double, triple, or quadruple the damage caused. Some texts seem to forbid it, but they were interpreted to mean that such a penalty could not be imposed for all delicts nor replace spiritual penalties. The prevailing opinion denied the judge the faculty of imposing a monetary penalty not expressly comminuted by law. To remove any suspicion of avarice, it was forbidden to the judge to convert the monetary penalty to his own profit, a prohibition which has been reiterated in the Code of Canon Law (can. 2297).

More severe was the penalty of confiscation of goods, imposed in the Carolingian era against incest and refusal to pay tithes. From the 11th century, synods and even general councils, and later the popes in the 12th century, made it one of the penalties for repressing heresy. The goods of the condemned were forfeited to the treasury; for this reason the promoter of justice in the tribunals of the Inquisition and the Holy Office was called “fiscal advocate” until 1920. Nothing was left to the heirs of the condemned, save life, which was preserved out of mercy. Later the judge was authorized to leave them what was necessary for living and to remit the penalty to the heir who abjured. Besides afflictive and pecuniary penalties, those restricting personal liberty were also in use in the Church, such as exile, banishment, and imprisonment. Exile or relegation is found mentioned in the most ancient Carolingian capitularies as perpetual or temporary penalties against those who persisted in not paying tithes. Later they were sanctioned in imperial synods and in ordinances for the Peace of God, and finally in ecclesiastical ordinances and papal synods. When imposed against heresy, they had more the character of a political or general police measure than that of an individual penalty. Naturally, to expel a heretic from a city or State the Church resorted to the secular arm.

Affine is the ban, that is, expulsion from a specific territory (diocese, parish), imposed by Norman and English councils against prostitutes and concubines of clerics. The ban or partial exile is sanctioned as a vindication of the cleric’s rights in the CIC (can. 2298, 7°) and in the current 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 with deprivation of personal liberty; in the Carolingian era, usurpation or assault on ecclesiastical property. It was also established against the propertyless in place of confiscation of goods. Later it was established as proper to the servants of the Church, and bishops were ordered to apply it to the concubines of clerics. From the 13th century it was imposed against heretics and was also applied as preventive imprisonment, not only to ensure the accused’s presence for justice but mainly to prevent him from contaminating others by spreading error and even as an investigative measure: the accused, to be freed from that prison, often harsh to the point of being unbelievable, would end up confessing even a crime not committed.

The penalty of imprisonment, even perpetual, for the most serious crimes could be aggravated by the treatment given to the condemned: *pane doloris et aqua angustiae*. A more severe penalty was the *ergastulum* (a secluded place in a monastery), where nuns who had led a dissolute or immodest life were confined. The *detrusio in arctum monasterium*, from which the modern penalty of imprisonment developed, was applied to laypeople, ordinarily only men, guilty of rape or adultery. They did not take vows but performed penance, temporary or perpetual, for the evils committed, living a life segregated from the world.

The penalty of imprisonment, in the modern sense of the term, is not sanctioned in the CIC: the prescription to reside in a specific place or territory, referred to 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 considered imprisonment. Closest to imprisonment is only the confinement in a house of penance, referred to in can. 2301. It is true that ordinarily it is imposed for an indefinite period, but the indeterminacy of the duration of imprisonment is not unknown to state penal laws, such as the American one.

Different from the others are the infamous penalties, although in many cases they produce identical legal effects. Infamy (v.) was introduced into canon law by the Pseudo-Isidorian Decretals, which facilitated the application of secular penalties in the ecclesiastical sphere and vice versa. Thus, for civil infamy, canonical infamy was also incurred. From the 11th century it was more widely applied by the popes. Gratian reports many sources in which infamy was imposed and distinguishes civil from canonical infamy.

In the law of the Decretals it was incurred for calumny, heresy, schism, notorious theft, usury, and false or reticent testimony in court. It entailed incapacity for public dignities and offices, both civil and ecclesiastical; it is not certain, however, that it deprived one of offices already held. The individual acts of the office performed before the penalty were, however, declared null, and thus it entailed, at least, suspension from office. The infamous person could not be a judge, plaintiff, advocate, witness, receive Holy Orders, or exercise those already received. This penalty also struck the children born of incestuous unions and even the grandchildren of kings guilty of violence against cardinals. A remnant of this effect is the irregularity sanctioned in can. 984, 1°.

There were, finally, penalties that, by their nature, could strike only laypeople. In consequence of the conception that the pope had supreme direction over the Catholic world, he was recognized the right to depose kings and emperors and to deprive laypeople in general of secular offices and dignities when they obstinately refused to obey the orders of ecclesiastical authorities; and from the time of Gregory VII it was customary to declare subjects absolved from their oath of fidelity and duties toward the sovereign, both as a consequence of deposition joined with excommunication and as a penalty in itself.

As regards the penalty of death, it may be observed that the Church has never condemned the use of the death penalty by states, not even after Beccaria declared it a violence of society over the individual. It has been and still is disputed among canonists and ecclesiastical jurists whether the Church has the right to inflict the death penalty for crimes of a religious nature. Supporters of the negative opinion generally assert that the Church has never inflicted the death penalty: it would have only tolerated that the secular power (*brachium saeculare*) pronounce and execute the death sentence against obstinate heretics, handed over to it by ecclesiastical authorities after degrading them, if clerics. But a careful study of the procedure of the Inquisition convinces that the Church, if it never pronounced the death sentence against obstinate heretics, was not extraneous to their killing, because whoever performs an act with the foresight of an inevitable effect cannot but will that effect.

**Current Canon Law.** — Current canon law is almost entirely contained in the CIC: substantive penal law in Book V (can. 2195-2414), procedural penal law in Book IV, Part I, Section II, Title XIX (can. 1933-1959), and, according to prevailing doctrine, in Titles XXX-XXXIII of Book IV (can. 2168-94). Nor are there lacking penal norms of a kind scattered in the CIC outside their proper place, such as can. 727-30 and 985-86. Penalties are also imposed in the apostolic constitution *Vacantis Apostolicae Sedis* of Dec. 8, 1945 (Doc. I in the appendix to the CIC). A true code of penal law and procedure is then the constitution *Sacramentum Poenitentiae* of Benedict XIV (June 1, 1741), for the repression of solicitation in confession (Doc. III). Finally, can. 1555 § 1 declares that the Holy Office has its own penal procedure, which must also be followed by diocesan tribunals in the handling of solicitation cases. Nor are there lacking exceptional penal laws, such as the penal decrees of the Sacred Congregation of the Council, dated March 22, 1950 (AAS, 42 [1950], p. 330), and of the Holy Office of April 9, 1951 (AAS, 43 [1951], p. 217).

Ecclesiastical penalty is the deprivation of a good inflicted by legitimate authority for the correction of the offender and the punishment of the crime (can. 2215). Therefore, the evils caused by the crime to the offender himself are not canonical penalties, nor the reparation of the damage done to the victim; nor are the punishments inflicted on clerics by the secular judge, unless such power has been granted to him by the competent authority of the Church.

The Church punishes offenders with penalties, penal remedies (v.), and penances (can. 2216).

Canonical penalties properly so called can be *latae sententiae*: in the former one incurs by the mere perpetration of the criminal act, in the latter they must be imposed by the judge or Superior, by sentence or penal decree.

The distinction between a penalty incurred *latae sententiae* and one inflicted *ferendae sententiae* entails significant juridical consequences:

a) To impose a penalty *ferendae sententiae*, the juridical proof of the committed crime must be established (both the material act and imputability). A penalty *latae sententiae*, however, is incurred even if the crime (actually committed) is neither proven nor provable;

b) Against a *latae sententiae* penalty, it is not possible to lodge an appeal or recourse that would suspend its execution; whereas against a sentence or decree imposing a vindictive penalty *ferendae sententiae*, appeal or recourse with suspensive effect is ordinarily admitted (can. 2287);

c) The offender is always subject to the *latae sententiae* penalty in force at the time of the crime, even if a subsequent law or equivalent provision mitigates it; conversely, the more favorable provision applies if there has been a succession of penal laws between the commission of the crime and the trial (can. 2226 § 2);

d) Since a *latae sententiae* penalty is not graduated, it is not incurred if the crime is not complete in all its elements (can. 2228), and sometimes if imputability is not full (can. 2229 § 2); whereas the ecclesiastical Superior or judge may punish with a *ferendae sententiae* penalty even an attempted crime and a mere attempt (cf. can. 2235);

e) A *ferendae sententiae* penalty, after its application, produces more severe effects than a *latae sententiae* penalty (can. 2232 § 1);

f) The application of a *ferendae sententiae* censure must be preceded, under pain of nullity, by a warning;

g) A *ferendae sententiae* censure cannot be imposed if the law that provided 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 (can. 2226 § 3).

Penalties, whether *latae sententiae* or *ferendae sententiae*, may be censures (v.) or vindictive penalties (v.).

Among the principal consequences of this distinction, besides the already noted difference regarding appeal or recourse, is the cessation of vindictive penalties already imposed upon the abrogation of the law that provided for them (can. 2226 § 3), whereas a contracted censure remains in force and ceases only with absolution (can. 2248 § 1). The powers of the Ordinary regarding the absolution from censures and the dispensation from *latae sententiae* vindictive penalties also differ: in occult cases, the Ordinary’s power to dispense from the latter is unlimited (can. 2237 § 2). Conversely, confessors may absolve from any censure in danger of death (v.) and from those that impede the reception of the Sacraments in very urgent occult cases, but they may not dispense from vindictive penalties unless, due to extraordinary circumstances, recourse to the Sacred Penitentiary or the bishop proves impossible (can. 2290 § 2).

In the current canon law, the following are censures: excommunication, personal particular interdict, and—when imposed for an indeterminate time—suspension, interdict *ab ingressu Ecclesiae*, and that which affects a community or college. For vindictive penalties, see the relevant entry.

It is worth highlighting some differences between state penal systems and the canonical one.

One such difference lies in the active subject of the penalty: in states, a penalty can be established only by legislative authority, 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 (can. 2310).

An even deeper difference concerns the application of penalties: canon law authorizes the competent Superior to impose, *per modum praecepti*, not only penances, penal remedies, and minor penalties, but also suspension, interdict, and even excommunication; only the deprivation of an irremovable benefice, deposition, removal of the right to wear ecclesiastical habit, and degradation require a sentence pronounced by a collegial tribunal (cf. can. 1576 § 1, 1°-2°).

Moreover, state penal codes generally (with the exception of the new Yugoslav penal code) declare that no one may invoke ignorance of the penal law or error regarding 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 (can. 2229 § 3, 1°).

As for the material element of the crime, the current canon law adopts nearly all the postulates of modern penal law (cf. can. 2228). The same applies to the juridical element of the crime: the necessity of the preexistence of the penal norm is affirmed in the very definition of crime (v.) given in can. 2195 § 1. It is true that can. 2222 § 1, clause 1, seems to exclude it, but the opinion of Roberti, which presents convincing arguments to demonstrate that the cited canon does not contradict the principle proclaimed in can. 2195, is increasingly widely accepted.

Similarly, the CIC prescribes the restrictive interpretation of penal norms and reiterates this provision in cann. 19, 20, 2219 § 1, 3. And if the ecclesiastical judge enjoys greater freedom than the state judge in the application of penalties, this redounds to the advantage of the offender (can. 2218 § 1, 2223 § 2-3, 2224 § 2).

Penances, which have no counterpart in state codes, are imposed either in lieu of a penalty or concurrently with absolution (from a censure) or dispensation (from a vindictive penalty). Although they are not true penalties, they must not be confused with sacramental penance imposed by the confessor as an integral part of the Sacrament of Penance. In imposing them, the judge or ecclesiastical Superior must consider not so much the gravity of the offense as the offender’s repentance, and must also take into account the juridical status of the person and the circumstances of the offense; it is absolutely forbidden to impose a public penance for an occult crime or transgression (can. 2312 § 3-2).

The CIC repeatedly recalls the obligation or faculty to impose penances in lieu of a penalty or to mitigate one prescribed by law (can. 1952 § 2, 2229 § 4). The Ordinary is also authorized to combine penances with penal remedies such as warning and restoration.

The most commonly used penances are: 1) the recitation of certain prayers; 2) pilgrimages or other acts of piety; 3) fasting; 4) almsgiving in favor of a pious work; 5) spiritual exercises (can. 2313 § 1).

Sacerdote irreproachable, he was at the same time endowed with good administrative qualities, which he demonstrated during the offices entrusted to him by the bishop of Santiago de Cuba. In 1789, the year the see of San Cristóbal de La Habana was erected, he was among the candidates proposed for the governance of that new diocese. A few years later he was consecrated bishop of Louisiana and Florida with his see in New Orleans, which at the time was in a state of desolation. Drawing on the Tridentine canons, on 21 December 1795 he issued a vigorous exhortation to the pastors for the care of their parishes. On 20 July 1801 he was promoted to the archiepiscopal see of Guatemala, where he founded schools and a hospital. In March 1806 he resigned the governance of the diocese and retired to Havana, where at his own expense he established a house of charity with schools for girls.

The *P.* also appear in public cult. According to mythological tradition, Aeneas would have carried his *P.* from destroyed Troy to Italy, depositing them at Lavinium. When he moved from Lavinium to Alba, his descendants took them with them, but these, miraculously, returned to their original seat. From that time the *P.* of the Latins remained at Lavinium. The supreme Roman magistrates, each year on entering office, went to Lavinium to offer sacrifice to the *P.* The sanctuary of the *P.* in that city was inaccessible to the public; ancient authors are unable