Penance

PENANCE. - It is, in general, the suffering (privation or diminution of an individual good) imposed by law upon one who violates a command of that same law. Under most positive legal systems, the penalty must be imposed by a judge through a trial; in canon law, however, there are penalties that are not inflicted by a judge but are incurred ipso facto, as soon as the offense is committed (so-called penalties latae sententiae, on which see below).

While referring, for a fuller exposition of the concept of penalty and the related philosophical theories, to another contributor (v. SANCTION), it is sufficient here to touch upon the function of penalty, that is, the effects with a view to which it is imposed. The theories formulated on this point can be substantially grouped into three categories: those that see the foundation of penalty in retribution, that is, in the malum passionis quod infligitur ob malum actionis. The second, which hold the purpose of penalty to be intimidation, that is, the prevention of offenses through the fear aroused by exemplary punishment. For the theories of the third group, finally, the function of penalty is emendation, which should therefore be directed at bringing about the offender's repentance; already affirmed by the Roman jurist Paul (D. 48, 19, 20), the theory of emendation has recently been upheld especially by Roeder. As regards the purpose of ecclesiastical penalty, canonists hold: a) that it is a benefit granted to the offender, who by its means can be reconciled with God (Schulte, Geib, Bar); b) that its purpose is the emendation of the offender (Mayer, Lega, Cappello); c) that the intrinsic purpose of any penalty, whether ecclesiastical or state, is the restoration of the social order that has been harmed or placed in danger (München, Hinschius, Schiappoli, Wernz-Vidal, Roberti); but that other purposes may also be pursued, and ordinarily are, by the legislator through the imposition, or by the superior or the judge through the application, of the penalty. The Church, moreover, in imposing penalties has never neglected the emendation of the offender, and for this reason has created a category of penalties, the censures (v.), which directly tend to that end: yet these too are true penalties and therefore cannot disregard the restoration of the social order that has been harmed.

I. HISTORY

In this part a brief account is given of the origin and vicissitudes of ecclesiastical or canonical penalties, distinct from excommunication, interdict, suspension and censure, for which reference is made to the relevant entries.

Some of them were inflicted indiscriminately on both clerics and laypersons. Among these figure many of the vindictive penalties imposed in the CIC.

The 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. In the Council of Braga (a. 561) mention is made of the deprivation of ecclesiastical burial as a penalty in its own right. It struck above all heretics, both clerics and laypersons.

The incapacity to acquire ecclesiastical offices is found inflicted on laypersons from the 13th century; for certain crimes of particular gravity it was extended also to the heirs of the condemned.

The loss of ecclesiastical rights consisted either in temporary suspension from certain rights, e.g., from the right of patronage, or in their deprivation, e.g., of the episcopal see.

In imitation of temporal sovereigns, in the 11th century the popes introduced the practice of depriving of pontifical grace and of pronouncing the indignatio against those who refused to carry out their orders, especially if bishops or abbots; the pope not only interrupted any communication with the punished, but even refused to use ecclesiastical jurisdiction in his favor. At first the 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 closing formula of pontifical letters.

Some penalties, on the other hand, could be inflicted only on ecclesiastics, insofar as they struck them in their juridical condition before the Church or in the rights belonging to them by reason of the sacred ministry with which they were invested.

The most grave against clerics was deposition (v.) until the 13th century, when it was distinguished from degradation (v.), by which the condemned lost the ecclesiastical state and the rights annexed to it, such as the privilegium fori.

Less grave than deposition was the privation (v.) of the benefice, by which the one struck lost the office, but not the clerical state, nor did he incur ineligibility (v.); still less so suspension (v.), because it did not strike the cleric forever in his rights and in his ecclesiastical capacity. There was no lack, however, of other penalties, such as the definitive loss of individual rights or faculties annexed to the office, dignity or ecclesiastical rank, of seniority in the latter, of certain privileges or immunities annexed to the Order (for those not holding a benefice); retrocession to a less elevated Order; 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 laypersons, until this right was contested by the State. In the early times even clerics of the higher ranks were struck by corporal penalties, but later only in case of very grave offenses, and never to the point of bloodshed or mutilation. Today they are no longer sanctioned in the penal codes, and their use by the Church would be punished as a crime.

The pecuniary penalty, at first considered 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 11th century: it consisted in a fixed sum or one measured at double, triple, quadruple the damage caused. Some texts seem to forbid it, but they were interpreted in the sense that such a penalty could not be inflicted for all crimes, nor substitute for spiritual penalties. The prevailing opinion denied the judge the faculty of inflicting a pecuniary penalty not expressly prescribed by law. To remove, moreover, any suspicion of avarice, the judge was forbidden to convert the pecuniary penalty to his own advantage, a prohibition that has been reaffirmed in the CIC (can. 2297).

More grave was the penalty of confiscation of goods, imposed, in the Carolingian era, against incest and the refusal to pay tithes. Sanctioned from the 11th century by synods and by general councils themselves and later by the popes, in the 12th century it became one of the many penalties for repressing heresy. The goods of the condemned were devolved to the fisc; for this reason the promoter of justice in the tribunals of the Inquisition and of the Holy Office was called "fiscal advocate" until 1920. Nothing was left to the heirs of the condemned, but only life, ex misericordia conservata. Later the judge was authorized to leave them what was necessary to live and to remit the penalty to the heretic who abjured. Besides afflictive and pecuniary penalties, those restricting personal liberty were in use in the Church, such as exile, banishment, reclusion. Exile or relegation are mentioned in the most ancient Carolingian Capitularies, as perpetual or temporary penalties against those who obstinately refused to pay tithes. Then they are sanctioned in the imperial synods and in the ordinances for the peace of God, and finally in the ecclesiastical ordinances and in the pontifical synods. Imposed against heresy, they had more the character of a political measure or of general policing, rather than that of an individual penalty. Naturally, to expel a charge from the city or the State the Church resorted to the secular arm.

Akin is banishment, that is, expulsion from a determined territory (diocese, parish), imposed by the Norman and English councils against prostitutes and the concubines of clerics. Banishment or partial exile is sanctioned as a vindictive penalty proper to clerics 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 the deprivation of personal liberty; in the Carolingian era, the usurpation of or attack on ecclesiastical goods. It is also found sanctioned against the propertyless in place of confiscation of goods. Later it was established as a penalty proper to the servants of the Church, and the bishops claimed to apply it to the concubines of clerics. From the 13th century it was imposed against heretics and was applied also as preventive imprisonment, not only to secure the accused for justice, but principally to prevent him from contaminating others with the spread of error and even as an investigative means: the accused, in order to be freed from that prison, often harsh beyond belief, ended up confessing even a fault not committed.

The penalty of imprisonment, even perpetual, for the most grave crimes could be aggravated with the treatment given to the condemned, pane doloris et aqua angustiae. A more grave penalty was the ergostulum (a hidden place of a monastery), in which nuns who had led a foul or unchaste life were confined. The detrusio in arctum monasterium, from which today's penalty of imprisonment has developed, was applied to laypersons, ordinarily to men only, guilty of rape or adultery. They did not take vows, but did penance, temporary or perpetual, for the evils committed, leading a life segregated from the world.

The penalty of imprisonment, in today's sense of the term, is not sanctioned in the CIC: the prescription to reside in a determined place or territory, referred to in can. 2298, 8°, is more akin to police confinement than to reclusion; nor can the measure taken by the judge, in accordance with can. 1957, be considered as reclusion. Very akin to reclusion is only internment in a house of penance, referred to in can. 2301. It is true that ordinarily it is ordered for an indeterminate time, but the indeterminacy of the duration of reclusion is not unknown to state penal laws, such as the American one.

Different from the others are infamous 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 field and vice versa. Thus, for infamy of civil law one also incurred canonical infamy. From the 11th century it was more widely applied by the pontiffs. Gratian reports many sources in which infamy was inflicted, 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 dignities and public offices, both civil and ecclesiastical; it is not certain, however, that it deprived one of offices already held. Nevertheless, the individual acts of an office obtained before the penalty were declared null, and therefore it entailed, at the very least, suspension from office. An infamous person could not be a judge, plaintiff, advocate, or witness, nor receive sacred Orders or exercise those already received. This penalty also affected the children born of incestuous unions and even the nephews of those guilty of violence against cardinals. A remnant of this effect is the irregularity sanctioned in can. 984, 1°.

There were finally certain penalties which by their nature could affect only the laity. As a consequence of the conception that the pope had the supreme direction of the Catholic world, he was recognized as having the right to depose kings and emperors and to deprive the laity in general of secular offices and dignities, when they obstinately refused to carry out the orders of ecclesiastical authorities; and from the time of Gregory VII it was customary to declare subjects released from the oath of fidelity and from their duties toward the sovereign, whether as a consequence of deposition joined with excommunication, or as a penalty in its own right.

As regards 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 a violence of society against the individual. It has been disputed, and is still disputed, among canonists and ecclesiastical publicists whether the Church has the right to inflict the death penalty for offenses of a religious character. The supporters of the negative opinion generally assert that the Church has never inflicted the death penalty: it would merely have tolerated the secular power (brachium saeculare) pronouncing and executing the death sentence against obstinate heretics, handed over to it by the ecclesiastical authorities after being degraded, if they were clerics. But a careful study of the procedure of the Inquisition convinces one that the Church, if it never pronounced the death sentence against obstinate heretics, was not extraneous to their killing, because one who performs an act with the foreknowledge of an inevitable effect cannot but will that effect.

II. CANON LAW IN FORCE

The current canon penal law is almost entirely contained in the CIC: substantive penal law in Book V (cann. 2195-2414), procedural penal law in Book IV, Part I, Section II, Title XIX (cann. 1933-1959), and, according to the prevailing doctrine, in Titles XXX-XXXIII of Book IV (cann. 2168-94). Nor are there lacking norms of a penal nature scattered throughout the CIC, outside their proper place, such as cann. 727-30 and 985-86. Penalties are also imposed in the apostolic constitution Pacantis Apostolicae Sedis of 8 Dec. 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 (1 June 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 cases of solicitation. Nor are there lacking exceptional penal laws, 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 Apr. 1951 (AAS, 43 [1951], p. 217).

An ecclesiastical penalty is the privation 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 is the reparation of the damage caused to the victim; and neither are the punishments inflicted on clerics by a 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 may be latae or ferendae sententiae: in the former one incurs them by the mere perpetration of the criminal act, whereas the latter must be inflicted by the judge or by the Superior, by sentence or penal decree.

The belonging of a penalty to one or the other category carries significant juridical consequences: a) to inflict a penalty ferendae sententiae one must reach juridical proof of the crime committed (material fact and imputability). A penalty latae sententiae, on the other hand, is incurred even if the crime (really committed) is not proved nor provable; b) against a penalty latae sententiae it is not possible to lodge an appeal or recourse that suspends its execution; whereas against the sentence or decree that inflicts a vindictive penalty ferendae sententiae an appeal or recourse with suspensive effect is ordinarily admitted (can. 2287); c) the offender is always struck by the penalty latae sententiae in force at the time of the crime, even if by a later law or equivalent provision it has been mitigated; on the other hand, the provision more favorable to the offender is applied, if there has been a succession of penal laws between the commission of the crime and the holding of the trial (can. 2226 § 2); d) the penalty latae sententiae, not being gradual, is not incurred if the crime is not perfect in all its elements (can. 2228), and sometimes if imputability is not full (can. 2229 § 2); whereas the Superior or ecclesiastical judge can punish with a penalty ferendae sententiae even the failed crime and the mere attempt at a crime (can. 2235); e) the penalty ferendae sententiae, after its application, produces more burdensome effects than that latae sententiae (can. 2232 § 1); f) the application of a censure ferendae sententiae must be preceded, under penalty of nullity, by the admonition; g) the censure ferendae sententiae cannot be inflicted if the law that provided for it at the time of the trial has been abrogated, whereas the censure incurred (latae sententiae) does not cease with the abrogation of the law (can. 2226 § 3).

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

Among the principal consequences of this distinction, besides the already mentioned difference of effect in appeal or recourse, is the cessation of vindictive penalties already inflicted upon the abrogation of the law that provided for them (can. 2226 § 3) and the permanence, on the other hand, of the censure contracted, which ceases only with absolution (can. 2248 § 1). Different, moreover, are the powers of the Ordinary regarding the absolution of censures and the dispensation from vindictive penalties latae sententiae: in occult cases the power of the Ordinary regarding the dispensation from the latter is unlimited (can. 2237 § 2). On the contrary, confessors can 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 cannot dispense from vindictive penalties, except when, due to extraordinary circumstances, recourse to the Sacred Penitentiary or to the bishop proves impossible (can. 2290 § 2).

In current canon law, censures are excommunication, particular personal interdict and, when they are imposed for an indeterminate time, suspension, the interdict ab ingressu Ecclesiae and that with which a community or college is struck. For vindictive penalties, v. the relevant entry.

It is useful here to highlight some differences between state penal systems and the canonical one.

One is in the active subject of the penalty: in States it can be established only by the legislative power, whereas in the Church the penalty can be imposed not only by law or legislative decree, but also by a particular precept of the Superior (can. 2310).

Even 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 lesser penalties, but also suspension, interdict and excommunication itself; only the privation of an irremovable benefice, deposition, privation of the right to wear the ecclesiastical habit and degradation require a sentence pronounced by a collegiate tribunal (cf. can. 1576 § 1, 1°-2°).

Furthermore, state penal codes generally (the new Yugoslav penal code is an exception) declare that no one can invoke in his own excuse ignorance of the penal law or error regarding it; whereas the Church is very indulgent toward those who are ignorant of the law or even only of the penalty imposed (can. 2229 § 3, 1°).

On the other hand, as regards the material element of the crime, current canon law accepts almost all the postulates of modern penal law (cf. can. 2228). The same is true of the juridical element of the crime: the necessity of the pre-existence of the penal norm is affirmed in the very definition of the crime (v.), given in can. 2195 § 1. It is true that can. 2222 § 1, first paragraph, seems to exclude it, but today the opinion of Roberti is ever more widely followed, who brings convincing arguments to demonstrate that the cited canon does not contradict the principle proclaimed in can. 2195.

Likewise the CIC prescribes the restrictive interpretation of the penal norm and reaffirms 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 (cann. 2218 § 1, 2223 §§ 2-3, 2224 § 2).

Penances, which find no counterpart in state codes, are imposed either in place of a penalty or in granting absolution (censure) or dispensation (vindictive 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 judge or ecclesiastical Superior must attend not so much to the gravity of the crime as to the repentance of the offender, and must also keep in mind the juridical position of the person and the circumstances of the crime: he is then absolutely forbidden to impose a public penance for an occult crime or transgression (can. 2312 §§ 2-3).

The CIC recalls more than once the obligation or the faculty of imposing penances in place of the p. or in mitigating the one prescribed by law (cann. 1952 § 2, 2220 § 4). The Ordinary, moreover, is authorized to cumulate penances with the penal remedies of admonition and reproof.

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

Arturo De Jorio