Penal legislation in the new Code of canon law (liber v)

Front matter

Coen See, peg oe

PENAL LEGISLATION IN THE NEW CODE OF CANON LAW

BOOKS BY

Foreword

Tus work is but a brief explanation of the fifth book of the Code, which contains the whole legislation now in force on ecclesiastical offences and penalties.

The order followed is that of the Code itself, and the text of the law is adhered to as closely as possible. Some canons are passed over rapidly, as being of rarer application; a more thorough discussion is reserved for others which are more practical in English-speaking countries.

The theory of delinquency, responsibility and imputability, formulated, for the first time, in a complete and explicit manner, by the legislator, at the beginning of this book, to serve as a foundation for the penal enactments which follow, cannot fail, although general and more abstract, to prove of interest not only to canonists but also to moralists and jurists.

Of special importance for all, and chiefly for confessors, is that portion of the legislation which concerns censures.

The Constitution Apostolicae Sedis cannot serve as our guide in this matter any longer. Several of the old censures have been abrogated; others have been modified and some new ones have been added. At the same time the extensive faculties formerly granted to our Bishops and subdelegated by them to

8 Foreword priests for the absolution of reserved cases, were considerably restricted.

As a consequence, in order to understand the extent of their powers, pastors and confessors will, henceforth, need a more detailed knowledge of the provisions of the common law. It is principally to help them in its acquisition that these pages have been written.

OF DELINQUENCIES

TITLE I

NATURE OF Pens ae AND ITs DIVISIONS .

I. Nature of Delinquencies , II. Malice and Gravity of Delinquencies : III. Various Kinds of Delinquencies . Re 1°, Occult, Public, Notorious. ( Can. 2197.) 2°. Eeclesiastical, Civil, Mixed Delinquencies. (Can. 2198) Wind aaah Ae eae 3°. Other Divisions .

TITLE II

IMPUTABILITY OF DELINQUENCIES; CAUSES WHICH IN- CREASE OR DIMINISH IT; COOPERATION IN DELIN- QUENCIES; JURIDICAL EFFECTS OF aes ;

I. Imputability of Delinquencies .

II. Causes Which Take Away or Diminish Imputability 1°. Want of the Use of Reason. . 2°. Ignorance . 3°. Neglect of Proper Diligence, ( Can. 2203) ; 4°, Age. Eh ea hee ea Violence, Fear, Necessity. (Can. annie 6°. Passion.. (Can. 2206.) . . ini) ae dass Dignity and _ Responsibility. (Can.

ay ge) a EA 8°. Relapse. (Can. 2208.) . 5 ix

PAGE

26 26 27 28 28

30 30 x Contents

PAGE III. Cooperation in Delinquencies. (Can. 2209.) . . . 41 1°. Nature and Various Forms of Cooperation si} gua ued 2°. Imputability in eens SEA APSR Gtr od ac 3°. Former Legislation . . DUI Sb Ni a ho 4°, Present Legislation .. Sh iy Nt UC IV. Juridical Effects of _ Delinquencies. (Can, 2210— PVA a ea ee pment TITLE II ATTEMPTED ‘DELINQUENCIES (0°) (05000 Ug rae Cet a) aha I. ate and Various Forms. (Can. 2212.) . . . 47 . Nature. 47 2°" Various Forms and Degrees ‘of Criminal Attempts . 48 IJ, Imputability and Punishment of Attempted Delinquencies. (Can. 2213.) . . . . 49 1°, Former,’ Legislation is Uy ic Gia cn van (pene 95. (Prosant: Law tin pce) aU ETE akan a ene OO PART IT ‘PENALTIES Section 1 PENALTIES IN GENERAL T. Existence and Use of the Coercive Power in the Church. (Can. 2214.) . , alae Ga rey TITLE IV Nature, Species, INTERPRETATION AND APPLICATION OF PENALTIES . . RPV AMY San aor

I. Nature of Wevleaiaetiout Penalties: (Can. 2215.) . 54 Il. Different Kinds of Ecclesiastical Penalties. Spor

2216-2217) Dinas 55 1°. Division of Ecclesiastical Penalties . 55 2°. Various Ways in Which Penalties are Inflicted

or Incurred . t 55

IiI. Application of Penalties. (Can. 2218) Reset 57 1°. Punishments Must Be in Due Proportion to the

Delinquency. ‘ 57

IV. Interpretation of Penalties. (Can. 2219.) abe Oe ra Eee

TITLE V

SUPERIORS HAVING COERCIVE POWER .

I. Enactment of Penalties. (Can. 2920.)

1°. Penal Laws and Preeepts . i 2°. Penal Sanctions . 3°. Particular Punishments PE Rie ST nA

II. Application of Penalties. (Can. 2223-2225.) . . 1°. The Mission of the Judge Is to Apply, Not to

Make or Amend Laws . .

2°. Number of Punishments 3°. Manner of Proceeding .

TITLE VI

THE Persons WHO ARE SUBJECT TO THE COERCIVE POWER I. Who May Incur Ecclesiastical Penalties? (Can. 2226.) Ci RGA EL CREM LE AEE mIRC SS HEN . In General eo" In Particular : II. Causes Excusing from Penalties . a Ignorance Pts . Lack of Deliberation Pie 8 ah ae 2 : ey Age. (Can. 2230.) LMNs yp bo III. Cooperators and the Penalties “They Tneur. (Can. 22ST. iv IV. When Punishments Latae Sententiae Take Effect. CC are gore) ioe ace ie 1°. General Principle 2°. Former Legislation . 3°. Present. Legislation .. : VY. When Can a Penalty Be Inflicted ? ant aaa an VI. Culprits Quilty of Several HOt er Rate (Can. 2234.) VIl. Pisionent of Attempted or Frustrated Delinquencies. (Can. 2235) : i

DCE VEL

REMISSION oF PENALTIES. (Can. 2236-2240.)

1. General Notions . : Ti. Ordinary Power to Release from Penalties . III. Quasi-Ordinary Power of aie to Release from Penalties : Ci iL i LL 1°. Former Discipline . 2°. Present Legislation .

A. In Public Cases .

B. In Occult Cases .

xii Contents

PAGE IV. Conditions for Remission of Penalties . . . 82

V. Mode of Release from Ecclesiastical Penalties. (Cam, 2239) iin: MBG At 2’

VI. Prescription of Penal Actions. (Can. 2240.) Saeeee

Section II PENALTIES IN PARTICULAR TITLE VIII MEDICINAL PENALTIES OR CENSURES . . . . . . . 85 Cuapter I

OREN SURES: TN) GRNRRATS (30 iam Wa ir ghny el abel diane av GALL ON A q: ae of Censures. (Can. athe PAN tT RS yo, AP he ORR ES . General Notion . . . BS ea a 5 . Definition of Censure . . ie (abit ia i aa a - Gravity and Use of These Penalties ; 88 II. Conditions for Contracting Censures. (Can. 2242, ) 88

III. Appeal from or Recourse “Against Censures. (Can. PA UL PR OTA (eee ve Appeal from Censures Already ‘Inflicted . OR Threat of Censure . . 91

IV. Multiplication of Censures in the Same Subject. (Can. 2244.) . 4 Ny, ib sonst 1°. Possibility of Such “Multiplication itt at SRY acteh's Scan 2°. Causes of Multiplication of Censures. . . . 92 V. Reservation of Censures. (Can. 2245.) . . . . 94 Bee Nature and Existence . . Ud Babs adh Dien har MR eae . Different Kinds of Reservations BAe OAR Ren RE GS

ae Restrictions on TSR TV vOUER (Can. 2246- yA)” ASRS aa va Wi? te ES OCF Geta GSES VI. Absolution from Censures. (ny 2 UN! hae ae 1°. Necessity, Obligation, Efficacy ..... . . . 97 2°. Absolution from Several Censures , 0 Ste ees

3°. Absolution from Censure and from Sin. (Can. BESO Mice 100

4°, Absolution in the Internal and in the External Forum. (Can. 2251.) . 101

5°. Absolution in Cases of Danger ‘of Death. ( Can. Uh 103

6°. Absolution Outside the Case of Danger of Death or of Necessity. (Can. 2253.) . . 103

7°. Absolution from Censure in Cases of Urgent. Neeeasity:: (Cain 2254. )% pict. tei: Vas ariel hee Be A. Former Discipline: 2070) / 4b mapaees ee OS

B.. Present’ Legislation 2.) ae aro ho 108

CENSURES IN PARTICULAR . .. . ) General Notions; Various Kinds of Gateupen’ Their

ei Lyte vas ean reds give ap mpi oe

. Kinds F . Main Characteristics

CHAPTER II Characteristics

Some Terms Used in Defining tl the Effects of Censures, (Can. 2256.) ..

ARTICLE I EXCOMMUNICATION fe ae and Degrees a -Bcaornuieied . Nature Bhai tt,

Wega eas :

Nature of Titerdie , a Different Kinds of Interdict

Iil.

0" Degrees of Excommunication .

‘Effects of Excommunication. (Can. 2259.) 2° a a 4°. ad

Bon and coh bude gait of Interdict . 1°. Origin . i

Dc

Who Has Power to oe Interdicts Effects of Interdicts. (Can. 2270-2277.) Ty Sree tiny 27.

- Social Intercourse

A. Major and Minor Excommunication B. Vitandi et non Vitandi, aut Tolerati . C. Anathema

Divine Offices

Use of the Sacraments and Sacramentals; Christian Burial

Administration or Active Use of the Sacraments and Sacramentals ;

Indulgencies, Suffrages and Public Prayers of the Church. (Can. 2262.)

Ecclesiastical Legitimate ies Forum, Offices, and Functions De AMS ated

. Ecclesiastical Jurisdiction .

. Ecclesiastical Appointments, Promotions, Favors

. Dignities, Offices, Benefices, Pensions, Functions. A eR NMC Mh a Ors REG

. 126 in the Church. 3

ARTICLE If

. Local, Personal or Mixed Interdicta . \ Particular and General Interdicts

Development

General Local Interdicts Particular Local Interdicts

X1li

PAGE

. 113

113 114

121 122 122 123 124

125 126

3°. General Personal Interdicts

4°, Particular Personal Interdicts . j . Interdict from “ Entry to the Church ” . 6°. Partial Mixed Interdicts ‘ : 7°. Application of the Foregoing Rules .

. Cessation from Divine Services

I. Nature of Suspenaien : : II. The and Development of Suspension : - Origin . Sita ty 3°. Development of the Discipline : Ili. Species of Suspensions . ‘ IV. Effects of Suspension 1°. General Principles mis 374

4°. General Suspension .

VINDICTIVE PENALTIES .

Rite Principles

ARTICLE TT N

Suspension from Office .

Suspension from Benefice

TITLE IX

. Nature ; 30 Appeal from Vindictive Penalties Has ‘Ordinarily

3°. Execution of Vindictive Penalties 4°. Release from Vindictive Penalties

COMMON VINDICTIVE PENALTIES .

I. List a Suspensive Effect and Not a Merely Devolutive One, as Is Frequently the Case with

. 152 . 152 . 153

Recourse from Censures. (Can. 2243.)

CHAPTER I of Principal Ones .

Il. Of Some Penalties in Particular a ee

2°. Infamy 3°. Disability .

AX

The Penal Transfer or ies saan of an Episcopal See . A ee, VE :

Pecuniary Fines .

CuapTes II

VINDICTIVE PENALTIES SPECIAL TO ECCLESIASTICS. (Can.

I. Enumeration of These Bankes ,

PAGE

. 148

. 152 . 152

. 154 . 154

15€ 156 i tA66 MOT 168

. 159

Contents XV

PAGE II. Of Some Punishments in Particular . . . . . 160 1°. Privation of Office, Benefice, or Dignity. (Can. lS tae 160 2°. Prohibition to Wear the Ecclesiastical Dress. (Can. 28002)... 161 3°. Prohibition or Command to Reside in a a Specified Place. (Can. 2301-2302.) . . 3... 161 a> Deposition.( (Can. 230382). cs ie ence 2 LOS 5°. Degradation. (Can. 2305.) . . . . . . 165 TITLE X PENAL REMEDIES AND PENANCES.. . . . . . .. . 169 CHAPTER I PENAL REMEDIES . Chav ROR URUCEL Ak ERR RONIN SS CAL Ue MA hina 09. I. General Notions Base Miata aS oan LAN lar h RO A? Il. Admonition and Correction. (Can. 2307-2309.) . 172 1°. Nature PP aan Una MM PRS Mccoy ee ata Code hl aM anal I LY at DIGG ei hed FS GL RAR, Wana av Ne Gna A ASIN i OVW. a Pea Peden ete eg ce) UN gd II. The Precept or Injunction. (Can 2310 ee ol honk ge vay bol Tee a NGENre ah, ERE, Sth Nine Atal Ut AN wp Nn Hae 2°. Conditions Lea Wh gs Gd BURR a aeons bata Beh ic Poal Ose ag 2 Bie ah sc 11 RRR a He Cate Ms i nena hg AU ML An AT PANDO RA WL een Ua Ps 3 ivy a Surveillance... (Can) 2S LLY ii) ok ater asia are kg CHAPTER IT PRON OES je US oc Te Gea oy al ek, UM Marine MaMa McK uN HAG SR DGS PART: LEE PENALTIES FOR INDIVIDUAL DELINQUENCIES PRELIMINARY) REMARKS eV See ee a i ees 1°. Object of this Third Part A aac r eure yl Fh 2°. Its ‘Importance. - ETE Aiea wm ieCud MCN aie nb IF Gs SP DEW IRLOUE Rl nk Pie Ca aE TUG RULE Ler eat RCH LUC CHEE TED DRE 4°. Interpretation DNR Keb noe a WE Ghat Se Deda StL TITLE XI DELINQUENCIES AGAINST FAITH AND AGAINST THE UNITY OF THE CHURCH... EUs MSR Sion UNTER 4 I. Apostasy, eR ‘Soha 182 1°. Nature... 183

Xvl Contents

PAGE 2°. Former Discipline. idle, SN ae 3°. Present Law vs Const. Apost. Sedis fh LO 4°. Penalties Now in Force Against auburn,

Heretics, Schismatics . . . 193 5°. Remission of These Penalties . . . . . 193 I.) Suspicion \of “Heresy 075... eats) 45 EE TET. Cooperation y in) Hepesy ie. 2i web far eagle | ee IV. Teaching Condemned Doctrines. . 199 V. Publishing, Defending, Reading Certain Books Without each Authorization . . 201 oe Object... Shel combat Pea VAP OMI THES yy eet Mea IN ee Nats ra Mire MEME Cy ak) ayia VI. Favoring Heresy ec eee on tu nee in ea eer tile unseat TITLE XII DELINQUENCIES AGAINST RELIGION . . . . . . . 209 I. Profanation of the Sacred Species. . . 209 II. Saying Mass Twice in the Day or After r Breaking the Fast. he's BI Iii. Simulation of Priestly Powers. (aiitle’'s. © ote IV." Blasphemy and) Perjury viene ee aN CU ee 1. Blasphemy . . art SE SUOMI Don Mh de? A La? 1°. Notion and Species PAL She aR ROR ly PK) oleae BF ERS TONG hai Sia NN ai hs mnt OS neem AN sh iN cae ea 2) Perjury: |: Nr AE V. Violation of Laws Regarding Mass Stipends Marie tof f VI. Superstition and Sacrilege .. bhi ee Vil. . Spreading. False) Relies ity aie ane) ae Bee Vilds:) Traffic: in) Indalpences Vi sy una wean cr ees IX. Violation of Corpses or Graves. . . . . . 225 X. Violation of Church or Cemetery . . . . . 227 TITLE XIII DELINQUENCIES AGAINST ECCLESIASTICAL AUTHORITIES, PERSONS, OR THINGS... a) BES I. Delinquencies Committed in Papal Wisetiony 4 Tt ae II. Disobedience to or Nelda Babine Ecclesiastical Authority . ; Seria vaat nm 4 1°. ‘Simple Disobedience. ue i TA eae eee 2°. Conspiracy é eG M13 Ne pease III. Appeal from Pope to General Council. . 231

IV. Recourse to the Civil Authority in Order to Impede the Exercise of Ecclesiastical Jurisdiction . 234

V. Interference with the Liberty, Rights, ‘and Jurisdiction of the Church. . . 236

Contents XVII

PAGE VI. Affiliation with Masonic or Similar Societies . 239 Tc) Pormer Depislation 00 hr a NS . ( 280 BP RE POSENG HRW ls ik 5 es Re ee aa ee eRe ha aA 3°. Special Penalties .. . 242

4°, Absolution of Masons or Other Such Delinquents. 242

VII. Inciting the People to Prevent Exercise of Ecclesiastical Jurisdiction . 244

VIIf. Violation and Responsibility for ‘the Violation or Imposition of Censures . . . 245 IX. Violation of Laws Regarding Christian Burial . 251 X. Obduracy in Censures . TRS ON yA 3 XI. Violation of the Privilegium Ford. Sohn siecut ee b4 To) Mormer tserphine ie ite Pets sr lee) it OD 2. Present Law . . NG EIN Viper 0) XII. Violation of the Religious Enclosure. . . . 263 1. The Law of Canonical Enclosure . . . . 264 Ly) Papal inelosure e350 s Seh Moe Wane et BOS ari: ee PLBCODAd OME LOBULD 25) Tatiiayly) dnd Nea eM a OO Qi CU LCLCR 001, 9) RHA ip ana Mele Waa XIII. Violation of the Privilegium Canonis Wiscasset ae 1, Origin of the Rican ON ev nee MVE Me =f 2. Present Law . SANTA) Miasncn CASA aN Oe ee A 3. Penalties... Ar (Na eb 4, Conditions for Incurring ‘the Penalties . . 272

XIV. Personal Offences Against Church Dignitaries. (Can. 2344.) . 273

XV. Encroachment Upon the Rights and Property of the Roman Church . 274

XVI. Confiscation and Appropriation of Ecclesiastical Property t AY a ena eA 1°. Purpose of the BAe AN NY (eae MEY PACA Fe BRE) UY [ool oR Ret te a MRR CRE ASHE UU BALD 3°. Penalties . PPS ee tay ey 17 ed 4°, By Whom They Are Incurred . 279 XVII. IMlegitimate Alienation of Ecclesiastical Property 280 1. Law on Alienation of Church ee Sen aoe 2. Sanctions . Mc so XVIII. Neglecting to Execute Pious Legacies Petite aU po 4) XIX. Refusing Legitimate Taxes or Contributions . . 286

TITLE XIV

DELINQUENCIES AGAINST Lire, LIBERTY, PRoPpeRTy, REP- TITASTON (RLORAT Mr hee W heat hance QL LE hs or TN an) ee ee Diy AR OVELOM ALIA UTD a )ich. Sh ds alan ee ce eal Me eeley We eee Le A OTEI OTE Ue came nt oy hut cea AN AY aaa

2°. Suicide Ria aeT center We vec eaN Nan 2 NCH ST APN OR ONC ite Merls (ty eee

XV1l1

VII.

Tue Crime CALLED FALSUM, FALSEHOOD .

ils 1 i

IIT.

IV.

Dee Notion. . 2 Ancient Discipline 3°. Present Law .

Interferences with the Freedom of Clerical or Religious Vocation Abduction : 1°. Notions 2°. Former Discipline 3°. Present Law .

Crimes Against the Neighbor's 8 ' Person, Liberty, and Meiaod Bigamy a Nature . . Penalties Various Delinquencies Against “Morals 5 Laymen : SR Baye . Clerics in Minor Orders . 3°. Clerics in Major Orders .

TITLE XV

Forgery of Pontifical Documents .

Obreption or Subreption in Petitions for Rescripts. t Forgery of Other Than Apostolic Documents . False Charges of Solicitation Against a Confessor i Nature of the Hii EAN 2 . Penalties :

TITLE XVI

DELINQUENCIES COMMITTED IN THE ADMINISTRATION OR RECEPTION OF ORDERS AND OF THE OTHER SACRAMENTS: I.

Ze iil.

Administration of the Sacraments to the Unfit or Unworthy .

Administration of Confirmation by a a Priest Without Required Faculty . .

Absolution Given Without Necessary Jurisdiction. , :

Absolution of an Accomplice f

1°. The Object of the Law and the Conditions for the Delinquency Grae

2°. Penalty : i

The Crime of Solicitation .

1. Origin of the Legislation

2. Object of the Law. . .

3. Penalties i

PAGE

. 289 . 289 . 290

. 291 . 293 . 294 . 294

295 296

. 302

. 306 . 3807

. 308 . 309

312 312 313

313 315

VIII.

Violation of the Seal of Confession . me General Principles ae . Penalties

jana of a Bishop Without the Apostolic Mandate .

Simony in the Administration or Reception of the Sacraments . ,

Reception of Orders from One Under “Censure ;

Ordination Without the Requisite Dimissorial or Testimonial Letters or Without the Canon- Bea) EEE Coie ai

Reception of Orders Against Canonical Rules

Marriage Contracted with the 4 ROS ee of Mixed Religion .

TITLE XVII

DELINQUENCIES AGAINST THE SPECIAL OBLIGATIONS OF THE ECCLESIASTICAL AND RELIGIOUS STATE .

J) II.

wae VII.

VILL. ax.

X.

XI.

XI.

XITI.

XIV.

Refusal to Take the Examinations Peccerted ay the Young Priests .

Persistent Absence from Ecclesiastical Conferences... :

Grave Neglect of Rubrics and Ceremonies .

Disregard “for Rules on Keclesiastical Dress .

Commercial Trading Ruane

Violation of the Law of Residence .

Neglect of Parochial Duties

Carelessness in Keeping the Parochial Books .

Neglect of the Duties of Canon ti ke and Penitentiary Abad) ar Ra

Apostasy from Religion .

Flight from Religion . :

Fraud Invalidating Religious Profession .

Sacrilegious Marriages

Departure from Rules of Community Life

TITLE XVIII

DELINQUENCIES COMMITTED IN THE CONFERRING, RECEP- TION, AND DISMISSAL OF ECCLESIASTICAL DIGNITIES, OFFICES, AND BENEFICES .

Li TE.

Did

Interference with Freedom of Caionical Biechons Election, Presentation, Nomination of Unworthy Candidates : Irregularities in Elections Simony in Connection with Ecclesiastical Offices, Benefices, or Dignities a wee 1°. Nature and Species . 2°. Object of the Law .

X1x

PAGE

. 325 . 326

327 328 329 331

. 337

. 337

346 347

. 357 357

. 359

XX IV. Conferment of Office, Benefice, or Dignity by One Who Has Only the Right of Election, Presentation, or Nomination : V. Taking Possession of Office, Benefice, or Ecclesiastical Dignity Before Receiving Confirmation or Investiture .

VI. Accepting an Office or Benefice Which Is Not Vacant VII. Retention of Two Incompatible Offices or Benefices VIII. Refusal of the Oath Demanded of Cardinals . IX. Delay in Receiving Episcopal Consecration . X. Dereliction of Office. .

XI. Resignation of Office or Benefice into the Hands of Laymen .

XII. Continuation in Office After Privation or Removal. .

XIII. Omission of the hicgine Prescribed for Abbots . XIV. Omission of the Profession of Faith Required on Appointment to Certain Offices .

TITLE XIX ABUSE OF ECCLESIASTICAL POWER OR OFFICE . I. General Principle If. Subtraction, Destruction, Concealment, or Mutilation of Documents Belonging to the ee copal Curia. .

III. Unfaithfulness in the Keeping of Diocesan or Parochial Books . ; IV. Attempted Bribery of Officials of the Curia . V. Exaction of Taxes Not Approved by Law. . VI. Illegitimate Concession of Dimissorial] Letters by the Vicar Capitular , VII. Violation of the Rights of the Ordinary in Regard to the Ordination of Religious Vill Admission to the Novitiate or to Religious Profession of a Candidate Without the Required Qualifications or Testimonials . IX. Mlegitimate Use of Religious Dowries and Admission to Novitiate or to Profession Without Notifying the Loca] Ordinary . X. Interference by Religious Superiors with “the Canonical Visitation XI. Interference by Superioresses with the Liberty Granted by Law to Beligious, in the Matter of Confession APPENDIX .

PAGE

363 364

. 365 . 365

366 366

367 367

. 068

. 368

369 370

$71

371 372

. 372

. 373

374 375

- 379 - 385

— a se

Introduction

1. The need and justification of punitive sanction are contained by direct implication in the correct concept of law itself. A system of law lacking such sanction would prove in practice ineffectual, defeating its own primary purpose of self-enforcement. The Code of the Church, spiritual withal in aim and content, is no exception to this principle. Ecclesiastical lawgivers must be armed with coercive as well as legislative and judiciary powers, for they govern and direct free, rational agents, whose complex nature responds not less promptly to threat and punishment than to the dictate of reason.

Accordingly the Code of canon law has, like any civil code, its department of penal enactments, and defines what punishments will have to be inflicted on the various classes of offenders and under what circumstances.

2. The fundamental principles of penal legislation are found in the natural law itself. Under the Old Dispensation more explicit prescriptions were added by divine positive law, but these were abrogated by the coming of the new order. In the New Testament, although greater stress is laid on love than on fear, instances are not wanting of punishments inflicted by divine or Apostolic authority. (Matt. evi. t5-18s 1 Cory bs ame vi. 9s sae a. 10-11.)

92 Introduction

The Bishops and Councils of the early Church deal in like manner with the abuses that occurred in their time, and their decrees are found here and there in the first canonical collections. An attempt at gathering together those which concerned ecclesiastical offences and public penances was made in the third century by St. Gregory of Neocaesarea; and another, a little later, by St. Basil. Ordinarily the arrangement followed chronological sequence without method or system. Even in Gratian’s Decree, although some effort is made to’group together the penal enactments, we do not find anything like a distinct criminal code after the model of Justinian’s.

It was Bernard of Pavia, in the twelfth century, who first classified the Decretals under the five headings indicated in the well known verse: judex, judicium, clerus, conubia, crimen. This division was adopted generally, in subsequent collections, and especially in those which make up the Corpus Juris. The fifth book, in these collections, Crimen, contains the legislation dealing with delinquencies and criminal procedures, and forms a real penal code, one quite different, however, in many respects from modern types.

The study and knowledge of ecclesiastical penal law was thereby much facilitated; but the development kept going on and new provisions were being added to the old. After the close of the Corpus Juris, these had to be looked for in the Constitutions of Popes, among the Decrees of the Council of Trent, in the Bullaria, in the Acta of the Roman Congregations.

At the same time some of the early enactments became abrogated by custom and many of the former

Introduction 93 penalties fell into disuse. There resulted a great uncertainty and confusion, rendering the need of reform and codification particularly urgent in this department of canon law.

The need was partially satisfied by the Constitution Apostolicae Sedts (Oct. 12, 1869) and the publication of a complete official list of the censures latae sententiae to be thereafter in force. A similar work remained to be done for the rest of the penal legislation of the Church. It was felt, besides, that an authoritative statement of the general principles of penal law would be of much service, especially to judges and ecclesiastical courts. All this we have in the fifth book of the New Code.

3. The whole penal legislation of the Church is therein divided into three parts: I — Delinquencies in general; IIT — Penalties; III — Special Delinquencies and their respective penalties.

The rules to be followed in criminal procedures are, more naturally, included in the fourth book, on Trials, in accordance with the plan commonly adopted in modern Codes.

PENAL LEGISLATION IN THE NEW CODE OF CANON LAW

Part I OF DELINQUENCIES

(F. X. Wernz, S.J., Jus Decretalium; Tom. VI, Jus Poenale Ecclesiae Catholicae, Prati, 1913; Card. Lega, Praelectiones de Judiciis Ecclesiasticis, Tom. III, IV; D’Annibale, Summula Theologiae Moralis, vol. I; Ad. Tanquerey, S.S., Theologia Moralis Fundamentalis, De Actibus Humanis; Tournai, 1906; Bouquillon, Theologia Moralis Fundamentalis, Tractatus Quartus, 1903.)

1. Three general questions are treated here: (1) The nature and different kinds of delinquencies or crimes; (2) The various degrees of imputability; (3) Attempted crime.

This portion of the Church’s codified law is, in a sense, almost entirely new. While the ancient canonical texts contained implicitly a theory of delinquency and imputability, it was nowhere expounded in a complete and explicit manner. Canonists assembled its principles from a multitude of disconnected canons and developed it scientifically, sometimes borrowing material and method from the Roman law and the Roman jurists. Moralists discuss it in detail, from a somewhat different point of view, chiefly in the treatises on Human Acts and Morality. Now, however, for the first time the legislator himself formulates it in a technical, systematic manner. An official value is thus given to a doctrine which might seem to have rested heretofore largely upon the authority of private writers; some controversies are authoritatively settled; the uncer- 25 tainty which existed on a few points is removed; firm and definite rules supersede vague and inadequate ones.

Tirte I

NATURE OF DELINQUENCY AND ITS DIVISIONS

I. NATURE OF DELINQUENCIES

2. By a delinquency or offence, in Latin delictum, as distinguished from crimen, culpa, is meant, in canon law, an external and morally imputable violation of the law, to which is attached some canonical sanction, at least an indeterminate one.

(a) Every delinquency is a sin, as it implies a violation of the law; but every sin is not a delinquency in the canonical sense of the term. A delinquency is punishable in the external forum. Now the Church punishes only external, somewhat grave offences which, being contrary not only to the moral but also to the social order, can cause serious detriment to the common good.

(6) The violation of the law must have all the conditions of knowledge and freedom to be morally imputable; for the Church does not intend to punish one who is not really guilty or a deed for which one is not responsible. What is called a culpa juridtca, a merely juridical fault, like the involuntary omission of some measure of prudence which should have been taken, suffices for a quasi-delictum but not for a delinquency proper. The moral guilt, however, frequently is and has to be presumed in foro externo, although it may not really exist. Society can pronounce only on what falls under human observation

Malice and Gravity of Delinquencies 27 and the moral guilt depends principally on internal dispositions.

3, (c) The law of which a delinquency is the violation, ordinarily is an ecclesiastical law; the Church punishes also the violation of a divine law if it redounds to the detriment of the ecclesiastical society ; otherwise, the punishment is left to God Himself.

The violation of a precept has, generally, the same effects as that of a law and what is said of one applies also to the other, unless the contrary be clear from the context or the circumstances of the case. (Can. 2195.)

(d) A sufficient evidence that a given offence possesses all the requisites for a delinquency is found in the fact that some canonical penalty is attached to it, even if the law does not specify what the penalty will exactly consist in. On the other hand, an act which is not declared punishable by law cannot be considered as a delinquency properly so called.

II. MALICE AND GRAVITY OF DELINQUENCIES

4, Canonists distinguish in delinquencies the quality and the quantity, or, as moralists more commonly say, the specific malice and the gravity. Heresy differs in quality or specifically from simony although they may be equal in quantity or equally grave. Two sacrilegious acts have the same specific malice but they may differ in gravity. These distinctions have their importance in the application of penalties. A punishment pronounced against a certain offence does not fall on another of a different quality or one specifically different even should the latter be graver than the former; and two offences of the same quality should not be punished with the same severity when they have not the same gravity.