“A real intrinsic distinction between a public crime and a crime notorious in fact can hardly be established.”
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It is sometimes suggested that only notorious heresy separates someone from the Church; and that notoriety is only attained by some combination of warnings, declarations or sentencing by authority.
In a previous treatment of the sort of heresy which separates a man from the Church, we argued that we should abstract from both the sinfulness and criminality of heresy and consider it solely under the aspect of a human act, viz. one for which the agent is personally responsible, but without regard for his personal subjective guilt.
In this piece we will present three commentaries on Canon 2197, which deals with the levels of publicity for crimes. This is of interest because, while we have not been considering heresy as a crime, the explanations of these levels of publicity apply to the publicity of acts in general, by analogy.
That said, we should recall that while terms such as “notoriety” and “publicity” have defined definitions amongst canonists, theologians do not necessarily mean the exactly same as canonists when they use such terms.
As we have argued, the criminal nature of heresy has no relevance to Billot’s understanding of the issues of heresy and membership of the Church. Billot seems to use “notorious” and “public” interchangeably. He is not alone amongst theologians in speaking in this way. However, Dom Augustine says that the two are barely distinguishable – and that the key distinguishing feature is that the criminal nature of the act is itself known and cannot be excused. But, as noted, this is an aspect which does not seem to be relevant to the question of membership at all.
Further, he roots his explanation in the publicity of the profession of heresy, rather than that of legal declarations or judgements. In light of the wider context of his principles and the way he approaches this topic, it seems more probable that his use of the word “notorious” may be closer to the canonical term “public” than “notorious” itself.
Let’s start by looking at the Canon under discussion.
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A delict is:
1.° Public, if it is already known or is in such circumstances that it can be and must be prudently judged that it will easily become known;
2.° Notorious by notoriety of law, [if it is] after a sentence by a competent judge that renders the matter an adjudicated thing, or after confession by the offender made in court in accord with Canon 1750;
3.° Notorious by notoriety of fact, if it is publicly known and was committed under such circumstances that no clever evasion is possible and no legal opinion could excuse [the act];
4.° Occult, if it is not public; materially occult, if the delict is hidden; formally occult, if imputability [is not known].
Let’s now turn to three commentators on this canon. As usual, a few line breaks have been added to aid reading.
Quality and Quantity
The quality of a crime is derived from the object of the law; its quantity is measured not only by the gravity of the law which is violated but also by the greater or lesser imputability of the act and the greater or lesser damage which results from it (c. 2196). Crimes are distinguished according to kind (quality) in canons 2314-2414; the gravity (quantity) of the same specific crime varies according to imputability and resultant damage.
Classification as to Publicity.
A Crime is:
1. Public, if it is already commonly known or the circumstances are such as to lead to the conclusion that it can and will easily become so;
2. Notorious in law, after judgment by a competent judge which has become res iudicata (cf. c. 1902), or after confession by the culprit in open court according to canon 1750;
3. Notorious in fact, if it is publicly known and was committed under such circumstances that no maneuver can conceal nor any legal defense excuse it;
4. Occult, if not public; materially occult if the crime itself is hidden, formally occult if its imputability is hidden (c. 2197).
“Commonly known” (divulgatum) means known to the greater part of the inhabitants of a place or the members of a community; but this is not to be taken mathematically, but in prudent moral estimation. A crime may remain occult though known to a number of persons who are likely to keep it quiet, whereas it may be public though known to only a few who are sure to divulge it. It may be public in one place and occult in another, or may become occult even in the same place after a lapse of years.
Publicity of Crimes
Can. 2197 distinguishes three kinds of crimes, — public, notorious, and occult.
1.. A crime is public if committed under, or accompanied by, circumstances which point to a possible and likely divulgation thereof. Canonists enumerate different degrees of publicity: almost occult (pene occultum), which is known to at least two witnesses; famosum or manifestum, which not only can be proved, but is known to many; and, finally, notorium. From this it will be seen that a real intrinsic distinction between a public crime and a crime notorious in fact can hardly be established. (We shall point out one distinctive trait below.)
To fix the number of persons required for making a crime a public one is rather hazardous, though it may furnish a certain rule which will enable the judge to decide as to the secrecy or public character of a crime. Many canonists hold that at least six persons in a community, even the smallest (for instance, a religious house of 10 or 12 inmates), must know of a crime, to render it public. Nor should there be any doubt about the character of the persons who are witnesses to the crime. Furthermore, the interest they may have in the crime should be weighed.
2. A crime is notorious by notoriety of law (notorietate iuris) if it has become an adjudged matter, according to can. 1902-1904, or judicially confessed, according to can. 1750. Extrajudicial confessions do not render a crime notorious by notoriety of law. Here we must take issue with the assertion that the Code acknowledges such confessions. Thus it has been stated that it would be a notorium juris if the bishop or vicar-general would catch a clergyman in flagranti! The Code contains nothing to that effect, but requires (can. cit.) a confession before the judge sitting in court.
A crime is notorious notorietate facti when it is publicly known and has been committed under such circumstances that it cannot be concealed by any artifice or be excused by any legal assumption or circumstantial evidence. The term nulla tergiversatione celari is equivalent to the other used in the Decretals. The second clause refers to imputability, which may be lessened by extenuating circumstances, according to can. 2201-2206. Hence not only the fact itself must be notorious, but also its criminal character.
Thus, for instance, the fact of alienation may easily be proved by a legal deed, but whether it was criminal must be ascertained by other means; because it may be that the administrator or procurator had due permission and therefore acted lawfully. It is this element of inexcusability or of knowledge of the criminal character of the deed that appears to distinguish a public from a notorious crime. For the text manifestly lays stress on divulgation with regard to public crimes and emphasizes the criminal character as known and inexcusable.
3. Every crime which is not public, says our text, is occult or secret. The Code distinguishes a twofold secrecy, vis.: merely material (materialiter occultum), which exists when the fact is unknown, or known only to the perpetrator and a few reticent persons; and formal (formaliter occultum), when the moral and juridical guilt is unknown. An example may illustrate the distinction. If a percussor clericorum beats a pastor at night, his identity may remain unknown, though the effects point to a crime; if the priest was beaten in a public row, there may be a reasonable doubt as to the real perpetrator.
The authors, therefore, assumed that a crime committed at night could not be notorious or public. However, this theory cannot be accepted in this general sense. Take, for instance, a sacrilegious burglary. If a sufficient number of persons witnessed such a crime and recognized the perpetrator, the crime could not be styled occult. Neither does it seem true that a duel is always a secret crime, as some maintain. For although duels are generally held in a secret place, yet there are, as a rule, witnesses and signs which admit of a perfectly safe judgment that a duel has taken place.
Division of Offenses
2027. (1) An offense is public, if it has already been divulged, or if it was committed under or attended by such circumstances that its divulgation may and must be prudently considered easily possible;
(2) an offense is notorious by notoriety of law after a sentence of a competent judge which has become irrevocable (res judicata), or after a confession of the delinquent made in court in the manner described in Canon 1750 ;
(3) an offense is notorious by notoriety of fact, if it is publicly known and committed under such circumstances that it cannot be concealed by any subterfuge, nor excused by any excuse admitted in law (i.e., both the fact of the offense and the imputability or criminal liability must be publicly known);
(4) an offense is occult if it is not public; it is materialiter occult, if the offense itself is not publicly known; it is formaliter occult, if the offense is public, but its imputability is not public (Canon 2197).
2028. The distinction between occult and public offenses is explained in general terms by the Code Canonists have given more specific rules by which one may judge whether an offense is to be considered publicly known. In the first place, the number of people who were witnesses to an offense and the number of inhabitants of the place where the offense was committed, must be taken into consideration to determine whether an offense may be said to be public.
It is maintained by many canonists that at least six persons in a small town or community must know of the offense before it can be called public, and more persons in proportion to the greater number of inhabitants before it can be called public in larger places. However, canonists consider, not only the relative number in determining whether an offense is occult or public, but also the character of the perhaps few persons who witnessed the commission of the offense whether they are reserved and taciturn or talkative and eager to make known what they have witnessed.
The Code calls an offense public when knowledge of it has been spread among the people (divulgatum), or when it was committed under circumstances which make it practically impossible to keep the offense secret.
2029. In order that a crime may be called public, it is necessary that the fact be publicly known as a criminal or morally imputable act – in other words, that the act is known as a crime. Thus, if a person has been dangerously wounded or killed, it is not enough that the fact is known, but it must also be known that the act was a criminal one, and not committed by accident or in self-defence.
Is it necessary that the offender be known to the public to make the act a public crime? It seems so, for the imputability of Canon 2197, n. 4, refers to the person of the offender. If the offender does not stand identified before the public as the perpetrator of the criminal act, his offense is occult – called formaliter occult in the Code.
Bouscaren and Ellis – Canon Law – A Text and Commentary.
Dom Charles Augustine – A Commentary On The New Code Of Canon Law
Stanislaus Woywod – A Practical Commentary on the Code of Canon Law
The WM Review – What sort of heresy separates someone from the Church?
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 For example, see Van Noort: “Heretics are classified as ‘public’ or ‘occult,’ ‘formal’ or ‘material.’ A public (notorious) heretic is one whose heresy is known to a large number of people, even if he has not formally joined the ranks of a heretical church; an occult heretic is one whose errors in faith are either totally unknown, or known only to a few.” Mgr. G. Van Noort, Christ’s Church, Dogmatic Theology Vol. II, trans. and revised John J. Castelot & William R. Murphy, The Newman Press, Westminster, Maryland 1957, 239. We are well aware that the English translation has been revised such that some call it a “sixth edition” rather than the translation of the fifth edition. This has no bearing on the point, as the English version revised by Castelot and Murphy has its own claim to be treated as a witness of the treatment of these terms.
 Reiffenstuel, V, 1, 241 ff.i Schmalzgrueber, V, x, n. 1 ff.; Hollweck, l. c., p. 67 f.; Wernz, l. c., VI, xl 17, P 21.
 The sources are not consistent; see c. 17, C. a, q. i; c. 8, X, III, a, where the notorium is called publicum and manifestum.
 Wernz, l. c., VI, p. as, note 35.
 Reiffenstuel, V, 1, n. 252; unless, he says, it has been committed in the presence of the competent authority who enjoys power in foro externo.
 Eichmann, l. c., p. 3 2; for instance, in adultery.
 Hollweck, l. c., p. 67, note 4, quotes Reiffenstuel, V, 1, 267; but Reiffenstuel is cautious enough not to make such a general statement, for he demands that the judge surprise the delinquent before witnesses. This is evident, otherwise the judge would at the same time be the accuser. That the pastor does not constitute a public person, in judiciary matters is clear.
 C, 10, X, III, 2.
 Reiffenstuel, V, 1, n. a65; Hollweck, l. c., p. 68
 Schmalzgrueber, V, i, n. 5.
 Kenny-Webb, l. c, p. 17 1.
 Hollwekc, l.c. p. 68, note 3.
 When students enter the school-room with seared and bandaged faces and smelling from carbolic acid, there seem to be “loud” signs, nor do they, as a rule, make any secret of the duel.
 Stanislaus Woywod, A Practical Commentary on the Code of Canon Law, revised by Callistus Smith, B. Herder, London, 1948, 448-9. Available at https://babel.hathitrust.org/cgi/pt?id=mdp.35112104152501&view=1up&seq=7&skin=2021
 Lega , “De Delictis et Pænis” (2nd ed.), n. 244 .