V. On Invalidating and Penal Law

What is the nature of an invalidating law, and of how many kinds is it?

In natural law there is no invalidating law; but by natural law an act is valid or null, or void, by reason of the defect of a substantial element. The elements of a human act are only two: consent and object. If consent is lacking, the act is null, as a fictitious promise, which is not a promise. Likewise, if the object is lacking, the act is null, as the sale and purchase of a precious gem which is only glass. Finally, if the object is illegitimate and shameful, as a society of robbers, the act likewise is null, or rather void, since that act can produce no effect of moral obligation. An invalidating law, properly, is that law which commands that some act, of itself valid by natural law for producing its effect, be void and of no force. The law of nature indeed seems to require nothing further for the validity of some act, beyond those things which are substantial to the act, namely consent and a suitable object, if the matter is considered abstractly, without its circumstances. But the law of nature itself requires that, with account taken of the circumstances, all things be done concretely in such a way that they conduce to the common good. But the determination of those things which contribute to the common good, from the law of nature itself, belongs to him who has care of the community. Wherefore the same law of nature requires that those acts be held as invalid which the public power declares to be such.

Moreover, some laws command an act to be void by the law itself, by full right; others render it only liable to rescission. C. G. 1117, 1118, 1125, 1644, 1648. The former primarily and directly regard the public good, as those which establish the essential conditions of contracts, C. I. 1104, 1119; C. G. 1108, 1131; the essential conditions of religious profession: age, novitiate, simple vows, Council of Trent, Pius IX, etc. But the latter directly and primarily regard private good, as those which grant restitution in full to minors, wives, interdicted persons, C. I. 1300 ff.; C. G. 1304 ff.; Gousset on a. 1304. In these the office of a judge is required, namely if he in whose favor the laws were introduced wishes to use their benefit. But in the former there is no need of a sentence of a judge, unless actual rescission is confused with rescindibility. Nor is it valid to say that it is permitted to no private person to declare law for himself. Certainly in the external forum; but not at all in the internal forum of one's own conscience, where the truth is manifestly established. From C. B. 142, when a rescindible act is charged with nullity, it must be considered as null from the beginning. For things return to their former state. The rescission of an act can also be introduced in hatred of some crime, as the impediments of marriage, of crime, the nullity of a simoniacal conferral of a benefice, etc. In such a case it must be seen whether the nullity of the act has been introduced primarily and directly by reason of itself on account of the common good, or in punishment of the crime. For in the first case the law is simply, or at least primarily, invalidating; but in the other it is primarily penal, and puts on the nature of a penal law, since the accessory follows the principal. Suarez, de Legibus, l. 5, c. 19, n. 5; c. 21, n. 2 ff. If the rescission of the act is not constituted by the law itself, the judge cannot introduce it by his own sentence. For it belongs to the judge to judge according to the laws, not to make laws. C. Ad Apostolicam 16, De Regul.

Acts are invalidated by law either because the acts themselves are prohibited by law; or because the person is declared incapable by law; or because the act was done without the form constituted by that same law. - If the law prohibits the act and at the same time invalidates it, the law is at once prohibiting and invalidating, and it obtains force at the same time in the external and internal forum, as, e.g., the renunciation of an inheritance not yet opened, C. I. 1118; C. G. 1130; the renunciation of prescription not yet completed, C. I. 2107; C. G. 2220; the simoniacal conferral of a benefice, Pius IV, C. Romanum Pontificem, 17 Oct. 1564; St. Pius V, Cum primum, VI Kal. Apr. 1566. But if the law indeed prohibits the act, but does not invalidate it, the act is valid in both forums; otherwise the law would no longer be merely prohibiting, but at the same time invalidating. And thus mixed marriage, although illicit, is nevertheless valid.

If a person is declared incapable by law, the law is properly called inhabilitating; as, e.g., by ecclesiastical law blood relatives are declared incapable for marriage; by civil law wives are declared incapable for contracting. This incapacity: one is properly such, and renders the act void; another is less properly such, and does not render the act of such a person void, but liable to rescission, and restitution in full is granted. C. I. 134, 319, 339, 1106, 1300; C. G. 215, 484, 513, 1124, 1304. Now incapacity can be constituted on account of good morals, on account of dangers to be averted, or on account of the state or condition of the person in society.

If on account of good morals, incapacity is to be understood, and consequently also the invalidation of the act, in both forums, external and internal. And thus theologians commonly teach that a father sins and makes the act void who makes a donation against the law to an adulterine son, and the son himself sins by accepting the void donation. Lugo, de Iust. et Iur., d. 24, n. 92. If on account of dangers to be guarded against, incapacity and invalidation are to be understood in both forums also; otherwise nothing would be guarded against. And so judges and officials of the public ministry cannot redeem lawsuits, C. I. 1458; C. G. 1597; tutors cannot take anything from the testament of those who are under their guardianship, C. I. 769.

Finally, if on account of the state or condition of the person in society, which arises from the required supports with which the person is endowed, an act which otherwise is valid by natural law is valid in the forum of conscience, if by that religious or civil state or condition the natural state or condition is not taken away, nor does a positive law of this sort take away those things which by natural law pertain to man according to his natural state or condition, but only according to his state or condition in society. - And thus the rights of spouses, the rights of parents, the rights of children remain firm in the forum of conscience, if a true marriage was present, although civil marriage was lacking. For the defect of civil marriage does not take away the natural state or condition flowing from true marriage. On the contrary, when a void marriage has knowingly been contracted, neither husband, nor wife, nor dowry, nor legitimate children, nor legitimate succession is understood. C. 10, Qui fil. sint legit.; Epist. of Leo XIII, Il divisamento, 8 Feb. 1893, § Ora una legge; C. I. 116; C. G. 202; C. A. 160. A sale is valid in the forum of conscience, although it was made not to a citizen but to a foreigner, where this is simply prohibited. For a law of this sort does not take away those things which by natural law pertain to man, but those which pertain to a citizen. Foreigners are regularly prohibited only from those rights which come from the civil law alone of a nation. On the contrary, the testament of a religious is not valid, nor is the testament of an incapable person valid: for both laws take away those things which by the law of nature itself pertain to man, on account of his state or condition in society; namely, as to the former, in the Church; as to the latter, in civil society. - Lugo, de Iust. et Iur., d. 24, s. 4; Troplong, della Prescrizione, c. 1, n. 35.

Finally, if an act is invalidated on account of defect of form, the laws are then more properly held as invalidating, insofar as they are distinguished from inhabilitating laws. But form is either intrinsic to the act itself and inseparable from the act, or extrinsic to the act. The former is as it were the species of the act, and is properly called form; and ordinarily it is situated in this, that the act be done before some public person and witnesses, or be recorded in public instruments, juridically making faith. The latter is called the solemnity or solemnities of the act, and when these have been omitted, acts are properly called void; but undone if the form has been omitted, since form gives being to the thing; but often these words are used promiscuously, and an act is also said to be void and undone from defect of the capacity of the person. Undone, namely from the effect of law. And so in marriage the presence of the pastor and witnesses constitutes the form of marriage; in alienations of ecclesiastical goods, of wives, and of minors, the Apostolic approval required in the former, and the consent of the husband in the latter, and the decree of the judge required in these, pertain to the solemnities of the act.

The form and solemnities of an act are introduced to remove frauds. Wherefore laws of this sort rest upon a presumption of fraud. If they are founded upon a presumption of fact, and fraud is truly absent, the act is valid. But if they are founded upon a presumption of danger, although fraud is absent, nevertheless the act is void or liable to invalidation. It is not always easy to define whether a law is founded on a presumption of fraud, or on the danger of fraud. And thus it is disputed among doctors whether testaments and legacies not made according to the form of law are valid for the forum of conscience. L. 1. 3. n. 711, 890, 918, 927.

There are those who distinguish between invalidation of acts in the internal forum, and in the external forum only, whether as regards civil laws or as regards canonical laws. But the value of acts, as to itself, exists both in the internal forum and in the external forum. Moreover, in itself the contradiction is apparent which would then exist between the internal and external forum. And it is also apparent that then the law would not obtain its end, and would bring with it many and grave inconveniences. If, e.g., an alienation of ecclesiastical goods made without Apostolic approval is void only in the external forum, and not also in the forum of conscience, then the buyer or donee would by right retain those goods as his own, without being held to restore them, with evident harm to the Church. If an informal holographic testament, without the signature of the testator, were invalid only in the external forum, the heir inscribed there could now legitimately and secretly steal away for himself the goods possessed by the legitimate heir, even after the sentence of the judge. This is altogether absurd, and contrary to reason and common sense. Wirceburg., c. 4, a. 5, § 3.

Does he sin who makes a void act? R. Affirmatively, if the act is evil, as, e.g., to enter marriage with a blood relative; or if the act is harmful, whether justice, or charity, or the commonwealth, or religion is injured; e.g., if a notary prepares a public instrument without juridical form; if a testator freely makes a testament, the legal prescriptions not having been observed, whence he foresees that quarrels and scandals will arise; if a judge does not observe the legitimate process of judgments; if the form and solemnities of canon law are not observed in elections to ecclesiastical offices, in the conferral of benefices, etc. R. Likewise affirmatively, if the act is at the same time invalidated by law and also prohibited in the forum of conscience, as in marriages, not to observe the form prescribed by the Church; not to observe the due form in religious profession; to donate to an adulterine son.

R. Negatively, if the act itself is neither evil in itself nor harmful to another; for then it is only a fruitless act, e.g., if someone writes his own testament with the signature omitted, or not yet having attained the age prescribed by law. Harmful to another, not to himself; e.g., if spouses alienate dotal goods which are prohibited from being alienated, or a wife alienates paraphernal goods without her husband, and the buyer is ignorant that the goods are dotal, or that the woman has a husband.

But although the law does not oblige in conscience to omit the act, if in such a case it is merely invalidating and not at the same time prohibiting, nevertheless it obliges one to stand by all those things which intrinsically arise from the invalidation. For obedience must be given to authority legitimately commanding. But every legislator can make invalidating laws, because this is required for the common good; otherwise frauds and dangers of human society could not sufficiently be warded off.

Do ignorance, fear, and grave inconvenience excuse from invalidation? - R. To the first: Negatively, because subjective ignorance, whether of fact or of law, does not supply the objective defect of the act; and thus there is no marriage, when there stands, e.g., the diriment impediment of consanguinity, whether it is contracted in good faith or in bad faith. - But if the invalidating law is penal, then, if ignorance excuses from guilt, it also excuses from the penalty of invalidation. But if guilt is admitted, yet the penalty of invalidation is unknown, then more probably this is not incurred, because invalidation is an extraordinary and exorbitant penalty, from which ignorance excuses. Schmalz., l. 5, t. 37, n. 105; Sanch., de Matr., l. 9, d. 32, n. 17. More commonly, however, they affirm that it is incurred, because since such ignorance does not excuse from sin against the law, neither consequently does it excuse from the penalty, although this is unknown. Suarez, l. 5, c. 22; Ithur., Cas. 53, n. 24. Nor indeed does ignorance excuse in any way if the invalidation was established principally to preclude evils which otherwise would flow into the commonwealth, but the penalty only accessorily, for coercing the person. And indeed the proper reason of an invalidating law is common utility.

R. To the second and third: There are not lacking those who affirm it, because positive law ought to yield to the natural law of charity, and because in the case there is a certain legitimate epikeia. But it seems one must answer with the common opinion: Negatively; because grave fear, and even gravest inconvenience, neither render the person capable, nor restore to acts the force taken away by law. But since laws of this sort primarily and directly tend to preserving the public good, no place is given to epikeia on account of merely private harm. And thus a marriage between blood relatives and relatives by affinity will be void, even to avoid death, even in the article of death. Private harm, I say; for if a common harm is present, since then the law would become harmful to society, invalidation ceases. L. 191; l. 3, n. 112; l. 6, n. 1029; de Privil., n. 57; Diana, t. 2, tr. 6, r. 62, 73; Sanch., de Matr., l. 3, d. 17, n. 3; Ithur., Cas. 53, n. 18; M. E., vol. 20, p. 177, 474.

Note: As there are invalidating laws, so there are laws constitutive of right, which others reduce to invalidating laws. Such laws are those which constitute and confer some right. And thus religious profession and adoption obtain their force: the former from canonical law, from the Church accepting religious profession; the latter from civil law. Wherefore such laws are valid in both forums, the external and the internal. For if someone truly has such a right in the forum of conscience, he has it only from law, whether canonical or civil. Sometimes, moreover, laws of this sort immediately furnish right by themselves, as laws granting to the father usufruct in the goods of children under paternal power, granting to children under paternal power the legitimate portion in the goods of the father; but sometimes they furnish right only through the mediation of the office of a judge, as laws granting restitution in full to minors, to those who have suffered fear, etc.

There are besides laws denying action in the external forum; if these regard some natural right, they do not avail in the forum of conscience. For laws of this sort do not furnish an action, not because they take away natural right, but only so that there may be some end of lawsuits, lest lawsuits be multiplied. But if they regard a right which flows from the law itself, whether canonical or civil, then, if someone has not pursued his right within the prefixed time, they take away the right itself, and consequently, on the opposite side, the obligation of another. Wherefore they avail for this latter also in the internal forum, unless perhaps he has by injury impeded another from pursuing his right.

What is the nature of penalty and of penal law? R. To the first: Penalty consists in the subtraction of some good, whether spiritual or temporal. Spiritual especially, as regards canonical penalties, as is seen in excommunication; temporal as regards civil penalties. "Since sin is a disordered act, it is manifest that whoever sins acts against some order; and therefore it follows that he is cast down by that order itself (and by the Prince of the order), and this casting down is penalty." S. Th. 1. 2. q. 87, a. 1. "Through penalty the equality of justice is repaired, insofar as he who in sinning has followed his own will too much suffers something against his own will." S. Th. 2. 2. q. 108, a. 4. The equality of justice is also repaired insofar as he who has pursued illicit goods by his own will is deprived of certain goods against his own will.

Now, "vindication is licit insofar as it tends to the restraining of evils. But some who do not have affection for virtue are restrained from sinning through this, that they fear losing certain things which they love more than those which they obtain by sinning; otherwise fear would not curb sin. And therefore vindication for sins is to be taken through the subtraction of all things which man chiefly loves. But these are the things which man chiefly loves: life, bodily safety, one's own liberty, and exterior goods, such as riches, fatherland, glory. And therefore... there are eight kinds of penalties... namely death, by which life is taken away; lashes and retaliation, so that, for example, he loses an eye for an eye, by which one loses bodily safety; servitude and chains, by which he loses liberty; exile, by which he loses fatherland; loss, by which he loses riches; ignominy, by which he loses glory." S. Th. 2. 2. q. 108, a. 3; q. 65, a. 3.

One penalty is vindicative and is owed to sin; another is preservative from future sin, which is called medicinal; another is promotive of some good, and according to this someone is sometimes punished without guilt, but not without cause, as, e.g., that someone incurs irregularity on account of a judgment of blood. S. Th. 2. 2. q. 103, a. 4. "The penalties of the present life are more medicinal than retributive. For retribution is reserved to the divine judgment, which is according to truth against those who sin. And therefore according to the judgment of the present life, the penalty of death is not inflicted for every mortal sin, but only for those which bring irreparable harm, or also for those which have some horrible deformity; and therefore for theft, which does not bring irreparable harm, the penalty of death is not inflicted according to present judgment, except where theft is aggravated by some grave circumstance, as is clear concerning sacrilege, which is theft of a sacred thing, and concerning peculation, which is theft of a common thing, and concerning kidnapping, which is theft of a man, for which one is punished by death, as is clear from Exod. 21." S. Th. 2. 2. q. 66, a. 6, ad 2. "If some man is dangerous to the community and corruptive of it on account of some sin, he is laudably and healthfully killed, so that the common good may be preserved." S. Th. 2. 2. q. 64, a. 2, c. "Human justice kills those who are harmful to others; but those who sin without gravely harming others, it reserves for penance." S. Th. l. c. ad 2; q. 65, a. 1, c. No one can punish another unless he is subject to his jurisdiction. S. Th. 2. 2. q. 65, a. 2, c. But public vengeance to be exercised by the civil magistrate is handed down in the Sacred Scriptures themselves, Rom. 13:4. "A greater power ought to have greater coercion. But just as a city is a perfect community, so the Prince of the city has perfect power of coercing; and therefore he can inflict irreparable penalties, namely of killing or mutilation." S. Th. 2. 2. q. 65, a. 2, ad 2; q. 10, a. 8, 9; q. 11, a. 3, 4.

R. To the second: Law can oblige to doing or omitting some act or action, and then it is called a moral law, preceptive or prohibitive. But law can oblige to undergoing penalty alone, and then it is called penal law; namely if the law still obliges to doing or omitting that thing, or otherwise to undergoing the penalty. For it suffices for the essence of law that it impose some obligation in conscience, nor is it necessary that the obligation regard determinately an act or its omission. Besides, law has force only from the will of the legislator. But the legislator can oblige to penalty alone, if that suffices for procuring the common good. Wherefore St. Thomas rightly teaches, 2. 2. q. 186, a. 9, "that not all things which are contained in law are handed down by way of precept; but some are proposed by way of a certain ordinance, or statute, obliging to a certain penalty." - Suarez, l. 5, c. 4, n. 2-6.

Therefore a penal law is a law which does not oblige in conscience to positing or omitting an act under guilt, but only under temporal penalty, i.e., to accepting the penalty as just. Wherefore, properly speaking, a merely penal law cannot be given in this sense, insofar as it in no way obliges in conscience; nevertheless a merely penal law can be given in this other sense, insofar, namely, as it obliges in conscience to one or the other: either to fulfilling the law, or to undergoing the penalty; as is the law of paying a fine if someone defrauds the customs. But cf. 232. - "Sanctions which in no way oblige in conscience, neither to an act or its omission, nor to penalty, are not properly laws, but simple constitutions and ordinances... To this are reduced the statutes of various Orders, Congregations, Academies, etc." Struggl, q. 2, n. 32. Therefore laws of this sort are not called laws simply, but directive, counseling, persuading laws. But it is entirely outside every question that there can be at the same time a moral law, preceptive or prohibitive of an act, and at the same time penal, and then the law is called mixed; as is the law of repairing damage inflicted by civil fault alone. Penalty regularly does not oblige before the sentence of a judge. Cf. 230; 1 Cor. 4:21; 2 Cor. 10:6; Suarez, l. 5, c. 3, 4; S. Th. 2. 2. q. 108, a. 4; q. 186, a. 9, ad 1; E. M.

227 bis. Note: The rack is a kind of torture, namely a wooden machine joined together in the manner of a horse, cavalletto, on which formerly those concerning whom there was inquiry of some crime were stretched and tortured, so that full proof might be made from their confession. Life imprisonment, according to the Italian Penal Code 31, 33, is the greatest penalty, bringing perpetual interdiction from public offices, legal interdiction, deprivation of paternal power, marital authority, and the faculty of making a testament. Reclusion follows life imprisonment. The penalty of reclusion exceeding five years brings, according to the Italian Penal Code 31, 33, perpetual interdiction from public offices, legal interdiction during the penalty, and there can be added deprivation of paternal power and marital authority during the penalty.

How are merely penal laws distinguished? - They are distinguished: 1. From the matter, words, and circumstances of the law. 2. From the common judgment of doctors. 3. From the persuasion and practice especially of the timorous. From the matter; hence, speaking in itself, civil laws can be held as penal if, with attention to their matter, the end of the law is sufficiently obtained by only the fear of the penalty having been struck in, as, e.g., civil laws concerning paying taxes with regard to goods imported or exported; for if the established taxes are not paid, a fine would be owed. But civil laws must be held as preceptive if, with attention to their matter, the end of the law is not sufficiently obtained by fear of penalty alone, unless also by fear of guilt. Such laws are those which directly and proximately contribute to the common good, peace, and order of civil society, as are laws, e.g., of contracts; of public offices, administrators, magistrates, etc.; of judgments, proofs, unless as regards these the right is certain and evident; since then the right is not lacking, but the proof of right, provided that the proof does not touch the very form of the act. C. I. 779, 1314; C. G. 973, etc. Likewise laws are altogether obliging in conscience: laws explaining natural right and definitive of right, as are laws assessing the prices of things and the wages of works; granting to the father usufruct in the goods of children under paternal power, but to children under paternal power the legitimate portion in paternal goods; half the treasure to the finder, half to the owner of the land; restitution in full to minors, married women, those who have suffered fear, regulars; common ownership of a wall to a neighbor; action for damage given by civil fault alone, etc. Kenrick, tr. 6, c. 3, n. 2 ff.

From the words; hence Suarez thinks, l. 5, c. 4, n. 9, that if by the words of a penal law the precept is not sufficiently declared, a presumption must be made in favor of a purely penal law, "unless from the circumstances, or from the matter or penalty of the law, a virtual precept, or sufficient intention of one commanding, is gathered." Or from the penalty, e.g., of excommunication, or even a gravest corporal penalty, of death, mutilation, etc. "For the law must be considered prudent and just; but it would be intolerable if, on account of a thing which lacks guilt, it imposed the penalty of death or mutilation." But others deduce from a graver penalty that the Prince does not wish to oblige in conscience, because it would not be equitable that, besides a most grave temporal penalty, which would suffice to urge observance of the law, he should also wish to hand someone over to eternal penalty besides that most grave temporal penalty. But this, as is clear, would hold also for the laws of the Church under penalty of excommunication, suspension, interdict, deprivation of benefices, etc.; and yet all admit that all laws of the Church oblige in conscience. - Moreover, a law is held as purely penal if it is not borne by way of precept and prohibition, but merely assertively, e.g., he who has carried grain out of the kingdom will pay one hundred lire; or if it is borne disjunctively, e.g., let no one carry grain out of the kingdom, or, if he has carried it out, he will pay one hundred lire. - But if the law is borne simply by way of precept and prohibition, either it imposes no penalty, and it is a moral law, preceptive or prohibitive, obliging, speaking in itself, in conscience to guilt; or it has a penalty joined to it, e.g., canons are prohibited from being absent from choir under penalty of loss of the distributions which are made daily among those present, and the law is mixed, obliging, again speaking in itself, at the same time to guilt and penalty. Speaking in itself, unless, namely, the legislator himself has expressly admonished otherwise, as may be seen in many Rules and Constitutions of religious Orders and Congregations, or something else must be judged from other heads. L. 145-147; S. Th. 2. 2. q. 186, a. 9, ad 1. Yet it is not necessary for the obligation of a law that this be explicitly asserted by the legislator. For it suffices that it be understood implicitly from the law itself as enacted.

From the circumstances; e.g., if no corruption of morals would follow from transgression of the law, no danger of public order, etc., and the superior himself entrusted the effective execution of the law to his ministers, or imposed a great penalty. For that alone would be sufficient for observance of the law; and it would justly be presumed that the Prince does not wish to oblige to guilt and penalty at the same time. But not at all if there were question of a thing evil by its nature, or publicly pernicious; in such matters penal laws are never to be sought. Suarez, l. c., n. 12; L. l. 3, n. 616.

From the common opinion of doctors; and thus as penal are held the laws which prohibit dice and games to laymen. L. l. 3, n. 885. On the contrary, the common opinion of doctors is that merely penal laws are not given in the Church, since the Church principally regards the good of souls. From custom; "hence the laws of towns prohibiting under penalty the cutting of wood or grass, fishing, hunting, do not oblige under guilt; for custom so holds." L. 145. The same seems to be said of the grazing of cattle in fields or woods of the community, and of carrying weapons for hunting; but by no means of carrying treacherous weapons. St. Pius V, C. Cum vices, 12 Feb. 1572; C. I. Poen. 460 ff. Civil laws forbidding opium, and other similar laws, for protecting good morals, are in themselves moral laws. - E. M. "Reuter observes," he says, de Leg., n. 217, "Suarez, l. 7, c. 19, n. 12; Laym., l. 1, tr. 4, c. 24, n. 12, that some laws have passed from not purely penal into purely penal, because otherwise they were not observed, as perhaps are civil laws imposing exactions, prohibiting hunting, cutting wood, etc."

Do ignorance, fear, and age excuse from penalty? R. To the first: Affirmatively for the internal forum, if ignorance excuses from guilt against the law, whether it is ignorance of law or ignorance of fact; for penalty is a certain natural consequence of guilt. - R. Negatively for the same forum, if ignorance does not excuse from guilt against the law, and is concerned with the penalty alone, understand an ordinary penalty; but not an extraordinary and exorbitant one. The reason of the distinction is that an ordinary penalty is always foreseen in some way from the nature of the crime itself, since natural light itself dictates that evil is to be punished according to its nature. But an extraordinary penalty cannot be foreseen even confusedly. R. Likewise negatively for the external forum. For knowledge of the law is presumed, unless, however, ignorance of the law seems probable, i.e., likely. For presumption yields to truth. L. 169; l. 6, n. 705, 1074; l. 7, n. 351.

R. To the second: Unjust and grave fear, which excuses from human law, whose obligation regularly is none with grave inconvenience, consequently excuses from the penalty annexed to human law. Hence, although perhaps it does not excuse from grave sin, because that which was prohibited was forbidden also by natural law, nevertheless it still excuses from the penalty, unless the positive law itself does not cease, as for instance if something is extorted to public harm. C. 5, De his quae vi.

To the third: From the indulgence of canon law, age excuses those not yet pubescent, C. 1, 2 de Del. puer.; C. 1, 60 de Sent. exc. By civil law minors are punished more mildly. C. I. Poen. 44, 53 ff.; C. B. 828. - Cf. here 195; Suarez, de Cens., d. 5, s. 1, n. 19; Castropalao, tr. 3, d. 1, p. 24, § 2, n. 8; Scavini, l. 1, n. 822, ed. 12, Milan 1874; Bouquillon, de lege, n. 159.

Does a penal law oblige one to undergo the penalty before the sentence of a judge? - The penalty which is contained in law is one thing active, which cannot be given remission without some positive action of the delinquent, as would be, e.g., payment of money; another is passive, which requires the action of another for its execution; another is privative, which consists in the mere privation of some acquired right, e.g., office, benefice, jurisdiction, suffrage, etc.; and it is conditional if it deprives of some right under a given condition; another is negative, which denies to the guilty person some good to be acquired; another finally is inhabilitating, which renders one incapable or unable of some right, namely of doing or contracting, acquiring, giving something, etc. - Likewise, one penalty is latae sententiae, another ferendae sententiae; the first is incurred by the commission of the crime alone, the second by the sentence of a judge. But this sentence to be rendered, or condemnatory sentence, is that by which the accused is punished with a certain penalty; or declaratory, by which the judge declares that someone has fallen into that crime on account of which the penalty established by law is incurred by the fact itself.

In order that a penalty can be called latae sententiae, it is necessary that the legislator has clearly provided that the accused, once the delict has been committed, is immediately held by that penalty. If the penalty is ferendae sententiae, the law does not oblige to undergoing the penalty before that sentence; for then the law does not inflict the penalty by itself, but only decrees that it is to be inflicted by the judge. But if the penalty is latae sententiae, then a distinction must be made. An active or passive penalty, etc., e.g., of paying or suffering something, is not to be undergone before the sentence of a judge. The reason is "because that human law would be too arduous and unobservable: that the guilty person himself should execute the penalty upon himself." L. 149, 148. Except unless the law so evidently commands otherwise that it cannot be interpreted otherwise, for instance, a thing accepted simoniacally must be restored, cf. 523. - The same, for the same reason, must be said of a penalty at once privative and active. "And thus, therefore, one must speak of laws depriving of benefices already obtained, by reason of simony or alienation of the goods of the benefice, etc., where a declaration of the judge is always required." L. l. c.; unless something else is expressly provided in the law, as seems to be established in Trent, s. 14, c. 18 de R., against synodal examiners receiving something on occasion of the examination, since it is said, "from which [i.e., simony] they cannot be absolved unless the benefices have been dismissed." L. l. 3, n. 112, 397. But not even this urgent wording of the law excludes a declaration of the crime. Cf. 521.

If the penalty is simply privative, before the sentence of a judge it will ordinarily have to be undergone, as is clear from the usage and custom received everywhere concerning censures and similar penalties. Hence, without any other sentence, incestuous spouses are deprived of the right of petitioning. C. Si quis de Eo qui cognov. And deservedly; for since incest is almost always hidden, the penalty would be rendered useless if it had to be proved, and a sentence were required. Ordinarily, for exception is made: if the guilty person cannot execute the penalty without infamy, since this would be too hard; if somewhere a particular custom holds otherwise. L. 148.

Negative penalties and "inhabilitating penalties oblige before the sentence of a judge, as is the penalty imposed by Trent on non-residents of not gaining the fruits. Likewise when privative penalties are conditional, e.g., that one having a benefice with care of souls, if he is not ordained priest within a year, is by that very fact deprived of the benefice, as from C. Licet, de Elect., in 6. Thus also a beneficed cleric not wearing the habit is by that very fact deprived of the privilege of forum." L. 149. The first reason is that no one can acquire that to which he has no right. The second reason is that since the law does not bestow right except under such a condition, when it is lacking, every right must also be lacking. Yet, as for privative penalties, so also for inhabilitating ones, at least a declaratory sentence of the crime is required "in the case in which the guilty person cannot execute the penalty without his own infamy," L. l. 6, n. 705, as, for instance, one which deprives of active or passive voice. No one is held to betray himself. - L. l. 7, n. 54; l. 3, n. 397, 442, 402; l. 5, n. 280; Struggl, q. 2, n. 38 ff.; Suarez, de Legib., l. 5, c. 10; Laymann, l. 1, tr. 4, c. 15; Wirceburg., c. 4, a. 5, § 2; Troplong, della Prescrizione, c. 1, n. 35, 38, 42.

Must a conventional penalty in contracts be paid before sentence? - A penalty which is owed for that which is of interest is owed before every sentence of a judge. But concerning that which is owed on account of delay, there is dispute. "The first opinion affirms it, because each person is held to observe the pact before sentence.... The second opinion, which the Salmanticenses call equally probable, denies it, because one must judge that the contracting parties do not wish to impose a penalty upon themselves otherwise than according to the disposition of law concerning laws of penalties, which are not contracted except after sentence. Certainly the guilty person is held after sentence to the penalty. But it must be noted that he is not held to pay the money unless it is sought by the party. And if the penalty is too harsh, beyond the sentence there is required a precept of the judge, and the execution of the ministers." L. 150; C. B. 343.