Article I. On Penal Law

133. • Penal law is that which does not oblige to an act or to an omission except under temporal penalty, that is, to accepting the penalty as just.

Principles. - I. A purely penal law cannot be given, so that it would oblige in no way in conscience, because every precept of a Superior must oblige in some way; otherwise it would not be a true precept. - Thus all.

II. But a merely penal law can be given, obliging in conscience to one or the other, namely either to fulfilling the law, or to undergoing the penalty, if the law has been violated. The reason is, 1. because for the essence of law it suffices that it impose some obligation in conscience, nor is it necessary that the obligation determinately regard an act or omission; 2. because law has force only from the will of the legislator: but the legislator can oblige to the penalty alone, if this suffices for procuring the common good. - Thus very commonly the Theologians with St. Lig., no. 143. - Suarez, - Salmant., etc.

But the question whether any merely penal laws are given can by no means be resolved speculatively, since they can be given somewhere, and not elsewhere. Therefore only the learned and skilled in their own region or nation can judge about this. Generally, a few can be admitted, and in matters of lesser moment. But not a few Theologians contend that laws are merely penal which regard certain taxes imposed on merchandise which is carried across, and which are called Vectigalia. We shall speak of these toward the end in the Treatise on Restitution.

134. Questions. - QUESTION 1. How can merely penal laws be discerned?

I answer: Chiefly from the common sense of the Doctors, and from the persuasion and practice of subjects, especially the God-fearing.

QUESTION 2. Whether ignorance excuses from a penalty established by law?

I answer: 1. Yes, for the internal forum, if ignorance excuses from fault; but in the external forum it does not excuse, insofar as it is never licit to resist public authority.

I answer: 2. No, if ignorance does not excuse from fault ¹, or is concerned with the penalty alone ². - St. Lig., no. 169.

¹ Understand grave fault; for when ignorance does not exceed light fault, the Doctors commonly teach that it excuses from the penalty.

² Understand with St. Alphonsus (book 1, no. 169) the ordinary penalty, not an extraordinary and exorbitant one. Concerning this matter the same St. Alphonsus says (book 7, no. 351): Although knowledge of the penalty is not required in order that it be incurred, when the penalty is ordinary, and such that from the nature of the crime itself it can in some way be foreseen, since the natural light itself dictates that evil is to be punished according to its nature; nevertheless knowledge of the penalty is required when it is extraordinary and exorbitant, so that according to the nature of the thing it cannot be foreseen even confusedly: and of this kind indeed is the penalty of irregularity. The same St. Alphonsus (book 6, no. 1074) calls this opinion most probable.

QUESTION 3. Whether any laws of the Church are merely penal?

I answer: No, if the rules of many religious Orders are excepted. For all penalties inflicted by Canon Law suppose fault, and most often grave fault. The reason is that penal laws must at least be obligatory disjunctively, or at least to undergoing the penalty; but since the Church lacks the means for coercing by which Princes enjoy ³, it is necessary that it always oblige in conscience. Nor should you say that the Church has censures for inflicting punishment on Christians; for from the usage of the Church, censures are brought only against the guilty of grave fault ⁴ and against the contumacious, because censures are extraordinary penalties which the Church, a pious mother, inflicts only when compelled by necessity. - Reuter, no. 126. - See Cases, no. 125.

³ This is not to be accepted as if the Church either lacked coercive power, or could not use temporal or corporal penalties for coercing her subjects. See Institutions of Ecclesiastical Public Law, by Fr. Camillus Tarquini, S.J., book I, sect. 2, art. 1. Moreover this argument of the Author does not seem very firm; and hence some of the Doctors judge that merely penal laws have a place even in ecclesiastical decrees.

⁴ Understand this especially of excommunication. For certain lighter censures can and usually are inflicted even for venial fault. See St. Alphonsus, book 7, no. 30.