§ 2. On the Obligation of Penal Law

Cf. St. Alphonsus, I, n. 145 ff.; ed. G., I, p. 126; Salmant., tr. 11 de Leg., c. 2, n. 53; Suarez, l. 5, c. 4; D'Annibale, I, n. 207; Lehmkuhl, I, n. 310; Noldin, I, n. 160; Biederlack, Zeitschrift fur kath. Theol., 1899, p. 155 ff.; V. Gestel, de Just., p. 140.

181. DEFINITION. Penal law is that which establishes a penalty against delinquents without prescribing that something be done or omitted.

Therefore it is that law which directly imposes no obligation of doing this or that; yet he who is found delinquent can be punished, and if he is punished by legitimate authority, he must in conscience undergo the penalty as justly imposed; indeed, after sentence, he must execute by himself the imposed penalty, or at least not positively oppose it, if it were too harsh (cf. n. 2311). Therefore from the transgression of penal law there arises a merely juridical fault; from the repudiation of the penalty, a moral fault.

The penalties which can be incurred are manifold: 1. By reason of the thing which constitutes the penalty, there is given a) a positive penalty, which consists in fact, that is, which is completed by the work either of the delinquent, and is called active; or of another, in which case it is named passive, such as confiscation of goods, exile, etc. (I, 148; H. Ap., II, 24); b) a privative penalty, which consists in right, whether it deprives of some right sought or acquired, for example, office, benefice, right of patronage, jurisdiction, etc., or takes away the right or canonical or natural capacity of doing, acquiring, contracting, etc., in which case the penalty is accustomed to be called incapacitating. 2. By reason of origin, there is given a conventional penalty, which, when something, for example, an office or benefice, is given to someone under at least the tacit condition that he do something, but this has not been performed, takes away what was given, as if the condition had not been fulfilled. "Thus, for example, a beneficed cleric not wearing the habit is deprived by the very fact of the privilege of the forum" (I, 149). But such a penalty is either reduced to incapacity, or induces the nature of a pact. 3. By reason of application, there is had a penalty latae sententiae, which is inflicted by the law by the very fact of the admitted fault; and ferendae sententiae, which is established to be inflicted on the guilty by a judge (VII, 6). That judge, who is not the legislator, cannot of himself lessen this at will, unless he has received power also for this (cf. Salmant., de Leg., c. 2, n. 72 ff.). He would sin against distributive justice, and if he increased the penalty, against commutative justice, as is clear.

DIVISION. Penal law is either merely penal or mixed.

Merely penal is that which we defined above. Mixed prescribes or prohibits something, and at the same time decrees a penalty for transgressors. Therefore mixed penal law superadds to the obligation of accepting the penalty a true obligation of doing the thing, or a strict prohibition of omitting the thing, both of which seriously bind conscience (I, 145, 147).

182. PRINCIPLES. I. Nothing prevents merely penal laws from being established. The legislator indeed must promote the common good, and in this consists the strength and tendency of law, that acts which are necessary for the common good be placed, but those which would bring harm to the republic be omitted. Yet from these things it does not follow that the legislator necessarily

and always ought directly to prescribe or prohibit, so that conscience is immediately bound. It suffices that those acts conducing to the common good, considered generally, with the added penalty to be undergone, are sufficiently placed in security, and that the common good is promoted in a general way.

Moreover, it is not of the essence of law that it oblige in conscience to the act; it suffices that in conscience it oblige one to accept the penalty, if it is imposed. And if it is objected that every penalty supposes fault, it is pleasing to answer that every penalty supposes at least juridical fault, according to that saying of St. Thomas (2.2, q. 108, a. 4): Sometimes someone is punished without fault, yet not without cause.

183. II. There are given, in both rights, merely penal laws, and there are given also mixed laws; the former oblige only under penalty, the latter under penalty and under fault.

We are not speaking of natural law, which always obliges in conscience, since it concerns things necessary and intrinsically good or evil.

1. THE FIRST PART IS PROVED: a) In ecclesiastical right merely penal laws are very rarely found; because ecclesiastical laws intend to procure the common good rather through the sanctification of private persons and the firmness of discipline; whence they directly touch conscience.

Nevertheless, in certain Orders there are given rules and constitutions whose mandates are merely penal, which will be clear from the context or from the constant usage of Superiors. Yet from these things do not infer that all things which are noted in rules are merely penal. For it is evident that ordinances which are referred to vows or evangelical precepts, for example, concerning charity to be fostered, are mixed laws which oblige religious in conscience.

To the rules of religious Orders are referred the constitutions by which seminaries or other colleges are governed. Likewise the statutes of confraternities or pious congregations.

b) As regards civil right, the opinion of some, as being too general, having been rejected, we say that many merely penal laws are given there, for example, laws which impose the payment of indirect taxes, govern hunting, fishing, the cutting of wood, entry into military service; and in general all ordinances whose end can sufficiently be obtained on account of fear of the penalty (cf. n. 879, 904).

Nevertheless, all civil laws which confirm natural or divine law are necessarily mixed, such as laws concerning the sanctification of the Lord's day, concerning contracts, and concerning public offices; laws by which certain rights are attributed to certain persons, for example, to authors in relation to works invented by their own genius (cf. n. 855).

2. THE SECOND PART IS PROVED: The very definition clearly supports this our affirmation. For it is evident that all things depend on the Legislator, who, just as he can bind even in grave matters only under venial sin, so at his pleasure will be able to prescribe certain things only under penalty, or under fault and penalty (I, 147; H. Ap., II, 16).

From this, however, it does not follow that the transgressor of a mixed law is always, by the fact itself, obliged to undergo the penalty (see n. 184).

HOW, HOWEVER, WILL YOU KNOW THAT LAWS ARE MERELY PENAL?

Resp. 1. From the very words of the law, for example, if it is expressed disjunctively: Do this, or pay this; likewise, if an act is prohibited in this way: He who shall have done this, let him pay the penalty; provided, however, that the nature of the penalty inflicted does not suppose fault, as in excommunication, nor does the good of the republic demand an obligation in conscience. 2. From the declaration of the legislator,¹ namely if he says that he does not will, or did not will, to oblige consciences. 3. From the object of the law, which sufficiently intimates that the ordinance of the superior intends rather an external polity, for example, statutes of pious congregations. 4. From introduced custom; for just as the obligation of law can cease totally, so also it can cease partially, as to the obligation of conscience, when common usage, and especially the usage of the timorous, has been considered. "Hence laws of towns prohibiting under penalty the cutting of wood or herbs, fishing, hunting, do not oblige under fault; for thus custom holds" (I, 145). St. Alphonsus, with the common opinion, thinks the same concerning civil laws which prohibit games of chance and other games (H. Ap., X, n. 217). The timorous think the same concerning laws in which an exorbitant penalty is indicated as to be undergone for delicts not so grave in themselves; for there must be proportion between fault and penalty (III, 616). Cf. Bucceroni, n. 228.

184. IT IS ASKED. What are the obligations of him who ought to undergo a penalty?

Resp. A distinction must be made: 1. If the penalty is ferendae sententiae, he is held to nothing before the sentence of the judge, who will promulgate the mandates of the prince.

2. If the penalty is latae sententiae, a subdistinction must be made: a) A merely privative penalty, for example, irregularity, excommunication, privation of the right of making one's own fruits one's own, privation of the privileges of the forum, will immediately press upon the guilty person, as the usage of the Church explains, and binds him.

b) A positive penalty, or one to be equated with it, for example, privation of a possessed benefice, of active and passive voice, deposition from office, will hold the guilty person only after a penal sentence, or a sentence declaratory of the crime. The reason for these things is: it is indeed fitting that the Church, through penalties latae sententiae, can keep her own from hidden delicts; but these penalties ought not to be too arduous. A merely privative penalty, which requires no action of the delinquent upon himself, certainly is not judged too arduous; but a positive penalty is reputed too arduous. Hence, if the matter concerns a positive penalty, although the law, in set words, declares that "the penalty is incurred by the fact itself, and without awaiting any declaration of a judge," this must be understood of the declaration of the penalty, but not of the sentence declaratory of the crime, which, even in this case, is necessary so that the penalty can be applied to the guilty person. "This is confirmed from chapter Secundum, de haereticis, in the Sixth, where heretics, although they are deprived by the law itself of their goods, nevertheless are not bound to hand over the goods before sentence, as is contained in the same text" (I, 148; H. Ap., II, n. 25). Cf. also what the Holy Doctor has, III, n. 665; ed. G., II, p. 140; Conf. dir., II, 7; Vecchiotti, l. 3, § 65.

c) If the penalty is conventional, for example, between architects and possessors of houses, a twofold opinion is given. One says that the obligation of undergoing the penalty stands before sentence, because thus all things were ordered from the beginning. The other wills that the determining sentence can be awaited, because the contracting parties are presumed to have contracted under this limitation, namely so that before payment all things may be justly defined. Since each opinion is probable, do not compel those resisting to pay anything before sentence; but once sentence has been given, allow that something be paid only when the other has truly sought it (I, n. 150).

Note. Whether and when ignorance, or doubt, excuses from a penalty enacted by law, we shall say below, n. 219, where we treat of causes excusing from law, and n. 1269, 1273, where we treat of censures.