Article III: On the Quality and Extension of the Obligation of Penal Law

348. Since the Church has public coercive power, it can also establish penal laws (can. 2214), which obligate one to undergo even a graver penalty (can. 2291), whether they are merely penal laws, or mixed laws, that is, moral and penal at the same time.

In fact, merely penal pontifical laws are not given, for penalties inflicted in Canon Law all suppose true fault (can. 2215); nevertheless they are usually given in Orders and religious institutes, and can be given in diocesan laws.

By reason of the mode by which the penalty is imposed, one is of latae sententiae, another of ferendae sententiae (can. 2217).

1. A penalty of ferendae sententiae is that which is not incurred by the fact itself, but must be inflicted by a judge or superior, or which is established as to be inflicted by a condemnatory sentence of a judge afterward to be borne.

Such are those which are designated: a) by words of the future: he will be excommunicated, he will be excommunicated, etc. (c. 2315, 2321, 2328); b) by threatening words or words demanding the ministry of a judge: under penalty, under threat of excommunication, we have judged that he is to be bound by sentence, let him know that he will incur excommunication, let him be interdicted from entering the church, he must be excommunicated; c) by ambiguous words which do not sufficiently indicate a penalty of latae sententiae, e.g., let him be subject to excommunication, let him fall into excommunication, let him lose his place: for laws which establish a penalty are subject to strict interpretation (can. 19), whence according to canon 2219: "in penalties the more benign interpretation is to be made," unless, however, the context indicates otherwise.

2. A penalty of latae sententiae is that which is incurred by the very fact of the delict committed, namely, by the fact that the transgression of the law or sin is committed.

Such are those which are borne: a) by words which exclude the ministry of another: by the fact itself, by the law itself (c. 2217), by that very fact (c. 2365), without another sentence; b) by words of past or present time: he is excommunicated, we will, let him know or let him be aware that he is excommunicated, we have excommunicated, by our authority or by virtue of the present letters let him be excommunicated, from now we have excommunicated; c) by imperative words of the penalty itself, which indicate that the guilty person here and now is affected by the penalty: let him remain suspended, let him be anathema, excommunication holds (c. 2388, § 2).

If this, in execution, requires an external executive action either of the delinquent himself or of another, and has a physical effect, ordinarily it requires a declaratory sentence of a judge; thus for positive penalties of exile, beating, prison, fine, or penalties privative of a good already possessed, namely, of a right acquired, e.g., in confiscation of goods, deposition, degradation, privation of a benefice or office obtained, or of a dignity acquired. On the contrary, if it requires no external action, consisting in a moral effect alone, it is incurred immediately: thus privative penalties from a right or from the exercise of right, e.g., spiritual privative penalties (censures), or negative penalties by which a good otherwise fully to be acquired is denied to the guilty person (e.g., irregularity from delict), or an inability is contracted for something, e.g., a canon culpably omitting the office loses the right of receiving fruits.

A condemnatory and a declaratory sentence differ: the first falls upon the penalty itself and therefore the penalty is owed from the day of the sentence; the second falls not upon the penalty itself but upon the crime committed, declaring that it has been committed, and therefore it is declared that the penalty had been contracted and the penalty owed is drawn back to the time of the crime committed. Whence canon 2232, § 2: "a declaratory sentence draws back the penalty to the moment of the delict committed."

349. Penal law, after transgression, obligates in conscience judges to inflict the penalty, at least if the law uses words that are not facultative but preceptive (can. 2223, § 3); and it obligates subjects to undergo it.

Before the sentence of the judge:

1. if the penalty is of ferendae sententiae, they are not bound to undergo it until by the sentence of the judge they have been condemned to it: for the law does not inflict the penalty, but decrees that it is to be inflicted; whence it is also licit by honorable means to avert and elude the sentence to be borne;

2. if it is of latae sententiae and requires an external executive action, ordinarily they are not bound to undergo the penalty before a declaratory sentence. The reason is that law must be morally possible and accommodated to human nature; but it would be too hard and inhuman if it compelled the guilty person so that he would be bound to despoil himself of his own goods and rights.

Exception is made: a) if the penalties are lighter or such that judges cannot impose them, such as fasting, recitation of prayers, moderate chastisement of the body, not going out from an assigned place, abstinence from foods; b) if they are conventional.

3. if it requires no external executive action (e.g., censure, irregularity), it is incurred from the moment at which the crime to which it is annexed is committed, and from this moment (the danger of infamy being excluded) it obligates subjects to undergo it without the sentence of a judge.

In the external forum, however, it is not judged to have been contracted without a declaratory sentence of the judge, unless the delict is notorious. I said: the danger of infamy being excluded (which is usually absent in privation of active or passive voice), because if such a danger exists and the delinquent cannot observe the penalty without infamy, a privative penalty is equated to a positive penalty (can. 2232).

After the sentence of the judge:

1. the guilty person is obligated to execute the penalty by himself, if it is not too harsh nor much repugnant to nature, e.g., to pay money which is exacted, to go to prison when it is not long-lasting, for he is bound to obey a just and morally possible precept;

2. he is obligated only to undergo the penalty without positive resistance when it is very grave or repugnant to nature, although he can resist negatively by fleeing. This is a general principle in human law, even civil law; e.g., one condemned to death is bound to ascend the scaffold, to present his neck, etc., but he can flee. For no one is bound to do such a penalty, but to suffer it; whence no one is bound to furnish that from which death, wounding, public flogging, perpetual prison, perpetual exile follows, and, e.g., to remain in a place from which he is to be led to death; but he is bound to suffer it, that is, not to resist the one inflicting it.

350. A conventional penalty is distinguished from the aforesaid penalties, by which, when something, e.g., a benefice, is given to someone under the tacit condition that he do something, if the condition is not fulfilled, he himself is deprived of the thing conceded. It obligates by the fact itself without the sentence of a judge; e.g., a curate, who formerly could be a deacon, if not initiated into the priesthood within a year, lost the benefice; a bishop not receiving consecration within three months does not make the fruits his own (Council of Trent, sess. 23, c. 2), and neglecting this within six months remains deprived of the episcopate by the law itself (can. 2398).

351. Observations.

1. Canon 2219, § 1: "In penalties the more benign interpretation is to be made."

2. Canon 2219, § 2: "But if it is doubted whether a penalty inflicted by a competent Superior is just or not, the penalty is to be observed in both forums, except in the case of an appeal in suspensive."

There is no appeal in suspensive from a censure judicially inflicted (can. 2243, § 1); there is one from vindicative penalties, unless something else is expressly provided in law (can. 2287).

3. Canon 2219, § 3: "It is not licit to extend a penalty from person to person or from case to case, although there may be an equal reason, indeed a graver one, saving, however, the prescription of can. 2231"; namely, in the case in which several have concurred in perpetrating one delict, whether physically, or by common counsel, or by commanding, or in another way, if the delict otherwise would not have been committed; these are held by the same penalty unless the law expressly provides otherwise.

4. A judge can diminish and increase a penalty from a just cause, if he himself is the legislator; but an inferior cannot unless this is permitted by law. Thus in the new law, according to the mode of canon 2223.