Article II. On The Author And Subject Of An Ecclesiastical Penalty

473. The author of an ecclesiastical penalty is the Church, to whom it certainly belongs to possess the native and proper right (independent of any human authority) of inflicting penalties upon her delinquent subjects.¹⁵

For Christ the Lord endowed the Church with true legislative and coercive power, which she also put into practice from the beginning. Therefore Pius VI proscribed as heretical the proposition asserting: "The Church does not have conferred upon her by God the power not only of directing by counsels and persuasions, but also of commanding by laws, and of coercing and compelling the erring and contumacious by external judgment and salutary penalties."¹⁶ This coercive power of the Church indeed extends to penalties not only spiritual but also temporal, as was already said above.

The exercise of punitive power in the Church belongs to all superiors having jurisdiction in the external forum, whether ordinary or delegated, provided that this jurisdiction is unimpeded. Concerning this matter the Code of Canon Law, c. 2220, establishes: "Those who possess the power of making laws or imposing precepts can also annex penalties to the law or precept; those who possess judicial power only can merely apply legitimately established penalties according to the norm of law."

Hence ecclesiastical penalties can be imposed by: a) the Supreme Pontiff for the whole Church; b) bishops and major regular prelates for their subjects; c) all others having unimpeded jurisdiction in the external forum, for example, Vicars and Prefects Apostolic, even provincial Councils, and so forth.

Sometimes, however, a special mandate is required, for example, in a vicar general.¹⁷

Jurisdiction, as regards the right of punishing, is impeded:

1. In the case of an excommunicated, suspended, heretical, or schismatic bishop, who always unlawfully, and indeed invalidly - if a condemnatory or declaratory sentence has been pronounced - imposes censures upon his subjects.¹⁸

2. In the case of a judge who wishes to pronounce a sentence in the contentious forum outside his own territory. Hence that common adage: "One who administers justice outside his territory may be disobeyed with impunity."¹⁹ Sometimes, however, a judge has the power to administer justice even outside his own territory, as the canonists teach.²⁰

¹⁵ Ibid., c. 2214, § 1.

¹⁶ Denz. n. 1505; cf. Benedict XIV, Brief Ad assiduas, 1755; Leo XIII, Constitution Immortale Dei, November 1, 1885.

¹⁷ Code of Canon Law, c. 2220, § 2.

¹⁸ Ibid., c. 2264.

¹⁹ Cf. c. 2, I 2 in VI^o, and c. unic., II 2 in Clem.

²⁰ Cf. Bargilliat, Prael. iur. can., n. 1551; Code of Canon Law, c. 1637.

474. The subjects of an ecclesiastical penalty are (or those who can be punished with ecclesiastical penalties are) all baptized persons who are capable of reason, living, delinquent, and subjects.

Therefore the following are not subject to ecclesiastical penalties:

1. The unbaptized.

For the Church does not judge those who are outside.²¹

2. Those actually lacking the use of reason.²²

For since a man actually lacking the use of reason cannot perpetrate a formal delict, neither can he be punished with an ecclesiastical penalty. Therefore not only the insane, but also infants who have not reached their seventh year, are not bound by ordinary ecclesiastical penalties. The pious Mother Church exempts from penalties latae sententiae all prepubescent persons, that is, up to the completion of the fourteenth year,²³ although they are capable of the use of reason; adults, however, who have induced them to violate the law or have concurred with them in the delict incur the penalty established by law.²⁴ Hence, for example, a boy ten years of age who has entered the enclosure of nuns illegitimately is not excommunicated. But the one who introduced him does not escape the censure. Minors after attaining puberty are indeed ordinarily subject to ecclesiastical penalties,²⁵ but because younger age (unless something else is established) diminishes imputability,²⁶ minors seem to be excused from those penalties which are imposed upon those who knowingly, with rash audacity, and so forth, have done something. For then any diminution of imputability excuses.²⁷

3. Travelers.

Travelers are not bound by the merely territorial laws of their domicile or quasi-domicile when they are staying outside it.²⁸ Therefore Boniface VIII established that "by a statute of a bishop in which a sentence of excommunication is promulgated against all who commit theft, his subjects who commit theft outside his diocese are by no means to be regarded as bound."²⁹ Authors dispute whether the same is to be said concerning a precept or statute which a bishop issued for his diocesans under a penalty to be incurred ipso facto, namely, whether diocesans violating such a precept outside the diocese incur this penalty. The common opinion teaches that a bishop indeed can issue precepts of this kind which bind his subjects even outside the diocese.³⁰ Whether, however, some episcopal precept actually binds transgressors outside the diocese is to be ascertained from the mind of the legislator. If this mind is doubtful, the penalty imposed is not considered to have been incurred.

A traveler is customarily bound by civil penalties which have been enacted in the places through which he passes. Hence, for example, a Frenchman in Switzerland who violates the penal law of Switzerland is punished according to the penal laws of Switzerland. In ecclesiastical law a general rule cannot be given, but the individual delicts and the individual penalties to be inflicted must be examined.

Scholion. How exempt religious are subject to the punitive power of the bishop of the place is to be seen in the treatise on the law of religious.³¹

²¹ Cf. 1 Cor. 5:12; Council of Trent, sess. 14, c. 2, de poenit. (Denz. n. 895).

²² Code of Canon Law, c. 2201.

²³ There is no reason for a distinction of puberty between boys and girls to be made here. For the weakness of mind is almost the same in either sex before the age of fourteen years. Thus also teach several others, such as Vermeersch, Génicot, Sole, Wernz, and so forth.

²⁴ Code of Canon Law, c. 2230.

²⁵ Cf. Benedict XIV, Constitution Ab Augustissimo, March 5, 1744, and c. 1, 2, X 5, 23.

²⁶ Code of Canon Law, c. 2204.

²⁷ Ibid., c. 2229, § 2.

²⁸ Cf. above, I, n. 194.

²⁹ c. 2, I 2 in VI^o.

³⁰ Cf. Benedict XIV, De syn. dioec., l. 13, c. 4, n. 9.

³¹ Cf. our Man. iur. can., q. 9.