§ 1. On Penal Law

209. Notion. A penal law is called that which directly and immediately does not oblige under some moral fault, but only under a penalty. Laws of this kind are judged to be the statutes of several religious institutes, several ordinances of civil government; for example, such a penal law is one which establishes that he who has been caught in an automobile machine running too quickly should pay a monetary fine.

Divisions. Penal laws are usually distinguished as purely and mixedly penal. A purely penal law is not explained in the same way by all. According to D'Annibale¹⁰⁶ and others, a purely penal law is that which disjunctively imposes a precept or a penalty, so that it is placed in our choice either to carry out the thing commanded or to undergo the penalty; for example, modern laws concerning customs duties establish: let no one introduce tobacco into France; but if he does, he must pay such a sum of money. Therefore it is placed in a man's choice either not to introduce tobacco or to pay the imposed tax. - Other authors, such as Billuart,¹⁰⁷ Koch,¹⁰⁸ etc., more rightly say that a purely penal law is one which indeed truly commands something to be done or omitted and threatens a penalty to transgressors of the law, but does not will to bind under moral fault. Therefore only juridical fault from the transgression of such a law is established and then punished. In this sense some modern civil laws are purely penal. Thus in the example given concerning an automobile machine, the legislator does not say: You are free; either excessive speed is to be avoided or the fine is to be paid. On the contrary he establishes: Excessive speed of that machine is absolutely to be avoided on account of the great inconveniences otherwise arising; but if someone nevertheless has been caught carried by excessive speed, let him pay the monetary fine. - A mixedly penal law imposes at the same time a direct truly moral obligation and a temporal penalty upon transgressors. For example, beneficed clerics must say the Divine Office, and if they do not say it, they not only sin, but are also punished by deprivation of benefice goods. - Besides these purely and mixedly penal laws, there exist in addition human laws simply preceptive or merely moral, which induce moral obligation without establishing any temporal penalty, for example, the law of hearing Mass on Sundays and feast days.

Concerning the three species of laws indicated above, it can be said briefly:

1. A purely penal law directly induces only an earthly penalty, juridical fault being supposed.

2. A mixedly penal law directly induces both moral fault and an earthly penalty.

3. A simply preceptive law directly induces only moral fault and eternal penalty.

¹⁰⁶ Summula Theol. mor. I, n. 207. He cites for his opinion the Salmanticenses and Laymann. Antoine gives the same explanation, Theol. mor. univ., de leg. c. 8, q. 1, resp. 2.

¹⁰⁷ De leg. diss. 4, a. 4, § 1. He treats this matter very well.

¹⁰⁸ Lehrb. der Moraltheol. § 26. This author treats several times specially of penal law.

210. Existence of penal laws. All admit that there exist human laws mixedly penal. For the matter is evident. Likewise almost all admit that the human legislator can make purely penal laws. For he who can do more can do less, as the common adage has it. But now the legislator can oblige his subjects to moral fault. Therefore a fortiori he can oblige them only to juridical fault and temporal penalty, so that a multitude of sins may be avoided. Few authors deny the possibility of penal laws,¹⁰⁹ who call those laws which expressly say that they do not oblige to moral fault, but only to undergoing the penalty, statutes or constitutions,¹¹⁰ but not laws properly so called. But there is no leisure to dispute about words alone. Besides, nothing prevents purely penal laws from being laws in the strict sense, since they induce an indirect obligation in conscience and can have all the conditions of a true law; for they are an ordinance of reason for the common good, promulgated by him who has care of the community. - Therefore, the possibility of a purely penal law being admitted, it is further asked: do purely penal laws exist in fact? It is answered:

Proposition. There exist purely penal laws, both civil and ecclesiastical.

a) That purely penal civil laws exist is taught very commonly by authors, and the common estimation of the people bears it. Thus, for example, civil police laws (commonly Polizeiverordnungen) are usually held as purely penal laws. It must be noted, however, that the existence of purely penal laws cannot be deduced from the fact that not a few modern legislators no longer care about the moral obligation of laws in conscience. For then all civil laws of those regions would be purely penal, which is false. For it would be against natural law and against the good of the state if absolutely no human law induced a true and direct moral obligation in conscience, since it is impossible to preserve peaceful order among the people by the threat of temporal penalty alone.

b) There also exist purely penal ecclesiastical laws, although few.

Thus the opinion today is common. Thus, as purely penal laws are held the constitutions of several religious institutes, in which it is expressly established that subjects are obliged to the observance of those constitutions not under moral fault, but only under penalty. - In the Code of Canon Law no merely penal laws are found.

For recognizing penal laws the following criteria can be employed. A law is presumed penal: 1. if the legislator says in express words that the law does not oblige to moral fault, but only to penalty; 2. if such is the common interpretation of the wise; 3. if the law indicates only the penalty, for example, he who deposits filth in this place must pay 10 francs. This last criterion, however, must not be urged too much.

¹⁰⁹ For example, Linsenmann, Koch; cf. A. Koch, Zu der Lehre von den sog. Pönalgesetzen, in Tüb. Theol. Quartalschr. 1900, 204 sqq.; 1902, 574 sqq.

¹¹⁰ Thus Concina, l. c., diss. 5, De leg. hum. c. 4.

211. Obligation of a penal law. Although penal laws do not directly oblige under moral fault, nevertheless moral fault can arise in an indirect way from their transgression in two ways: 1. If their transgression is joined with culpable negligence or with inordinate passion or with contempt.¹¹¹ Thus, for example, although breaking silence prescribed by the constitutions of some religious order is not of itself some moral fault, nevertheless, because this transgression of the constitutions is usually wont to proceed from an inordinate affection, it often constitutes moral fault. - 2. If the transgressor of a purely penal law refuses to accept the just penalty, since this is manifest disobedience, indeed even rebellion against a legitimate superior, which assuredly is a sin. Besides, if the transgressor of the law were not held in conscience even to accept the just penalty, the penal law would lack every moral sanction and would be nothing other than mere external coercion; which seems absurd. Cajetan¹¹² indeed seems to teach the contrary, saying: "Just as he [a religious] does not sin by breaking silence, so he does not sin by omitting the assessed and imposed penalty." - But the reason brought forward for this opinion seems rather specious than solid. Here is the reason: if the transgression in acting, that is, in breaking silence, were excused from fault, but not the omission of the imposed penance, now that law would not be universally penal, but only partially, namely, it would be penal with respect to things to be done; but it would be moral with respect to the penalty to be suffered. To this reason it is answered that no inconvenience follows if a penal law is in fact called partial in this sense, that is, indirectly moral; for we concede that even a purely penal law induces a moral obligation in an indirect way. But if the justly imposed penalty itself did not oblige the transgressor except again under penalty alone, there would be a process to infinity; and the penal law itself would in truth have no sanction; or, as Billuart rightly says:¹¹³ "If there were no obligation either to the act or to the penalty, it would not properly be a law, of the nature of which it is to oblige; but it would be a salutary warning or exhortation or counsel concerning what would be expedient in the community."

¹¹¹ Cf. S. theol. II-II, q. 186, a. 9 ad 1.

¹¹² Commentary on II-II, q. 186, a. 9.

¹¹³ De leg. diss. 4, a. 4, § 1.

212. Here there is usually joined the question: Must the penalty imposed by law upon transgressors be undergone before the sentence of a judge? But there is question not only of penalties of a purely penal law, but also of penalties established by any human law whatever. - Two things must be noted beforehand: 1. In ecclesiastical law penalties ferendae sententiae and latae sententiae are distinguished. Those penalties are called ferendae sententiae which, after the delict has been committed, must be inflicted through some special sentence of a competent judge; for example, a confessor who committed the crime of solicitation to shameful things is to be punished with the penalty of suspension, but not except after the sentence of an ecclesiastical judge. Penalties latae sententiae are those which are incurred by the fact itself without a special sentence of a judge. They are usually expressed by these or similar words: "We prohibit under penalty of excommunication to be incurred by the fact itself." Such a penalty is, for example, excommunication against duelists. - 2. Some penalties are negative, namely, those which prevent the guilty party from acquiring a good; thus irregularity from delict prevents the guilty party from receiving an order. Others are privative, namely, those which deprive the guilty party of some good already possessed, for example, deprivation of office, suspension from the exercise of orders, etc. Finally others are active or positive, namely, those which require a positive action to be performed by the guilty party, for example, a fine to be paid, incarceration, beating, etc. With these things premised, the proposed question can be answered in this way:

1. If there is question of penalties ferendae sententiae, they are never incurred before the special sentence of a competent judge. Thus all teach, and it is plain of itself from the very notion of a penalty ferendae sententiae.

2. If there is question of penalties latae sententiae, then more truly and commonly it is taught that no active penalty must be undergone before the special sentence of a judge, but only certain negative and privative penalties.¹¹⁴ The reason for the first part is that laws must be proportioned to the common weakness of men. Moreover the common weakness of men is so great that among six hundred scarcely one would freely without external coercion inflict an active penalty upon himself. Therefore the mind of the legislator cannot be to compel his subjects to inflict active penalties upon themselves before the sentence of a judge.¹¹⁵ Whence, for example, ecclesiastical law¹¹⁶ commands that a bishop-elect receive consecration within three months from reception of the Apostolic letters; but if he has neglected this for six months, by the law itself he is deprived of his episcopate. From this, however, it does not follow that such a bishop-elect, not yet consecrated after six months, is by the fact itself obliged to resign his office; but the sentence of a superior judge is still required.¹¹⁷ - The reason for the second part is that the words of the law must be explained as they sound, unless either a great inconvenience follows or doctrinal or usual interpretation understands them otherwise. Moreover the words of the law sound clearly and expressly, for example, all duelists are excommunicated by the fact itself. Therefore, since custom and doctors understand these words in the obvious sense, it follows that everyone who has perpetrated a duel is excommunicated by the fact itself, without any further sentence of a judge being necessary.¹¹⁸ Besides, in practice the explanations of doctors in individual matters must be especially attended to. - In every case, after a just sentence of a judge, the prevaricator of the law is held in conscience to accept the inflicted penalty, whether active or privative. At least he cannot licitly resist the power legitimately punishing. But whether one guilty party condemned to death or to prison can flee or even break out of prison will be said below, when there will be discussion of the obligations of the guilty party.

How ignorance excuses from ecclesiastical penalties was said above in n. 47. But it must be noted that from the benignity of the Church the delinquent does not incur any ecclesiastical penalty if his delict was not gravely imputable to him.¹¹⁹

¹¹⁴ Cf. Billuart, De leg. diss. 4, a. 4, § 2.

¹¹⁵ Cf. St. Alphonsus, Theol. mor. l. 1, n. 149.

¹¹⁶ Cod. iur. can. c. 333.

¹¹⁷ The matter is otherwise concerning the received fruits of the benefice, which the bishop must restore even before the sentence of a judge if he has not been consecrated three months after confirmation. Cod. iur. can. c. 2398.

¹¹⁸ Cf. Cod. iur. can. c. 2232, § 1.

¹¹⁹ Cod. iur. can. c. 2218, § 2.