Chapter I. On Delicts and Penalties in General

I say 1°. § 1. By the name of delict, in ecclesiastical law, is understood an external and morally imputable violation of law, to which there has been added a canonical sanction at least indeterminate.

§ 2. Unless something else appears from the adjuncts, those things which are said concerning delicts are applied also to violations of a precept to which a penal sanction has been annexed (Can. 2195).

A delict says three things: a violation of law; external and imputable; to which a canonical sanction has been added at least indeterminate. Therefore it is not the simple violation of any law whatever, but only of that law for whose observance provision is made by some penalty, definitely or indefinitely commemorated in the law itself. The Church, nor any human superior, burns thoughts with penalties; the adage is: no one suffers a penalty of thought. Besides, the Church, a pious Mother, does not pursue every sin whatever with her penalties, but only the graver ones, say, incontinence of clerics, homicide, simony. This violation must also be morally imputable. Surely one whose action is not imputed to him unto fault does not deserve penalty.

It must be noted that, unless something else is established, those things which are said concerning delicts are applied also to violations of a precept to which a sanction has been annexed.

Question 1. What delict is judged to be public, notorious, occult?

Resp. A delict is:

1°. Public, if it has already been divulged or has happened or is situated in such adjuncts that it can and ought prudently to be judged that it will easily be divulged;

2°. Notorious with notoriety of law, after the sentence of a competent judge which has passed into a matter judged, or after the confession of the delinquent made in judgment according to the norm of can. 1750;

3°. Notorious with notoriety of fact, if it is publicly known and committed in such adjuncts that by no tergiversation can it be concealed and by no support of law can it be excused;

4°. Occult, that which is not public; materially occult, if the delict itself lies hidden; formally occult, if its imputability does (Can. 2197).

A man outstanding in authority is killed on a public way by a wicked man, when very many men were diverting themselves there. It is simply public. In judgment he has now been marked by a capital sentence by competent authority, since he has been declared guilty of homicide and to be punished by this penalty by law. In a public tribunal before a judge he has spontaneously confessed that he is guilty of the crime. In each case it is notorious with notoriety of law. - A public usurer or concubinarian is either known to all as such or soon to be known, since the delict can neither be concealed nor excused. It is notorious with notoriety of fact. Occult is that which neither came into judgment nor was brought into the rumors of the people, and moreover is not known by such a number and quality of persons whence it ought to be public. - Titius, secretly, with no one knowing, killed by Theodore; no one knows that homicide happened: the delict is also materially occult. Finally, when the imputability of an evil act lies hidden, then the delict is formally occult.

Question 2. In what way must one judge concerning the guilt of those who concur in a delict?

Resp. § 1. Those who by a common design of delinquency physically concur in a delict are all held guilty in the same mode, unless the adjuncts increase or diminish the culpability of someone.

§ 2. In a delict which by its nature demands an accomplice, each party is culpable in the same mode, unless something else appears from the adjuncts.

§ 3. Not only the one commanding, who is the principal author of the delict, but also those who induce toward the consummation of the delict or concur toward this in any way whatever, contract no less imputability, other things being equal, than the executor of the delict himself, if the delict would not have been committed without their work.

§ 4. But if their concurrence only rendered easier the delict which would have been committed even without their concurrence, it carries with itself lesser imputability.

§ 5. One who has fully withdrawn his influence in perpetrating the delict by opportune retraction is freed from all imputability, even if the executor nevertheless perpetrated the delict on account of other causes proper to himself; if he has not fully withdrawn it, retraction diminishes, but does not remove, culpability.

§ 6. One who concurs in a delict merely by neglecting his office is held by imputability proportioned to the obligation by which he was driven to impede the delict by his office.

§ 7. Praise of a perpetrated delict, participation in the fruits, concealment and reception of the delinquent, and other acts following a delict already fully completed can constitute new delicts, if namely they are punished by a penalty in the law; but, unless there had been agreement with the delinquent concerning those acts before the delict, they do not carry with themselves the imputability of the perpetrated delict (Can. 2209).

In this canon there is question of a very grave matter, that is, of establishing the imputability of delinquents. When several persons, willing, by common design perpetrate a delict, that is, physically concur for doing it, the existence of the delict is owed to all and each, because they are individually and all together its causes and authors. All will the delict as something intended; they do something exteriorly so that it exists as the physical effect of that which they do exteriorly. From the common action of several persons concurring together the delict has its origin. The delict is objectively one, subjectively multiple. All these are fellow-guilty, guilty in the same mode as principals. It can be that the culpability of one is greater because he acts with greater hatred toward another, for example, in homicide, or because the consanguineous relative of one is killed.

In adultery and other delicts which import complicity, each party is culpable in the same mode, unless something else appears from the adjuncts. And thus the penalty established by reason of this crime strikes each.

The executor and the one commanding hold the first places among delinquents; nevertheless those also are truly regarded as authors to whose concurrence the consummation is owed and without which the delict would not have been committed. For in this case the matter is also imputed to them, as, for example, superiors of regular men introducing women into enclosure; a physician instructing a pregnant girl how an abortion may be done, giving medicine to her who knows nothing concerning these crimes, furnishing care to her, say, in a private hospital, etc., when otherwise the woman would have borne offspring in the natural mode. The perfection of every action is its consummation in its own order; therefore all who induce toward this, thus by ordering, or who concur in any way whatever, thus the aforesaid physician procuring abortion in that hospital, all, other things being equal, have the same imputability.

If the delict would have been committed without their cooperation, and the concurrence given only rendered the delict easier, they have lesser imputability.

Besides, one who has opportunely withdrawn his influence, say, for example, not only by retracting the counsel but also by adding reasons valid against his counsel previously given, loses all imputability; but if the retraction was not full, neither was the imputability full, but diminished according to the mode of retraction.

When someone was obligated by his office to avoid a delict, and by neglecting his office concurred toward it, his imputability is measured by the obligation by which he was bound to impede it.

Favor furnished to a delinquent after the delict, reception of the thing, concealment, defense, protection, can constitute new delicts; but unless there had been an agreement concerning these things before the delict was committed, they do not carry with them the culpability of the delict itself to be imputed.

Question 3. By how many names is penalty called?

Resp. § 1. Penalty is called:

1°. Determinate, if it has been taxatively established in the law or precept itself; indeterminate, if it has been left to the prudent judgment of the judge or Superior, whether by preceptive or facultative words;

2°. Latae sententiae, if a determinate penalty has been so added to the law or precept that it is incurred by the very fact of the committed delict; ferendae sententiae, if it must be inflicted by the judge or Superior;

3°. A iure, if a determinate penalty is established in the law itself, whether it is latae sententiae or ferendae; ab homine, if it is brought by way of a peculiar precept or through a condemnatory judicial sentence, even if established in law; wherefore a penalty ferendae sententiae, added to a law, before the condemnatory sentence is only a iure, afterward both a iure and ab homine, but is considered as ab homine.

§ 2. A penalty is always understood as ferendae sententiae, unless it is expressly said to be latae sententiae, or to be contracted by the fact itself or by the law itself, or unless other similar words are applied (Can. 2217).

In every penal law a penalty, or privation of some good, is established against the delinquent. But that penalty is either determined by the law itself, for example, a censure reserved to no one, or suspension, etc.; or it is left to the judgment of the judge, either by prescribing that he impose some penalty, or by leaving to his judgment to punish or dissemble. Although the penalty in the law is determinate, nevertheless the mode by which it strikes the subject varies; for either he incurs it by the very fact of the delict, and it will be a penalty latae sententiae, or the law affirms that the penalty must be inflicted by the judge or superior, and it will be a penalty ferendae sententiae.

If a determinate penalty is established in the law itself, whether it is latae or ferendae sententiae, it is called a iure; therefore a determinate penalty which is called a iure is either latae or ferendae sententiae. That is called ab homine which is brought by way of a particular precept or through a condemnatory sentence of the judge, even if it has been established in law; wherefore a penalty ferendae sententiae before the condemnatory sentence is held only a iure; after the condemnatory sentence, a iure and at the same time ab homine, but it is considered as ab homine. This matter is very much to be noted, for in this division attention is paid especially to the mode of binding and loosing the bond; moreover a censure or penalty contained in law as ferendae sententiae, inflicted through a condemnatory judicial sentence, thereafter remains reserved to the superior of the judge or to the judge himself. Moreover, a penalty in law is always held as ferendae sententiae unless by the words by the fact itself or by the law itself, or equivalent words, something else is said. - Cf. Wernz, v. 6, p. 152, n. 16.

Question 4. Who punishes those holding supreme civil principality, Cardinals, Legates of the Holy See? Are Cardinals and Bishops comprehended by penal law?

Resp. § 1. A penalty can be inflicted or declared only by the Roman Pontiff upon those of whom in can. 1557, § 1.

§ 2. Unless expressly named, Cardinals of the Holy Roman Church are not comprehended under a penal law, nor Bishops under penalties latae sententiae of suspension and interdict (Can. 2227).

Hence those holding supreme principality, and their sons and daughters, and those to whom there is a right of succeeding in the principality, Cardinals, Legates of the Apostolic See, and in criminal matters Bishops, even titular Bishops, can be punished or declared subject to penalties by the Supreme Pontiff alone. - Cf. Can. 1557, § 1.

Question 5. Does ignorance excuse from penalties?

Resp. § 1. Affected ignorance, whether of the law or of the penalty alone, excuses from no penalties latae sententiae, even if the law contains the words of which in § 2.

§ 2. If the law has the words: has presumed, has dared, knowingly, studiously, rashly, has acted deliberately, or other similar words which demand full cognition and deliberation, any diminishment of imputability, whether on the part of the intellect or on the part of the will, exempts from penalties latae sententiae.

§ 3. If the law does not have those words:

1°. Ignorance of the law, or even of the penalty alone, if it was crass or supine, exempts from no penalty latae sententiae; if it was not crass or supine, it excuses from medicinal penalties, but not from vindicative penalties latae sententiae;

2°. Drunkenness, omission of due diligence, weakness of mind, impetus of passion, if, notwithstanding the diminishment of imputability, the action is still gravely culpable, do not excuse from penalties latae sententiae;

3°. Grave fear, if the delict inclines toward contempt of the faith or of ecclesiastical authority or toward public harm of souls, in no way exempts from penalties latae sententiae.

§ 4. Although the guilty person is not held by censures latae sententiae according to the norm of § 3, n. 1, this nevertheless does not impede him, if the matter bears it, from being affected by another suitable penalty or penance (Can. 2229).

Affected ignorance is ignorance directly willed and studiously acquired or not rejected; the end is that which someone regards, so conducting himself that he remains in ignorance. Such a one strives that knowledge of the law not be acquired.

Not likewise one who labors under crass ignorance, which does not arise, as such, from the fact that someone directly wishes not to acquire knowledge or to retain ignorance, but because for another cause, on account of love of leisure, weariness of study, he is excessively negligent in fulfilling the obligation of learning the law and driving away ignorance. Therefore this ignorance, excessive negligence of study, is crass, and thence the man himself is crassly ignorant, because, supine, he lies as if content in the mire of ignorance. This is indirectly voluntary ignorance.

Surely he is not worthy of immunity and liberty from a penalty conjoined with violation of the law who acts precisely so that he may not know the law. Such a one esteems the law itself little, indeed least of all. Wherefore one acting from affected ignorance is equated with a man acting knowingly when it is a question of penalties latae sententiae; from which, therefore, this ignorance does not excuse, not even when there are in the law the words knowingly, etc., as in § 2.

But when the words of the law demand a perfect voluntary, namely full cognition and deliberation, any diminishment of imputability arising from the part of the intellect or from the part of the will exempts from a penalty latae sententiae. In other words, the very extreme things required by the law must be verified.

When the law does not have the words has presumed, etc., ignorance whether of the law or of the penalty alone does not excuse, if it was crass and supine, from any penalty latae sententiae; such ignorance, so gravely and altogether culpable, is not worthy to be granted immunity; it is surely a certain great contumacy, and no cause is present for exempting a man who applied either no diligence or very slight diligence so that he might know what he is bound to know.

But it is otherwise if it was not crass, and it is a question of medicinal penalties; for to what end is a penalty or medicine for one who is ignorant? and therefore, since a penalty which he does not know does not amend him, in those ignorant persons who are not crassly, although gravely, ignorant, an excuse is present: "that dangers of souls may be met, we do not will those ignorant to be bound by sentences brought by the statutes of any Ordinaries whatever, provided nevertheless their ignorance was not crass or supine" c. 2, I, 2, in VI°. But the same gravely culpable ignorance does not excuse from vindicative penalties; for such a delict is voluntary in the cause and therefore imputable, and the man by transgressing the law placed the cause of the penalty, which can by law be brought upon the unwilling. But in general, although the guilty person is not entangled in censures latae sententiae, let him be affected by another suitable penalty or penance.

By equal reason fear does not excuse from penalties latae sententiae when the delict inclines toward contempt of the faith or of the Church or toward public harm of souls.

Question 6. By what penalty are accomplices or concurrents punished, although only one is named in the law?

Resp. By the same penalty by which that one is held are held those physically concurring in a delict by common design, partners in a delict demanding complicity, those commanding, inducing, and concurring toward the consummation of a delict which otherwise would not have been committed. - Cf. Can. 2231.

Question 7. When does a penalty latae sententiae hold the delinquent?

Resp. § 1. A penalty latae sententiae, whether medicinal or vindicative, holds the delinquent who is conscious to himself of the delict, by the fact itself, in each forum; nevertheless before a declaratory sentence, the delinquent is excused from observing the penalty as often as he cannot observe it without infamy, and in the external forum no one can exact from him observance of the same penalty, unless the delict is notorious, with the prescription of can. 2223, § 4 remaining firm.

§ 2. A declaratory sentence retrotracts the penalty to the moment of the committed delict (Can. 2232).

Question 8. Can the Ordinary remit penalties latae sententiae established by common law?

Resp. § 1. In public cases the Ordinary can remit penalties latae sententiae established by common law, with the exception of:

1°. Cases brought to the contentious forum;

2°. Censures reserved to the Apostolic See;

3°. Penalties of inability for benefices, offices, dignities, functions in the Church, active and passive voice, and privation of the same, perpetual suspension, infamy of law, privation of the right of patronage and of a privilege or grace conceded by the Apostolic See.

§ 2. But in occult cases, with the prescription of can. 2254 and 2290 remaining firm, the Ordinary can remit, by himself or through another, penalties latae sententiae established by common law, with the exception of censures reserved in a most special or special mode to the Apostolic See (Can. 2237).

Question 9. Can a penalty validly be remitted to one present or absent?

Resp. § 1. A penalty can validly be remitted to one present or absent, absolutely or under condition, in the external forum or only in the internal.

§ 2. Although a penalty can also be remitted orally, nevertheless, if it was inflicted in writing, it is expedient that its remission also be conceded in writings (Can. 2239).

Question 10. Can any confessor in more urgent cases suspend the obligation of a vindicative penalty?

Resp. § 1. In more urgent occult cases, if from observance of a vindicative penalty latae sententiae the guilty person would betray himself with infamy and scandal, any confessor can, in the sacramental forum, suspend the obligation of observing the penalty, with the burden enjoined of recurring at least within a month by letter, and through the confessor if that can be done without grave inconvenience, the name having been suppressed, to the S. Penitentiary or to a Bishop endowed with the faculty, and of standing by his mandates.

§ 2. And if in some extraordinary case this recourse is impossible, then the confessor himself can concede a dispensation according to the norm of can. 2254, § 3 (Can. 2290).

Question 11. How manyfold is infamy?

Resp. Twofold:

§ 1. Infamy is either of law or of fact.

§ 2. Infamy of law is that which is established in cases expressed by common law.

§ 3. Infamy of fact is contracted when someone, on account of a perpetrated delict or on account of depraved morals, has lost good estimation among upright and grave faithful, concerning which judgment belongs to the Ordinary.

§ 4. Neither affects the consanguineous or affine relatives of the delinquent, with the prescription of can. 2147, § 2, n. 3 remaining firm (Can. 2293).

Question 12. In what way does infamy, whether of law or of fact, cease?

Resp. Infamy of law ceases only by dispensation conceded by the Apostolic See; infamy of fact ceases when good estimation among upright and grave faithful, all adjuncts having been weighed and especially through lasting amendment of the matter, has been recovered, in the prudent judgment of the Ordinary (Can. 2295).