Part I. On the Notion, Division, Imposition, and Interpretation of Penalties

I. Notion. An ecclesiastical penalty is the privation of some good, inflicted by legitimate authority for the correction of the delinquent and the punishment of the delict (canon 2215). It is said:

1. Of some good, that is, either spiritual or temporal or mixed, as a benefice is.

2. For the correction of the delinquent and the punishment of the delict. The amendment of the delinquent is not always the primary end of an ecclesiastical penalty, although the Church always ultimately intends the salvation of souls, and consequently also the amendment of delinquents. But proximately, besides amendment, she intends: to repair the injured order by taking vengeance concerning the delict; to render the delinquent incapable of further damage; to effect that others may have fear.

II. Division. Penalties are distinguished:

1. By reason of the primary end, into medicinal penalties or censures, vindicative penalties, and penal remedies and penances (canon 2216). Medicinal penalties or censures primarily intend the amendment of the delinquent. Vindicative penalties primarily regard vengeance concerning the delict. Penal remedies intend to forestall true delicts or further delicts; hence they either suppose only a transgression which nevertheless does not reach the nature of a delict, or regard a delict perhaps to be perpetrated, but not one already perpetrated. Especially under this head they are not penalties in the proper sense.

2. By reason of determination, a penalty is called determinate if it is established taxatively in the law itself or precept; indeterminate if it is left to the prudent judgment of the judge or Superior, whether by preceptive or facultative words (canon 2217, § 1, 1°).

3. By reason of the mode by which it is inflicted, a penalty is called latae sententiae if a determinate penalty has been added to the law or precept in such a way that it is incurred by the very fact of the delict committed, that is, without a condemnatory sentence or a new precept of infliction; nevertheless, a declaratory sentence is sometimes added, as will be said below. It is ferendae sententiae if it must be inflicted by a judge or Superior (canon 2217, § 1, 2°), namely through a condemnatory sentence or in the manner of a particular precept. It is clear that an indeterminate penalty is always ferendae sententiae.

4. By reason of the author, a penalty is called a iure, by law, if a determinate penalty is established in the law itself, whether it is latae sententiae or ferendae; ab homine, by man, if it is issued in the manner of a particular precept or by a condemnatory judicial sentence, even if established in the law. Wherefore a determinate penalty ferendae sententiae, added to a law, before the condemnatory sentence is only a iure; afterward it is at once a iure and ab homine, but is considered as ab homine (canon 2217, § 1, 3°). On this consideration depends the competence of remitting the penalty, as will be explained. A penalty latae sententiae to which a declaratory sentence has been added remains a iure.

The question whether a penalty established neither by law nor in the manner of a particular precept, but by a general precept, is a iure or ab homine is not solved by the Code. The more common opinion holds that it is a iure; and this is therefore also preferable, because it is the more benign interpretation (cf. canon 2219, § 1).

Note. A penalty is always understood as ferendae sententiae, unless it is expressly said that it is latae sententiae or contracted ipso facto or ipso iure, or unless other similar words are used (canon 2217, § 2).

III. Imposition of penalty. 1. In decreeing penalties, an equitable proportion with the delict is to be observed, with account taken of imputability, scandal, and damage; wherefore there must be considered not only the object and gravity of the law, but also the age, knowledge, training, sex, condition, state of mind of the delinquent, the dignity of the person who is offended by the delict or who commits the delict, the intended end, the place and time in which the delict was committed, whether the delinquent acted from an impulse of passion or on account of grave fear, whether he repented of the delict and himself strove to avoid its evil effects, and other similar things (canon 2218, § 1).

2. Not only those things which excuse from all imputability, but also those which excuse from grave imputability, likewise excuse from any penalty, both latae and ferendae sententiae, even in the external forum, if the excuse is established for the external forum (canon 2218, § 2), that is, proved.

3. A penalty should not be inflicted in the case of equal mutual injury; for, as canon 2218, § 3 has it: Mutual injury is compensated, unless one party must be condemned on account of the greater gravity of the injury inflicted by the same party, with the penalty diminished if the case bears it.

IV. Interpretation of penalty. In penalties the more benign interpretation is to be made (canon 2219, § 1). And canon 19 says: Laws which establish a penalty are subject to strict interpretation. Hence:

1. In a doubt of law concerning the existence of a penalty, namely, whether a certain penal law regards the fact perpetrated here and now, that penalty, if it is latae sententiae, is not incurred; if ferendae, it should not be inflicted. In a doubt of law concerning the quality of the penalty, namely, whether the law contains a penalty latae or ferendae sententiae, the penalty should be understood as ferendae sententiae; whether it is a iure or ab homine, it should be understood as a iure.¹ In a doubt of law concerning the quantity of one penalty, namely, whether the law prescribes a graver or a lighter penalty, the milder one should rather be decreed. In a doubt of law concerning the number of penalties, namely, whether one penalty or several penalties are to be applied, only one penalty is to be applied. But if it is doubted whether a penalty inflicted by a competent Superior is just or not, the penalty must be observed in each forum, except in the case of an appeal in suspensive. But a manifestly unjust penalty, as regards substance, and therefore manifestly invalid, is to be sustained in neither forum. On a doubt of fact, see n. 858.

¹ A doubt of law in this matter exists concerning a general penal precept, as was said above.