Point V. On Penal Law

I. Notion. A penal law is a law which establishes a penalty. A twofold kind is distinguished: mixed and purely penal. Mixed is one which imposes an act (or omission), and establishes a penalty to be undergone by transgressors of the law. Purely penal is one which decrees a penalty against those who perform or omit something, without prohibiting or commanding that thing (St. Alphonsus, I, 145).

II. The power of passing purely penal laws is deduced both from common doctrine, and from the fact, about which immediately below, and from the fact that nothing prevents the legislator from restricting the use of his power to imposing a penalty alone.

Objection. A penalty cannot be imposed except on account of theological fault; hence the legislator cannot decree a penalty without at the same time commanding or prohibiting the act.

Response. I deny the antecedent; in other words, there is given a power of decreeing a penalty without theological fault having preceded, or even if only juridical fault is had. This is clear: first, from the fact that the common good, that is, tranquillity and security, altogether requires it. For since theological fault very often is difficult to prove, men would not be sufficiently vigilant if they could not be punished on account of juridical fault alone. Second, from the fact that otherwise innumerable sentences of judges, which rest upon juridical fault alone, would have to be held unjust. Nevertheless it can be said that a penalty inflicted on account of juridical fault alone is only a penalty broadly so called.

III. Existence of purely penal laws. Purely penal ecclesiastical laws are not had, except the Constitutions of many Orders and religious Congregations, and very few others, as some think.¹ But among civil laws many are purely penal, as we shall see in its own place. St. Thomas speaks thus: "It must be said that not all things which are contained in law are handed down by way of precept; but some things are proposed by way of a certain ordering, or of a statute obliging to a certain penalty" (II-II, q. 186, a. 9, ad 2).

Question. Whether perhaps today all civil laws can be called purely penal.

Response. It seems this must be denied. For, first, Sacred Scripture generally declares that civil laws are to be obeyed, or, considering at least the obvious sense, that the acts which they regard are to be placed. "Render therefore the things that are Caesar's to Caesar, and the things that are God's to God."² "Let every soul be subject to higher powers: for there is no power but from God; and those that are, are ordained by God. Therefore he who resists the power resists the ordinance of God. And those who resist purchase damnation for themselves.... Therefore be subject of necessity, not only because of wrath, but also because of conscience. For for this reason you also pay tributes: for they are ministers of God, serving unto this very thing. Render therefore to all their dues: to whom tribute, tribute; to whom custom, custom."³ "Be subject therefore to every human creature for God's sake: whether to the king, as excelling; or to governors, as sent by him for the punishment of evildoers and the praise of the good. For so is the will of God, that by doing well you may make silent the ignorance of foolish men. As free, and not as having liberty as a cloak for malice, but as servants of God."⁴ But the presumption is that those things still have force, unless and insofar as the contrary is proved; and this is not proved with respect to many laws, as we shall see in its own place. Then, the legislator is considered to pass laws in that way which is very fitting to the matter of the laws. But for the matter of many civil laws it is very fitting that the act itself be prescribed, as will be explained more in its own place.

Objection. Many modern legislators do not intend to oblige, and therefore they do not oblige; since they neither acknowledge nor care for obligation, nor the power of obliging, nor any morality.

Response. In order that a legislator oblige, it is enough that he intend to use the power which he enjoys, even if he errs concerning the nature of that power and rejects the effect necessarily attached to its use, that is, obligation. This is confirmed from the fact that, if these things were denied: first, the civil legislator would not oblige even to the penalty, so that true civil laws would no longer exist; second, neither would an atheist father impose true precepts upon his children.

¹ Wernz, Ius Decr., I, n. 112.

² Matt. 22:21.

³ Rom. 13:1, 2, 5-7.

⁴ 1 Pet. 2:13-16.

IV. Criterion for recognizing mixed and purely penal laws. 1. As regards the rules of religious, since other purely penal ecclesiastical laws are scarcely had, the question must be resolved from the tenor of the law or from common estimation.

2. Civil laws are to be judged in this way:

a) Of themselves they are considered mixed: first, if the matter is moral, that is, if it regards good morals or public peace; second, if the penalty is grave and proportionate to the transgression, because of itself a grave penalty is not inflicted unless grave fault underlies it.

b) They are considered purely penal: first, if the law uses a form which suggests that the act can be chosen, or some damage to be undergone; of this sort are, for example: "He who does this shall pay such a fine"; "Do this or pay that" (St. Alphonsus, I, 145). Second, if common estimation and usage, even of the God-fearing, holds the law as purely penal. Indeed custom can even bring it about that a law originally mixed becomes purely penal. More about these matters will be said in several following treatises. Others add: third, with sufficient probability, if an exorbitant penalty is established against transgressors; because to them it seems less fitting to oblige both under fault and under threat of an exorbitant penalty. Nevertheless I do not perceive the stated unfittingness, if there is a special reason for adding an exorbitant penalty to the obligation to the act, in other words, if, without the addition of a penalty of this sort, the law would be exposed to too many transgressions. Others hold an exorbitant penalty as a sign of a purely penal law, because in the case the legislator sufficiently manifests the intention of attaining order through penalties alone. But because the legislator with the best right both commands the act and, lest the commanded act be exposed to too many transgressions, adds an exorbitant penalty, that intention cannot be called manifest. Hence, with St. Alphonsus, who says about a determined case, I conclude: whether this opinion is sufficiently probable, I leave to wiser men to judge (III, 606).¹

c) The matter is doubtful, and therefore the law can practically be held as purely penal, if the matter is merely political.

Corollary. In doubt whether a law is mixed or purely penal, it can be held as purely penal. Indeed I would readily grant that in doubt a law today can more easily be held as purely penal than formerly, because citizens now care less for law; this being posited, a mixed law more easily is to the detriment of those who are religious.

¹ In Homo Apostolicus, tr. 10, n. 8, the Holy Doctor recommends the stricter opinion.

V. Obligation of penal law, although it can be drawn from what has been said, is nevertheless usefully determined in these points:

1. A mixed penal law obliges both to placing or omitting the act and, once the things to be posited have been posited, to undergoing the penalty imposed because of the transgression (St. Alphonsus, I, 145, 147).

2. A purely penal law of itself does not oblige to the act; but it does oblige to a justly inflicted penalty. I said:

a) Of itself does not oblige to the act; since by accident a transgression of the law can involve, and, especially if there is question of the rules of religious, generally does involve, sin by reason either of scandal, or disturbance of order, or the inordinate affection from which the transgression proceeds (St. Thomas, II-II, q. 186, a. 9, ad 1; St. Alphonsus, IV, 1042). Indeed he would even sin gravely who transgressed the law from contempt; this happens "when his will refuses to be subject to the ordinance of the law or rule, and from this proceeds to act against the law or rule" (St. Thomas, loc. cit., ad 3; St. Alphonsus, I, 142; IV, 10). Likewise a religious sins gravely who, by his manner of acting, gives occasion to relaxation of regular observance (St. Alphonsus, IV, 10).

b) But it does oblige to a justly inflicted penalty. For, if this obligation were removed, a purely penal law would cease to be a law, since it necessarily imports some obligation (St. Thomas, II-II, q. 186, a. 9, ad 1; St. Alphonsus, IV, 42). Moreover, the obligation of undergoing a penalty established by civil law is not contracted except after the sentence of a judge. When and to what extent it is sometimes lawful to withdraw oneself from a penalty imposed by a judge is explained in the treatise on the duties of states of life.

Question. Whether an ecclesiastical penalty must be sustained before, or only after, the sentence of a judge.

Preliminary Note I. A penalty, considered with respect to our question, is distinguished into a penalty ferendae sententiae and a penalty latae sententiae. The former is one which is decreed by law to be inflicted by a judge. The latter is one which is inflicted immediately by law.

Preliminary Note II. The sentence of a judge is likewise twofold, declaratory and condemnatory. The former declares that the crime to which a penalty has been attached by law was committed. The latter is that by which the judge, according to the statute of the law, inflicts a penalty on the guilty party. With these things noted:

Response I. A penalty ferendae sententiae is not to be undergone before the sentence of a judge, and that a condemnatory sentence.

Response II. A penalty latae sententiae, whether medicinal or vindicative, holds the delinquent who is conscious to himself of the delict by the very fact in both forums (can. 2232). Hence of itself the sentence of a judge is not required. Nevertheless, if the delinquent cannot undergo the penalty without infamy, he is excused from the penalty unless a declaratory sentence accedes; as long as this has not acceded, no one in the external forum can exact observance of the penalty from the delinquent, unless the delict is notorious. If it does accede, it draws the penalty back to the moment of the committed delict (can. 2232).