Delicts

We will treat first of delict considered in itself; then of the juridic effects of delict; to these we will add a scholion on attempted delict.

I. Nature. By the name of delict in ecclesiastical law is understood an external and morally imputable violation of law to which there has been added at least an indeterminate canonical sanction (canon 2195, § 1). By these words are indicated the three constitutive parts of a delict, namely: 1° violation of a canonically sanctioned law (the legal part); 2° external violation (the objective or social part); 3° morally imputable violation (the formal or subjective part).

1. Violation of law, that is, of a natural law or divine-positive law or ecclesiastical law. To the external and morally imputable violation of a canonically sanctioned precept the same things are applied which are said of delicts, unless something else appears from the circumstances (ibid., § 2). Moreover, violation of a canonically sanctioned law is required, because otherwise the Law does not speak of delict, but of mere transgression (cf. canon 2222, § 1).

2. External; for only an external sin violates, by reason of damage, as it is said, that is, either scandal or material damage, the social order of the Church, which alone merely ecclesiastical legislation regards. That an external but occult act, such as the secret utterance of heresy, is not perceived in the social order and therefore perhaps inflicts no damage on society, is incidental.

3. Morally imputable. What moral imputability is, see volume I, n. 58. By this property canonical delict differs from civil delict, which admits merely juridic fault. When and to what extent a delict is imputable will be said in Part II.

II. Quality and quantity. The quality of a delict is to be taken from the object of the law (canon 2196). Laws differ specifically according to the diverse formal motives from which they were issued; wherefore delicts differ specifically according to the diverse formal motive of the penal laws violated (cf. Theologia Fundamentalis, p. 299). The quantity of a delict must be measured not only from the diverse gravity of the law injured, but also from the greater or lesser imputability or damage inflicted (canon 2196), that is, from the three constitutive parts of the delict (cf. p. 703).

III. Division. From canon 2197 a delict is:

1. Public, if it has already been divulged, or happened or exists in such circumstances that it can and must prudently be judged that it will easily be divulged; that is, if it is such that it is about to become known, at least as an external fact, even if not as imputable, with the character and purpose of the persons who know the delict considered.

2. Notorious by notoriety of law, after the sentence of a competent judge which has passed into a judged matter,¹ or after the confession of the delinquent made in court according to the norm of canon 1750.²

3. Notorious by notoriety of fact, if it is publicly known and committed in such circumstances that it can be concealed by no tergiversation and excused by no suffrage of law.

4. Occult, which is not public; materially occult, if the delict itself is hidden; formally occult, if its imputability is hidden.

Note. A delict which injures only the law of the Church, by its nature only ecclesiastical authority prosecutes, with the help of the secular arm sometimes being required where the same authority has judged this necessary or opportune; a delict which injures only the law of civil society, by proper right and with the prescription of canon 120 preserved, civil authority punishes, although the Church is also competent over it by reason of sin; a delict which injures the law of both societies can be punished by each power (canon 2198). But in delicts of mixed forum Ordinaries should regularly not proceed when the guilty person is a layman and the civil magistrate, taking action against the guilty person, provides sufficiently for the public good (canon 1933, § 3).

¹ From canon 1902, a matter is considered judged: 1° by a double conforming sentence; 2° by a sentence not appealed within the useful time, or which, although appealed before the judge a quo, was deserted before the judge ad quem; 3° by a single definitive sentence from which no appeal is given according to the norm of canon 1880.

² Canon 1750 declares: The assertion concerning some fact, in writing or orally, made by one party against himself and for the adversary before a judge, either spontaneously or when the judge interrogates, is called a judicial confession.

A fuller exposition of delict consists in a fuller explanation of the principal element by which delict is constituted, namely, imputability.

I. The formal causes of imputability are: 1° the malice of the delinquent; 2° the fault of the delinquent, whether in ignorance of the law or in omission of the diligence required so that the law may be observed (canon 2199).

1. Malice here is the deliberate will of violating the law; to it is opposed, on the part of the intellect, defect of knowledge, and on the part of the will, defect of liberty. Once the external violation of law has been posited, malice is presumed in the external forum until the contrary is proved (canon 2200).

Corollary I. Those who actually lack the use of reason are incapable of delict (canon 2201, § 1). The reason is that deliberation is absent.

Corollary II. Those habitually insane, although at times they have lucid intervals or seem sane in certain reasonings or acts, are nevertheless presumed incapable of delict (canon 2201, § 2). The reason is that deliberation in them is presumed to be absent until it is proved to be present.

Corollary III. A delict committed in voluntary drunkenness does not lack some imputability (canon 2201, § 3). This is clear if drunkenness does not wholly take away the use of reason; but if it wholly takes it away, the delict is imputed if it was foreseen at least in some measure (vol. I, n. 60). Besides, the imputability of a delict committed in voluntary drunkenness is less than when the same delict is committed by one who is fully master of himself, unless, however, drunkenness was sought precisely for perpetrating or excusing the delict. But when law is violated in involuntary drunkenness, imputability is wholly absent if drunkenness wholly takes away the use of reason; it is diminished if it takes it away only in part. The same should be said of other similar disturbances of mind (canon 2201, § 3), for example from morphine.

Corollary IV. Weakness of mind diminishes the imputability of a delict, but does not wholly remove it (canon 2201, § 4).

2. Ignorance of the violated law influences the imputability of the transgression in this way:

a) Inculpable ignorance removes the imputability of the transgression and consequently the delict (canon 2201, § 1).

b) Culpable ignorance diminishes imputability more or less according to the culpability of the ignorance itself (cited canon). Nevertheless, concerning affected ignorance it is disputed whether it increases or diminishes imputability (vol. I, n. 32).

Note 1. Ignorance of the penalty alone does not remove the imputability of the delict, but diminishes it somewhat (canon 2202, § 2).

Note 2. Those things which are established concerning ignorance, whether of the law or of the penalty, also hold concerning inadvertence¹ and concerning error² (canon 2202, § 3); likewise concerning ignorance of fact, for instance if someone strikes a cleric whom he certainly or probably holds to be a layman.

Note 3. Ignorance, or inadvertence or error concerning law or penalty or fact, is generally not presumed (canon 16, § 2).

3. Omission of due diligence. If someone has violated the law from omission of due diligence, the imputability is diminished in the manner to be determined from the circumstances by a prudent judge; but if he foresaw the matter and nevertheless omitted the cautions for avoiding it which any diligent person would have used, the fault is proximate to malice (canon 2203, § 1). Moreover, a fortuitous case which cannot be foreseen, or which when foreseen cannot be met, exempts from any imputability (canon 2203, § 2).

¹ It is actual ignorance in one who enjoys habitual knowledge.

² It is positive ignorance, or ignorance joined with the admission of what is false.

II. The causes modifying imputability are enumerated by the Code:

1. Minority. Minor age, unless something else is established, diminishes the imputability of a delict, and the more so the closer it approaches infancy (canon 2204). Moreover, moral persons (canon 100, §§ 1 and 2) are equated with minors also as regards imputability (cited canon, § 3).

2. Physical force which takes away every faculty of acting altogether excludes delict (canon 2205, § 1).

3. Grave fear, even only relatively grave, necessity, and even grave inconvenience, usually wholly remove delict if there is question of merely ecclesiastical laws. The said causes indeed diminish the imputability of the delict but do not remove it if the act is intrinsically evil or tends toward contempt of the faith or ecclesiastical authority or toward damage of souls (canon 2205, §§ 2 and 3).

4. Just defense. The cause of legitimate defense against an unjust aggressor, if due moderation is observed, wholly removes delict; otherwise it only diminishes imputability, as also does the cause of provocation (canon 2205, § 4), namely, one who provokes the aggressor also exceeds the moderation of defense. Besides, in excess of defense, not so rarely all fault is lacking.

5. Passion, if it has been voluntarily and deliberately excited or nourished, rather increases imputability; otherwise it diminishes it more or less according to the diverse heat of passion; and it wholly removes imputability if it precedes and impedes every deliberation of mind and consent of will (canon 2206).

6. Besides other aggravating circumstances,¹ a delict is increased: 1° according to the greater dignity of the person who commits the delict or who is offended by the delict; 2° from abuse of authority or office for perpetrating the delict (canon 2207).

7. Falling again into delict. A recidivist in the sense of the law is one who, after condemnation, again commits a delict of the same kind and in such circumstances of matters and especially of time that his pertinacity in evil will can prudently be conjectured (canon 2208, § 1). Moreover, one who has offended several times, even in a different kind, increases his culpability (canon 2208, § 2).

¹ Therefore the enumeration is not taxative.

III. Imputability of cooperators. In order that cooperation be canonically imputed, some malice or fault and some external influence upon the external fact of the delict are required. Concerning malice and fault, let the things said above be applied; concerning external influence, it must be noted that this is physical or moral, necessary or non-necessary, principal or accessory, positive or negative. Moreover, according to the varying influence upon the delict, the imputability of cooperators is varied as follows:

1. Those who with a common plan of delinquency physically concur together in a delict are all held guilty in the same way, unless the circumstances increase or diminish the culpability of someone (canon 2209, § 1).

2. In a delict which by its nature demands an accomplice, as for example a duel, each party is culpable in the same way, unless something else appears from the circumstances (canon 2209, § 2).

3. Of themselves, both the one mandating, who is the principal author of the delict, and others who induce to the consummation of the delict by persuading, consenting, or morally influencing in some other way, or who concur in this in any way whatever, for instance by physically cooperating, contract imputability not less than the executor of the delict, if the delict would not have been committed without their work (canon 2209, § 3), that is, if their influence was necessary.

4. If the influence of the aforesaid persons was not necessary but only rendered the delict easier, as one which would have been committed even without their concurrence, it carries with it lesser imputability (canon 2209, § 4).

5. One who has fully withdrawn his influence in perpetrating the delict by an opportune retraction is freed from all imputability, even if the executor nevertheless perpetrated the delict for other causes proper to himself; if he has not withdrawn it fully, retraction diminishes culpability but does not remove it (canon 2209, § 5). It is said "by an opportune retraction," namely one which is made at an opportune time and in an efficacious way. It is disputed whether retraction reinforced by arguments sufficiently destroys the influence of clothed counsel. It is probably affirmed (vol. I, n. 1000); wherefore in the case the executor must be judged to offend for causes proper to himself. But if the influence cannot be withdrawn unexpectedly, nevertheless an inculpably inefficacious retraction removes culpable participation in the consummated delict and consequently the imputability of this; but the culpable attempt of the delict remains (cf. n. 851), and, if the case bears it, some imputability for the damage and scandal which followed (canons 2213, § 3; 2235).

6. One who concurs in a delict only by neglecting his office is held by imputability proportioned to the obligation by which he was bound to impede the delict by his office (canon 2209, § 6).

7. Praise of a perpetrated delict, participation in its fruits, concealment and harboring of the delinquent, or other acts following upon a delict already fully completed: 1° can constitute new delicts, if namely they are punished by a penalty in law; besides, 2° they carry with them the imputability of the perpetrated delict if agreement had been made with the delinquent concerning those acts before the delict (canon 2209, § 7).

I. From delict, with canon 2210 considered, there arises:

1. A penal action for declaring or inflicting a penalty and for seeking satisfaction.

2. A civil action for repairing damages, if the delict has inflicted damage on anyone. The canonists treat of these matters more broadly according to canons 1552-1959, on trials; only let canon 2210, § 2 be noted: The same judge in a criminal trial can at the instance of the injured party call the civil action to examination and define it.

II. All who concur in a delict according to the norm of canon 2209, §§ 1-3 (n. 849, 1, 2, 3), are held by obligation in solidum of repairing the expenses and damages which have befallen any persons whatever from the delict, although they have been condemned by the judge pro rata (canon 2211).

I. Notion. Whoever posits or omits acts which by their nature lead to the execution of a delict, but does not consummate the delict, commits an attempt of delict, whether because he deserted his plan or because he could not complete the delict on account of insufficiency or ineptitude of the means (canon 2212, § 1). It is said "acts which by their nature lead"; wherefore merely preparatory acts, such as buying poison or removing impediments, are not an attempt of delict. For this, namely, there is required the execution of the delict itself begun, as is said in canon 2213, § 3. If, all acts having been posited or omitted which by their nature lead to the execution of the delict and suffice for completing the delict, the effect has not followed from another cause, apart from the will of the agent, the attempt of delict is called by its proper name a frustrated delict (canon 2212, § 2). Finally, to the attempt of delict there approaches, and is juridically equated, the action of one who has tried to induce another to commit a delict, but ineffectively (canon 2212, § 3). Moreover, an attempted delict is not always a delict, but only if the attempt of delict is fined by a particular penalty in the law (ibid., § 4). Nevertheless, even a simple attempt of delict and a frustrated delict can be punished by force of canon 2235, as will be said below.

II. The imputability of attempt is less than that of the delict; however, it grows the more it approaches consummation (canon 2213, § 1). Likewise, a frustrated delict is more culpable than a simple attempt of delict (canon 2213, § 2). But one who spontaneously desists from the execution of the delict begun is freed from all imputability, if no damage or scandal has arisen from the attempt (canon 2213, § 3); otherwise this is imputed to him. Likewise, the execution of the delict begun, which by force of the legal sanction is a delict, is imputed also as such (canon 2212, § 4); wherefore, notwithstanding cessation from executing the deed, a penalty latae sententiae has already been contracted.

As regards censures and irregularities. - Bishops can, by themselves or by another specially deputed, absolve subjects from hidden papal cases, except those which are reserved in a special way to the Supreme Pontiff. From the Declaration of S. O., 17 June 1866 and 4 Apr. 1871, there is also excepted the case of a person of whatever sex falsely denouncing a priest concerning the crime of solicitation in confession. They can likewise absolve those who strike a cleric lightly; and, if these are living collegially, although the striking was grave, but not if it was enormous. From the same censure they can also absolve those who are impeded from going to Rome. Cf. vol. 2, n. 1182. Various cases, however, are reserved to them by the law itself. C. Apost. Sedis; Decr. S. C. C. concerning the trafficking of Masses, etc. Cf. vol. 2, de Censuris.

They can besides dispense in all irregularities, and absolve from all suspensions incurred on account of hidden delict, except voluntary homicide, and other matters brought to the contentious forum. Trent, s. 24, c. Liceat. Probably they can dispense also in doubtful irregularities from defect. Moreover they can dispense in non-hidden irregularities from defect of birth for minor orders and simple benefices. As regards inabilities enjoined by Pontiffs as penalty, whether they can dispense is disputed, and the matter is very doubtful. Concerning homicide, "the common opinion is that the Bishop can dispense when danger of soul is imminent; or another most grave cause, and it would be difficult to have recourse to the Pontiff, etc." L. 51, 29, 35, 46, 47, 49, 52, 53; l. 3, n. 397; l. 6, n. 593, 705; l. 7, n. 353, 392, 394; E. M.

What is sin? - Since "where there is no law, neither is there transgression," Rom. 4:15, sin, which is an evil human act, is rightly defined by St. Augustine as: a word, deed, or thing desired against the eternal law. S. Th. 1. 2. q. 71, a. 6. Deed, for "sin can happen whether someone does what he ought not, or by not doing what he ought." S. Th. 1. 2. q. 71, a. 5, ad 1. By doing, it is a sin of commission; by not doing, of omission. Against the eternal law, because every law, whether human or divine, has its force from this law; because there is no power except from God; because no transgression of law would be a sin unless it offended God; because in this which is said, against the eternal law, aversion from the end and all other disorders are touched.

Against law; if it is not against law but against counsel, it is imperfection, which is merely negative if it is a mere defect in a human act of further perfection, e.g., of greater fervor in an act of love of God; and positive if it is an involuntary transgression of a law lightly obliging, e.g., praying with distraction. But it is rather only material sin than imperfection. Or it is the voluntary omission of a greater good, notwithstanding divine inspiration of it; and this, practically and regularly, is not without venial sin, by reason of the disordered motive or end, as, e.g., for a religious to violate rules not obliging to sin. Sin is formal if the law is violated freely and knowingly; it is material if the transgression of the law is altogether involuntary. - Sin is a delict. Delict is so called because good is abandoned. Hence "delict, taken commonly, signifies any omission; sometimes, however, it is taken strictly for this, that something is omitted from those things which pertain to God; or when knowingly, and as if with a certain contempt, a man abandons that which he ought to do; and thus it has a certain gravity, by reason of which it needs greater expiation." S. Th. 2. 2. q. 79, a. 4, ad 1. L. 1, 11; S. Th. de Malo, q. 2, a. 1, 2; 1 p., q. 63, a. 1; a. 7, ad 2; 1. 2. q. 71, a. 6, ad 5; q. 87; q. 76, a. 2, ad 1; 2. 2. q. 20, a. 3; Compend. Theol., c. 119; Wirceburg., D. 1, c. 1, 2; E. M.

Whether from damaging there arises an obligation of restitution? A damager is called one who injures another's right, harming his neighbor in his goods, yet without becoming richer thereby. Wherefore damaging is a source of restitution diverse from the preceding ones. "Whoever damages someone seems to take away from him that in which he damages him; for damage is so called from the fact that someone has less than he ought to have.... And therefore a man is bound to restitution of that in which he damaged someone." St. Thomas, 2. 2, q. 62, aa. 4, 6; Inst. l. 4, t. 3; C. B. 249 ff. Whatever act of man is the cause of damage to another obliges to reparation of that damage.

Nor indeed does only one's own act oblige to restitution, but also the act of another person or of a thing, of which someone has custody and care. And thus the proprietor of a house which falls because of defect of due conservation or construction is held concerning the damage which comes from it. The proprietor or custodian of an animal which causes pauperies is also held concerning damage. If a damaging act of this kind was committed with the intention of harming, it is called deceit and delict; if without that intention, from imprudence and negligence, it is called quasi-delict and juridical fault. C. I. 1151 ff.; C. G. 1382 ff.; C. H. 1089, 1092, 1104, 1105, 1902 ff.; C. A. 1293 ff.; C. B. 823 ff.; St. Thomas, 2. 2, q. 62, a. 1, ad 2; aa. 4, 7; E. M.

What is required for incurring irregularity from delict? In order that irregularity from delict be incurred, i.e., from one's own delict, the human act must be: 1. external, for this irregularity is a penalty in the external forum; 2. mortally evil, because it is a grave penalty, to which light fault does not correspond; 3. fully consummated, for odious things are to be restricted. L. 348. But it is by no means required that the crime be public. Rather irregularity is incurred because of a crime even occult. Trent, sess. 24, chap. Liceat 6; L. 349. But is knowledge of the law of the Church prohibiting required? The most common and more probable opinion affirms; because this irregularity is a true penalty. Chap. Proposuisti, Dist. 82; L. 350. Is knowledge of the penalty, or of the irregularity, also required? It is controverted; and it must be affirmed with sufficient probability, because irregularity is as it were an extraordinary penalty. L. 351; book 6, n. 705. But as ignorance excuses from irregularity as from a penalty, so fear also excuses. Irregularity, however, is not had from any delict whatsoever, although enormous, but only from delicts constituted in Law, namely from the following:

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).