Irritant Laws

Irritant Laws. Laws Based on Presumption.—There are two classes of human laws that deserve particular mention on account of special difficulties regarding them: (a) irritant laws, which would seem to be unjust, since they declare null what according to natural law would be valid; (b) laws based on presumption, which would seem to be of uncertain force, since presumptions are often contrary to fact.

An irritant or inhabilitating law is one that expressly or equivalently declares that certain defects make an act void or voidable, or a person incapable. Such laws are just, even when made by human authority, since it is the common good that makes them necessary, and the natural law itself requires that the common good be promoted.

Irritant laws are of various kinds.

(a) They are morally or juridically irritant, according as that which is taken from the irritated act is either the natural value it has in conscience, or the positive value it derives from the law. Hence, an act may be legally null (i.e., have no value that the law recognizes or protects) and at the same time morally valid (i.e., of just as much force in conscience as though no irritant law existed).

(b) Irritant laws are merely irritant or irritant and prohibitive, according as they make an act invalid but not illicit, or both invalid and illicit. Thus, a law that requires certain formalities for making a will invalidates the act of writing an informal will, but does not make it an offense; but the church law of diriment impediments makes a marriage contracted with one of these impediments both null and sinful.

(c) Irritant laws are merely irritant or irritant and penal, according as the legislator does not or does intend them as punishments. For example, the law of clandestinity is merely irritant; the law regarding the impediment of crime is probably both irritant and penal.

Laws that are merely irritant do not oblige one in conscience to omit the act, but only to suffer the effect of irritation; but laws that are both irritant and prohibitive oblige one in conscience to omit the act. Example: In itself, it is not unlawful to make an informal will, but it is unlawful to marry with a diriment impediment.

As to the time when irritant laws obtain their effect, the following points are important.

(a) Ecclesiastical voiding laws oblige at once in conscience, although like other laws of the Church they are not retroactive, unless the contrary is provided, and they do not oblige in case of a doubt concerning the law. Example: If espousals are made without the canonical formalities, there is no duty to live up to them as such, either in conscience or before the law.

(b) Civil voiding laws are generally only civilly irritant, for as a rule external means are sufficient for the purpose of those laws; thus, they produce civil irritation at once, but moral irritation only after pronouncement by the courts. Hence, after a judicial sentence the voided act becomes such morally, since the decision is founded on a presumption of common danger (see below, 459). Examples: One who has received money through a will which he knows to be informal (i.e., legally invalid), may retain possession until the civil authority declares that he has no rights to the money. But, on the other hand, one who has been disinherited through a will naturally good, but not made in due form, has the right to contest, if we except the case of pious bequests (see Vol. II).

Laws that make an act voidable or rescindable do not irritate before declaration of nullity by a judge. Hence, an act that is rescindable according to law retains its natural force until the court has decided against it. Example: Acts that were done under the influence of grave and unjust fear, or that were induced through deception, are held as valid until declared null by a judge.

As to the effects of ignorance on acts irritated by law, the Code states that ignorance of irritating (invalidating) and inhabilitating (disqualifying) laws does not excuse from their observance, unless the law expressly states otherwise (Canon 16, Sec. 1). Moralists discuss the influence of ignorance (as well as force or fear) on such acts as follows: (a) if the law is irritant and not penal, it has its effect, in spite of ignorance, oversight, etc.; for this the common good requires. Example: One who marries his cousin in good faith, being invincibly ignorant that it is against the law, contracts invalidly; (b) if the law is irritant and penal, the irritation being decreed solely as a punishment, ignorance, oversight, etc., sufficient to excuse from fault, excuse also from the penalty of irritation; for penalty presupposes fault. Before the law, however, ignorance and error as to law or penalties are not presumed but must be proved. (Nevertheless, it must be noted that according to some authors no penalty is necessarily or primarily intended in ecclesiastical irritating and inhabilitating laws. Though punishment actually results from the matrimonial impediment of crime, for example, the impediment as such primarily is a personal disqualification intended to protect the dignity of the sacrament and good morals. Ignorance, then, does not excuse from it. Some authors maintain that this is true of all ecclesiastical disqualifying laws.)

Generally speaking, epieikeia may not be used in the interpretation of irritating and inhabilitating laws. Since they transcend the individual welfare, they demand uniform observance of all subject to them. Some authors permit the use of epieikeia, however, in particular cases in which the law itself aims to protect the individual, whereas its observance would tend rather to harm the individual or at times even the interests of the community. Accordingly, it seems probable that an irritant law may cease in case of impossibility or of a most grave inconvenience that is common. Example: If in a pagan country Christians were so few that they could marry only infidels, and if distance or other circumstances made it impossible to seek a dispensation, the diriment impediment of disparity of worship would seem to cease for those Christians.

Some authors hold that an irritant law may also cease on account of impossibility, or of a most grave inconvenience that is only private; but this opinion cannot be deemed certain. An example of private inconvenience is the case of an invalidly married person who is near to death and unable to seek the dispensation from the impediment that has made the marriage null.

What is the nature of an invalidating law, and of how many kinds is it?

In natural law there is no invalidating law; but by natural law an act is valid or null, or void, by reason of the defect of a substantial element. The elements of a human act are only two: consent and object. If consent is lacking, the act is null, as a fictitious promise, which is not a promise. Likewise, if the object is lacking, the act is null, as the sale and purchase of a precious gem which is only glass. Finally, if the object is illegitimate and shameful, as a society of robbers, the act likewise is null, or rather void, since that act can produce no effect of moral obligation. An invalidating law, properly, is that law which commands that some act, of itself valid by natural law for producing its effect, be void and of no force. The law of nature indeed seems to require nothing further for the validity of some act, beyond those things which are substantial to the act, namely consent and a suitable object, if the matter is considered abstractly, without its circumstances. But the law of nature itself requires that, with account taken of the circumstances, all things be done concretely in such a way that they conduce to the common good. But the determination of those things which contribute to the common good, from the law of nature itself, belongs to him who has care of the community. Wherefore the same law of nature requires that those acts be held as invalid which the public power declares to be such.

Moreover, some laws command an act to be void by the law itself, by full right; others render it only liable to rescission. C. G. 1117, 1118, 1125, 1644, 1648. The former primarily and directly regard the public good, as those which establish the essential conditions of contracts, C. I. 1104, 1119; C. G. 1108, 1131; the essential conditions of religious profession: age, novitiate, simple vows, Council of Trent, Pius IX, etc. But the latter directly and primarily regard private good, as those which grant restitution in full to minors, wives, interdicted persons, C. I. 1300 ff.; C. G. 1304 ff.; Gousset on a. 1304. In these the office of a judge is required, namely if he in whose favor the laws were introduced wishes to use their benefit. But in the former there is no need of a sentence of a judge, unless actual rescission is confused with rescindibility. Nor is it valid to say that it is permitted to no private person to declare law for himself. Certainly in the external forum; but not at all in the internal forum of one's own conscience, where the truth is manifestly established. From C. B. 142, when a rescindible act is charged with nullity, it must be considered as null from the beginning. For things return to their former state. The rescission of an act can also be introduced in hatred of some crime, as the impediments of marriage, of crime, the nullity of a simoniacal conferral of a benefice, etc. In such a case it must be seen whether the nullity of the act has been introduced primarily and directly by reason of itself on account of the common good, or in punishment of the crime. For in the first case the law is simply, or at least primarily, invalidating; but in the other it is primarily penal, and puts on the nature of a penal law, since the accessory follows the principal. Suarez, de Legibus, l. 5, c. 19, n. 5; c. 21, n. 2 ff. If the rescission of the act is not constituted by the law itself, the judge cannot introduce it by his own sentence. For it belongs to the judge to judge according to the laws, not to make laws. C. Ad Apostolicam 16, De Regul.

Acts are invalidated by law either because the acts themselves are prohibited by law; or because the person is declared incapable by law; or because the act was done without the form constituted by that same law. - If the law prohibits the act and at the same time invalidates it, the law is at once prohibiting and invalidating, and it obtains force at the same time in the external and internal forum, as, e.g., the renunciation of an inheritance not yet opened, C. I. 1118; C. G. 1130; the renunciation of prescription not yet completed, C. I. 2107; C. G. 2220; the simoniacal conferral of a benefice, Pius IV, C. Romanum Pontificem, 17 Oct. 1564; St. Pius V, Cum primum, VI Kal. Apr. 1566. But if the law indeed prohibits the act, but does not invalidate it, the act is valid in both forums; otherwise the law would no longer be merely prohibiting, but at the same time invalidating. And thus mixed marriage, although illicit, is nevertheless valid.

If a person is declared incapable by law, the law is properly called inhabilitating; as, e.g., by ecclesiastical law blood relatives are declared incapable for marriage; by civil law wives are declared incapable for contracting. This incapacity: one is properly such, and renders the act void; another is less properly such, and does not render the act of such a person void, but liable to rescission, and restitution in full is granted. C. I. 134, 319, 339, 1106, 1300; C. G. 215, 484, 513, 1124, 1304. Now incapacity can be constituted on account of good morals, on account of dangers to be averted, or on account of the state or condition of the person in society.

If on account of good morals, incapacity is to be understood, and consequently also the invalidation of the act, in both forums, external and internal. And thus theologians commonly teach that a father sins and makes the act void who makes a donation against the law to an adulterine son, and the son himself sins by accepting the void donation. Lugo, de Iust. et Iur., d. 24, n. 92. If on account of dangers to be guarded against, incapacity and invalidation are to be understood in both forums also; otherwise nothing would be guarded against. And so judges and officials of the public ministry cannot redeem lawsuits, C. I. 1458; C. G. 1597; tutors cannot take anything from the testament of those who are under their guardianship, C. I. 769.

Finally, if on account of the state or condition of the person in society, which arises from the required supports with which the person is endowed, an act which otherwise is valid by natural law is valid in the forum of conscience, if by that religious or civil state or condition the natural state or condition is not taken away, nor does a positive law of this sort take away those things which by natural law pertain to man according to his natural state or condition, but only according to his state or condition in society. - And thus the rights of spouses, the rights of parents, the rights of children remain firm in the forum of conscience, if a true marriage was present, although civil marriage was lacking. For the defect of civil marriage does not take away the natural state or condition flowing from true marriage. On the contrary, when a void marriage has knowingly been contracted, neither husband, nor wife, nor dowry, nor legitimate children, nor legitimate succession is understood. C. 10, Qui fil. sint legit.; Epist. of Leo XIII, Il divisamento, 8 Feb. 1893, § Ora una legge; C. I. 116; C. G. 202; C. A. 160. A sale is valid in the forum of conscience, although it was made not to a citizen but to a foreigner, where this is simply prohibited. For a law of this sort does not take away those things which by natural law pertain to man, but those which pertain to a citizen. Foreigners are regularly prohibited only from those rights which come from the civil law alone of a nation. On the contrary, the testament of a religious is not valid, nor is the testament of an incapable person valid: for both laws take away those things which by the law of nature itself pertain to man, on account of his state or condition in society; namely, as to the former, in the Church; as to the latter, in civil society. - Lugo, de Iust. et Iur., d. 24, s. 4; Troplong, della Prescrizione, c. 1, n. 35.

Finally, if an act is invalidated on account of defect of form, the laws are then more properly held as invalidating, insofar as they are distinguished from inhabilitating laws. But form is either intrinsic to the act itself and inseparable from the act, or extrinsic to the act. The former is as it were the species of the act, and is properly called form; and ordinarily it is situated in this, that the act be done before some public person and witnesses, or be recorded in public instruments, juridically making faith. The latter is called the solemnity or solemnities of the act, and when these have been omitted, acts are properly called void; but undone if the form has been omitted, since form gives being to the thing; but often these words are used promiscuously, and an act is also said to be void and undone from defect of the capacity of the person. Undone, namely from the effect of law. And so in marriage the presence of the pastor and witnesses constitutes the form of marriage; in alienations of ecclesiastical goods, of wives, and of minors, the Apostolic approval required in the former, and the consent of the husband in the latter, and the decree of the judge required in these, pertain to the solemnities of the act.

The form and solemnities of an act are introduced to remove frauds. Wherefore laws of this sort rest upon a presumption of fraud. If they are founded upon a presumption of fact, and fraud is truly absent, the act is valid. But if they are founded upon a presumption of danger, although fraud is absent, nevertheless the act is void or liable to invalidation. It is not always easy to define whether a law is founded on a presumption of fraud, or on the danger of fraud. And thus it is disputed among doctors whether testaments and legacies not made according to the form of law are valid for the forum of conscience. L. 1. 3. n. 711, 890, 918, 927.

There are those who distinguish between invalidation of acts in the internal forum, and in the external forum only, whether as regards civil laws or as regards canonical laws. But the value of acts, as to itself, exists both in the internal forum and in the external forum. Moreover, in itself the contradiction is apparent which would then exist between the internal and external forum. And it is also apparent that then the law would not obtain its end, and would bring with it many and grave inconveniences. If, e.g., an alienation of ecclesiastical goods made without Apostolic approval is void only in the external forum, and not also in the forum of conscience, then the buyer or donee would by right retain those goods as his own, without being held to restore them, with evident harm to the Church. If an informal holographic testament, without the signature of the testator, were invalid only in the external forum, the heir inscribed there could now legitimately and secretly steal away for himself the goods possessed by the legitimate heir, even after the sentence of the judge. This is altogether absurd, and contrary to reason and common sense. Wirceburg., c. 4, a. 5, § 3.

Does he sin who makes a void act? R. Affirmatively, if the act is evil, as, e.g., to enter marriage with a blood relative; or if the act is harmful, whether justice, or charity, or the commonwealth, or religion is injured; e.g., if a notary prepares a public instrument without juridical form; if a testator freely makes a testament, the legal prescriptions not having been observed, whence he foresees that quarrels and scandals will arise; if a judge does not observe the legitimate process of judgments; if the form and solemnities of canon law are not observed in elections to ecclesiastical offices, in the conferral of benefices, etc. R. Likewise affirmatively, if the act is at the same time invalidated by law and also prohibited in the forum of conscience, as in marriages, not to observe the form prescribed by the Church; not to observe the due form in religious profession; to donate to an adulterine son.

R. Negatively, if the act itself is neither evil in itself nor harmful to another; for then it is only a fruitless act, e.g., if someone writes his own testament with the signature omitted, or not yet having attained the age prescribed by law. Harmful to another, not to himself; e.g., if spouses alienate dotal goods which are prohibited from being alienated, or a wife alienates paraphernal goods without her husband, and the buyer is ignorant that the goods are dotal, or that the woman has a husband.

But although the law does not oblige in conscience to omit the act, if in such a case it is merely invalidating and not at the same time prohibiting, nevertheless it obliges one to stand by all those things which intrinsically arise from the invalidation. For obedience must be given to authority legitimately commanding. But every legislator can make invalidating laws, because this is required for the common good; otherwise frauds and dangers of human society could not sufficiently be warded off.

Do ignorance, fear, and grave inconvenience excuse from invalidation? - R. To the first: Negatively, because subjective ignorance, whether of fact or of law, does not supply the objective defect of the act; and thus there is no marriage, when there stands, e.g., the diriment impediment of consanguinity, whether it is contracted in good faith or in bad faith. - But if the invalidating law is penal, then, if ignorance excuses from guilt, it also excuses from the penalty of invalidation. But if guilt is admitted, yet the penalty of invalidation is unknown, then more probably this is not incurred, because invalidation is an extraordinary and exorbitant penalty, from which ignorance excuses. Schmalz., l. 5, t. 37, n. 105; Sanch., de Matr., l. 9, d. 32, n. 17. More commonly, however, they affirm that it is incurred, because since such ignorance does not excuse from sin against the law, neither consequently does it excuse from the penalty, although this is unknown. Suarez, l. 5, c. 22; Ithur., Cas. 53, n. 24. Nor indeed does ignorance excuse in any way if the invalidation was established principally to preclude evils which otherwise would flow into the commonwealth, but the penalty only accessorily, for coercing the person. And indeed the proper reason of an invalidating law is common utility.

R. To the second and third: There are not lacking those who affirm it, because positive law ought to yield to the natural law of charity, and because in the case there is a certain legitimate epikeia. But it seems one must answer with the common opinion: Negatively; because grave fear, and even gravest inconvenience, neither render the person capable, nor restore to acts the force taken away by law. But since laws of this sort primarily and directly tend to preserving the public good, no place is given to epikeia on account of merely private harm. And thus a marriage between blood relatives and relatives by affinity will be void, even to avoid death, even in the article of death. Private harm, I say; for if a common harm is present, since then the law would become harmful to society, invalidation ceases. L. 191; l. 3, n. 112; l. 6, n. 1029; de Privil., n. 57; Diana, t. 2, tr. 6, r. 62, 73; Sanch., de Matr., l. 3, d. 17, n. 3; Ithur., Cas. 53, n. 18; M. E., vol. 20, p. 177, 474.

Note: As there are invalidating laws, so there are laws constitutive of right, which others reduce to invalidating laws. Such laws are those which constitute and confer some right. And thus religious profession and adoption obtain their force: the former from canonical law, from the Church accepting religious profession; the latter from civil law. Wherefore such laws are valid in both forums, the external and the internal. For if someone truly has such a right in the forum of conscience, he has it only from law, whether canonical or civil. Sometimes, moreover, laws of this sort immediately furnish right by themselves, as laws granting to the father usufruct in the goods of children under paternal power, granting to children under paternal power the legitimate portion in the goods of the father; but sometimes they furnish right only through the mediation of the office of a judge, as laws granting restitution in full to minors, to those who have suffered fear, etc.

There are besides laws denying action in the external forum; if these regard some natural right, they do not avail in the forum of conscience. For laws of this sort do not furnish an action, not because they take away natural right, but only so that there may be some end of lawsuits, lest lawsuits be multiplied. But if they regard a right which flows from the law itself, whether canonical or civil, then, if someone has not pursued his right within the prefixed time, they take away the right itself, and consequently, on the opposite side, the obligation of another. Wherefore they avail for this latter also in the internal forum, unless perhaps he has by injury impeded another from pursuing his right.

What is the nature of penalty and of penal law? R. To the first: Penalty consists in the subtraction of some good, whether spiritual or temporal. Spiritual especially, as regards canonical penalties, as is seen in excommunication; temporal as regards civil penalties. "Since sin is a disordered act, it is manifest that whoever sins acts against some order; and therefore it follows that he is cast down by that order itself (and by the Prince of the order), and this casting down is penalty." S. Th. 1. 2. q. 87, a. 1. "Through penalty the equality of justice is repaired, insofar as he who in sinning has followed his own will too much suffers something against his own will." S. Th. 2. 2. q. 108, a. 4. The equality of justice is also repaired insofar as he who has pursued illicit goods by his own will is deprived of certain goods against his own will.

Now, "vindication is licit insofar as it tends to the restraining of evils. But some who do not have affection for virtue are restrained from sinning through this, that they fear losing certain things which they love more than those which they obtain by sinning; otherwise fear would not curb sin. And therefore vindication for sins is to be taken through the subtraction of all things which man chiefly loves. But these are the things which man chiefly loves: life, bodily safety, one's own liberty, and exterior goods, such as riches, fatherland, glory. And therefore... there are eight kinds of penalties... namely death, by which life is taken away; lashes and retaliation, so that, for example, he loses an eye for an eye, by which one loses bodily safety; servitude and chains, by which he loses liberty; exile, by which he loses fatherland; loss, by which he loses riches; ignominy, by which he loses glory." S. Th. 2. 2. q. 108, a. 3; q. 65, a. 3.

One penalty is vindicative and is owed to sin; another is preservative from future sin, which is called medicinal; another is promotive of some good, and according to this someone is sometimes punished without guilt, but not without cause, as, e.g., that someone incurs irregularity on account of a judgment of blood. S. Th. 2. 2. q. 103, a. 4. "The penalties of the present life are more medicinal than retributive. For retribution is reserved to the divine judgment, which is according to truth against those who sin. And therefore according to the judgment of the present life, the penalty of death is not inflicted for every mortal sin, but only for those which bring irreparable harm, or also for those which have some horrible deformity; and therefore for theft, which does not bring irreparable harm, the penalty of death is not inflicted according to present judgment, except where theft is aggravated by some grave circumstance, as is clear concerning sacrilege, which is theft of a sacred thing, and concerning peculation, which is theft of a common thing, and concerning kidnapping, which is theft of a man, for which one is punished by death, as is clear from Exod. 21." S. Th. 2. 2. q. 66, a. 6, ad 2. "If some man is dangerous to the community and corruptive of it on account of some sin, he is laudably and healthfully killed, so that the common good may be preserved." S. Th. 2. 2. q. 64, a. 2, c. "Human justice kills those who are harmful to others; but those who sin without gravely harming others, it reserves for penance." S. Th. l. c. ad 2; q. 65, a. 1, c. No one can punish another unless he is subject to his jurisdiction. S. Th. 2. 2. q. 65, a. 2, c. But public vengeance to be exercised by the civil magistrate is handed down in the Sacred Scriptures themselves, Rom. 13:4. "A greater power ought to have greater coercion. But just as a city is a perfect community, so the Prince of the city has perfect power of coercing; and therefore he can inflict irreparable penalties, namely of killing or mutilation." S. Th. 2. 2. q. 65, a. 2, ad 2; q. 10, a. 8, 9; q. 11, a. 3, 4.

R. To the second: Law can oblige to doing or omitting some act or action, and then it is called a moral law, preceptive or prohibitive. But law can oblige to undergoing penalty alone, and then it is called penal law; namely if the law still obliges to doing or omitting that thing, or otherwise to undergoing the penalty. For it suffices for the essence of law that it impose some obligation in conscience, nor is it necessary that the obligation regard determinately an act or its omission. Besides, law has force only from the will of the legislator. But the legislator can oblige to penalty alone, if that suffices for procuring the common good. Wherefore St. Thomas rightly teaches, 2. 2. q. 186, a. 9, "that not all things which are contained in law are handed down by way of precept; but some are proposed by way of a certain ordinance, or statute, obliging to a certain penalty." - Suarez, l. 5, c. 4, n. 2-6.

Therefore a penal law is a law which does not oblige in conscience to positing or omitting an act under guilt, but only under temporal penalty, i.e., to accepting the penalty as just. Wherefore, properly speaking, a merely penal law cannot be given in this sense, insofar as it in no way obliges in conscience; nevertheless a merely penal law can be given in this other sense, insofar, namely, as it obliges in conscience to one or the other: either to fulfilling the law, or to undergoing the penalty; as is the law of paying a fine if someone defrauds the customs. But cf. 232. - "Sanctions which in no way oblige in conscience, neither to an act or its omission, nor to penalty, are not properly laws, but simple constitutions and ordinances... To this are reduced the statutes of various Orders, Congregations, Academies, etc." Struggl, q. 2, n. 32. Therefore laws of this sort are not called laws simply, but directive, counseling, persuading laws. But it is entirely outside every question that there can be at the same time a moral law, preceptive or prohibitive of an act, and at the same time penal, and then the law is called mixed; as is the law of repairing damage inflicted by civil fault alone. Penalty regularly does not oblige before the sentence of a judge. Cf. 230; 1 Cor. 4:21; 2 Cor. 10:6; Suarez, l. 5, c. 3, 4; S. Th. 2. 2. q. 108, a. 4; q. 186, a. 9, ad 1; E. M.

227 bis. Note: The rack is a kind of torture, namely a wooden machine joined together in the manner of a horse, cavalletto, on which formerly those concerning whom there was inquiry of some crime were stretched and tortured, so that full proof might be made from their confession. Life imprisonment, according to the Italian Penal Code 31, 33, is the greatest penalty, bringing perpetual interdiction from public offices, legal interdiction, deprivation of paternal power, marital authority, and the faculty of making a testament. Reclusion follows life imprisonment. The penalty of reclusion exceeding five years brings, according to the Italian Penal Code 31, 33, perpetual interdiction from public offices, legal interdiction during the penalty, and there can be added deprivation of paternal power and marital authority during the penalty.

How are merely penal laws distinguished? - They are distinguished: 1. From the matter, words, and circumstances of the law. 2. From the common judgment of doctors. 3. From the persuasion and practice especially of the timorous. From the matter; hence, speaking in itself, civil laws can be held as penal if, with attention to their matter, the end of the law is sufficiently obtained by only the fear of the penalty having been struck in, as, e.g., civil laws concerning paying taxes with regard to goods imported or exported; for if the established taxes are not paid, a fine would be owed. But civil laws must be held as preceptive if, with attention to their matter, the end of the law is not sufficiently obtained by fear of penalty alone, unless also by fear of guilt. Such laws are those which directly and proximately contribute to the common good, peace, and order of civil society, as are laws, e.g., of contracts; of public offices, administrators, magistrates, etc.; of judgments, proofs, unless as regards these the right is certain and evident; since then the right is not lacking, but the proof of right, provided that the proof does not touch the very form of the act. C. I. 779, 1314; C. G. 973, etc. Likewise laws are altogether obliging in conscience: laws explaining natural right and definitive of right, as are laws assessing the prices of things and the wages of works; granting to the father usufruct in the goods of children under paternal power, but to children under paternal power the legitimate portion in paternal goods; half the treasure to the finder, half to the owner of the land; restitution in full to minors, married women, those who have suffered fear, regulars; common ownership of a wall to a neighbor; action for damage given by civil fault alone, etc. Kenrick, tr. 6, c. 3, n. 2 ff.

From the words; hence Suarez thinks, l. 5, c. 4, n. 9, that if by the words of a penal law the precept is not sufficiently declared, a presumption must be made in favor of a purely penal law, "unless from the circumstances, or from the matter or penalty of the law, a virtual precept, or sufficient intention of one commanding, is gathered." Or from the penalty, e.g., of excommunication, or even a gravest corporal penalty, of death, mutilation, etc. "For the law must be considered prudent and just; but it would be intolerable if, on account of a thing which lacks guilt, it imposed the penalty of death or mutilation." But others deduce from a graver penalty that the Prince does not wish to oblige in conscience, because it would not be equitable that, besides a most grave temporal penalty, which would suffice to urge observance of the law, he should also wish to hand someone over to eternal penalty besides that most grave temporal penalty. But this, as is clear, would hold also for the laws of the Church under penalty of excommunication, suspension, interdict, deprivation of benefices, etc.; and yet all admit that all laws of the Church oblige in conscience. - Moreover, a law is held as purely penal if it is not borne by way of precept and prohibition, but merely assertively, e.g., he who has carried grain out of the kingdom will pay one hundred lire; or if it is borne disjunctively, e.g., let no one carry grain out of the kingdom, or, if he has carried it out, he will pay one hundred lire. - But if the law is borne simply by way of precept and prohibition, either it imposes no penalty, and it is a moral law, preceptive or prohibitive, obliging, speaking in itself, in conscience to guilt; or it has a penalty joined to it, e.g., canons are prohibited from being absent from choir under penalty of loss of the distributions which are made daily among those present, and the law is mixed, obliging, again speaking in itself, at the same time to guilt and penalty. Speaking in itself, unless, namely, the legislator himself has expressly admonished otherwise, as may be seen in many Rules and Constitutions of religious Orders and Congregations, or something else must be judged from other heads. L. 145-147; S. Th. 2. 2. q. 186, a. 9, ad 1. Yet it is not necessary for the obligation of a law that this be explicitly asserted by the legislator. For it suffices that it be understood implicitly from the law itself as enacted.

From the circumstances; e.g., if no corruption of morals would follow from transgression of the law, no danger of public order, etc., and the superior himself entrusted the effective execution of the law to his ministers, or imposed a great penalty. For that alone would be sufficient for observance of the law; and it would justly be presumed that the Prince does not wish to oblige to guilt and penalty at the same time. But not at all if there were question of a thing evil by its nature, or publicly pernicious; in such matters penal laws are never to be sought. Suarez, l. c., n. 12; L. l. 3, n. 616.

From the common opinion of doctors; and thus as penal are held the laws which prohibit dice and games to laymen. L. l. 3, n. 885. On the contrary, the common opinion of doctors is that merely penal laws are not given in the Church, since the Church principally regards the good of souls. From custom; "hence the laws of towns prohibiting under penalty the cutting of wood or grass, fishing, hunting, do not oblige under guilt; for custom so holds." L. 145. The same seems to be said of the grazing of cattle in fields or woods of the community, and of carrying weapons for hunting; but by no means of carrying treacherous weapons. St. Pius V, C. Cum vices, 12 Feb. 1572; C. I. Poen. 460 ff. Civil laws forbidding opium, and other similar laws, for protecting good morals, are in themselves moral laws. - E. M. "Reuter observes," he says, de Leg., n. 217, "Suarez, l. 7, c. 19, n. 12; Laym., l. 1, tr. 4, c. 24, n. 12, that some laws have passed from not purely penal into purely penal, because otherwise they were not observed, as perhaps are civil laws imposing exactions, prohibiting hunting, cutting wood, etc."

Do ignorance, fear, and age excuse from penalty? R. To the first: Affirmatively for the internal forum, if ignorance excuses from guilt against the law, whether it is ignorance of law or ignorance of fact; for penalty is a certain natural consequence of guilt. - R. Negatively for the same forum, if ignorance does not excuse from guilt against the law, and is concerned with the penalty alone, understand an ordinary penalty; but not an extraordinary and exorbitant one. The reason of the distinction is that an ordinary penalty is always foreseen in some way from the nature of the crime itself, since natural light itself dictates that evil is to be punished according to its nature. But an extraordinary penalty cannot be foreseen even confusedly. R. Likewise negatively for the external forum. For knowledge of the law is presumed, unless, however, ignorance of the law seems probable, i.e., likely. For presumption yields to truth. L. 169; l. 6, n. 705, 1074; l. 7, n. 351.

R. To the second: Unjust and grave fear, which excuses from human law, whose obligation regularly is none with grave inconvenience, consequently excuses from the penalty annexed to human law. Hence, although perhaps it does not excuse from grave sin, because that which was prohibited was forbidden also by natural law, nevertheless it still excuses from the penalty, unless the positive law itself does not cease, as for instance if something is extorted to public harm. C. 5, De his quae vi.

To the third: From the indulgence of canon law, age excuses those not yet pubescent, C. 1, 2 de Del. puer.; C. 1, 60 de Sent. exc. By civil law minors are punished more mildly. C. I. Poen. 44, 53 ff.; C. B. 828. - Cf. here 195; Suarez, de Cens., d. 5, s. 1, n. 19; Castropalao, tr. 3, d. 1, p. 24, § 2, n. 8; Scavini, l. 1, n. 822, ed. 12, Milan 1874; Bouquillon, de lege, n. 159.

Does a penal law oblige one to undergo the penalty before the sentence of a judge? - The penalty which is contained in law is one thing active, which cannot be given remission without some positive action of the delinquent, as would be, e.g., payment of money; another is passive, which requires the action of another for its execution; another is privative, which consists in the mere privation of some acquired right, e.g., office, benefice, jurisdiction, suffrage, etc.; and it is conditional if it deprives of some right under a given condition; another is negative, which denies to the guilty person some good to be acquired; another finally is inhabilitating, which renders one incapable or unable of some right, namely of doing or contracting, acquiring, giving something, etc. - Likewise, one penalty is latae sententiae, another ferendae sententiae; the first is incurred by the commission of the crime alone, the second by the sentence of a judge. But this sentence to be rendered, or condemnatory sentence, is that by which the accused is punished with a certain penalty; or declaratory, by which the judge declares that someone has fallen into that crime on account of which the penalty established by law is incurred by the fact itself.

In order that a penalty can be called latae sententiae, it is necessary that the legislator has clearly provided that the accused, once the delict has been committed, is immediately held by that penalty. If the penalty is ferendae sententiae, the law does not oblige to undergoing the penalty before that sentence; for then the law does not inflict the penalty by itself, but only decrees that it is to be inflicted by the judge. But if the penalty is latae sententiae, then a distinction must be made. An active or passive penalty, etc., e.g., of paying or suffering something, is not to be undergone before the sentence of a judge. The reason is "because that human law would be too arduous and unobservable: that the guilty person himself should execute the penalty upon himself." L. 149, 148. Except unless the law so evidently commands otherwise that it cannot be interpreted otherwise, for instance, a thing accepted simoniacally must be restored, cf. 523. - The same, for the same reason, must be said of a penalty at once privative and active. "And thus, therefore, one must speak of laws depriving of benefices already obtained, by reason of simony or alienation of the goods of the benefice, etc., where a declaration of the judge is always required." L. l. c.; unless something else is expressly provided in the law, as seems to be established in Trent, s. 14, c. 18 de R., against synodal examiners receiving something on occasion of the examination, since it is said, "from which [i.e., simony] they cannot be absolved unless the benefices have been dismissed." L. l. 3, n. 112, 397. But not even this urgent wording of the law excludes a declaration of the crime. Cf. 521.

If the penalty is simply privative, before the sentence of a judge it will ordinarily have to be undergone, as is clear from the usage and custom received everywhere concerning censures and similar penalties. Hence, without any other sentence, incestuous spouses are deprived of the right of petitioning. C. Si quis de Eo qui cognov. And deservedly; for since incest is almost always hidden, the penalty would be rendered useless if it had to be proved, and a sentence were required. Ordinarily, for exception is made: if the guilty person cannot execute the penalty without infamy, since this would be too hard; if somewhere a particular custom holds otherwise. L. 148.

Negative penalties and "inhabilitating penalties oblige before the sentence of a judge, as is the penalty imposed by Trent on non-residents of not gaining the fruits. Likewise when privative penalties are conditional, e.g., that one having a benefice with care of souls, if he is not ordained priest within a year, is by that very fact deprived of the benefice, as from C. Licet, de Elect., in 6. Thus also a beneficed cleric not wearing the habit is by that very fact deprived of the privilege of forum." L. 149. The first reason is that no one can acquire that to which he has no right. The second reason is that since the law does not bestow right except under such a condition, when it is lacking, every right must also be lacking. Yet, as for privative penalties, so also for inhabilitating ones, at least a declaratory sentence of the crime is required "in the case in which the guilty person cannot execute the penalty without his own infamy," L. l. 6, n. 705, as, for instance, one which deprives of active or passive voice. No one is held to betray himself. - L. l. 7, n. 54; l. 3, n. 397, 442, 402; l. 5, n. 280; Struggl, q. 2, n. 38 ff.; Suarez, de Legib., l. 5, c. 10; Laymann, l. 1, tr. 4, c. 15; Wirceburg., c. 4, a. 5, § 2; Troplong, della Prescrizione, c. 1, n. 35, 38, 42.

Must a conventional penalty in contracts be paid before sentence? - A penalty which is owed for that which is of interest is owed before every sentence of a judge. But concerning that which is owed on account of delay, there is dispute. "The first opinion affirms it, because each person is held to observe the pact before sentence.... The second opinion, which the Salmanticenses call equally probable, denies it, because one must judge that the contracting parties do not wish to impose a penalty upon themselves otherwise than according to the disposition of law concerning laws of penalties, which are not contracted except after sentence. Certainly the guilty person is held after sentence to the penalty. But it must be noted that he is not held to pay the money unless it is sought by the party. And if the penalty is too harsh, beyond the sentence there is required a precept of the judge, and the execution of the ministers." L. 150; C. B. 343.

1. Eligius and Elodia, consanguineous in the third degree, ignorant of the law of the Church, contract marriage in good faith. Moreover, even if they should know the impediment, they cannot seek a dispensation because of the most dreadful persecution already stirred up against the Church for a long time; whence no recourse to the parish priest, to the bishop, or to the Roman Pontiff can be had. Wherefore they are also compelled to contract marriage clandestinely, notwithstanding the promulgation, in the place, of the Tridentine Decree concerning contracting marriage before the parish priest and witnesses.

Q. 1. What is the force and obligation of an invalidating law? 2. What as to the case?

R. To the first, cf. I. M. 223 seqq. To the second: the marriage of Eligius and Elodia is null. For 1. ignorance of a diriment impediment cannot make valid an act declared null by the legislator by an invalidating law. For an invalidating law directly and in itself regards the common good; and therefore, just as it does not cease in the case of a particular inconvenience and necessity of persons, although that be most grave and this be most grave, so also it does not cease in the case of ignorance and good faith. 2. But although, on account of that most grave and long persecution, by reason indeed of the common good itself, the impediment of clandestinity ceases; for the impossibility of recurring to the parish priest is common to all; nevertheless the other impediment of consanguinity does not cease, because here the inconvenience is altogether particular for some, not common to all. And indeed spouses of this sort can contract marriage with other persons. - G. 122, 124.

2. Among the evangelical workers of the Chinese regions a question arises concerning the cultivation, trade, and use of opium. Some contend that trade in opium is not illicit in itself, because the civil law, established by an unbelieving prince, and prohibiting it with most grave penalties, is penal. And although that law were prohibitive, and obliging in conscience, nevertheless it would not follow from this that its transgression is always a grave sin, since human laws, ordinarily speaking, do not oblige with grave inconvenience. Others, on the contrary, contend that that trade is altogether illicit; for in the Acta S. Sedis the use of opium is declared abuse; and therefore that trade is trade in a thing altogether illicit. Moreover the civil law prohibiting the trade in opium is moral and prohibitive, since it looks to protecting honorable morals.

Q. 1. What is the nature of a penal law, and from what is it recognized? 2. What as to the case?

R. To the first, cf. I. M. 227 seqq.; Enchir. Mor. N. 84. To the second: the response is clear from the following Instruction of the S. O., 29 Dec. 1891, to which the aforesaid question concerning opium gave occasion.

"1. From the responses given up to this point, if they are rightly understood, it is plainly clear that the Holy See has never disapproved that cultivation, trade, and use of opium which would serve medicine.

"2. It is also clear that in the decrees of the Sacred Congregations, both those which were issued concerning use to be permitted or tolerated, and those concerning abuse to be reproved, there is not an absolute, but a relative force. Namely, they regard the things which were proposed; therefore they are not to be mixed together indiscriminately with each other, but must be referred to the individual cases with their peculiar circumstances. If this is done, it will easily be found that they agree with themselves continually. Nor will any difficulty be able to arise from the fact that in the Acta S. Sedis sometimes the use of opium, sometimes abuse, is named; for the use which is disapproved is to be held as a true abuse.

"3. Since therefore the Sacred Congregation for propagating the Christian name had already opened its mind in the year 1830 concerning the abuse of which there is question, 'to remove doubts and perplexities of mind which can arise in particular cases,' it judged that an instruction should be drawn up, in which in a matter of such great moment it wished great account to be had both of the civil law forbidding the trade in opium, and of the most grave evils which from the abuse of opium are accustomed to emanate in those regions."

It decreed that this instruction be transmitted in the year 1848 to the Vicars Apostolic of Yunnan and Malacca, adding that, the general harm considered, every care had to be applied to extirpating the use of opium. Here the word use, as anyone easily understands, must properly be said to signify abuse. For there was not question of that use for which opium is prepared by nature, but of that which obtains among the Chinese, and which is situated in this, that they chew opium with the teeth, or drink it mixed with alcoholic potions, or draw it in by smoke.

"4. Therefore this Supreme Congregation in the year 1852 indeed declared generally illicit the trade and use of opium, but according as it was being explained, and ordered the Vicars Apostolic to apply every care to uprooting that use and trade. Nor did it judge that it should depart from this decree in the year 1858, although it had been reported by the Vicars Apostolic of Xensi and Hunnan that the civil law forbidding opium no longer existed.

"5. Nor is it to be thought to have departed from this prohibition, although to some it seemed otherwise, in the year 1878. For on account of peculiar and altogether extraordinary circumstances which were being explained, and on account of the suspension for a decade of the civil law forbidding the cultivation of opium in those places which had been devastated by war, and whose inhabitants had been brought to extreme poverty, the Supreme Congregation established only this, that the sacraments should not be denied to those Christian faithful who, in the Province of Keuy-Thceou, during that ten years' space permitted by the civil law, had cultivated opium solely for relieving poverty. And when it had been asked: whether those who, from inveterate habit, cannot bid farewell to opium except with danger of death, or grave detriment, can be admitted (to the sacraments), and whether opium can be taken by way of medicine, because danger from the habit is imminent, the response was: Affirmatively, yet with diligence and cautions having been placed, so that the abuse of opium, and the evil effects arising from abuse of this sort, may be avoided. By this response, which regards an exception, everyone sees that the general decrees by which the abuse of opium is reproved are by no means weakened; and this was clearly declared Wednesday, 4 July 1883.

"6. From all these things it follows: 1. that the cultivation of opium is indeed not illicit in itself, but in the Chinese regions, on account of abuses to which from long experience it is certainly established to be liable, it becomes illicit, and therefore generally must be forbidden to the Christian faithful; 2. nor otherwise must judgment be made concerning trade, which, although in itself it is not evil, nevertheless becomes evil on account of the grave abuses flowing from it for the most part and almost universally, and on account of the laws forbidding it; and therefore it is to be prohibited not only to those who exercise it directly, but also to those who favor it, namely who knowingly lend money at interest to merchants of opium, or lease fields for the cultivation of opium; 3. that the use of opium which is said to obtain in China has been held by the Church as a detestable abuse and declared illicit; 4. that use of the same can be permitted to those who have accustomed themselves to it, and who cannot altogether abstain from it without danger of death or grave detriment; likewise that opium can be taken by way of medicine, yet by this law, that the mode and quantity be observed which by no means exceed the medicinal measure, and with due diligence and cautions applied, so that abuse of the same and the evil effects flowing from it may be prevented." Acta S. Sed., v. 24, p. 506 seqq.

3. Osius, a beneficed cleric, at the beginning of navigation threw his breviary into the sea. Hence it happened that in the long voyage he could not recite the breviary. But he immediately repented of the deed. Must he restore the fruits?

R. He who has offended is not exempted from penalty from the fact that he has repented of the delict, whether after the effect has already followed, or even before the effect has followed, because penalties are for the example of others and for protecting the common good. Hence Osius, although he immediately did penance for his sin, is held to restitution of the fruits. Nevertheless, because in the proposed case the delict has a successive tract, D'Annibale, 3rd ed., p. 1, n. 312, note 76, judges that Osius is not to be disturbed. But this opinion is difficult, because Osius omits the office, and that omission is voluntary and culpable in the cause, and therefore in that successive tract it is always culpable in the cause, and consequently always liable to penalty. Wherefore it does not appear how he can make the fruits his own.

4. Elpidius vowed to fast if hereafter he should play at dice. But behold, from a contracted habit, wholly forgetful of the vow, he plays at dice. Is he held to the fast?

R. The vow, in the case, is a penal vow, and is a certain quasi-conventional penalty. Moreover, whether the nature of penalty be considered, or the intention of the one vowing be considered, it is clear that the penalty cannot be inflicted if no fault was present, and that Elpidius certainly did not wish to inflict that penalty on himself otherwise than if, namely, knowingly and prudently, he gave his attention to the game. Therefore Elpidius is not held to the fast.

135. • Invalidating law is that which establishes that some act is invalid from the beginning, or is to be invalidated by the sentence of a judge. Hence there are laws invalidating by the fact itself, while others invalidate only after sentence. Some invalidate absolutely, and others conditionally, namely if the required conditions are lacking. Moreover some immediately invalidate the act itself, as the impediment of matrimony because of clandestinity; and others mediately, by rendering the persons themselves incapable, as the impediment of consanguinity.

Principles. - I. Every legislator can establish invalidating laws; the reason is that this is required for the common good; otherwise frauds and dangers of human society could not sufficiently be driven away. - Suarez.

II. Laws which establish that acts can be rescinded do not invalidate them before the sentence of a judge, as is clear from the terms, and consequently before that sentence they do not obtain force.

III. But one must stand by the sentence of a judge invalidating in all those things which intrinsically arise from the invalidation, because obedience must be given to the authority commanding. - Suarez.

136. Questions. - QUESTION 1. Whether an invalidating law obliges in conscience to avoiding the act?

I answer: Yes, if it is at the same time invalidating and prohibiting, as are laws establishing impediments of matrimony; otherwise, if it is only invalidating, because then the end of the law is sufficiently obtained by the invalidation alone of the act, as in several civil contracts. - Reuter, no. 232.

QUESTION 2. Whether invincible ignorance impedes the effect of invalidation?

I answer: No, of itself, because ignorance does not supply the defect of a thing essentially required, nor does it remove the grave inconveniences which would follow if the law did not invalidate in every case. Thus a woman violated by an unknown man invalidly marries the brother of that same man, notwithstanding invincible ignorance of the impediment of affinity.

Yet make exception if the law invalidates only as penalty for and hatred of a delict; because then it intends to punish malice alone, and consequently, when the cause ceases, the effect also ought to cease. - Suarez, - Lacroix, etc.

QUESTION 3. Whether an invalidating law invalidates, notwithstanding a very grave inconvenience?

I answer: Yes, unless the matter is one of common harm; the reason is that an invalidating law affects the act rather than the person, nor is it a matter of an obligation of conscience, but of the common good; otherwise men would more easily feign inconveniences for themselves, and the law would lose its whole strength. Hence a marriage contracted with a blood relative, even from fear of death, without dispensation, would not be valid. - Lacroix.

280. (A) Notion and species. (a) An irritant law is called one which establishes that some act or contract, on account of some defect, is by that very fact invalid or rescindable; and thus it is distinguished from a prohibiting law, which of itself indeed makes an act illicit, but not invalid. - A law closely related to an irritant law is an inhabilitating law, which decrees that such a person is incapable for this or that act; whence irritation directly regards the act, and inability directly regards the person; but in practice and morally speaking, both produce the same effects.

(b) From the very notion handed down, a law can irritate in two ways: by the law itself, when the act is rendered null from the beginning, even before the sentence of the judge; - by the sentence of the judge, when the act is valid until it is rescinded by the judge: wherefore, before the sentence of the judge, it is indeed rescindable, but not invalid. - From another head, irritation is called penal, when it is enacted on account of some delict; non-penal, when, on account of the public good, it irritates acts lacking a certain condition.

281. (B) Effects of an irritant law in the external forum. (a) If the act is only rescindable, it is deservedly held as valid until it is rescinded by the judge; for to this pertains what is said in canon law:¹ "Since many things are tolerated through patience, which, if they had been brought into judgment, with justice requiring it, ought not to be tolerated." (b) If the act is null by the law itself, it is held as invalid from the beginning, and the sentence of the judge, if it supervenes, does not properly irritate it, but declares that it was invalid from the beginning.

¹ Decretal., cap. Cum jamdudum, 18, de Praebendis (lib. III, tit. 5).

282. (C) Effects of an irritant law in the internal forum. When there is question of a rescindable act, there is no difficulty: for it is valid in the forum of conscience until it is rescinded. But very grave difficulties and controversies are present when there is question of an act null by the law itself. We explain those things which seem to us more probable: -

(a) If the question is concerning those acts or contracts which have being and receive force from canon law alone (as, for example, religious profession), they must be held as invalid, even in the internal forum, before any declaratory sentence of a judge; since they do not have being and force from natural law, but only from canon law, - and moreover canon law in the case irritates them, they have no existence or force.

(b) If the question is concerning those acts or contracts which receive being and force from natural law, the difficulty increases: 1) if the canonical legislator clearly manifests his will of irritating the act even in the internal forum, this must be wholly stood by: for he is endowed with the power of doing this; 2) if there is question of a matrimonial contract, the same must be said; the reason is because if that contract is once admitted as valid, thereafter it can be rescinded by no human power, even ecclesiastical, on account of the indissolubility of the matrimonial bond established by divine right; 3) but if there is question of other acts or contracts (for example, alienation of ecclesiastical goods), and nothing else is lacking for their validity except a certain solemnity prescribed by canon law, certain canonists of great name probably hold that the contract can be held as valid in the forum of conscience, until it is declared null by a judge; for it seems too hard that someone ought to despoil himself of a good justly acquired (considered according to natural right), before the declaratory sentence of a judge, on account of the defect of some solemnity; whence, in this case, it can be said that the act is not valid canonically, but retains its natural force until the contrary is authentically declared.

345. To civil authority belongs the power of irritating certain acts of subjects, which otherwise by the right of nature are valid. Theologians commonly admit this against a few; and deservedly. For supreme and independent authority, such as civil society is, can establish, in its own forum, whatever is required for promoting the public good; but the public good sometimes demands that certain acts and contracts, although valid by the right of nature, be held as null; such are, for example, certain contracts entered into by minors, or from fear, or without legal forms. - Moreover sometimes the public good requires that those contracts be held invalid not only in the external forum and after the sentence of the judge, but also in the forum of conscience and before the declaratory sentence: for otherwise lawsuits would be multiplied, and the poor, who cannot pay the expenses of lawsuits, would easily be oppressed by the more powerful. Therefore civil law can, for grave reasons, irritate certain acts in conscience, even before the sentence of the judge.

Yet, since we are dealing with odious matter, a law wholly irritating is not easily presumed, but must be certainly proved; therefore if it can reasonably be understood of mere prohibition, the more benign interpretation is to be followed; likewise, if in a particular case it is doubted whether the legislator willed to irritate some act before the intervention of the judge, and moreover the public good does not evidently require the rescission of the act, the sentence of the judge can be awaited.¹

¹ We explain this more fully in the Treatise on the Virtue of Justice, n. 617-619.

The reason for the distinction between this case and the other (n. 344) is because a law determinative of property is favorable matter, while a law irritating an act valid of itself is something odious.

Preliminary Note. Not only human laws, but also the natural and positive-divine law can be invalidating laws. Thus, for example, diriment impediments of marriage which are of natural right (force, consanguinity of the direct line in the first degree, etc.) or of positive-divine right (the bond) are true invalidating laws. Since, however, these laws produce their invalidating effect immediately and always, without any man being able to dispense, they do not need special explanation. Therefore discussion will be about only human invalidating laws.

213. Notion. A human invalidating law is called that which establishes that some act or contract (indeed valid from its own nature) is invalid or at least rescindable on account of some determined defect.¹²⁰

Therefore an invalidating law differs from a prohibiting law. For a prohibiting law renders the opposed acts illicit, while an invalidating law renders such acts juridically invalid or at least to be invalidated. Thus at least in itself, for in practice several invalidating laws are at the same time prohibiting. - The reason why the legislator sometimes makes invalidating laws is the common good. For the liberty of subjects would be too much restricted if the legislator wished to make no laws except those truly preceptive and directly obliging in conscience. And therefore he commands some acts, prohibits others, and only invalidates others. Nevertheless such laws are very effective, since they render the opposed acts altogether invalid. Invalidating laws are chiefly concerned with diverse contracts, for example, with sponsal, matrimonial contracts, with religious profession, with testaments, alienation of ecclesiastical goods, ecclesiastical benefices, etc.

An invalidating law can annul an act in two ways: 1. by the law itself, when, namely, the act is rendered null from the beginning; thus, for example, all diriment impediments of marriage are invalidating laws by the law itself; 2. after the sentence of a judge, if, namely, the act has force until it is rescinded by the judge. In the first case the act is called and is invalid; but in the second case the act is indeed valid, but rescindable.

Sometimes the law is not merely invalidating, but at the same time also penal, that is, it invalidates some act as a penalty for some delict committed; thus, for example, a beneficiary not reciting the Divine Office does not acquire the fruits of the benefice, and if he has acquired them, the act of acquisition is invalid and the beneficiary is held to restore the fruits received. - In practice it is not always easy to discern whether some invalidating law is at the same time, and indeed principally, penal or not, as the controversy concerning the impediment of crime shows. For several theologians before the new Code thought that this impediment was principally a penal law and therefore was not incurred by the ignorant. On the contrary, canonists commonly and rightly taught that this impediment was principally an invalidating law and therefore the ignorant are not excused;¹²¹ which doctrine is now certain.

An invalidating law indeed is akin to an inhabilitating law, but it is not altogether the same. For an inhabilitating law directly regards the person, whom it renders incapable of carrying out certain acts; thus, for example, a woman is by divine right incapable of receiving orders; a religious after solemn profession is altogether incapable of any act of ownership. But an invalidating law directly regards the act (which it annuls), and only indirectly the acting person. Some authors,¹²² however, think that an inhabilitating law is part of an invalidating law.

¹²⁰ Cf. Cod. iur. can. c. 11.

¹²¹ Cf. below the treatise on marriage III, n. 860.

¹²² Thus Bouquillon, Theol. mor. fund. n. 148.

214. Effect of an invalidating law in the external forum. A merely invalidating law always and everywhere invalidates an act placed against it, without any regard being had to good intention, or fear, or ignorance¹²³ in the agent,¹²⁴ or to epikeia.¹²⁵ Therefore, for example, all diriment impediments (even the impediment of crime) really do dirimently impede marriage, even if someone has contracted marriage with good intention or with ignorance of the impediment.¹²⁶ If an invalidating law annuls an act by the law itself, the act from the beginning has no legal effect in the external forum; but if the invalidating law declares the act only rescindable, the act is held valid from the beginning and the effect of annulment does not begin except after the declaration of the competent authority, as has already been said.

¹²³ Cod. iur. can. c. 16, § 1.

¹²⁴ Suarez (De leg. l. 5, c. 22, n. 7 sqq.) calls this opinion indubitable.

¹²⁵ Cf. Suarez, l. c., c. 23 and D'Annibale, Summul. I, 216.

¹²⁶ Therefore an invalidating law does not cease even in a case of very grave private inconvenience. Thus the far truer opinion. But an invalidating law certainly ceases if otherwise a very grave common inconvenience would arise.

215. Effect of an invalidating law in the internal forum. 1. Merely invalidating civil laws do not seem to cause a direct obligation in the internal forum, unless something else is certainly established from the matter or from the words of the law. The reason is that although the civil legislator certainly has the power of making invalidating laws even for the forum of conscience, nevertheless ordinarily he is rightly presumed not to impose such an obligation in conscience, since he is able to obtain the end of his law by civil invalidation alone (and not moral invalidation).¹²⁷ But after a sentence has been given according to invalidating civil laws, there also arises a moral invalidation, that is, an obligation in conscience; and this not only from obedience or legal justice, but sometimes also from true commutative justice, namely if there is question of the transfer of ownership.¹²⁸ Hence, for example, if someone has received certain goods from an inform testament, which is invalid before a civil judge because of defect of the required form, he can retain them until the civil judge has determined the contrary. Conversely, an heir who knows that some testament is invalid because of defect of legal form can reject it and not observe its provisions. Only testaments made for pious causes are excepted, which more probably are considered in the internal forum as valid, although they lack the legal forms of civil law. Cf. below II, n. 277 and Act. Ap. Sed. XX 196.

2. Invalidating ecclesiastical laws, if they establish only that an act is rescindable, leave that act valid in the internal forum until it is invalidated by legitimate authority; but if they establish that the act is invalid by the fact itself, they render this act invalid in both forums and also annul its obligation in the internal forum. The reason is that the words of a law must be interpreted as they sound, unless otherwise some absurdity or irrational inconvenience would arise. But invalidating ecclesiastical laws simply and without any restriction annul certain acts. Therefore those acts are to be considered invalid in both forums, namely in the internal and external forum, unless from this there would follow some certain thing contrary to reason. Moreover in no ecclesiastical law is such an inconvenience found. Therefore, as a general rule, it can rightly and deservedly be held: An ecclesiastical law which invalidates some act by the law itself takes away from it every value and obligation in both the internal and the external forum. Thus the more common and truer opinion. Hence, for example, espousals which have not been entered into according to the form prescribed by law are wholly invalid and therefore produce no obligation either in the external forum or in the internal forum (unless, however, from the dissolution of the espousals unjust material damage has been caused).¹²⁹

Note. "Laws, even invalidating and inhabilitating laws, do not bind in a doubt of law; but in a doubt of fact the Ordinary can dispense in them, provided there is question of laws in which the Roman Pontiff is wont to dispense." Thus the Code of Canon Law c. 15. Wherefore a bishop can dispense, for example, in all doubtful impediments of marriage, if the Pope is wont to dispense.

¹²⁷ Cf. van Gestel, De iust. et lege civili LXV and LXXXVI.

¹²⁸ Cf. Soto, De iust. l. 4, q. 5, a. 3; Sylvius, Com. in II-II, q. 66, a. 2, quaer. 5, concl. 6.

¹²⁹ Cf. Cod. iur. can. c. 1017, § 1. I have treated specially of this case in Linzer Theol. prakt. Quartalschr. 1914, 140-145.

352. An invalidating law is that which renders some act invalid or null. To it is reduced, as a species to a genus, an inhabilitating law, which decrees that some person is unfit for this or that act; whence invalidation directly regards the act, and inhabilitating directly regards the person; nevertheless in practice and morally speaking both return to the same thing, because the act is always rendered invalid either immediately or mediately.

Invalidating law differs: a) from prohibiting law, because this renders the prohibited act illicit, not invalid; whence there are distinguished a merely prohibiting law (e.g., an impeding impediment of marriage), a merely invalidating law which only invalidates the act and does not prohibit it (as can happen if a superior invalidates the vow of a religious), and a law at once prohibiting and invalidating (e.g., a diriment impediment of marriage);

b) from penal law strictly so called, because this establishes a penalty on account of fault; whence there are distinguished a penal invalidating law, which invalidates in penalty for a delict (e.g., formerly one ordained without a certain title, and still today a beneficed person omitting the office receives fruits invalidly), and a directive invalidating law, which invalidates on account of the common good (e.g., clandestine marriage) or on account of the protection of certain persons (e.g., religious profession before age sixteen, a promise extorted by fear, alienation of goods of the Church without the consent of the chapter): then invalidation is a penalty improperly so called;

c) from a permitting law, which does not acknowledge the act or allows it to be neglected by others, or from the simple absence of law by which an act is not protected in the external forum (invalidation improperly so called).

Moreover, just as penal law, so invalidating law has effects by the fact itself or by the sentence of a judge: for sometimes by the law itself or by right the act is most fully invalidated, as happens for impediments of marriage, and for simoniacal conferral of a benefice (can. 729); sometimes it is invalidated by law in such a way that for the full effect a declaratory sentence of a judge is required, e.g., an election made if more than a third part of the electors were not legitimately convoked (can. 162, § 3), a renunciation made from grave fear unjustly inflicted, from fraud or substantial error, or simoniacally (can. 185); cf. also can. 1679, 2238: in which case the force of the sentence is drawn back to the moment at which the act was done and it is null from the beginning (can. 1679-1682); sometimes it is not invalidated by law, but by a decretory or annulling sentence of a judge, because the law establishes that the act can be invalidated by competent authority, or rescinded, as acts proceeding from grave fear or fraud (can. 103, § 2; 104; 153; 162, § 2; 1317, § 2; 1684, § 1; 1689): then it is invalid from the moment of the sentence.

The sentence of the judge, and consequently annulment, can be impeded by licit means; indeed the act remains valid even if the sentence is impeded by illicit means. But if this is done by unjust means, there can arise an obligation of repairing damage.

353. Principles. I. An invalidating law obligates judges to hold the act as invalid or to invalidate it; others, not to omit the act, but to hold it as invalid or not to insist upon an invalid act.

II. A penal invalidating law enacted against fault does not obligate nor have effect if fault is lacking: for it is founded on a presumption of a particular fact; whence invincible ignorance excuses from it, because the penalty was established on account of fault and supposes it. Thus if a beneficed person, from inculpable forgetfulness, omits, e.g., vespers of the office and compline, he makes the fruits his own.

III. An invalidating law which is also directive always obligates and has effect even if fault is lacking or if the law is unknown: for it is founded on a presumption of common danger, and the cause of annulment subsists even in a case of ignorance, namely, the common good. Hence canon 16, § 1: "No ignorance of invalidating or inhabilitating laws excuses from them, unless something else is expressly said."

Per accidens, however, the obligation ceases:

a) on account of common necessity: thus the impediment of clandestinity ceases if the pastor or Ordinary or delegated priest who would assist at the marriage cannot be approached, and it is foreseen that this condition of affairs will last for a month (can. 1098);

b) also on account of private necessity in a more urgent case, if the Church is known (or can be presumed) to dispense, as happens for almost all impediments of ecclesiastical right, both when danger of death is urgent and if, with all things prepared for the nuptials, the marriage cannot be deferred without probable danger of grave evil (can. 1043-1045; 1098).

354. Observations.

1. Concerning invalidating laws, let canon 11 be noted: "Those laws only are to be held invalidating or inhabilitating by which it is expressly or equivalently established either that the act is null or that the person is inhabilis" (that is, by equivalent words, e.g., by prescribing the necessary form of an act or substantial conditions).

2. Hence invalidation is not per se presumed to be annexed to a prohibiting law, but is to be proved per se and certainly. Whence canon 15: "Laws, even invalidating and inhabilitating laws, do not urge in doubt of right" (founded and reasonable).

3. On the contrary, in order that an invalidating law also be prohibiting, an express declaration is required, unless the act is base in itself or illicit from elsewhere.

An invalidating law is that which establishes that some act is invalid from the beginning, or is to be invalidated by the sentence of a judge; and therefore some laws invalidate by the fact itself, while others do so only after sentence. Besides, some are invalidating absolutely, and others conditionally, namely if the required conditions are lacking. Finally, some immediately invalidate the act itself, and others mediately, by rendering the persons themselves incapable. Cf. however below, n. 928.

I Say 1st. Every legislator can establish invalidating laws. The reason is that this is required for the common good; for otherwise frauds and dangers of human society could not be sufficiently warded off.

I say 2nd. Laws which establish that acts can be rescinded do not invalidate them before the sentence of a judge, as is clear from the terms, and therefore before the sentence of the same judge they do not obtain force. But when the sentence has been rendered, one must altogether stand by it in all those things which intrinsically arise from the invalidation, because the commanding authority must be obeyed.

I say 3rd. In canon law only those laws are to be held as invalidating or inhabilitating by which either that an act is null or that a person is incapable is expressly or equivalently established (Can. 11). But these do not press in a doubt of law; and in a doubt of fact they can be dispensed from by the Ordinary. - Cf. Can. 15.

Question 1. Does an invalidating law oblige in conscience to avoiding the act?

Response. Affirmatively, if it is at the same time invalidating and prohibiting, as are laws establishing impediments of marriage; otherwise, if it is invalidating only, because then the end of the law is sufficiently obtained by the sole invalidation of the act, as in many civil contracts. Cf. Reuter, n. 232.

Question 2. Does invincible ignorance impede the effect of invalidation?

Response. Negatively, because ignorance does not supply the defect of a thing essentially required, nor does it remove the grave inconveniences which would follow if the law did not invalidate in every case. As is clear from the Code:

§ 1. No ignorance of invalidating or inhabilitating laws excuses from the same, unless something else is expressly said (Can. 16). And also: Ignorance of irregularities, whether from delict or from defect, and of impediments does not excuse from the same (Can. 988). Cf. Sanchez, de Matrim., lib. 9, disp. 32, n. 17.

Question 3. Does an invalidating law invalidate, notwithstanding a very grave inconvenience?

Response. Affirmatively, unless it is a question of common harm; the reason is both because an invalidating law affects the act rather than the person, and because if otherwise were said, men would more easily imagine inconveniences for themselves, and the law would lose its whole force.