Penal laws

We saw in Chapter VI that if the legislator chooses, and if he thinks it will be for the public good, he may intend a positive law made by him to bind, not under pain of committing sin by its mere violation, but only under pain of being obliged to pay the penalty imposed. Such a law is, as we saw, called by theologians a penal law. Besides the rules and constitutions of certain religious orders, ecclesiastical legislation does not afford many examples of penal laws. As a rule, ecclesiastical laws are either moral laws or mixed; they forbid or command an action under pain of sin, and frequently they impose a penalty on transgressors.

It may be asked whether ignorance excuses from the penalty imposed by a law. This question is now settled by Canon 2229.

Sec. i. Affected ignorance, whether of a law or of a penalty only, excuses from no penalties latae sententiae.

Sec. ii. If a law has the words, shall have presumed, dared, knowingly, studiously, rashly, designedly done it, or other similar phrases which require full knowledge and deliberation, any diminution of imputability whether on the part of the intellect, or of the will, exempts from penalties latae sententiae.

Sec. iii. If a law has not those words, ignorance of the law, or even of the penalty alone, if it were crass or supine, exempts from no penalty latae sententiae, if it were not crass or supine it excuses from medicinal penalties, but not from vindictive penalties latae sententiae.

Some penalties are by the will of the legislator incurred by the very fact of committing the crime to which the penalty is attached; others require the sentence of the judge. Penalties which require some action on the part of the delinquent, and especially if deprivation of office is annexed to it, as a rule require the sentence of a judge; the guilty party cannot be expected to punish himself.

Vol. I, Bk. III, Ch. X, Section V. Civil or Municipal Law

A very probable opinion of long standing in England maintains that merely positive laws are penal, and do not bind under sin except to submit to the penalty in case of violation, and if it be imposed. Of course, it is well that all subjects should loyally obey all the just laws of their country, and good citizens will make a point of doing so; but in moral theology we are concerned with the question of sin, and it is probable that one who violates a positive law of England does not commit sin thereby if he be prepared to submit to the penalty, if imposed. This is the teaching of Blackstone, and although other views concerning legal obligation have become fashionable since he wrote, his opinion would seem not to be materially affected thereby. According to Austin, the chance of incurring the evil imposed by the legislator on those who transgress his laws is the only possible obligation of law—a doctrine which would make all laws penal, and nothing else but penal. The idealist school does not accept Austin’s views, but its only conception of moral obligation is that it is self-imposed; it denies that moral obligation is or can be imposed by a legislator.¹ It is true that if the legislator wished to impose a strict and perfect obligation by positive law, the subject would be bound under sin to conform to it, but the English legislature cannot be said to do this, as the common opinion in the country, on one ground or another, is that a moral obligation under pain of sin is not imposed by positive law.

¹ 'T’. H. Green, Lectures on the Principles of Political Obligation,

Wouters, Manual of Moral Theology

Ludovicus Wouters, C.SS.R. — 5 passages

Vol. I, Bk. I, Tr. II, Diss. II, Pt. I, Sect. III, Ch. I, Art. VII, § II, Point V. On Penal Law

n. 160.

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

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

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

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

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

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

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

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

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

¹ Wernz, Ius Decr., I, n. 112.

² Matt. 22:21.

³ Rom. 13:1, 2, 5-7.

⁴ 1 Pet. 2:13-16.

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

Civil laws are to be judged in this way:

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

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

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

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

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

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

A mixed penal law obliges both to placing or omitting the act and, once the things to be posited have been posited, to undergoing the penalty imposed because of the transgression (St. Alphonsus, I, 145, 147).
A purely penal law of itself does not oblige to the act; but it does oblige to a justly inflicted penalty. I said:

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

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

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

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

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

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

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

Bucceroni, Institutions of Moral Theology

Gennaro Bucceroni, S.J. — 9 passages

Vol. I, On Laws, V. On Invalidating and Penal Law

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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.

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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.

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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.

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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.

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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.

n. 228.

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."

n. 229.

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.

n. 230.

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.

n. 231.

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.

Bucceroni, Cases of Conscience

Gennaro Bucceroni, S.J. — 17 passages

18. On Invalidating and Penal Law

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.

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.

n. 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?

n. 3.

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.

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.

Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)

Jean-Pierre Gury, S.J.; notes by Antonio Ballerini, S.J. — 11 passages

Vol. I, Treatise On Laws, Part Two. On the Principal…, Ch. III, Article I. On Penal Law

- Penal law is that which does not oblige to an act or to an omission except under temporal penalty, that is, to accepting the penalty as just.

Principles. - I. A purely penal law cannot be given, so that it would oblige in no way in conscience, because every precept of a Superior must oblige in some way; otherwise it would not be a true precept. - Thus all.

II. But a merely penal law can be given, obliging in conscience to one or the other, namely either to fulfilling the law, or to undergoing the penalty, if the law has been violated. The reason is, 1. because for the essence of law it suffices that it impose some obligation in conscience, nor is it necessary that the obligation determinately regard an act or omission; 2. because law has force only from the will of the legislator: but the legislator can oblige to the penalty alone, if this suffices for procuring the common good. - Thus very commonly the Theologians with St. Lig., no. 143. - Suarez, - Salmant., etc.

But the question whether any merely penal laws are given can by no means be resolved speculatively, since they can be given somewhere, and not elsewhere. Therefore only the learned and skilled in their own region or nation can judge about this. Generally, a few can be admitted, and in matters of lesser moment. But not a few Theologians contend that laws are merely penal which regard certain taxes imposed on merchandise which is carried across, and which are called Vectigalia. We shall speak of these toward the end in the Treatise on Restitution.

Questions. - QUESTION 1. How can merely penal laws be discerned?

I answer: Chiefly from the common sense of the Doctors, and from the persuasion and practice of subjects, especially the God-fearing.

QUESTION 2. Whether ignorance excuses from a penalty established by law?

I answer: 1. Yes, for the internal forum, if ignorance excuses from fault; but in the external forum it does not excuse, insofar as it is never licit to resist public authority.

I answer: 2. No, if ignorance does not excuse from fault ¹, or is concerned with the penalty alone ². - St. Lig., no. 169.

¹ Understand grave fault; for when ignorance does not exceed light fault, the Doctors commonly teach that it excuses from the penalty.

² Understand with St. Alphonsus (book 1, no. 169) the ordinary penalty, not an extraordinary and exorbitant one. Concerning this matter the same St. Alphonsus says (book 7, no. 351): Although knowledge of the penalty is not required in order that it be incurred, when the penalty is ordinary, and such that from the nature of the crime itself it can in some way be foreseen, since the natural light itself dictates that evil is to be punished according to its nature; nevertheless knowledge of the penalty is required when it is extraordinary and exorbitant, so that according to the nature of the thing it cannot be foreseen even confusedly: and of this kind indeed is the penalty of irregularity. The same St. Alphonsus (book 6, no. 1074) calls this opinion most probable.

QUESTION 3. Whether any laws of the Church are merely penal?

I answer: No, if the rules of many religious Orders are excepted. For all penalties inflicted by Canon Law suppose fault, and most often grave fault. The reason is that penal laws must at least be obligatory disjunctively, or at least to undergoing the penalty; but since the Church lacks the means for coercing by which Princes enjoy ³, it is necessary that it always oblige in conscience. Nor should you say that the Church has censures for inflicting punishment on Christians; for from the usage of the Church, censures are brought only against the guilty of grave fault ⁴ and against the contumacious, because censures are extraordinary penalties which the Church, a pious mother, inflicts only when compelled by necessity. - Reuter, no. 126. - See Cases, no. 125.

³ This is not to be accepted as if the Church either lacked coercive power, or could not use temporal or corporal penalties for coercing her subjects. See Institutions of Ecclesiastical Public Law, by Fr. Camillus Tarquini, S.J., book I, sect. 2, art. 1. Moreover this argument of the Author does not seem very firm; and hence some of the Doctors judge that merely penal laws have a place even in ecclesiastical decrees.

⁴ Understand this especially of excommunication. For certain lighter censures can and usually are inflicted even for venial fault. See St. Alphonsus, book 7, no. 30.

Tanquerey

Adolphe Tanquerey, S.S. — 3 passages

Vol. II, Fundamental Moral Theology…, On Laws

n. 346.

III. Concerning the Obligation of Penal Law.

1. All concede that by civil law penalties can be decreed against delinquents; for otherwise laws would be violated by many with impunity; wherefore those who are not inclined to good by persuasion must be turned away from evil by penalties. - Yet penalty supposes fault, and ought to be proportioned to it: otherwise it would not be equitable. - Yet, in the external forum, fault which is called juridical is admitted, namely omission of that diligence which is required by law, whatever may be the case concerning internal guilt. Whence it can happen that someone is held guilty juridically, even if before God he is innocent, because of inadvertence: in which case civil law, imposing the burden of repairing damage, does not oblige except after the sentence of the judge.² - Moreover a penal law indeed obliges ministers of justice to prosecute the guilty, and judges to inflict penalties on those who have been juridically proved guilty; but it does not oblige the guilty themselves to undergo the penalty before the sentence of the judge: for this would be too odious.

² We declare the matter in the Treatise on the Virtue of Justice, n. 474-476.

n. 347.

1. But here it is asked whether there are merely penal laws, that is, laws which obligate disjunctively either to placing or omitting the act, or to undergoing the penalty inflicted upon violators of the law. It is commonly answered affirmatively; for, when there is question of things useful to the common good, but not necessary, some coercion is very expedient, and moreover it seems less opportune to command or prohibit the thing under penalty of sin; wherefore the legislator sometimes sanctions his law by a fine or another penalty, without nevertheless intending that violators incur some guilt of fault; thus many think that the law which prohibits hunting without a special license (permis de chasse) is merely penal. - Yet the general principle is that civil laws are not merely penal, but generally oblige in conscience, unless the contrary is proved. Whence, in particular cases, for judging whether a law is merely penal or not, attention must be given to the will of the legislator, insofar as it can be discerned from his declaration, from the nature of the law and penalty, and from other adjuncts. - We treat specifically of the law of taxes in the Treatise on the Virtue of Justice, n. 590-598.

Vol. I, Part First: On the First P…, Tr. II, Diss. II, Ch. IV, Art. I, § 2. On the Obligation of Penal Law · Vol. I, Part First: On the First P…, Tr. II, Diss. II, Ch. IV, Art. I, § 3. On the Obligation of an Invalidating Law

Corollary. From what has been said it follows that those err who think little of equitable civil laws, and, without grave reason, violate them: for thus they contradict Christ, who said:¹ "Render therefore the things that are Caesar's to Caesar, and the things that are God's to God"; they contradict the Apostles, who command obedience to superiors even difficult ones; they contradict the earliest Fathers and Christians, who did not hesitate to submit themselves to the just laws of the empire. And indeed Catholics ought to furnish example in all things, even in the observance of civil laws.

¹ Matt., XXII, 21.

But if some civil law is unjust (which is not presumed, but must be proved by valid arguments), it does not oblige in conscience, because it is not an ordination of reason, and therefore is not law. Indeed, in a democratic society, in which citizens in some way participate in legislative power, the duty lies upon honorable men of striving with all their powers to procure the abrogation of an unjust law. For this those associations of citizens are especially useful which, taking care for public matters, carefully see to it that those who favor unjust laws are not elected to the legislative Assembly.

"Blessed are the undefiled in the way, who walk in the law of the Lord."² All indeed desire beatitude, but very many do not know how one comes to it. The Psalmist shows them the way: the undefiled or perfect, and therefore blessed, are those who faithfully keep the law of the Lord: for by fulfilling the law, whether inscribed in hearts, or divinely revealed, or promulgated by legitimate authority, they tend with unoffending foot toward God Himself, the fountain of perfection and beatitude.

² Ps. 118 (Hebr. 119), 1; the entire psalm embraces praises of the divine law; cf. St. Augustine, Commentary on this psalm.

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 4 passages

Vol. I, Pt. I, Tr. III, Ch. III, Art. V, § 1. On Penal Law

n. 209.

209. Notion. A penal law is called that which directly and immediately does not oblige under some moral fault, but only under a penalty. Laws of this kind are judged to be the statutes of several religious institutes, several ordinances of civil government; for example, such a penal law is one which establishes that he who has been caught in an automobile machine running too quickly should pay a monetary fine.

Divisions. Penal laws are usually distinguished as purely and mixedly penal. A purely penal law is not explained in the same way by all. According to D'Annibale¹⁰⁶ and others, a purely penal law is that which disjunctively imposes a precept or a penalty, so that it is placed in our choice either to carry out the thing commanded or to undergo the penalty; for example, modern laws concerning customs duties establish: let no one introduce tobacco into France; but if he does, he must pay such a sum of money. Therefore it is placed in a man's choice either not to introduce tobacco or to pay the imposed tax. - Other authors, such as Billuart,¹⁰⁷ Koch,¹⁰⁸ etc., more rightly say that a purely penal law is one which indeed truly commands something to be done or omitted and threatens a penalty to transgressors of the law, but does not will to bind under moral fault. Therefore only juridical fault from the transgression of such a law is established and then punished. In this sense some modern civil laws are purely penal. Thus in the example given concerning an automobile machine, the legislator does not say: You are free; either excessive speed is to be avoided or the fine is to be paid. On the contrary he establishes: Excessive speed of that machine is absolutely to be avoided on account of the great inconveniences otherwise arising; but if someone nevertheless has been caught carried by excessive speed, let him pay the monetary fine. - A mixedly penal law imposes at the same time a direct truly moral obligation and a temporal penalty upon transgressors. For example, beneficed clerics must say the Divine Office, and if they do not say it, they not only sin, but are also punished by deprivation of benefice goods. - Besides these purely and mixedly penal laws, there exist in addition human laws simply preceptive or merely moral, which induce moral obligation without establishing any temporal penalty, for example, the law of hearing Mass on Sundays and feast days.

Concerning the three species of laws indicated above, it can be said briefly:

1. A purely penal law directly induces only an earthly penalty, juridical fault being supposed.

2. A mixedly penal law directly induces both moral fault and an earthly penalty.

3. A simply preceptive law directly induces only moral fault and eternal penalty.

¹⁰⁶ Summula Theol. mor. I, n. 207. He cites for his opinion the Salmanticenses and Laymann. Antoine gives the same explanation, Theol. mor. univ., de leg. c. 8, q. 1, resp. 2.

¹⁰⁷ De leg. diss. 4, a. 4, § 1. He treats this matter very well.

¹⁰⁸ Lehrb. der Moraltheol. § 26. This author treats several times specially of penal law.

n. 210.

210. Existence of penal laws. All admit that there exist human laws mixedly penal. For the matter is evident. Likewise almost all admit that the human legislator can make purely penal laws. For he who can do more can do less, as the common adage has it. But now the legislator can oblige his subjects to moral fault. Therefore a fortiori he can oblige them only to juridical fault and temporal penalty, so that a multitude of sins may be avoided. Few authors deny the possibility of penal laws,¹⁰⁹ who call those laws which expressly say that they do not oblige to moral fault, but only to undergoing the penalty, statutes or constitutions,¹¹⁰ but not laws properly so called. But there is no leisure to dispute about words alone. Besides, nothing prevents purely penal laws from being laws in the strict sense, since they induce an indirect obligation in conscience and can have all the conditions of a true law; for they are an ordinance of reason for the common good, promulgated by him who has care of the community. - Therefore, the possibility of a purely penal law being admitted, it is further asked: do purely penal laws exist in fact? It is answered:

Proposition. There exist purely penal laws, both civil and ecclesiastical.

a) That purely penal civil laws exist is taught very commonly by authors, and the common estimation of the people bears it. Thus, for example, civil police laws (commonly Polizeiverordnungen) are usually held as purely penal laws. It must be noted, however, that the existence of purely penal laws cannot be deduced from the fact that not a few modern legislators no longer care about the moral obligation of laws in conscience. For then all civil laws of those regions would be purely penal, which is false. For it would be against natural law and against the good of the state if absolutely no human law induced a true and direct moral obligation in conscience, since it is impossible to preserve peaceful order among the people by the threat of temporal penalty alone.

b) There also exist purely penal ecclesiastical laws, although few.

Thus the opinion today is common. Thus, as purely penal laws are held the constitutions of several religious institutes, in which it is expressly established that subjects are obliged to the observance of those constitutions not under moral fault, but only under penalty. - In the Code of Canon Law no merely penal laws are found.

For recognizing penal laws the following criteria can be employed. A law is presumed penal: 1. if the legislator says in express words that the law does not oblige to moral fault, but only to penalty; 2. if such is the common interpretation of the wise; 3. if the law indicates only the penalty, for example, he who deposits filth in this place must pay 10 francs. This last criterion, however, must not be urged too much.

¹⁰⁹ For example, Linsenmann, Koch; cf. A. Koch, Zu der Lehre von den sog. Pönalgesetzen, in Tüb. Theol. Quartalschr. 1900, 204 sqq.; 1902, 574 sqq.

¹¹⁰ Thus Concina, l. c., diss. 5, De leg. hum. c. 4.

n. 211.

211. Obligation of a penal law. Although penal laws do not directly oblige under moral fault, nevertheless moral fault can arise in an indirect way from their transgression in two ways: 1. If their transgression is joined with culpable negligence or with inordinate passion or with contempt.¹¹¹ Thus, for example, although breaking silence prescribed by the constitutions of some religious order is not of itself some moral fault, nevertheless, because this transgression of the constitutions is usually wont to proceed from an inordinate affection, it often constitutes moral fault. - 2. If the transgressor of a purely penal law refuses to accept the just penalty, since this is manifest disobedience, indeed even rebellion against a legitimate superior, which assuredly is a sin. Besides, if the transgressor of the law were not held in conscience even to accept the just penalty, the penal law would lack every moral sanction and would be nothing other than mere external coercion; which seems absurd. Cajetan¹¹² indeed seems to teach the contrary, saying: "Just as he [a religious] does not sin by breaking silence, so he does not sin by omitting the assessed and imposed penalty." - But the reason brought forward for this opinion seems rather specious than solid. Here is the reason: if the transgression in acting, that is, in breaking silence, were excused from fault, but not the omission of the imposed penance, now that law would not be universally penal, but only partially, namely, it would be penal with respect to things to be done; but it would be moral with respect to the penalty to be suffered. To this reason it is answered that no inconvenience follows if a penal law is in fact called partial in this sense, that is, indirectly moral; for we concede that even a purely penal law induces a moral obligation in an indirect way. But if the justly imposed penalty itself did not oblige the transgressor except again under penalty alone, there would be a process to infinity; and the penal law itself would in truth have no sanction; or, as Billuart rightly says:¹¹³ "If there were no obligation either to the act or to the penalty, it would not properly be a law, of the nature of which it is to oblige; but it would be a salutary warning or exhortation or counsel concerning what would be expedient in the community."

¹¹¹ Cf. S. theol. II-II, q. 186, a. 9 ad 1.

¹¹² Commentary on II-II, q. 186, a. 9.

¹¹³ De leg. diss. 4, a. 4, § 1.

n. 212.

212. Here there is usually joined the question: Must the penalty imposed by law upon transgressors be undergone before the sentence of a judge? But there is question not only of penalties of a purely penal law, but also of penalties established by any human law whatever. - Two things must be noted beforehand: 1. In ecclesiastical law penalties ferendae sententiae and latae sententiae are distinguished. Those penalties are called ferendae sententiae which, after the delict has been committed, must be inflicted through some special sentence of a competent judge; for example, a confessor who committed the crime of solicitation to shameful things is to be punished with the penalty of suspension, but not except after the sentence of an ecclesiastical judge. Penalties latae sententiae are those which are incurred by the fact itself without a special sentence of a judge. They are usually expressed by these or similar words: "We prohibit under penalty of excommunication to be incurred by the fact itself." Such a penalty is, for example, excommunication against duelists. - 2. Some penalties are negative, namely, those which prevent the guilty party from acquiring a good; thus irregularity from delict prevents the guilty party from receiving an order. Others are privative, namely, those which deprive the guilty party of some good already possessed, for example, deprivation of office, suspension from the exercise of orders, etc. Finally others are active or positive, namely, those which require a positive action to be performed by the guilty party, for example, a fine to be paid, incarceration, beating, etc. With these things premised, the proposed question can be answered in this way:

1. If there is question of penalties ferendae sententiae, they are never incurred before the special sentence of a competent judge. Thus all teach, and it is plain of itself from the very notion of a penalty ferendae sententiae.

2. If there is question of penalties latae sententiae, then more truly and commonly it is taught that no active penalty must be undergone before the special sentence of a judge, but only certain negative and privative penalties.¹¹⁴ The reason for the first part is that laws must be proportioned to the common weakness of men. Moreover the common weakness of men is so great that among six hundred scarcely one would freely without external coercion inflict an active penalty upon himself. Therefore the mind of the legislator cannot be to compel his subjects to inflict active penalties upon themselves before the sentence of a judge.¹¹⁵ Whence, for example, ecclesiastical law¹¹⁶ commands that a bishop-elect receive consecration within three months from reception of the Apostolic letters; but if he has neglected this for six months, by the law itself he is deprived of his episcopate. From this, however, it does not follow that such a bishop-elect, not yet consecrated after six months, is by the fact itself obliged to resign his office; but the sentence of a superior judge is still required.¹¹⁷ - The reason for the second part is that the words of the law must be explained as they sound, unless either a great inconvenience follows or doctrinal or usual interpretation understands them otherwise. Moreover the words of the law sound clearly and expressly, for example, all duelists are excommunicated by the fact itself. Therefore, since custom and doctors understand these words in the obvious sense, it follows that everyone who has perpetrated a duel is excommunicated by the fact itself, without any further sentence of a judge being necessary.¹¹⁸ Besides, in practice the explanations of doctors in individual matters must be especially attended to. - In every case, after a just sentence of a judge, the prevaricator of the law is held in conscience to accept the inflicted penalty, whether active or privative. At least he cannot licitly resist the power legitimately punishing. But whether one guilty party condemned to death or to prison can flee or even break out of prison will be said below, when there will be discussion of the obligations of the guilty party.

How ignorance excuses from ecclesiastical penalties was said above in n. 47. But it must be noted that from the benignity of the Church the delinquent does not incur any ecclesiastical penalty if his delict was not gravely imputable to him.¹¹⁹

¹¹⁴ Cf. Billuart, De leg. diss. 4, a. 4, § 2.

¹¹⁵ Cf. St. Alphonsus, Theol. mor. l. 1, n. 149.

¹¹⁶ Cod. iur. can. c. 333.

¹¹⁷ The matter is otherwise concerning the received fruits of the benefice, which the bishop must restore even before the sentence of a judge if he has not been consecrated three months after confirmation. Cod. iur. can. c. 2398.

¹¹⁸ Cf. Cod. iur. can. c. 2232, § 1.

¹¹⁹ Cod. iur. can. c. 2218, § 2.

Marc, Institutiones Morales

Clement Marc, C.SS.R. — 11 passages

Vol. I, Part First: On the First P…, Tr. II, Diss. II, Ch. IV, Art. I, § 2. On the Obligation of Penal Law

n. ¶1.

Cf. St. Alphonsus, I, n. 145 ff.; ed. G., I, p. 126; Salmant., tr. 11 de Leg., c. 2, n. 53; Suarez, l. 5, c. 4; D'Annibale, I, n. 207; Lehmkuhl, I, n. 310; Noldin, I, n. 160; Biederlack, Zeitschrift fur kath. Theol., 1899, p. 155 ff.; V. Gestel, de Just., p. 140.

n. ¶181.

DEFINITION. Penal law is that which establishes a penalty against delinquents without prescribing that something be done or omitted.

Therefore it is that law which directly imposes no obligation of doing this or that; yet he who is found delinquent can be punished, and if he is punished by legitimate authority, he must in conscience undergo the penalty as justly imposed; indeed, after sentence, he must execute by himself the imposed penalty, or at least not positively oppose it, if it were too harsh (cf. n. 2311). Therefore from the transgression of penal law there arises a merely juridical fault; from the repudiation of the penalty, a moral fault.

The penalties which can be incurred are manifold: 1. By reason of the thing which constitutes the penalty, there is given a) a positive penalty, which consists in fact, that is, which is completed by the work either of the delinquent, and is called active; or of another, in which case it is named passive, such as confiscation of goods, exile, etc. (I, 148; H. Ap., II, 24); b) a privative penalty, which consists in right, whether it deprives of some right sought or acquired, for example, office, benefice, right of patronage, jurisdiction, etc., or takes away the right or canonical or natural capacity of doing, acquiring, contracting, etc., in which case the penalty is accustomed to be called incapacitating. 2. By reason of origin, there is given a conventional penalty, which, when something, for example, an office or benefice, is given to someone under at least the tacit condition that he do something, but this has not been performed, takes away what was given, as if the condition had not been fulfilled. "Thus, for example, a beneficed cleric not wearing the habit is deprived by the very fact of the privilege of the forum" (I, 149). But such a penalty is either reduced to incapacity, or induces the nature of a pact. 3. By reason of application, there is had a penalty latae sententiae, which is inflicted by the law by the very fact of the admitted fault; and ferendae sententiae, which is established to be inflicted on the guilty by a judge (VII, 6). That judge, who is not the legislator, cannot of himself lessen this at will, unless he has received power also for this (cf. Salmant., de Leg., c. 2, n. 72 ff.). He would sin against distributive justice, and if he increased the penalty, against commutative justice, as is clear.

DIVISION. Penal law is either merely penal or mixed.

Merely penal is that which we defined above. Mixed prescribes or prohibits something, and at the same time decrees a penalty for transgressors. Therefore mixed penal law superadds to the obligation of accepting the penalty a true obligation of doing the thing, or a strict prohibition of omitting the thing, both of which seriously bind conscience (I, 145, 147).

n. ¶182.

PRINCIPLES. I. Nothing prevents merely penal laws from being established. The legislator indeed must promote the common good, and in this consists the strength and tendency of law, that acts which are necessary for the common good be placed, but those which would bring harm to the republic be omitted. Yet from these things it does not follow that the legislator necessarily

and always ought directly to prescribe or prohibit, so that conscience is immediately bound. It suffices that those acts conducing to the common good, considered generally, with the added penalty to be undergone, are sufficiently placed in security, and that the common good is promoted in a general way.

Moreover, it is not of the essence of law that it oblige in conscience to the act; it suffices that in conscience it oblige one to accept the penalty, if it is imposed. And if it is objected that every penalty supposes fault, it is pleasing to answer that every penalty supposes at least juridical fault, according to that saying of St. Thomas (2.2, q. 108, a. 4): Sometimes someone is punished without fault, yet not without cause.

n. ¶183.

II. There are given, in both rights, merely penal laws, and there are given also mixed laws; the former oblige only under penalty, the latter under penalty and under fault.

We are not speaking of natural law, which always obliges in conscience, since it concerns things necessary and intrinsically good or evil.

THE FIRST PART IS PROVED: a) In ecclesiastical right merely penal laws are very rarely found; because ecclesiastical laws intend to procure the common good rather through the sanctification of private persons and the firmness of discipline; whence they directly touch conscience.

Nevertheless, in certain Orders there are given rules and constitutions whose mandates are merely penal, which will be clear from the context or from the constant usage of Superiors. Yet from these things do not infer that all things which are noted in rules are merely penal. For it is evident that ordinances which are referred to vows or evangelical precepts, for example, concerning charity to be fostered, are mixed laws which oblige religious in conscience.

To the rules of religious Orders are referred the constitutions by which seminaries or other colleges are governed. Likewise the statutes of confraternities or pious congregations.

b) As regards civil right, the opinion of some, as being too general, having been rejected, we say that many merely penal laws are given there, for example, laws which impose the payment of indirect taxes, govern hunting, fishing, the cutting of wood, entry into military service; and in general all ordinances whose end can sufficiently be obtained on account of fear of the penalty (cf. n. 879, 904).

Nevertheless, all civil laws which confirm natural or divine law are necessarily mixed, such as laws concerning the sanctification of the Lord's day, concerning contracts, and concerning public offices; laws by which certain rights are attributed to certain persons, for example, to authors in relation to works invented by their own genius (cf. n. 855).

THE SECOND PART IS PROVED: The very definition clearly supports this our affirmation. For it is evident that all things depend on the Legislator, who, just as he can bind even in grave matters only under venial sin, so at his pleasure will be able to prescribe certain things only under penalty, or under fault and penalty (I, 147; H. Ap., II, 16).

From this, however, it does not follow that the transgressor of a mixed law is always, by the fact itself, obliged to undergo the penalty (see n. 184).

HOW, HOWEVER, WILL YOU KNOW THAT LAWS ARE MERELY PENAL?

Resp. 1. From the very words of the law, for example, if it is expressed disjunctively: Do this, or pay this; likewise, if an act is prohibited in this way: He who shall have done this, let him pay the penalty; provided, however, that the nature of the penalty inflicted does not suppose fault, as in excommunication, nor does the good of the republic demand an obligation in conscience. 2. From the declaration of the legislator,¹ namely if he says that he does not will, or did not will, to oblige consciences. 3. From the object of the law, which sufficiently intimates that the ordinance of the superior intends rather an external polity, for example, statutes of pious congregations. 4. From introduced custom; for just as the obligation of law can cease totally, so also it can cease partially, as to the obligation of conscience, when common usage, and especially the usage of the timorous, has been considered. "Hence laws of towns prohibiting under penalty the cutting of wood or herbs, fishing, hunting, do not oblige under fault; for thus custom holds" (I, 145). St. Alphonsus, with the common opinion, thinks the same concerning civil laws which prohibit games of chance and other games (H. Ap., X, n. 217). The timorous think the same concerning laws in which an exorbitant penalty is indicated as to be undergone for delicts not so grave in themselves; for there must be proportion between fault and penalty (III, 616). Cf. Bucceroni, n. 228.

n. ¶184.

IT IS ASKED. What are the obligations of him who ought to undergo a penalty?

Resp. A distinction must be made: 1. If the penalty is ferendae sententiae, he is held to nothing before the sentence of the judge, who will promulgate the mandates of the prince.

If the penalty is latae sententiae, a subdistinction must be made: a) A merely privative penalty, for example, irregularity, excommunication, privation of the right of making one's own fruits one's own, privation of the privileges of the forum, will immediately press upon the guilty person, as the usage of the Church explains, and binds him.

b) A positive penalty, or one to be equated with it, for example, privation of a possessed benefice, of active and passive voice, deposition from office, will hold the guilty person only after a penal sentence, or a sentence declaratory of the crime. The reason for these things is: it is indeed fitting that the Church, through penalties latae sententiae, can keep her own from hidden delicts; but these penalties ought not to be too arduous. A merely privative penalty, which requires no action of the delinquent upon himself, certainly is not judged too arduous; but a positive penalty is reputed too arduous. Hence, if the matter concerns a positive penalty, although the law, in set words, declares that "the penalty is incurred by the fact itself, and without awaiting any declaration of a judge," this must be understood of the declaration of the penalty, but not of the sentence declaratory of the crime, which, even in this case, is necessary so that the penalty can be applied to the guilty person. "This is confirmed from chapter Secundum, de haereticis, in the Sixth, where heretics, although they are deprived by the law itself of their goods, nevertheless are not bound to hand over the goods before sentence, as is contained in the same text" (I, 148; H. Ap., II, n. 25). Cf. also what the Holy Doctor has, III, n. 665; ed. G., II, p. 140; Conf. dir., II, 7; Vecchiotti, l. 3, § 65.

c) If the penalty is conventional, for example, between architects and possessors of houses, a twofold opinion is given. One says that the obligation of undergoing the penalty stands before sentence, because thus all things were ordered from the beginning. The other wills that the determining sentence can be awaited, because the contracting parties are presumed to have contracted under this limitation, namely so that before payment all things may be justly defined. Since each opinion is probable, do not compel those resisting to pay anything before sentence; but once sentence has been given, allow that something be paid only when the other has truly sought it (I, n. 150).

Note. Whether and when ignorance, or doubt, excuses from a penalty enacted by law, we shall say below, n. 219, where we treat of causes excusing from law, and n. 1269, 1273, where we treat of censures.

Vol. I, Part First: On the First P…, Tr. II, Diss. II, Ch. IV, Art. I, § 3. On the Obligation of an Invalidating Law

n. ¶1.

Suarez, de Leg., l. 5, c. 19; De Lugo, de Jure et Just., disp. 22, s. 9, n. 249; Reuter, n. 231.

n. ¶185.

DEFINITION. An invalidating law is that which establishes that some act, otherwise firm and valid, when certain conditions occur, is infirm and invalid, or at least to be invalidated.

It concerns vows, oaths, contracts, benefices, religious profession, matrimony, absolution from censures, delegation of jurisdiction, election of a prelate. Cf. n. 1051.

It differs 1. From a law simply prohibiting; because this makes the act which it forbids illicit indeed, but not invalid. To this point belong the words of right: Many things are prohibited from being done, which, if they shall have been done, obtain the firmness of force (c. 16, de Regular.).

From a law not assisting an act; which neither confirms nor weakens an act, some contract, for example, a game, and leaves such a thing as it was by force of natural right; and therefore obliges a judge only to this, that in the external forum he take no account of that act (Bouquillon, Theol. fund., n. 149).

DIVISION. An invalidating law is distinguished in many ways:

By reason of the thing which is affected, one is directly invalidating, when it pronounces an act absolutely void, for example, a donation made to an incapable person; another is indirectly invalidating, when it rescinds the instrument of an act not duly made, that is, when it prescribes a certain form, or solemnity, to be observed in the act, so that without such form the act does not subsist.
By reason of the obligation induced, one is purely invalidating, another at the same time prohibiting, according as it either only rescinds the act, or at the same time also prohibits it (cf. the things soon to be said, n. 189).
By reason of application, one is invalidating by the fact itself, when by the law itself the act is declared null, so that the sentence of a judge is not required, for example, clandestine marriage; another is ferendae sententiae, when the act is pronounced only to be invalidated through the sentence of a judge, for example, a contract entered upon by a minor to his own detriment.
By reason of the mind of the legislator, one is penal, when it assigns invalidation in hatred of the transgressor, for example, the invalidation of the conferral of a benefice on account of the crime of simony; wherefore if fault was lacking, for example, on account of fear or ignorance, no invalidation is given. Another is purely invalidative, when it is introduced not in hatred of anyone, but on account of the common good, for example, a law invalidating contracts, or testaments, or marriages, when the form prefixed by law has not been observed. Hence this invalidation is called legal, and obtains, even if invincible ignorance is present. Sometimes, however, invalidation is legal and penal at the same time, for example, in the impediment of crime (n. 2038, Question).

n. ¶186.

PRINCIPLES. I. Any supreme legislator can make invalidating laws. The reason is, because this is required for the common good; for otherwise frauds, dangers, and other grave inconveniences could not sufficiently be impeded and driven away from human society. Indeed, as regards the Church, it is of faith that she received from Christ the Lord the power of making laws of this kind concerning sacred things, for example, concerning the contract of matrimony (Salmant., de Leg., c. 2, n. 87).

Moreover, neither is the power of the civil legislator to be doubted, on account of the reason adduced. The question is only whether in fact he has used this power. The matter in each right is controverted on both sides as probable.²

Moreover, because an invalidating law, as being odious, is of strict interpretation; therefore, before sentence has been given by a judge, it is not judged to oblige in conscience; whence in practice one must stand for the possessor, until the sentence of the judge shall have established otherwise (cf. n. 1054).

n. ¶187.

II. Every law which commands, or permits, the invalidation of an act to be made, has force only after the sentence of the judge. This is clear from the terms themselves.

Hence: 1. An act, so long as it is not invalidated, remains naturally valid, even if the invalidation is maliciously impeded, whether by the author of the act, or by the judge, or by any other person whatever. Thus, for example, he who in good faith contracted with a minor can use the thing contracted, until the contract is rescinded by the sentence of the judge. Likewise, a vow or oath rightly emitted by a religious is valid and obliges, as long as it has not been invalidated by the Superior (IV, n. 48).

Once an act or contract has been rescinded by the sentence of a judge, it is not lawful to use it; because, even if there were doubt concerning the sense or concerning the justice of the law commanding invalidation, nevertheless there is no doubt concerning the power of the judge in such a case. Wherefore obedience must certainly be given to him when commanding (I, n. 99).

n. ¶188.

III. A law which certainly invalidates an act by the fact itself has invalidating force before sentence, and obliges in conscience to all other things which intrinsically follow from the invalidation. The first part is clear of itself. The other is proved from this, that from such a law the act is null, and consequently confers no right. For when the foundation is taken away, all things which rest upon it fall down (Suarez, de Leg., l. 5, c. 20, n. 13).

Hence: 1. If that act consists in the acceptance or acquisition of some thing, there follows from the law the obligation neither of using nor enjoying that thing, as if it were one's own. 2. If the matter concerns matrimony, it is not lawful to approach the spouse, nor

to usurp other marital rights. 3. Similarly, if the matter concerns religious profession, it is not lawful to place acts proper to religious.

It was said: A law which certainly invalidates; for in civil matter it is not always easy to discern whether a law is truly invalidating or merely prohibiting; and if it is invalidating, whether it is invalidating before sentence, or only after the sentence of a judge. Therefore, in these doubts, recourse must be had to the rules which above (n. 172) we set forth concerning the interpretation of laws. But if the doubt remains invincible, one must stand for the possessor.

n. ¶189.

IT IS ASKED. Whether an invalidating law obliges in conscience to omitting the act?

Resp. Affirmatively, if the law at the same time invalidates the act and expressly or tacitly prohibits it; otherwise, no. The reason is, because the obligation of law ought to be estimated from the intention of the legislator. Hence, speaking in itself, he does not sin who attempts to make acts naturally valid, prepared to obey when the judge shall have declared them null. Per accidens, however, it can easily happen that he sins, namely if he foresees that from his manner of acting enmities and grave damages will arise (Salmant., de Leg., c. 2, n. 100).

Konings, Theologia Moralis

Anthony Konings, C.SS.R. — 5 passages

Vol. I, TREATISE ON LAWS, PART SECOND: ON THE PRINCI…, Ch. III, ARTICLE I: ON PENAL LAW · Vol. I, TREATISE ON LAWS, PART SECOND: ON THE PRINCI…, Ch. III, ARTICLE II: ON IRRITATING LAW

Vol. I, TREATISE ON LAWS, PART SECOND: ON THE PRINCI…, Ch. III, ARTICLE I: ON PENAL LAW

n. ¶178.

- A penal law is that which does not oblige to an act or to an omission except under a temporal penalty, that is, to accepting the penalty as just.

Principles. - I. There cannot be a purely penal law which in no way obliges in conscience, because every precept of a Superior ought to oblige in some way; otherwise it would not be a true precept.

II. But there can be a merely penal law, obliging in conscience to one of two things, namely either to fulfilling the law, or, if the law has been violated, to undergoing the penalty. The reason is 1° because for the essence of law it suffices that it impose some obligation in conscience, nor is it necessary that the obligation determinately regard an act or omission; 2° because law does not have force except from the will of the legislator; but the legislator can oblige to the penalty alone, if this suffices for procuring the common good.²

But the question whether some merely penal laws are given can by no means be resolved speculatively, since they can be given here and not elsewhere. Therefore only learned and experienced persons in their own region or nation can judge concerning this.

Yet perhaps someone would not undeservedly contend that today in most regions all civil laws are merely penal, and therefore that their violation is done generally without sin, unless by violating them you at the same time violate divine or ecclesiastical law; for this is the most sad condition of our age almost everywhere among nations, that legislative assemblies, as such, not only do not care about binding conscience, but, worse than pagans, do not even acknowledge God, the author of every obligation, and establish all authority of making laws in the sum of number.¹

Nor should you say: 1) that law obliges in conscience by its own force, for this is false; for just now with St. Alphonsus² we said that it has no force except from the will of the legislator.

That the common good demands that it oblige in conscience. For where the common good demands this, by violating it you will at the same time violate the divine natural law forbidding you to harm the common good; therefore I added: "unless by violating them," etc.
That this principle is subversive of the social order; for I do not approve it when I mention it, or I do not praise the legislator acting in this way, but from the fact of the legislator not binding conscience, I conclude that it is not bound. Cf. Acta.³ (J) p. 484.

n. ¶179.

Questions. - Quaer. 1° How many kinds of penalty are there, - and does a law decreeing a penalty oblige in conscience to undergoing it before sentence?

Resp. to the 1st. 1) One is active, which cannot be given to execution without some act of ours or of another, as imprisonment; another privative, which consists in the mere privation of some thing, as suspension. This again is either conditional,⁴ taking something away from someone when the condition [or sometimes the mode (n. 868)] under which it had been conceded has not been observed, or inhabilitating, which takes away the capacity, whether canonical, or civil, or natural, of doing, acquiring, contracting.

One is latae sententiae, which is incurred by the fact itself, as the Schools speak, that is, by the perpetration of the crime alone, through the words of the law; another ferendae sententiae, which the law does not inflict, but decrees is to be inflicted by the sentence of a judge.
One is not incurred except through a condemnatory sentence of the judge; another not except through a declaratory sentence, namely of the crime; for by it the judge declares that someone has fallen into that crime, on account of which a penalty already established by law is incurred by the fact itself.

Resp. to the 2nd. 1° Negatively, if it is ferendae sententiae, as is plain of itself. 2° If latae sententiae, a distinction must be made. - Negatively, if it is active, and this although in the law it is said: no declaration (of the crime committed) having followed;¹ for this would be too difficult. Make exception if it is either lighter, or is not accustomed to be imposed by the office of a judge, as prayers. - Affirmatively, if it is privative, unless it either deprives of a right acquired, as of an office, or cannot be undergone without infamy. Yet censures, irregularities, and those penalties (for example, that of which we shall treat at n. 1589. III), which by their nature are regularly not imposed by the office of a judge, do not need a declaratory sentence (at least if someone can execute them upon himself without infamy), lest, namely, the law seem useless. No one is held to undergo a temporal penalty which civil law, whether mixed or merely penal, establishes against transgressors, for example, a fine, unless, after the sentence of the judge has been made known to him, it has been demanded.

n. ¶180.

Quaer. 2° Does ignorance excuse from a penalty brought by law?

Resp. 1° Affirmatively, for the internal forum, if ignorance excuses from fault; but in the external forum it does not excuse, because law is presumed not to be ignored, Reg. Jur. 13 in 6°.

Resp. 2° Negatively, if ignorance does not excuse from fault or is concerned with the penalty alone.² For natural reason itself dictates that evil is to be punished according to its nature.

Make exception: 1) if the penalty is disproportionate, namely most grave, exceeding the merit of the crime; 2) if the penalty is some ecclesiastical censure, which he who is not grossly ignorant of it does not incur;³ 3) if the superior requires knowledge, contumacy, audacity, or temerity for contracting the penalty. For then affected ignorance indeed does not excuse, which in law is equated with knowledge; but gross and supine ignorance nevertheless does.⁴ See however n. 1664, q. 3°, compared with n. 1704, q. 7°, R. 2°.

Vol. I, TREATISE ON LAWS, PART SECOND: ON THE PRINCI…, Ch. III, ARTICLE II: ON IRRITATING LAW

n. ¶181.

- An irritating 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 some laws irritate by the fact itself, but others only after sentence. Some are irritating absolutely, others conditionally, namely if the required conditions are lacking. Moreover some immediately irritate the act itself, as the impediment of marriage on account of clandestinity; others mediately, by rendering the persons themselves incapable, as the impediment of consanguinity.

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

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

III. But the sentence of a judge irritating must be stood by in all those things which are intrinsically born from irritation, because obedience must be given to the authority commanding.

n. ¶182.

Questions. - Quaer. 1° Does an irritating law oblige in conscience to avoiding the act?

Resp. Affirmatively, if it is at the same time irritating and prohibiting, as are laws establishing impediments of marriage; otherwise, if it is only irritating, because then the end of the law is sufficiently obtained by the irritation of the act alone, as in many civil contracts.

Quaer. 2° Does invincible ignorance impede the effect of irritation?

Resp. Negatively 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 irritate in every case. Thus a woman violated by an unknown man invalidly marries his brother, notwithstanding invincible ignorance of the impediment of affinity.

Make exception, however, if the law irritates solely for the penalty and odium of the offense; because then it intends to punish malice alone, and therefore, when the cause ceases, the effect also ought to cease.

Quaer. 3° Does an irritating law irritate notwithstanding very grave inconvenience?

Resp. Affirmatively, unless there is question of common damage; the reason is that an irritating law affects the act rather than the person, nor is there question of an obligation of conscience, but of the common good; otherwise men would more easily feign inconveniences for themselves, and the law would lose all its force. Hence a marriage contracted with a blood relative, even from fear of death, without dispensation, would not be valid.

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 59 passages

Vol. I, General Moral Theology, Treatise: On Laws in General, Section A: On Law Accordin…, First Part: On Law in Gene…, Third Question: On the Eff…, Article II: On the Coercive Force or Sanction of Law · Vol. I, General Moral Theology, Treatise: On Laws in General, Section B: On the Laws Whi…, Fourth Part: On Human and …, First Question: On Human L…, Article V: On the Division of Human Law · Vol. I, General Moral Theology, Treatise: On Laws in General, Sect. C, Sixth Part: On Ecclesiasti…, Second Question: On the Po…, Article III: On the Quality and Extension of the Obligation of Penal Law

Vol. I, General Moral Theology, Treatise: On Laws in General, Section A: On Law Accordin…, First Part: On Law in Gene…, Third Question: On the Eff…, Article II: On the Coercive Force or Sanction of Law

n. 235.

235. A law is sanctioned when it is decreed holy, that is, inviolable; whence sanction (bekrachtiging) is that which confirms and urges the law. Hence:

n. 235.

among modern jurists, sanction not rarely is called the act by which the king or president of the republic, with his name subscribed, as it were completes the law and renders it firm, so that it can be promulgated and obligate; whence that act precedes promulgation and announcement of the law;

n. 235.

among moralists it is rather coercion or penal coercion by which law is confirmed and urged. It can be regarded a) actively (as coercive force), namely, the act or decree of the legislator by which an evil or penalty is established for those violating the law, or, on the contrary, a good or reward for those observing the law; and b) passively, namely, the penal coercion itself or retribution of penalty, or also denial or concession of reward, which is added to the law to confirm it and to compensate the detriment which comes to society from violation of the law: the penalty, or also reward, established by the legislator in those who transgress it or observe it.

n. 236.

236. Sanction differs from obligation: 1) the latter pertains to the directive force of law, the former to its coercive force; 2) the latter equally affects all subjects, the former first per se and immediately affects only transgressors of the law; 3) the latter per se is conformable to the inclination of the will toward good, the former per se is repugnant to the will and is opposed to its natural inclination toward good; 4) obligation is a binding to good order, sanction is immediately the privation of some good.

237. Therefore sanction is the complement of law and of obligation. Its end is threefold:

a) that subjects be moved efficaciously to observance of the law: for knowledge of the law itself and consciousness of obligation do not now sufficiently induce man, insofar as he is subject to the enticements of concupiscence, to keeping the law;

b) that the moral order be completed by retribution of reward, and especially restored by retribution of penalty: for the order of justice demands that penalty be repaid to violation of the law, in order to restore equality; or also sometimes asks that reward be granted to observance of the law;

c) that subjects rebelling against the legislator be subjected to his authority, because those who refused voluntarily to subject themselves to law are compelled against their will to undergo evil. He who rises up against some order, says St. Thomas, must be repressed by the prince of the order (I-II, q. 87, a. 1).

Therefore law, in order to move us efficaciously and direct us to the end, must be confirmed by sanction.

Its influence is twofold: 1) antecedently, under the preventive respect, when before the placing of the act, by means of promise or threats, it induces men to keeping the law; whence the scope of sanction is that the law be kept: thus it is for correction;

consequently, under the retributive respect, when after the deed reward or penalty is repaid to those acting well or badly: thus it is for coercion.

Hence a) in the state of threat, the primary end of sanction is amendment or preservation, in one word: the avoidance of sin;

b) in the state of execution, the principal end is the restoration of order; but secondarily it can have amendment.

Vol. I, General Moral Theology, Treatise: On Laws in General, Section B: On the Laws Whi…, Fourth Part: On Human and …, First Question: On Human L…, Article V: On the Division of Human Law

n. ¶1.

St. Thomas, I-II, q. 95, a. 4.

277. Manifold division.

Each thing can be divided per se according to that which is contained in its notion. But there are many things in the notion of human law, according to each of which human law can properly and per se be divided.

For it belongs to the notion of human law that it be derived from the law of nature; and according to this positive right is divided into the law of nations and civil law, according to the two modes by which something is derived from natural law (n. 271). For to the law of nations pertain those things which are derived from natural law as conclusions from principles, such as just purchases, sales, and other things of this kind, without which men cannot live together with one another; this is of natural law because man is naturally a social animal. But those things which are derived from natural law by way of particular determination pertain to civil law, according as any city determines something accommodated to itself.

It belongs to the notion of human law that it be ordered to the common good of the city; and according to this human law can be divided according to the diversity of those who give special work to the common good, as priests, princes, and soldiers; and therefore certain special rights are adapted to those men.

It belongs to the notion of human law that it be instituted by one governing the community of the city; and according to this human laws are distinguished according to the diverse regimes of cities. One of these is kingdom, when, namely, a city is governed by one, and according to this the constitutions of princes are taken. Another regime is aristocracy, that is, the principate of the best or of the nobles, and according to this are taken the responses of the prudent and also senatus-consults. Another regime is oligarchy, that is, the principate of the rich and powerful, and according to this praetorian right is taken. Another regime is of the people, which is called democracy, and according to this plebiscites are taken. Another is tyrannical, which is altogether corrupt; whence from this no law is taken. There is also a certain regime mixed from these, which is best, and according to this is taken the law "which the elders together with the people have sanctioned" (or the deputies of the people together with the prince) (cf. q. 105, a. 1).

It belongs to the notion of human law that it be directive of human acts; and according to this, according to the diverse things about which laws are borne, laws are distinguished on account of the matters about which they are. Thus St. Thomas, q. 95, a. 4.

278. Division of present-day law.

Present-day human laws, according to jurists, are divided according to the diverse persons and things about which they act, and are reduced to a threefold genus:

a) Some constitute public right (the law of the state), which is also called political and administrative right: they chiefly regard the state of the republic, social functions and institutes, and relations between the republic, or its institutes, and citizens.

Thus the Constitution or fundamental law, laws which rule municipalities, provinces, the organization and administration of justice, worship, the army, elections of deputies, the public treasury, tributary and fiscal laws.

In Belgium they are called: la constitution; les lois provinciale, communale, de bienfaisance publique, des cimetieres, des cultes et fabriques d'eglise, d'organisation judiciaire et d'administration de la justice, de la force publique (armee, gendarmerie), des notariats, des consulats; les lois de comptabilite, des contributions, douanes et accises, les lois fiscales (d'enregistrement, de greffe, du timbre, sur la succession, la transmission, etc.), les lois sur le tresor public, la dette publique, les monnaies, la banque nationale, etc.; les lois sur les chemins de fer, postes, telegraphes, telephones, etc.; les lois sur les droits politiques, for example, les lois electorales, et de naturalisation; les lois sur l'enseignement et les langues, etc.

b) Some constitute private right, or civil right more strictly so called: they are chiefly concerned with those things which pertain to the utility of individuals, and with rights and relations of citizens to one another. Thus the civil code, the commercial or business code, and various laws concerning dominion of property, even literary and industrial.

In Belgium they are: le Code civil (elaborated in the years 1803-04, but modified several times, for example, in 1854, 1859, 1887, 1891, and still more recently; it contains the theory of ordinary right), le Code de commerce (promulgated in the year 1807, but in Belgium almost totally changed in the years 1851, 1867, 1872, 1873, 1874, 1877, 1879, 1883, 1891, 1913, 1919; it contains the theory of the special right of merchants and of acts of maritime and terrestrial commerce); to these are added les lois sur la propriete litteraire et industrielle, sur les mines, les vices redhibitoires, les brevets d'invention, marques de fabrique et de commerce, warrants, etc. To the civil code, which is theoretical, there is added the practical code concerning the mode of pursuing civil and commercial rights: le Code de procedure civile (in the year 1806).

c) Some constitute penal right, which chiefly regard crimes, delicts, transgressions, or contraventions. Thus the penal code, and various penal and disciplinary laws.

In Belgium they are: le Code penal (in the year 1810, but in Belgium changed in the year 1867; it determines delicts and penalties theoretically), to which are added le Code penal militaire, le Code disciplinaire et penal pour la marine marchande et la peche maritime, les lois sur la provocation, l'hypnotisme, les offenses et les attentats contre les souverains etrangers, la protection des enfants, le vagabondage, la mendicite, les falsifications, les armes de guerre non prohibees, etc. To the penal code, which is theoretical, there is added the practical code concerning the path to be followed for obtaining the punishment of someone: le Code d'instruction criminelle (1808).

To civil right rather than to penal right pertain the laws which are called social and sometimes are called new right, which, namely, are concerned with the utilities and rights of some class of citizens and with relations between diverse classes.

In Belgium they are: les lois sur les livrets de travail (1883), les salaires (1887), le travail des femmes et des enfants (1889), les reglements d'atelier (1896), les unions professionnelles (1898), la securite et la sante des ouvriers (1899), le contrat de travail (1900), le mesurage du travail (1901), les accidents du travail (1903), le repos du dimanche (1905), le conseil des prud'hommes (1910), la journee de 8 heures (1921), les associations sans but lucratif (1921), le contrat d'emploi (1922), etc.

To penal right rather than to civil or administrative right pertain the codes or laws which rule fields and rural estates, forests, hunting and fishing, or the sale of certain things.

Thus in Belgium: le Code forestier (1854), le Code rural (1886), les lois sur la chasse et la peche (1882, 1883, 1887, 1891, 1900), la vente des marchandises neuves et les objets mobiliers.

Vol. I, General Moral Theology, Treatise: On Laws in General, Sect. C, Sixth Part: On Ecclesiasti…, Second Question: On the Po…, Article III: On the Quality and Extension of the Obligation of Penal Law

348. Since the Church has public coercive power, it can also establish penal laws (can. 2214), which obligate one to undergo even a graver penalty (can. 2291), whether they are merely penal laws, or mixed laws, that is, moral and penal at the same time.

In fact, merely penal pontifical laws are not given, for penalties inflicted in Canon Law all suppose true fault (can. 2215); nevertheless they are usually given in Orders and religious institutes, and can be given in diocesan laws.

By reason of the mode by which the penalty is imposed, one is of latae sententiae, another of ferendae sententiae (can. 2217).

A penalty of ferendae sententiae is that which is not incurred by the fact itself, but must be inflicted by a judge or superior, or which is established as to be inflicted by a condemnatory sentence of a judge afterward to be borne.

Such are those which are designated: a) by words of the future: he will be excommunicated, he will be excommunicated, etc. (c. 2315, 2321, 2328); b) by threatening words or words demanding the ministry of a judge: under penalty, under threat of excommunication, we have judged that he is to be bound by sentence, let him know that he will incur excommunication, let him be interdicted from entering the church, he must be excommunicated; c) by ambiguous words which do not sufficiently indicate a penalty of latae sententiae, e.g., let him be subject to excommunication, let him fall into excommunication, let him lose his place: for laws which establish a penalty are subject to strict interpretation (can. 19), whence according to canon 2219: "in penalties the more benign interpretation is to be made," unless, however, the context indicates otherwise.

A penalty of latae sententiae is that which is incurred by the very fact of the delict committed, namely, by the fact that the transgression of the law or sin is committed.

Such are those which are borne: a) by words which exclude the ministry of another: by the fact itself, by the law itself (c. 2217), by that very fact (c. 2365), without another sentence; b) by words of past or present time: he is excommunicated, we will, let him know or let him be aware that he is excommunicated, we have excommunicated, by our authority or by virtue of the present letters let him be excommunicated, from now we have excommunicated; c) by imperative words of the penalty itself, which indicate that the guilty person here and now is affected by the penalty: let him remain suspended, let him be anathema, excommunication holds (c. 2388, § 2).

…and 19 more passages — all of them are listed on the topic page.

Sabetti-Barrett, Compendium of Moral Theology

Aloysius Sabetti, S.J., and Timothy Barrett, S.J. — 3 passages

Vol. I, Tr. III, Pt. II, Chapter V. On Penal Law

n. 113.

A penal law is that which does not oblige in conscience to doing or omitting something, except under a temporal penalty, that is, to accepting the penalty as just, after it has been inflicted.

I say. A simply penal law is not repugnant; but it would be repugnant if it were purely penal, that is, if it in no way obliged in conscience. The reason for the first is that for the essence of law it is sufficient that some obligation be imposed in conscience, whatever that may be. But the reason for the second is that otherwise that law would lack some essential element, namely the force of binding, and rather would have to be called counsel. Cf. St. Alphonsus, n. 145.

n. 114.

Questions

Question 1. Can it be said that, at the present day, all civil laws are penal?

Response. If it is a question of right, it is certain that any legislators whatever can so will; for law obtains force from their will. But as regards fact, it is generally admitted that all laws regarding taxes imposed on merchandise which is transported, and which are called customs duties, are penal; but concerning other laws there is not a little doubt. A few only, perhaps not improbably, contend that at the present day there is sufficient certainty concerning this will, because legislators seem to trust not indeed to consciences, but only to force and penalties. - Whatever the case may be, it is altogether better never to speak of this matter among the people, especially the more untaught, and to lead them gently to fulfilling all laws. - Cf. St. Alphonsus, n. 147. - Kenrick, tract. 6, chap. 3, n. 20. - Acta S. Sedis, vol. 7, pp. 219 and seq.

But concerning our laws it cannot be said universally that they are merely penal. For certainly, if the manner of acting of the legislators is considered, it is clear that they not only do not spurn but also consult the authority of God in framing laws: something which daily is to be seen in our legislative halls. The same men enact the laws as men who know that the greatest bond of unity and obedience is reverence owed to authority. Therefore, since the affirmative opinion among us rests upon no such presumption at all, it must altogether be said that the legislators themselves wish to issue laws in a manner suitable and necessary to the republic: but this manner, in very many matters, is to compel in conscience to acting according to the law: thus, for example, where the object of the law pertains directly to promoting the good morals of the republic and restraining offenses; or is held necessary for preserving its peace, for protecting the rights of the family and of individuals, for keeping agreements safe and sound, for public offices to be discharged sincerely; in these and similar cases laws in no way are to be held as merely penal, but as truly obliging under fault and penalty.

n. 114, Q. 2.

Question 2. Are there any laws of the Church simply penal?

Response. It is certain that the rules of many religious Orders are simply penal; but that it is in the power of the Church to establish laws of this kind, if she wishes, even with regard to the universality of the faithful, cannot be doubted. Nevertheless she rarely uses, indeed perhaps has never used, this power, because she for the most part does not enact laws except concerning things necessary, or at least of great moment, pertaining to the salvation of souls, in which it is more expedient that conscience be obliged than that penalty be inflicted. Besides, since in fact she lacks the means for coercing, her legislative power would be diminished. - Cf. Reuter, n. 126.

Note. - § 2. Not only those things which excuse from all imputability, but also those which excuse from grave imputability, likewise excuse from any penalty, whether latae or ferendae sententiae, even in the external forum, if the excuse for the external forum is established (Can. 2218, § 2).

Billuart, Summa Summae

Charles-René Billuart, O.P. — 24 passages

Billuart, Summa Summae, Tomus II. On the Prima Sec…, On Laws, On the Power of Human Law, On penal law

Note. Some laws are purely preceptive or prohibitory; some purely penal, some mixed. A purely preceptive or prohibitive law is that which commands or forbids an act, imposing no penalty upon transgressors, as the law on hearing Mass. A purely penal law is that which establishes a penalty upon those who have done or omitted something, commanding or forbidding nothing, at least explicitly, as if a law should say: « Whoever shall carry corn out of the province, let him pay one hundred. » Mixed is that which commands or forbids an act, and at the same time establishes a penalty for transgressors. And this in two ways: either copulatively, as if a law should say: « Let no one carry corn out of the province, and whoever shall carry it out, let him pay one hundred, » which can also be expressed in one proposition thus: « I forbid that anyone carry corn out of the province, under penalty of paying one hundred. » Or disjunctively, as if it should say: « Let no one carry corn out of the province; or, if he has carried it out, let him pay one hundred. »

You will ask 1° whether a mixed law or a purely penal law binds under fault to doing or omitting the act, or at least to the penalty or fine.

n. 3.

I answer. 1°. A copulative mixed law binds under fault to doing or omitting the act, because it truly commands or forbids; nor is the penalty added that it may take away the obligation, but rather that it may more efficaciously move to observance.