The Subject Liable to the Power of Punishing

We shall see first who are subject to a penal law or precept, and to what extent; then what is required for someone actually to contract a penalty latae sententiae; next, what is required for someone to be able to be punished here and now with a penalty ferendae sententiae; finally, what, of what kind, and how great is the obligation of observing a penalty.

I. Subjects of a penal law or precept. One who is bound by a law or precept is liable to the penalty annexed to the law or precept, unless he is expressly exempted (canon 2226, § 1). To what extent someone is bound by a law or precept, especially a traveler and a vagrant, see vol. I, n. 126 sq. Nevertheless:

1. If after the perpetrated delict the penal law is changed, the law more favorable to the guilty person must be applied (ibid., § 2).

2. If after the perpetrated delict either the violated law or the attached penalty ceases through a later law, even a penalty inflicted or incurred ceases immediately; but a censure already contracted is excepted (ibid., § 3), because otherwise the end of the censure would not be attained.

3. A penalty, whether contracted or inflicted, binds the guilty person everywhere in the world, even when the right of the Superior has been resolved, unless something else is expressly provided (ibid., § 4); yet a penalty does not always extend itself to all places (cf. canons 2281, 2282). If, however, when the right of the Superior has been resolved, his precept also ceases, to which a penalty had been added, the penalty also must be said to cease, unless it is a censure already contracted.

4. Finally, certain persons are not wholly subject to penal law; namely, although they have committed a delict, a penalty can be inflicted or declared against those mentioned in canon 1557, § 1, only by the Roman Pontiff (canon 2227, § 1), that is:

a) "Against those who hold the supreme sovereignty of peoples and their sons and daughters, or those who have the right of immediately succeeding to the sovereignty." Physical persons are understood: monarchs, presidents of a republic, or others who exercise true sovereignty, and their spouses; not, however, moral persons, even though they have legislative power, nor Ministers of State.¹ Therefore the former do indeed contract a penalty latae sententiae of common law, as established by the Roman Pontiff, but against them it cannot be declared except by the Roman Pontiff.²

b) Against Cardinals; who furthermore, unless they are expressly named, are not comprehended under a penal law (canon 2227, § 2).

c) Against Legates of the Apostolic See, concerning whom what was said under a) is valid.

d) Against Bishops, even titular ones, who furthermore are excepted from penalties latae sententiae of suspension and interdict, unless they are expressly named. Therefore they do indeed contract an excommunication latae sententiae of common law, but the same applies as under a).

Note 1. Exempt religious are not bound by diocesan penal statutes unless, while illegitimately living outside the house, they have offended against a particular law of the diocese (canon 616, § 1); if they have offended while legitimately living outside the house, even if they have returned, they can nevertheless be punished by the local Ordinary (canon 616, § 2); finally, they are subject to the coercive power of the local Ordinary in all things in which religious are subject to him (cf. canon 619 and canon 2269, § 2), unless special privileges stand in the way.

Note 2. By force of canon 1, this Penal Law does not regard the Oriental Church; judicial controversies to be handled in judicial order which concern it are, by force of canon 257, § 3, remitted by the Congregation for the Oriental Church to a tribunal assigned by that Congregation, unless there is question of delicts reserved to the Congregation of the Holy Office (canon 247, § 2).

¹ Cf. Noval, op. cit., p. 37.

² Nor do penalties latae sententiae of particular law bind them, because "to be inflicted" is also said of a penalty latae sententiae inflicted in the manner of a precept (cf. canon 2225).

II. Requisites for someone actually to contract a penalty latae sententiae.

1. Requisites on the part of the delict. A penalty established by law is not incurred unless the delict has been perfect in its own kind according to the property of the words of the law (canon 2228). This condition regards the external part of the delict (n. 846); when the attempt of a delict is punished in law, consummation in the genus of attempt is required. Finally it must be observed that the property of the words requires strict interpretation; for example, the delict of homicide, which is punished by law, is not present unless death has followed. In doubt, whether of the external fact or of imputability, the penalty is not incurred, because from a doubtful cause no one is deprived by a certain right (cf. canon 2232, § 1: "who is conscious to himself of the delict").

2. Requisites on the part of the delinquent regard the formal part of the delict, or imputability. Therefore first recall that grave imputability is required¹ (canon 2218, § 2), but does not always suffice, for someone to be liable to a penalty. With these things attended to, certain things are noted or even established by the Code, of which some are general and regard ignorance and similar things which influence imputability; others concern the impubescent and cooperators.

a) General matters. alpha) Affected ignorance either of the law or of the penalty alone excuses from no penalties latae sententiae (canon 2229, § 1).

beta) If the law has the words: has presumed, has dared, knowingly, studiously, rashly, has acted deliberately, or other similar words which require full knowledge and deliberation, any diminution of imputability, whether on the part of the intellect or on the part of the will, exempts from penalties latae sententiae (canon 2229, § 2). It is said any diminution of imputability; hence even ignorance of the penalty, unless it is affected (cf. canon 2202, § 2); likewise even light fear.

gamma) If the law does not have those words:

1° Crass or supine ignorance of the law, or even of the penalty alone, exempts from no penalty latae sententiae. Ignorance of the law, or even of the penalty alone, which was not crass or supine excuses from medicinal penalties latae sententiae; but if the imputability of the delict is grave, it does not excuse from vindicative penalties latae sententiae (canon 2229, § 3, 1°, compared with canon 2218, § 2).

2° Drunkenness, omission of due diligence, weakness of mind, or impulse of passion, if, notwithstanding the diminution of imputability, the action is still gravely culpable, do not excuse from penalties latae sententiae (canon 2229, § 3, 2°).

3° Grave fear, if the delict tends toward contempt of the faith or of ecclesiastical authority or toward public harm of souls, in no way exempts from penalties latae sententiae (canon 2229, § 3, 3°). With these things attended to, grave fear outside the enumerated cases excuses from penalties latae sententiae, at least on account of doubt; the doubt is introduced by canon 2218, § 2.

Note. Although the guilty person according to the norm of § 3, n. 1, is not bound by censures latae sententiae, nevertheless this does not prevent him, if the matter bears it, from being affected by another congruous penalty or penance (canon 2229, § 4).

b) Impubescent persons are excused from penalties latae sententiae, and are to be corrected rather by educational punishments than by censures or other graver vindicative penalties; but pubescent persons who have induced them to violate the law or have concurred with them in the delict according to the norm of canon 2209, §§ 1-3 (n. 849), themselves indeed incur the penalty established by law (canon 2230). Note that an irregularity from delict can nevertheless be contracted by impubescent persons (canon 985).

c) Cooperators. If several have concurred in perpetrating a delict, although only one is named in the law, those also who are mentioned in canon 2209, §§ 1-3, are bound, unless the law has expressly provided otherwise, by the same penalty; the others, however, are not likewise bound, but are to be punished with another just penalty according to the prudent judgment of the Superior, unless the law establishes a particular penalty against them (canon 2231).

Question. To what extent, if there is question of a penalty latae sententiae, is a declaratory sentence required?

Response. A penalty latae sententiae, whether medicinal or vindicative, binds the delinquent who is conscious to himself of the delict by the fact itself in both forums; nevertheless, before a declaratory sentence, the delinquent is excused from observing the penalty whenever he cannot observe it without infamy, and in the external forum no one can exact from him the observance of that same penalty, unless the delict is notorious, the prescription of canon 2223, § 4, remaining firm (canon 2232, § 1; n. 856).

A declaratory sentence carries the penalty back to the moment of the committed delict (canon 2232, § 2); this is practical, for example, in the case of restitution to be made of fruits received, which therefore must be computed from the moment of the perpetrated delict (cf. canon 2280).²

¹ At least insofar as the defect of grave imputability excuses from any penalty in the internal forum, and also in the external forum if the defect is proved for the external forum (cited canon).

² On the contrary, if someone incurs excommunication latae sententiae and before the sentence acquires an office, after the sentence the acquisition is not rendered invalid, as Cerato thinks, p. 20; for only acquisition after the sentence is invalid (cf. canons 2265, § 1, 2°; 2266; 2296, § 2).

III. Requisites for someone to be able to be punished here and now with a penalty ferendae sententiae. No penalty can be inflicted unless: 1° it is certainly established that the delict has been committed; 2° it is certainly established that the delict has not been legitimately prescribed; 3° the guilty person, if there is question of inflicting a censure, persists in contumacy (canon 2233). It is said:

1. It is certainly established that the delict has been committed; but by what method the fact and imputability of the delict must be judged, see in the Code, book IV, title XIX, on criminal trial.

2. It is certainly established that the delict has not been legitimately prescribed. How a delict is prescribed is explained by canon 1703, compared, however, with canon 1555, § 1.¹

3. If there is question of inflicting a censure, the guilty person is to be rebuked and warned to withdraw from contumacy, with a suitable time for repentance granted, if in the prudent judgment of the same judge or Superior the case bears this; if contumacy persists, the censure can be inflicted (canon 2233, § 2). What contumacy is, see n. 862. Formerly at least three warnings were prescribed, though for a just cause one sufficed (cf. now canons 649, 660). Under present law, however, it is left to the prudence of the Superior how many warnings he gives and also at what interval of time he gives them. Moreover, warnings are required for the validity of the censure; hence a censure ferendae sententiae cannot validly be applied to a delinquent unless after warnings he remains contumacious. On the canonical form cf. canon 2143.

Note 1. One who has committed several delicts must not only be punished more gravely, but also, if in the prudent judgment of the judge the matter bears it, must be subjected to vigilance or to another penal remedy (canon 2234).

Note 2. A frustrated delict or an attempt of delict, unless they are punished by law as distinct delicts, can be punished with a fitting penalty according to their gravity, unless the delinquent is freed from all imputability because he spontaneously desisted from the execution of the delict begun, and no harm or scandal followed from the attempt (canon 2235, compared with canon 2213, § 3).

¹ What the Superior can and must do in defect of this and of the prior condition, see n. 855; cf. canon 2222, § 2.

IV. Obligation of observing the penalty. A penalty seems to oblige from the motive of the law to which the sanction has been added. Moreover, the obligation is grave of its kind. Nevertheless, fear of extrinsic and proportionate harm excuses; hence, if the delict is not notorious, even infamy excuses from observing a penalty latae sententiae, for then infamy is an extrinsic inconvenience.

473. The author of an ecclesiastical penalty is the Church, to whom it certainly belongs to possess the native and proper right (independent of any human authority) of inflicting penalties upon her delinquent subjects.¹⁵

For Christ the Lord endowed the Church with true legislative and coercive power, which she also put into practice from the beginning. Therefore Pius VI proscribed as heretical the proposition asserting: "The Church does not have conferred upon her by God the power not only of directing by counsels and persuasions, but also of commanding by laws, and of coercing and compelling the erring and contumacious by external judgment and salutary penalties."¹⁶ This coercive power of the Church indeed extends to penalties not only spiritual but also temporal, as was already said above.

The exercise of punitive power in the Church belongs to all superiors having jurisdiction in the external forum, whether ordinary or delegated, provided that this jurisdiction is unimpeded. Concerning this matter the Code of Canon Law, c. 2220, establishes: "Those who possess the power of making laws or imposing precepts can also annex penalties to the law or precept; those who possess judicial power only can merely apply legitimately established penalties according to the norm of law."

Hence ecclesiastical penalties can be imposed by: a) the Supreme Pontiff for the whole Church; b) bishops and major regular prelates for their subjects; c) all others having unimpeded jurisdiction in the external forum, for example, Vicars and Prefects Apostolic, even provincial Councils, and so forth.

Sometimes, however, a special mandate is required, for example, in a vicar general.¹⁷

Jurisdiction, as regards the right of punishing, is impeded:

1. In the case of an excommunicated, suspended, heretical, or schismatic bishop, who always unlawfully, and indeed invalidly - if a condemnatory or declaratory sentence has been pronounced - imposes censures upon his subjects.¹⁸

2. In the case of a judge who wishes to pronounce a sentence in the contentious forum outside his own territory. Hence that common adage: "One who administers justice outside his territory may be disobeyed with impunity."¹⁹ Sometimes, however, a judge has the power to administer justice even outside his own territory, as the canonists teach.²⁰

¹⁵ Ibid., c. 2214, § 1.

¹⁶ Denz. n. 1505; cf. Benedict XIV, Brief Ad assiduas, 1755; Leo XIII, Constitution Immortale Dei, November 1, 1885.

¹⁷ Code of Canon Law, c. 2220, § 2.

¹⁸ Ibid., c. 2264.

¹⁹ Cf. c. 2, I 2 in VI^o, and c. unic., II 2 in Clem.

²⁰ Cf. Bargilliat, Prael. iur. can., n. 1551; Code of Canon Law, c. 1637.

474. The subjects of an ecclesiastical penalty are (or those who can be punished with ecclesiastical penalties are) all baptized persons who are capable of reason, living, delinquent, and subjects.

Therefore the following are not subject to ecclesiastical penalties:

1. The unbaptized.

For the Church does not judge those who are outside.²¹

2. Those actually lacking the use of reason.²²

For since a man actually lacking the use of reason cannot perpetrate a formal delict, neither can he be punished with an ecclesiastical penalty. Therefore not only the insane, but also infants who have not reached their seventh year, are not bound by ordinary ecclesiastical penalties. The pious Mother Church exempts from penalties latae sententiae all prepubescent persons, that is, up to the completion of the fourteenth year,²³ although they are capable of the use of reason; adults, however, who have induced them to violate the law or have concurred with them in the delict incur the penalty established by law.²⁴ Hence, for example, a boy ten years of age who has entered the enclosure of nuns illegitimately is not excommunicated. But the one who introduced him does not escape the censure. Minors after attaining puberty are indeed ordinarily subject to ecclesiastical penalties,²⁵ but because younger age (unless something else is established) diminishes imputability,²⁶ minors seem to be excused from those penalties which are imposed upon those who knowingly, with rash audacity, and so forth, have done something. For then any diminution of imputability excuses.²⁷

3. Travelers.

Travelers are not bound by the merely territorial laws of their domicile or quasi-domicile when they are staying outside it.²⁸ Therefore Boniface VIII established that "by a statute of a bishop in which a sentence of excommunication is promulgated against all who commit theft, his subjects who commit theft outside his diocese are by no means to be regarded as bound."²⁹ Authors dispute whether the same is to be said concerning a precept or statute which a bishop issued for his diocesans under a penalty to be incurred ipso facto, namely, whether diocesans violating such a precept outside the diocese incur this penalty. The common opinion teaches that a bishop indeed can issue precepts of this kind which bind his subjects even outside the diocese.³⁰ Whether, however, some episcopal precept actually binds transgressors outside the diocese is to be ascertained from the mind of the legislator. If this mind is doubtful, the penalty imposed is not considered to have been incurred.

A traveler is customarily bound by civil penalties which have been enacted in the places through which he passes. Hence, for example, a Frenchman in Switzerland who violates the penal law of Switzerland is punished according to the penal laws of Switzerland. In ecclesiastical law a general rule cannot be given, but the individual delicts and the individual penalties to be inflicted must be examined.

Scholion. How exempt religious are subject to the punitive power of the bishop of the place is to be seen in the treatise on the law of religious.³¹

²¹ Cf. 1 Cor. 5:12; Council of Trent, sess. 14, c. 2, de poenit. (Denz. n. 895).

²² Code of Canon Law, c. 2201.

²³ There is no reason for a distinction of puberty between boys and girls to be made here. For the weakness of mind is almost the same in either sex before the age of fourteen years. Thus also teach several others, such as Vermeersch, Génicot, Sole, Wernz, and so forth.

²⁴ Code of Canon Law, c. 2230.

²⁵ Cf. Benedict XIV, Constitution Ab Augustissimo, March 5, 1744, and c. 1, 2, X 5, 23.

²⁶ Code of Canon Law, c. 2204.

²⁷ Ibid., c. 2229, § 2.

²⁸ Cf. above, I, n. 194.

²⁹ c. 2, I 2 in VI^o.

³⁰ Cf. Benedict XIV, De syn. dioec., l. 13, c. 4, n. 9.

³¹ Cf. our Man. iur. can., q. 9.