The Superior Having Judicial Jurisdiction

First recall that judicial jurisdiction must be exercised in trial. Moreover:

I. In applying penalties, the judge cannot increase a determinate penalty unless extraordinary aggravating circumstances demand this (canon 2223, § 1). Thus the general rule. More specifically:

II. If the penalty is ferendae sententiae, these things are to be observed:

1. If the law in establishing a penalty ferendae sententiae uses facultative words, it is committed to the prudence and conscience of the judge to inflict it or, if the penalty was determinate, to temper it (canon 2223, § 2).

2. But if the law uses preceptive words, ordinarily the penalty must be inflicted; but it is committed to the conscience and prudence of the judge or Superior: 1° to defer the application of the penalty to a more opportune time, if greater evils are foreseen to be going to come from too hasty punishment of the guilty person; 2° to abstain from inflicting the penalty if the guilty person has been perfectly amended and has repaired the scandal, or has been sufficiently punished or is foreseen to be going to be punished by penalties sanctioned by civil authority; 3° to temper the determinate penalty, or in its place to employ some penal remedy or enjoin some penance, if a circumstance is given which notably diminishes imputability, or if indeed amendment of the guilty person is had or chastisement has been inflicted by civil authority, but the judge or Superior besides judges some milder punishment opportune (canon 2223, § 3; cf. canon 2309, § 4).¹

Note. When a determinate vindicative penalty has been inflicted by condemnatory sentence, the judge can sometimes suspend its execution according to the norm of canon 2288 (n. 889). Hence in canon law the institution of "conditional condemnation" is assumed.

III. If the penalty is latae sententiae, it is indeed contracted at once; but sometimes there is given a sentence which is called declaratory, by which it is authoritatively declared that the delict has been perpetrated and consequently that the penalty has been contracted.² Moreover, to declare a penalty latae sententiae is generally committed to the prudence of the Superior; but whether at the instance of the party whose interest it is, or when the common good so requires, a declaratory sentence must be given (canon 2223, § 4).

IV. Concerning the number of penalties the Code establishes:

1. Ordinarily there are as many penalties as delicts (canon 2224, § 1). Moreover, even with ecclesiastical Penal Law considered, one commits a multiple delict: 1° who violates diverse penal laws, whether by one act or by several; but not one who once violates a law issued by several Superiors; 2° who violates a penal law through morally distinct acts (vol. I, n. 253 sq.).

It is disputed: 1° concerning him who violates a penal law through one morally single act, physically multiple, toward diverse persons, for example, one who from the same purpose steals successively but without moral interruption from several persons; 2° concerning him who violates a penal law through one morally single act, physically multiple, several times perfectly consummating the delict itself, for example, one who from the same impulse of passion several times commits carnal sacrilege by copula with the same person;³ 3° concerning him who violates a penal law through one single physical act toward diverse persons, for example, one who by one physical act kills several clerics. But since, where there is question of penalties, the more benign side prevails, in disputed cases penalties are not to be multiplied.

2. If, however, on account of the number of delicts, there would be an excessive accumulation of penalties to be inflicted, it is left to the prudent judgment of the judge either to inflict the gravest penalty of all, with some penance or penal remedy added if the matter bears it, or to moderate the penalties within equitable bounds, with account taken of the number and gravity of the delicts (canon 2224, § 2).

3. Finally, if a penalty has been constituted both for an attempt of delict and for the consummated delict, when the latter has been admitted, only the penalty established for the consummated delict must be inflicted (canon 2224, § 3). It is said "inflicted"; for when, on account of the attempt, a penalty has already been contracted, and after a moral interruption the delict is consummated, the penalty established for this delict is also contracted. Otherwise, however, if the attempt and consummation coalesce into one.

Note. If a penalty is declared or inflicted by judicial sentence, the prescriptions of the canons concerning the pronouncing of a judicial sentence are to be observed; but if, as was already noted on p. 714, a penalty latae or ferendae sententiae has been inflicted in the manner of a particular precept, it should ordinarily be declared or imposed in writing or before two witnesses, with the causes of the penalty indicated, preserving the prescription of canon 2193 (canon 2225).

¹ If the delinquent did not commit grave sin, procedure can be taken against him only through a penal remedy so that true delicts may be forestalled, or some penance can be imposed on him.

² The usefulness of this is well demonstrated by the illustrious Wernz (op. cit., n. 62): "First, in certain penalties an obligation is induced in others toward the guilty person," for example, not receiving the Sacraments from him, "or at least the guilty person is deprived of certain rights which have reference to others. This obligation toward the guilty person cannot be urged, nor must the exercise of his rights be denied or impeded, unless the penalty incurred by him is certainly established" in the external forum; besides, because it would not be equitable that an occult delinquent should have to betray himself by observance of the penalty, the obligation of observing this penalty often does not press without a declaratory sentence.

³ Sometimes one delict consists in a continuous stretch, for example concubinage, bigamy.