Summa Theologiae Moralis, vol. I: De Principiis

On the Quality and Extension of the Obligation of Penal Law.

348. The Church, since it has a public coercive power, can also establish penal laws (can. 2214) which oblige to undergoing even a graver penalty (can. 2291), whether they be merely penal laws, or mixed, i.e. moral and at the same time penal.

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

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

1° A penalty ferendae sententiae is one which is not incurred by the very fact but must be inflicted by a judge or superior, or which is established to be inflicted by a condemnatory judgment of a judge to be rendered later.

Such are those designated a) by words of future time : shall be excommunicated, will be excommunicated, etc. (c. 2315, 2321, 2328) ; b) by threatening words or requiring the ministry of a judge : under penalty, under the threat of excommunication, we have judged to be denounced, let him know that he will incur excommunication, will be forbidden the entry of the church, 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 of strict interpretation (can. 19), whence according to can. 2219 : « in penalties a more benign interpretation is to be made », unless however the context indicates otherwise.

2° A penalty latae sententiae is one which is incurred by the very fact of the offense committed, that is to say by the very fact that the transgression of the law or sin is committed.

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

If this requires for its execution an external executive action either of the delinquent himself or of another, and has a physical effect, ordinarily it requires a declaratory judgment of the judge : so for positive penalties of exile, scourging, prison, fine, or privative [penalties] of a good already possessed, namely of an acquired right, e.g. in confiscation of goods, deposition, degradation, privation of a benefice or office held, or of dignity acquired. On the contrary if it requires no external action, consisting in a moral effect alone, it is incurred immediately : thus penalties privative of a right or of the exercise of a right, e.g. spiritual privative [penalties] (censures), or negative penalties by which a good otherwise fully to be acquired is denied to the guilty party (e.g. irregularity from offense), or an incapacity for something is contracted, e.g. canons culpably omitting their office lose the right of receiving the fruits.

The condemnatory and declaratory judgment differ : the first falls upon the penalty itself and therefore the penalty is owed from the day of the judgment ; the second falls not on the penalty itself but upon the committed crime by declaring that it was committed, and therefore it is declared that the penalty was contracted and the owed penalty is retroacted to the time of the crime committed. Whence can. 2232, § 2 : « the declaratory judgment retroacts the penalty to the moment of the crime committed ».

349. Penal law, after transgression, obliges in conscience the judges to inflict the penalty, at least if the law uses not facultative but preceptive words (can. 2223, § 3) ; and the subjects to undergo it.

Before the judgment of the judge : 1° if the penalty is ferendae sententiae, they are not bound to undergo it until by the judgment of a judge they have been condemned to it : for the law does not inflict the penalty but decrees that it is to be inflicted ; whence it is even licit by honest means to avert the penalty to be inflicted and to escape ;

2° if it is latae sententiae and requires an external executive action, ordinarily they are not bound to undergo the penalty before the declaratory judgment. The reason is that the law must be morally possible and accommodated to human nature ; for it would be too harsh and inhuman if it compelled the guilty party so that he should be bound to despoil himself of his goods and rights.

Are excepted a) if the penalties are lighter or such as judges cannot inflict, such as fasting, recitation of prayers, moderate bodily chastisement, not leaving the assigned place, abstinence from foods ; b) if they are conventional.

3° if it requires no external executive action (e.g. censure, irregularity), it is incurred from the moment the crime to which it is attached is committed, and from this moment (apart from the danger of infamy) it obliges the subjects to undergo it without the judgment of a judge.

In the external forum however it is not held to be contracted without the declaratory judgment of a judge, unless the crime is notorious. — I said : apart from the danger of infamy (which is usually absent in the privation of active or passive voice), because if such danger exists and the delinquent cannot observe the penalty without infamy, the privative penalty would be equated to a positive penalty (can. 2232).

After the judgment of the judge : 1) the guilty party is obliged to execute the penalty himself, if it is not too harsh nor much repugnant to nature, e.g. to pay money that is exacted, to go to prison not long-lasting, for he is bound to obey a just and morally possible precept ;

2. he is obliged only to undergo the penalty without positive resistance, when it is very grave or repugnant to nature, although he can negatively resist by fleeing. This is a general principle in human law even civil ; e.g. one condemned to death is bound to mount the scaffold, to offer his neck, etc., yet he can flee. For no one is bound to perform such a penalty, but to suffer it, whence no one is bound to furnish that from which death, wounding, public scourging, perpetual prison, perpetual exile follows, and e.g. to remain in a place from which he would be led to death ; but he is bound to suffer it, i.e. not to resist him who inflicts it.

350. A conventional penalty is distinguished from the aforesaid penalties by which, when something, e.g. a benefice, is given to someone under a tacit condition that he do something, with the condition not fulfilled, what was granted is taken from him. It obliges by the very fact without the judgment of a judge, e.g. a parish priest, who formerly could be a deacon, not ordained to the priesthood within a year lost the benefice ; a bishop not receiving consecration within 3 months does not receive the fruits (C. Trid. sess. 23, c. 2), and neglecting this within 6 months, he remains deprived of the episcopate by the very law (can. 2398).

351. Remarks. — 1) Can. 2219, § 1 : « In penalties a more benign interpretation is to be made ».

2. Can. 2219, § 2 : « But if it is doubtful whether a penalty, inflicted by a competent superior, is just or not, the penalty must be observed in both forums, except the case of appeal in suspensive ».

There is no appeal in suspensive from a censure judicially inflicted (can. 2243, § 1), there is from vindictive penalties, unless it is otherwise expressly provided in law (can. 2287).

3. Can. 2219, § 3 : « It is not lawful to extend a penalty from person to person or from case to case, although an equal, indeed graver reason is present, saving however the prescription of can. 2231 », namely the case where several have concurred to the perpetration of one crime whether physically or by common consent or by command or in another manner, if the crime otherwise would not have been committed : these are bound by the same penalty unless the law expressly provides otherwise.

4. The judge can diminish and increase the penalty, for a just cause, if he himself is the legislator ; an inferior however cannot unless it is permitted by the law. So in the new law, according to can. 2223.