Summa summae S. Thomae, Tomus II

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.

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.

I answer. 2° that a disjunctive mixed law does not bind determinately to doing or omitting the act, nor determinately to undergoing the penalty, but to the one or the other; so that he who does not will to fulfill the law, but is prepared to undergo the penalty, is free from fault; but he who neither wills to observe the law nor to undergo the penalty sins, because the law posited under disjunction leaves it to the will of subjects to embrace whichever part they will. Parity is in him who vows disjunctively that he will play no more, or, if he play, that he will give twenty asses to the poor: he does not sin if he plays; he would sin, if playing he gave not twenty asses.

To laws of this kind can in a certain manner be referred the constitutions of various Religious Orders, as of the Order of Preachers, which do not bind unto fault, but unto penalty only, and insofar are laws, inasmuch as they bind unto penalty.

[You will say: Penalty cannot be imposed except for fault. Therefore, if the act prescribed disjunctively be omitted without fault, there is not given an obligation of undergoing the penalty.

I answer. I deny the antecedent. The force of law depends entirely upon the will of the legislator, and as he can prescribe a thing great by its nature under grave or only under light [penalty], so he can leave it to the liberty of each one. Therefore, when this seems sufficient and expedient, it is lawful for him to give his subjects the option between doing or omitting the act and undergoing the penalty, if it please them not to observe the law. And this is confirmed by rule 23 of law in Sexto: « Without fault, unless cause subsist, no one is to be punished. » These words, Unless cause subsist, patently adjudicate to the legislator the faculty of decreeing a penalty although fault has not been admitted through transgression of the law.]

I answer. 3°. It seems more probable that a purely penal law, speaking per se, obliges not only to the penalty, but also to doing or omitting the act for which the penalty is imposed.

The reason is, because, according to the common understanding and common mode of speaking, he who says: « Whoever shall do this, shall be punished with death, » is just as if he said, I forbid that this be done, and whoever shall have done it shall be punished with death: whence he prohibits or commands implicitly, though not explicitly; for he imposes so great a penalty only because he wills it to be done or not done, and the will of the superior so intimated holds the force of law and precept.

I said: Speaking per se, because, if the legislator declared that he did not will to oblige under fault to doing or omitting the act, but only to the penalty, as is declared in the prologue of our constitutions and in the constitutions of certain other Orders, the law would not oblige except to the penalty. Similarly, if from the circumstances could be gathered this to be the mind of the legislator, or if the customs of the people and usage received among the timorous so understand and receive the law; for, as is commonly said, custom is the best interpreter of law. This modification moreover can also have place in mixed copulative laws, in which, as by custom the obligation unto fault and unto penalty can be removed, a fortiori, the penalty remaining, the fault can be taken away. But these are not properly laws except in that part wherein they bind unto penalty under fault, because to obligate is of the reason of law. Whence, if it obliged in no part, it would not be properly a law, but a salutary admonition or exhortation, or counsel concerning what would be expedient in the community.

You will ask 2° whether a penal law binds to undergoing the penalty before the sentence of the judge.

The question concerns a latae sententiae penalty; for it is certain that no one is held to undergoing a ferendae sententiae penalty before the sentence of the judge.

I answer. 1°. No penal law latae sententiae binds in the forum of conscience to undergoing, before the sentence of the judge, an active penalty, or one whose execution requires action.

[It is proved 1° by St. Thomas saying, II II, q. 62, a. 3, c: « As to fault, a remedy is applied through punishment, whose infliction pertains to the judge. And therefore, before he has been condemned by the judge, he is not bound to restore more than he received; but after he has been condemned, he is bound to pay the penalty. »]

It is proved 2°. To that acting or to the action which the execution of the penalty requires, the culprit or the judge is held. Not the culprit, because he is not held by the law except to the penalty; but penalty consists in suffering, not in acting. Therefore the judge is held. Therefore before the sentence of the judge he is not held to undergoing it.

It is confirmed. 1° The action which is required for the execution of the penalty is not penalty, but infliction of penalty; otherwise the judge or his minister inflicting the penalty would suffer the penalty. But penal law obliges the culprit only to penalty. Therefore it does not oblige him to inflict it upon himself.

2° A law obliging the culprit to inflict upon himself an active penalty before the sentence of the judge is not accommodated to the condition and frailty of men, since scarcely one of a thousand would you find who observes it.

I answer. 2°. Penal laws latae sententiae can oblige to undergoing a privative penalty before the sentence of the judge. Few however oblige.

The 1st part is proved. The authority of the legislator is not less than that of the judge, if nothing stands in the way. But the judge immediately after sentence passed obliges the culprit to undergo a privative penalty, nor does anything obstruct the authority of the legislator, as it obstructs for active penalty. Therefore.

It is confirmed. Laws imposing censures ecclesiastical ipso facto oblige immediately from the crime committed and before the sentence of the judge, as all concede. Therefore.

The 2nd part is proved; because, besides ecclesiastical censures, scarcely any law can be assigned, civil as well as ecclesiastical, even latae sententiae, which oblige to undergoing a privative penalty before the sentence of the judge; whether because custom understands and receives such laws in no other way, or because by common or particular law it is so provided unto the penalty.

You will say: If laws latae sententiae do not oblige to undergoing before the sentence of the judge, whether active or privative, vainly and uselessly are these clauses added, ipso facto, ipso jure. Therefore.

I answer. I deny both consequences. 1° For of this clause, ipso facto, ipso facto means by sentence pronounced and declared. The sense of this, ipso jure, is by the very disposition of the law, and not by the arbitrament of the judge; because these laws have certain special effects which ferendae sententiae laws have not: 1° Unto this, that the culprit be held to undergo the penalty incurred lata sententia, a condemnatory sentence unto penalty is not required, as in ferendae sententiae laws, but only a declarative sentence of the crime. 2° Because a latae sententiae law after the declaratory sentence is drawn back to the time of the crime committed, so that, if anyone on account of crime be ipso facto deprived of the fruits of a benefice, the declaration of the judge arriving, he must restore the fruits, even those he received after the commission of the crime and before the sentence. Otherwise in ferendae sententiae laws.

Yet I do not deny that, if a law beyond the clause, ipso facto, ipso jure, added others which altogether signified this to be the will of the legislator, that privative penalties be incurred and undergone before the sentence of the judge, e.g., if it should say: « without any other declaration, before every sentence of the judge, [the guilty] are held before God, or in conscience, nor can they previously be absolved, » and the like, it would be more probable that these are incurred immediately, unless it be certainly established by law or custom to the contrary. But nevertheless true is what I said, that such are few, ecclesiastical censures excepted.