16. On the Author and the Subject of Law

1. A certain archbishop, when various means had been tried and other penalties imposed, could not root out an abuse which had crept too much into his diocese, by which some, for various reasons, wishing to contract marriage secretly, under pretext of infirmity or some similar thing, called the parish priest to themselves, and, with him present and two witnesses, suddenly contracted marriages before the parish priest could flee. From these marriages many scandals and dissensions arose. Therefore, by law and public edict, he not only prohibited this, but removed from parish priests, and from other priests with their license, the faculty of assisting at marriages of this sort when denunciations had not first been made; and he suspended them all as to this act of assisting and declared that marriages, if any thereafter were made in this way, would be invalid, on account of defect of the power of assisting on the part of the parish priest, or of another priest, which had now been taken away by this law.

Q. 1. Can bishops make laws? 2. Could the archbishop validly do this?

R. To the first, cf. I. M. 181. To the second, negatively. The first reason is because, since "the Council of Trent requires for the validity of marriage only the presence of the parish priest and of two witnesses, the archbishop could not invalidate marriages made before the parish priest and witnesses, such as are those of which there is question, since he truly still remains the true parish priest, retaining the title of his parish, especially since that assistance is not an act of jurisdiction in the parish priest; wherefore, even if, on account of excommunication or some other censure, he were suspended from all jurisdiction, he would still validly assist at marriage, as Sanchez teaches with the common opinion, l. 3, d. 21, n. 4." Lugo, Resp. Mor., l. 1, d. 45, n. 5. The second reason is because, "whatever may be the case concerning other matters, nevertheless in this matter the bishop cannot by his law introduce an impediment invalidating marriage beyond those which have been introduced by common law; for this, as being a most grave affair, and one from which most grave inconveniences follow, the Supreme Pontiff has deservedly reserved to himself alone, as the doctors commonly admit, whom Thomas Sanchez, l. 7, De Matr., d. 1, n. 9, Basilius Pontius, and all others follow." Lugo l. c., n. 6. It is confirmed from the response of the Sacred Congregation of the Council in the same Lugo, l. c., n. 4.

2. Cunegunda, abbess of nuns, commands her professed nuns and novices certain exterior exercises of mortification and penance, and decrees that these are always to be observed in the future. Exterior mortification, she says, is very useful for spiritual perfection; and it was omitted in the Constitutions approved by the Holy See, and so was left to the power and discretion of the Abbess. Moreover, she commands all equally that each one exhibit to her in writing all her virtues and all her sins, every month. The rendering of conscience, she says, was always in use among the Saints and the ancient Monks; and it is a salutary and best means of holiness and perfection, indeed to be counseled to all.

Q. 1. Can the Abbess or Superior of nuns make laws? 2. What must be thought concerning Cunegunda?

R. To the first, cf. I. M. 182. To the second: the abbess or superior of nuns can indeed, in particular cases and to particular or individual professed nuns, impose precepts in virtue of holy obedience, by force of the vow of obedience, obliging gravely or lightly, with respect to those things which pertain to regular discipline, according to the Rule and Constitutions approved by the Holy See. For otherwise nuns would profess obedience by vow in vain. To professed nuns: for precepts of this sort cannot be imposed on novices, since they have not yet emitted the vow of obedience. But since she does not have spiritual and ecclesiastical jurisdiction, she does not have the power of making laws; and so Cunegunda cannot impose on the whole Community, and in perpetuity, those exterior exercises of mortification and penance. And since they are not found prescribed in the Constitutions approved by the Holy See, they would be imposed not according to the Constitutions, but beyond the Constitutions; whence also under this head Cunegunda lacks the aforesaid faculty. For she herself cannot establish a new Constitution beyond the approved ones. - But, although the superior of nuns, as being a woman, lacks ecclesiastical jurisdiction, nevertheless she has economic power, which in itself does not depend on the Keys of the Church or on sacred Orders, but is annexed by natural law itself to any superiority, and is found in any community or society which is ruled by some superior. Hence, by force of this power, a superior can also command something to novices, and correct them, or restrain them by some moderate penalty; but this power, as is clear, is very limited and restricted. Therefore the first precept of Cunegunda is of no force.

The same must be said of the other precept of Cunegunda; which "is no less imprudent than iniquitous. Iniquitous, because she wishes to bind subjects to defame themselves concerning their offenses, however hidden, and indeed before a woman, to whom neither God nor any mortal ever wished to entrust the power of discussing the hidden places of consciences. But it ought to be judged imprudent from the fact that, for the simpler ones, it can easily become a stone of offense, and give occasion to innumerable sacrileges, while they persuade themselves that they are held to put all their offenses, however hidden, on paper, which nevertheless, shame prevailing, they will not do; nor even will they expose more to the confessor than they have noted down in writing. Indeed such superiors, by their damnable curiosity, will expose themselves to dangers of temptations while they attempt to penetrate the hidden things of consciences, which God willed to reserve to himself alone and to his vicars, namely priests." Elbel 284. - Elbel 281-284; G. 97, 98.

This is confirmed from the general Decree of the Sacred Congregation of Bishops and Regulars, 17 December 1890, in which rendering of account of conscience of this sort is prohibited, both for monasteries of nuns, even of solemn vows, and for Institutes of simple vows of either sex, only those Institutes of men excepted which are altogether ecclesiastical in nature and governance. And in the same Decree it is declared to be an abuse that "sometimes in their Constitutions manifestation of conscience had been permitted, that the pupils might more easily learn from experienced superiors, in doubts, the arduous way of perfection, and, contrary to this, by some of these an intimate scrutiny of conscience, which is reserved uniquely to the sacrament of penance, was introduced."

3. Amalia has sons of five, seven, and nine years, to all of whom she is accustomed to give meat on Friday, because, she says, they are not bound by the law of fasting; and because, since the meat was left over from Thursday, it could not conveniently be preserved until Sunday.

4. Exuperius, very early in the morning, departs from the place of his domicile, where a special and obligatory feast of the Patron of the place is celebrated; and he comes to a nearby place, where there is also celebrated a special and obligatory feast of the Patron of the place. In neither place does Exuperius hear Mass that day. Having returned to his homeland after some days, he finds a special fast observed there. But, since before he began the journey he had already in the morning and at midday fortified his stomach with a solid breakfast and an abundant dinner, and with meats, in the evening in his homeland he is refreshed with the customary whole supper and with meats.

Q. 1. What is the subject of law? 2. What concerning Amalia and Exuperius?

R. To the first, cf. I. M. 192 seqq. To the second: Amalia could give meat to the five-year-old son, because he is not yet habitually master of reason. But she could not give meat to the seven-year-old son, the seventh year already completed, and to the nine-year-old son; because, although these are not yet held by the law of fasting, nevertheless they are held by the law of abstinence. For they are held to observe those ecclesiastical laws whose observance is proportioned to their powers. Nor indeed, speaking in itself, is it an excusing reason that the meats are left over from Thursday and could not be preserved until Sunday.

Exuperius is exempted from grave sin because he did not hear Mass; because absent from his homeland, he could not be held by the law of his homeland, nor was he bound by the law of the place in which he was staying, because in that place he was a traveler. But having returned to his homeland, although he was excused from the law of fasting on that day on which he had returned to it, because fasting was no longer possible after several meals had been taken, he was nevertheless still held, during the remaining part of the day, to observe abstinence from meat. - G. 79-87; Elbel 367-472.

5. Paphnutius, a monk dwelling in Rome, on the vigil of the feast of the Purification, on which, by vow, one fasts in the City, does not fast, because, he says, Regulars by force of the privilege of exemption are not held to fasts prescribed by the authority of the Ordinary of the place.

Q. What as to the case?

R. La-Croix, l. 3, p. 2, n. 1274, speaking of religious, says: "Religious are held to ecclesiastical fasts of common law, as is clear in itself; but they are not held to those which are introduced by special custom or vow of the townspeople among whom they reside, because they are not judged part of the profane community; thus Diana, who nevertheless had said that they are obliged by a general custom received in some city. Nor are exempt religious held to those things which are introduced by Ordinaries of places, although by new law they are held to observe diocesan feasts and cessation from divine offices in time of interdict; thus Sanchez, Bonacina, Castro Palao, and others commonly with Diana."

Nevertheless Paphnutius is bound at Rome to the aforesaid fast, both because at Rome there is already such a custom that religious also observe that fast, and because otherwise wonder and scandal could easily exist for the people, especially if other monks also, led by the same reason, should themselves not observe the fast.

"If in some community of Regulars," says Benedict XIV, De Syn., l. 13, c. 4, n. 7, "an ancient custom of observing fasts which the bishop, whether in synod or outside synod, appoints had prevailed, no one doubts that the same community can be compelled thereafter to observe them: for then the obligation of fasting does not arise from the jurisdiction of the bishop, but from the custom itself, which has force for inducing the obligation of law.... similarly, not by the precept of the bishop, but by natural law, Regulars are compelled to fast on those days which the bishop has ordered to be days of hunger, if by not fasting they give scandal to others." And after he had affirmed that the fast on the vigil of St. Apollinaris, prescribed in the diocesan Synod in the year 1627, is observed in the whole diocese of Ravenna both by seculars and by regulars, he adds: "Clement XI, so that every year there might be celebrated the memory of liberation from the danger of the earthquake by which the Roman City was afflicted, established that a fast was to be observed yearly on the day before the feast day of the Purification of the Blessed Virgin Mary; and although this fast was commanded by the said Pontiff as bishop of the City, it is observed up to the present day by seculars and by regulars."

6. Zephirina, her husband having died, remained in her parish. Civilly married to Lucretius, who lived in another parish, she was led into his house. After a week they contract marriage before the parish priest of the former parish of Zephirina. Is it valid?

R. A woman has the domicile of her husband, and having become a widow she preserves it until she acquires another. C. I. 18; C. G. 108. But when other marriages intervene, the domicile of the woman is changed. L. 22, Ad Municip. Therefore Zephirina, although only civilly married, having been led into the house of the man living in another parish, first lost her domicile and acquired a new one. Therefore even if she had contracted marriage not after a week, but on the same day, before the parish priest of the former domicile, the marriage would have been null. - I. M. 199.

7. A girl, bereft of parents, left the domicile of the family, not with the mind of not returning, but so that she might be a servant for some time. Meanwhile she completed majority. - Soon, intending to enter marriage, she goes to the parish of the domicile of the parents, or of the family. - The parish priest says: Now I have no jurisdiction, and he requires delegation from the parish priest of the preceding quasi-domicile. - Had the aforesaid parish priest lost all jurisdiction?

R. Negatively. For the parish priest did not lose jurisdiction in the case, if that girl did not lose her first domicile. But in fact she did not lose the domicile. For first, children of the family follow the domicile of the parent under whose paternal power they are. L. 3, C. de Municip. But domicile is not lost without intention and fact, just as it is not acquired without intention and fact. Therefore domicile is not lost by the intention only of departing, as, for example, if someone resolves to depart from such a place and then does not depart. Nor likewise is it lost by simple departure, if someone, for example, goes off elsewhere for some time and then returns to the place of his own domicile. Therefore, in order that domicile be lost, it is required that he depart with the intention of not returning, or as one not going to return. But the aforesaid girl departed not with the mind of not returning, but only so that she might be absent for some time, and then in fact she returned. Therefore she did not lose the domicile.

Nor indeed should it be said that in the case the domicile was lost by the very acquisition of a new quasi-domicile through service in another parish. For first, from the case this acquisition of quasi-domicile is not established. For for it there is required intention and fact: the intention of remaining somewhere for at least the greater part of a year, and the fact, namely that one has truly come there. Concerning intention, nothing is established in the case. Rather the contrary is established, because she seems to have come wholly by her own will, as if precariously, and to have come only for the sake of finding service, and, this not having been found, intending to depart. Whence it is that although she remained in that place, contrary to her opinion, both for the greater part of a year and even for an entire year, as appears from the difficulty made by the parish priest, nevertheless she more truly did not acquire a quasi-domicile. And although she acquired this new quasi-domicile, she did not thereby lose the prior domicile. For if someone can have a double domicile, why will he not be able to have at the same time both a domicile and a quasi-domicile, as in fact is verified in students who for several years study, for example, in some University and afterwards return to their homeland?

Nor likewise can any difficulty be had from the fact that that girl had in the meantime attained majority,

For first, since, as long as a child of the family is under paternal power, it is not permitted to her to transfer her domicile elsewhere; therefore meanwhile the aforesaid girl retained the paternal domicile. Then from the majority which she attained, it does not follow that she had previously lost the domicile of her parents or of the family, but it follows only that, according to modern laws, she can, if she wishes, transfer her domicile elsewhere. C. I. 220, 221; C. G. 372, 374.

Lastly, from the fact that this girl had been bereaved of her parents, it does not follow, first, as is clear, that by the death of her parents she lost her domicile; nor, as is clearly gathered from the case, did it happen that that girl had in reality stayed outside the domicile of her parents or family, except for that last and brief time of service, of which there is question. - I. M. 199.