III. On the Subject of Law

What is the subject of law? - The subject of law and obligation are all and only subjects for whom the law has been made. For the whole force of obliging is in the superior. But only a subject corresponds to a superior. But laws are not always made for all subjects, as military laws, laws of clerics, etc. - General local laws are made for any place, and particular laws for a particular territory; those are held by them who dwell in the same territory, and have domicile or quasi-domicile there, or are staying there. Cf. 199. - S. Th. 1. 2. q. 93. a. 5, q. 96. a. 5; L. 153; Wirceburg. c. 4. a. 4.

You will resolve: Every man is subject to natural law. For natural law is the very reason and divine will commanding the order to be preserved and forbidding it to be disturbed, promulgated through the very light of reason, namely insofar as God inserted it into the mind of men to be known naturally. But every man enjoys reason. Therefore it is not licit to provoke infants, drunkards, and the insane to intrinsically evil actions. L. 153. 155. - All and only those habitually possessed of reason, who exist under the jurisdiction of the legislator, can be subject to a positive law commanding or prohibiting human action. For law is a rational and stable rule for the common good. But men habitually lacking the use of reason cannot be directed by a rational and stable rule to the common end of society. Hence meats are licitly given to infants not yet having obtained the use of reason, and to the perpetually insane, on prohibited days. They are illicitly given to those insane for a short time and to drunkards. L. 153. 155; Elbel n. 355 seq.; Struggl q. 3. n. 8 seq.

The legislator is not bound directly by his laws as such, that is, as regards the obliging and coercive force; nevertheless indirectly, as regards the merely directive force, from a certain equity he is bound to conform himself as head to the members, namely as regards those laws which befit his state. Hence "it is probable, scandal being excluded, that he is bound only under light fault, because he is bound to the law only from honorableness." L. 154. Scandal being excluded: for if scandal were present in a public transgression of the law, he would be bound to observe it; by no means however in that case would he also be subject to the penalties which he himself imposed on transgressors. Likewise he is also bound to use equal condition in contracts. C. Iustum Dist. 9; L. 154; S. Th. 1. 2. q. 96. a. 5; Struggl q. 3. n. 1; Lessius De Iur. et Iustit. l. 2. c. 35. dub. 5. n. 33; Suarez De Legib. l. 3. c. 35.

Infidels, not yet baptized, are not obligated by the laws of the Church, although they are bound to enter the Church. 1 Cor. 5:12. On the contrary, heretics, schismatics, and the excommunicated are of themselves held by ecclesiastical laws. This must be understood of the excommunicated as regards acts not interdicted by the excommunication itself. But as regards heretics, in places where they are tolerated, penal laws have no effect. Trent sess. 7. c. 8 de Bapt.; Schmalz. l. 4. t. 1. n. 378-380, t. 3. n. 99, l. 5. t. 7. n. 171-174; Reiffenst. l. 1. t. 2. n. 274; L. 154.

Greek Catholics, and generally Orientals, although they are held by definitions of catholic doctrine concerning faith and morals, nevertheless are not bound by disciplinary laws of the universal Church, unless something is established concerning them, either by express mention made of them, or by reason of the matter implicitly extended to them by the law. Indeed Constitutions of Roman Pontiffs made for one oriental rite are not extended to other rites without express extension. Nor indeed is it licit for Catholics to depart from the custom and observance of their own rite approved by the Holy Roman Church. E. M. de Stat. partic. 213; Bened. XIV, C. Etsi pastoralis, May 26, 1742, § 9. n. 24, C. Allatae, July 26, 1755; Collect. S. C. de P. F. n. 113. 1999.

Practically speaking, are heretics excused from the observance of the laws of the Church, although of themselves they are bound? - R. Affirmatively, 1. by reason of ignorance in which they are involved. 2. Because it is not presumed that the Church wishes to urge this obligation, lest sins be multiplied in vain, at least as regards merely preceptive laws, which regard the spiritual good of souls. As regards merely preceptive laws; for one is not excused as regards universal laws commanding human action, invalidating laws; because these directly regard public good and order, such as the laws of impediments of marriage, unless the Church positively excepts them, as was done by the Decree Ne temere as regards the form of marriage, which, if they enter marriage among themselves, they are not bound to observe.

Are children held by ecclesiastical laws as soon as they have obtained the use of reason, although they have not yet completed seven years? - More probably this must be denied, because human laws attend to those things which commonly happen. But the use of reason does not commonly happen before the completion of seven years. Moreover, all admit that children before seven years do not incur penalties imposed on transgressors, unless this is expressly declared. Indeed they do not incur ordinary penalties, those which have their effect after the sentence of a judge and even those before the sentence of a judge, unless they are puberes, such as males after the 14th year is completed, girls after the 12th year, or unless express mention is made of them.

Also by civil law they incur milder penalties. C. I. pen. 53 seq.; C. G. pen. 66 seq. Moreover it must be noted that children, after completing seven years, are not obligated by human laws unless they are concerning matter accommodated to their age. Hence they are not obligated by the law of ecclesiastical fast. But they are held by the laws of annual Confession, of hearing Mass, of abstinence from meats; and therefore parents sin who neglect their fulfillment on the part of their own children.

Whether they are also held by the paschal Communion was a controverted matter among theologians. But the S. C. on the Sacraments affirmed that they are held both to Confession and to Communion, Decree Quam singulari, Aug. 8, 1910: "The age of discretion, both for Confession and for Holy Communion, is that in which the child begins to reason, that is, around the seventh year, whether above it, or even below it. From this time begins the obligation of satisfying each precept of Confession and Communion." - L. 155, l. 3. n. 270; S. Th. 2. 2. q. 147. a. 4; La-Croix 676; Struggl q. 3. n. 11. 12; Elbel 367 seq.; E. M.

Are clerics held by civil laws? - R. Affirmatively, at least indirectly, unless they are opposed to the still-prevailing rights of the Church; because they too are members of the republic, and natural equity demands that in those things which are not opposed to their state, they conform themselves to the remaining members. Besides, the Church commands this. Rom. 13:1. Still prevailing: for Concordats are to be attended to, and also legitimate customs. Indirectly: whether they are also held directly, by virtue of the civil law itself, is controverted. - Syll. of Pius IX prop. 30. 31. 32; La-Croix 674. 678; Molina De Iust. tr. 2. d. 31. n. 15; Struggl q. 3. n. 2 seq.; Elbel 275-277; Laymann l. 1. tr. 4. c. 13; Suarez l. 3. c. 34 n. 13. 15. 16; Wirceburg. c. 4. a. 4; Wernz Ius Decr. ed. 1. t. 1. n. 108; Trent sess. 25. C. 20 de R.

How ought clerics conduct themselves if they are compelled to observe some civil law harming the rights of the Church? - A protest must be made against compulsion and law of this kind, if otherwise scandal would follow; or if legislators of this kind would become more daring against the rights of the Church. Once the protest has been made, force must be yielded to, and force is not to be opposed to force, nor are acts of violence, especially public, to be stirred up and provoked; they obtain only this, that more and greater sins are multiplied, and the ecclesiastical state is exposed to greater disgrace and injury. In a case of doubt, recourse must be had to the Bishop or to the Holy See.

Are Senators and Deputies in representative Governments obligated by their own laws? - R. Affirmatively. The reason is that the legislator is not each singular person, but the whole moral Body. The same must consequently be said of the President of the republic, of the Metropolitan and fellow Bishops in provincial synod, of a regular Prelate and other capitulars in a general chapter, etc. - L. 31 de Legib.; Lugo Resp. Mor. l. 6. d. 20.

Are travelers held by the special laws of their own territory, or of the place in which they are staying? - A traveler is said to be one who, having a domicile or quasi-domicile somewhere, comes to some place with the intention not of remaining perpetually, but only of staying for some hours, or days, or at most for the lesser part of a year, which can extend even up to six months. A traveler is distinguished from a newcomer and a wanderer. - A newcomer is one who outside the territory of his own origin or prior domicile has placed his domicile or quasi-domicile. If he transferred his domicile, he is already an inhabitant, L. 239 de Verb. sign., and therefore some inhabitants are original, others newcomers. L. 4. 5 de Incol. C. One acquires domicile, even from the first day, who dwells somewhere with the intention of remaining perpetually, and "where someone has constituted the hearth and the sum of his affairs and fortunes, whence he is not going to depart again, if nothing calls him away from there." L. 7 C. de Incol. Somewhere: that is, in a parish or quasi-parish, by ecclesiastical law; in a municipality, by civil law. Intention in the external forum is presumed if the habitation is of ten years, or if a house has been built there, or the greater part of goods transported there. But a wife follows the domicile of her husband; a son in the household that of the parent under whose paternal power he is; and he who exercises some perpetual office somewhere has domicile there. L. 2. 8. 9 de Incol. C.

But quasi-domicile is acquired by one who remains somewhere, or by arriving there immediately stays there, with the intention of remaining for the greater part of a year; such are servants and students, who consequently besides legal domicile can have quasi-domicile, introduced by canon law. Quasi-domicile is no longer attended to as regards marriage. Someone can also from Roman Law have a double domicile, L. 5 and 6 Ad Municipalem et de Incolis. C. Ne. 22 seq. expressly establishes that no one can have several domiciles at the same time. From the Italian Code, a. 16, the civil domicile of a person is in the place in which he has the principal seat of his affairs and goods (interessi). But residence is in the place where the person habitually stays, ib.

Finally a wanderer is one who nowhere has a fixed and determinate domicile, but transfers himself from one place to another. Innoc. XII, C. Speculatores; L. 156, l. 6. n. 115 par. Secunda; C. I. preliminary dispositions 6 seq., and l. 1. a. 16 seq.; C. G. 102 seq.; C. H. 40 seq.; C. A. 29; C. B. 7-11; C. L. 40 seq. By the name of wanderers, as regards marriage, come all and only those who nowhere have a proper pastor or Ordinary by reason of domicile or monthly stay. A wanderer can contract marriage before any pastor, even if the other party is not wandering. Nevertheless the pastor is bound to make diligent inquiry concerning their free state. As regards wanderers, outside a case of necessity, let it not be licit for the pastor to assist at their marriages unless, the matter having been referred to the Ordinary or to a Priest delegated by him, he has obtained permission. Cf. v. 2. n. 1026.

Now a traveler is not held by the laws of his own territory; for law affects the territory, and he is outside it. C. 2 de Constit. in 6. - Except laws which regard the state of persons. For they adhere to the person. Hence he who is of age in his own homeland is of age everywhere. And thus also a private act everywhere retains its value; and therefore if an Italian or Frenchman has made a holographic testament, wherever he has made it, it is valid; because it is a private act, for which no public form has been constituted by the laws. Except also laws local and personal at the same time, as from the Decree of the Holy Office was the law of the Tridentine form to be observed in marriage. - Likewise except unless someone by fiction of law is judged still to be in his own territory. Thus, for example, if someone outside his own territory were to sell his own thing, existing in that same territory, he is bound to observe its laws in such a sale. Thus also a beneficed cleric who does not reside incurs penalties made there against non-residents. For the thing is judged to be consummated where it ought to have been done; whence the delinquent is held as morally present there where he harms by his action. - Laws: for if the discussion concerns precepts which immediately affect persons, it is certain that they oblige travelers, newcomers, and wanderers everywhere. Hence a priest, for example, suspended in his own diocese by particular sentence from priestly functions, cannot celebrate Mass in another diocese either. Cf. 171. 6; Suarez De Legib. l. 3. c. 32. n. 47; E. M. de Matr. 1026.

A traveler is indeed held by the laws of the place in which he is staying as regards contracts, as regards the form of judgments, and as regards other things necessary for the common good, whose violation namely would yield to the damage and injury of that place in which he is staying. Common and natural right demands this, by which travelers are by no means exempted. The same must be said as regards crimes, because it is equitable that crimes be punished everywhere. But as regards other things, unless scandal is present, a traveler is not held by the particular laws of the place, because law obliges only subjects. L. 1. 3. n. 332. And this probably has force even if the particular law prevails at the same time both in that place and in the homeland. For he is not held by the laws of the homeland, because absent, nor by the laws of this place, because a traveler. Now from C. Licet ult. de For. comp., no one is subjected to the power of another except by reason either of crime, or contract, or domicile or quasi-domicile, or by reason of a thing situated in the territory, or finally by reason of origin. L. 156. 159. - Traveler: for the common opinion teaches that it suffices that someone has contracted quasi-domicile, so that he is held by the laws of the place, even from the first day on which he arrived there with the intention of dwelling for the greater part of a year. L. 156; C. I. beginning, Dispos. etc. a. 6 seq. Traveler: the same must be said of a wanderer, who is not held by local laws as a traveler is not; and is held like him by general laws. Laws: he can use the favors of the place, for he can count himself among the inhabitants. If someone has already satisfied a common law in his homeland, more probably he is not bound to satisfy again when arriving in a place where by special privilege it urges later. Nor indeed is someone bound to satisfy the law if, before the law urges in that privileged territory, he departs from it and goes to a place where the time of the obligation of the law has already passed. The first reason is that there is no obligation of fulfilling the same precept again, since it has already been fulfilled in its own time. The second reason is that outside that privileged territory no obligation any longer urges. - Wirceburg. c. 4. a. 4.

By reason of public order, travelers are often held to exhibit testimony of their state, and permission of departure from the former domicile or quasi-domicile; and thus also from traveling priests wishing to celebrate Mass, a document of immunity from canonical penalty and irregularity is required. But from Decrees of the S. R. C., Apr. 3, 1821, n. 2613, Mar. 5, 1898, n. 3895, prayers or collects commanded by the Ordinary of the place are to be recited also by regulars and travelers.

Note: An exempt place is equated with a place situated outside the territory. Hence a traveler in an exempt place is also not held by the common law to fulfill it. On the contrary, he is held by a common law prevailing in the place where he is, even if in his homeland it no longer obliges; since he too is then under the common legislator, and law affects the territory. L. 160. 161.

It is also probable and safe in conscience that a traveler before departing from his own territory is not bound to hear Mass prescribed there, provided he will arrive outside the place where it urges before the time of obligation ceases; for example, before noon, if then the last Mass is celebrated. The reason is that the precept does not oblige you to wait. L. 157; Elbel 374. 375.

You will resolve: If there is a fast in your territory, and on the same day you go to a place where there is no fast, you can eat supper in the evening; indeed also breakfast in the morning, since fast is something indivisible. Existing in the morning in a place where there is no law of abstinence, you can eat meats, even if on the same day you are going to return home where there is fast. At home, however, you are certainly bound to abstain from meats, since abstinence is something divisible. L. 157; Elbel 372.