Article — Konings, Theologia Moralis
ARTICLE II: ON THE SUBJECT OF LAW
- Principles. - I. The subject of law is subjects actually obliged, or to be obliged, by law. I say: obliged or to be obliged; for there are those who deny that infants and the perpetually insane are subject to the natural law, since it has not been promulgated to them, as they lack the use of reason. Those who affirm respond that rational nature, which is in them also, and the natural law cannot be separated from one another, and therefore that they are subject to it in first act. But all agree that it is wicked to provoke them to blasphemies, etc.; and this logically only those can admit who, with St. Alphonsus,1 affirm that infants and the insane are held by the natural law in first act.
- II. All and only subjects habitually capable of reason are subject to human law. - The reason of the first is that law cannot be made except for subjects. The reason of the second is that men habitually lacking the use of reason cannot be directed by laws.
From the former part of this principle it follows that infidels, or non-baptized persons, are not obliged by ecclesiastical laws, because they are not yet subjected to the jurisdiction of the Church. Nevertheless they are held to enter the Church, since they are subjected to divine law, in this case the Evangelical law. On the contrary, it follows that heretics, schismatics, and any other baptized persons, even if not Catholics, are held of themselves by ecclesiastical laws, because, although they are rebels, they do not cease to be subjects of the Church.2 I said: of themselves; because 1° they almost do not know that they are held to those laws, even if perhaps they already know the necessity, that is, the obligation, of entering the Catholic Church; in which case in practice they do not sin; and 2° sometimes circumstances are present, with which concurring the Church must be judged not to will to oblige heretics by its laws, or by some certain law, namely lest they be more and more stained with sins.3 In a word: it is one thing that the Church can oblige heretics by all its laws, another that she wills to do so. In practice, heretics returning to the bosom of the Church are not to be forced in confession to accuse themselves of not hearing Mass of precept or of not observing the law of fasting.4
It likewise follows that excommunicated persons are bound by the laws of the Church, although they have been cast out from the Church; otherwise they would report advantage from their malice. Besides, it rests with them that they be loosed from excommunication.
From the latter part of the principle it is clear that infants and the perpetually insane are not subjects of human law. Therefore it is licit to give them meats to eat on days on which those meats are prohibited by the Church. Yet this is not expedient with little children who before the seventh year begin to have some use of reason, although very imperfect. For it is of the greatest importance that from their earliest years they become accustomed to carry the yoke of the Lord. Nevertheless the insane for a short time, or those who have many lucid intervals, the drunk, and those sleeping, are subject to law, because they are in the habitual state of the use of reason. Hence it is not licit to give them meats on prohibited days.1
- III. Only men actually using reason can morally violate a law, because, knowledge being lacking, no one can sin.
- Questions. - Quaer. 1° Are clerics held by civil laws?
Resp. Affirmatively, as to their directive force, excepting however those which are repugnant to ecclesiastical immunity, still in force. For all parts of the political community are obliged by political laws; but clerics are parts of the political community. Therefore.
I said: 1° excepting however those which are repugnant to ecclesiastical immunity. This is distinguished as threefold, namely personal, local, and real.
Personal immunity comprehends the exemption of clerics 1) from the lay forum in causes both civil and criminal;2 2) from taxes, to which their goods are not subject, both ecclesiastical goods and goods acquired in any other way whatsoever;3 3) from those burdens which are judged base or sordid, as the repair of roads and similar things; 4) from military service, from the reception of soldiers, and other prestations for the sake of military affairs; 5) from tutelage and curatorship, and generally from those things which either do not befit the sanctity of their state, or cannot be combined with the offices annexed to that state.
Local immunity consists especially in two things, namely 1) in the prohibition that in sacred places certain acts be performed, namely profane acts, especially such as more unbecomingly oppose their sanctity;4 2) in the right of asylum, by which provision is made that those fleeing to sacred places or religious houses not be drawn out from them, except under certain conditions.5
Real immunity, or the immunity of ecclesiastical goods, is from taxes and burdens imposed by secular power. How far this extends, see, if you please, in Craisson.6
To ecclesiastical immunity pertain propositions 30, 31, and 32 condemned by Pius IX in the Syllabus. See p. xl.
I said: 2° which are repugnant to ecclesiastical immunity still in force; for the Church can renounce its right as to this or that immunity either expressly, as by a concordat, or tacitly. But tacit renunciation is not easily presumed, since ordinarily it rests on facts posited under compulsion, not voluntarily. Hence:
- Quaer. 2° What must 1° a Bishop, 2° a Cleric, 3° a civil Official do, lest they seem to injure the right of ecclesiastical immunity, when they are forced to observe laws opposed to the same?
Resp. I. Generally, 1° They are bound to protest against laws of this kind, if, every protestation being omitted, scandal would have to be feared. Nevertheless this is not to be feared where the faithful know that impossibility of acting otherwise is present. 2° One must yield to force, without provoking open violences, which serve only to multiply offenses of God and to inflict injuries on the Church.1
Resp. II to the individual points. To the 1st. "Let him believe that he will do more than enough for his office," says Benedict XIV,2 if he takes care 1° "That the secular prince never arrogate to himself the right of sacred things, that is, that he not . . . involve himself in causes merely spiritual and ecclesiastical." 2° "That a lay judge," or secular power, "not invade also that part of jurisdiction" or immunity "which up to now perseveres intact."
To the 2nd. 1° Unless it is a question of a case in which either danger is in delay, or a contrary custom has already become established, let him recur to the Bishop.
2° "Where a difficulty arises with a man even secular and concerning temporal things, let them not call anyone into law, or voluntarily present themselves when called, unless the matter cannot be settled otherwise."3
3° "He despises the honor of the Church and tramples the sacred canons under foot, whoever brings a lawsuit against an ecclesiastical or Religious person . . . concerning a matter of strictly ecclesiastical right . . . before a profane judge,"4 namely as plaintiff and not simply as defendant.
To the 3rd. Let him act as was said concerning a cleric at the 2nd under 1°; for neither can he act otherwise without grave harm to himself or even to Religion, or without danger of the loss of an office perhaps to be committed to a non-Catholic or wicked Catholic. More concerning a civil official in its own place.
- Quaer. 3° What immunities can the Church generally use in the Federated States without becoming liable to the penalties of civil laws?
Resp. a) As to personal immunity, clerics are not distinguished from other citizens, except as to tutelage and curatorship in Louisiana.1 For the rest, in the remaining States no one at all is compelled to this. Thus likewise they are not held to be among the number of jurors ("members of the jury"). b) As to local immunity, only that prohibition of the Sacred Canons by which provision is made that certain acts not be performed in sacred places can be urged; but not the right of asylum. c) As to real immunity, see the things to be said in the Treatise on Right and Justice, n. 620.
- Quaer. 4° Are children held to ecclesiastical laws as soon as they have attained the use of reason, although they have not yet completed the seventh year?
Resp. The sentence is twofold. Those who affirm rely on principle II (n. 110), according to which every man using reason is by that very fact subject to laws. Those who deny bring this reason, that the Church is judged to attend to those things which commonly occur, which to St. Alphonsus2 does not seem improbable, except when it is a question of children who have sinned mortally; for these are held to the precept of annual confession, by which all who have arrived at the years of discretion are obliged.
Notes to n. 115. (1) By which he renounced the benefit of a law perhaps to be passed. (2) i.e., unless the law, for example, is unjust.
- Quaer. 5° Are travelers held by the laws of their own territory?
Resp. Negatively, unless by a fiction of law they are judged still to be in their own territory. The reason is that law, by this very fact that it regards a community, is territorial, and in this it differs from a precept, because law does not affect persons except through territory (n. 98, 5°); and this has force also concerning a law of common right, when a traveler is staying where it does not flourish. Thus, if in your own territory there is a fast, and on the same day you go to a place where there is not a fast, in the evening you will be able to dine. Likewise, existing in the morning in a place where there is not a fast, you will be able to take breakfast and eat meats, even if about noon you are going to return home, where there is a fast. At home, however, you are certainly bound to abstain from meats, but not from a second or further eating; for the precept of abstinence is divisible, but the precept of one eating only is indivisible.1 For the same reason, if you are about to leave a place where there is a fast and are going on the same day to arrive at a place where there is not a fast, in the place from which you depart you will be able to take breakfast, but not however to eat meats.2 Thus also, if in your territory there is a special feast, and you are about to set out to another place where there is not a feast, you will not be held to hear Mass before departure, provided you are going to arrive outside the place where the precept flourishes before that hour at which the last Mass will be celebrated there. The reason is that on one side the precept does not oblige either that you wait, or that from the many Masses which are celebrated you hear some one which is said before the last; but on the other side, once you have arrived outside your territory, you are no longer held by its laws. But if only one Mass is celebrated in your territory, and you are going to depart after it, you are held to hear this Mass.3
I said: unless by a fiction of law they are judged still to be in their own territory. Thus a non-resident pastor is judged to offend in his own territory, and incurs the penalties established there against non-residents. (1) p. 478.
Some also except the traveler going out from his own territory for this reason, that he may withdraw himself from the law, because, they say, he would act in fraud of the law; but "his fraud ought to patronize no one," as the adage of law has it. But St. Alphonsus,4 with others, does not admit this exception; and rightly indeed, since no one seems to act by fraud who uses his own right, as another adage of law has it. But that traveler uses his own right; for the law does not prohibit going out from one's own territory, but only prohibits its precepts from being violated by those who are in the circumference of the law, or in the territory in which it flourishes. Nor does it make to the point that he who leaves the territory with precisely this mind, that he contract marriage clandestinely in a place where the decree of Trent concerning the necessary presence of the parish priest and two witnesses does not flourish, contracts invalidly; or that one cannot be absolved from sins reserved in his own territory, who tends to a place where they are not reserved with this principal end, that he may be absolved from them. For in each case he truly acts in fraud of a law expressly prohibiting this: namely, in the former, in fraud of the Constitution of Urban VIII; in the latter, in fraud of the Constitution of Clement X.
Appendix annotation (Θ), to n. 116. p. 56. col. 1. A fiction of law "is a disposition of law contrary to truth in a possible matter and from a just cause." Reiffenstuel, L. 1. T. II. n. 176. The words: in a possible matter, import possibility not only in fact, but also in law; which others express in this manner: that is, for inducing some juridical effect not repugnant to natural equity. Id. ib.
- Quaer. 6° By what laws are travelers held in the place in which they are staying?
Resp. I. They are held 1°, as is clear in itself, by the natural law of avoiding scandal; for natural law obliges everywhere. Therefore he would sin who violated the particular law of some place in such circumstances in which that violation would cause scandal. Thus, for example, a priest would sin who with scandal of the people did not observe a law made for the clergy of the diocese through which he passes.
2° By laws of Common Right, although not flourishing in their own territory; for the reason of the privilege, or legitimate custom, on account of which it does not flourish in their own territory, affects only that territory and persons staying in it through the territory, and therefore ceases when the territory has been left. Hence a New Orleanian at Baltimore on the feast of the Circumcision of the Lord is held to assist at Mass.
3° By the laws of contracts, and this so that confusion may be avoided. Hence that saying: "the place rules the act." Cf. n. 1612, q. 1°.
4° By laws punishing crimes; for the delinquent obtains the forum of the place where he offends. See, however, n. 1667, q. 4°.
5° By laws regarding the advantages of that place. L. I, n. 156 § end. You have an example of this rule in n. 635, 1°.
6° According to St. Alphonsus,1 by the particular law of the place in which they are staying, if the same particular law flourishes in their own territory. Yet this obtains rather by force of custom than of principles.2 (1) p. 478.
Resp. II. They are more probably not held by the other laws of the place in which they are staying, because laws do not oblige except subjects, such as travelers are not. For by law no one is subjected to the power of another except by reason either of crime, or of contract, or of domicile or quasi-domicile, or by reason of a thing situated in the territory, or finally in certain cases by reason of origin.
Notes to preceding text - note sequence 1.
1 L. I, 156. | 2 Ibid., 154. | 3 Tarquini, Jur. Eccl. Publ. Instit. n. 64, 65. | 4 Frassinetti, Compendio della Teologia Morale, note 7.
Notes to preceding text - note sequence 2.
1 L. I, 156. | 2 S. Alph. de Privil. n. 19. | 3 Ibid., n. 20. | 4 Craisson, Manuale, n. 4828-4837. | 5 Craisson, n. 4838-4840, and S. Alph. de Priv. n. 25-28. | 6 n. 5288-5291.
Notes to preceding text - note sequence 3.
1 Frassinetti, Comp. della Theol. Mor. n. 136. | 2 De Syn. L. IX, c. 9, n. 12. | 3 Conc. Pl. Balt. II, a. 155. | 4 Ibid. and a. 156.
Notes to preceding text - note sequence 4.
1 Civ. Code of Louisiana, art. 292, ad 7. | 2 L. I, 155. IV, 270, 1012.
Notes to preceding text - note sequence 5.
1 L. I, 157 ad 4. | 2 Ibid. ad 5. | 3 Ibid. ad 6. | 4 Ibid. n. 157.
Notes to preceding text - note sequence 6.
1 L. I, 156. | 2 Bonac. Th. Mor. D. I, q. I, P. III, n. 52. Suarez, de Relig. Tr. II, L. II, c. XIV, n. 15.
Appendix annotation (I), to n. 117. p. 56. col. 2. Therefore it can be asked whether Titius, a Bostonian, contracting marriage at Philadelphia with Bertha before a magistrate, would incur excommunication? For in each diocese those contracting thus are punished with excommunication. According indeed to the sentence of St. Alphonsus he would incur it. But whether he holds his own sentence as certain can be doubted somewhat; for he states it with the addition: "although Sanchez with Diana contradicts this." L. I. 156 § fin. It can be added that censure is not incurred unless the sin was certain. - Yet take care not to confuse this question with that concerning the faculty of a simple confessor as regards absolution from a sin reserved to the Bishop with excommunication, in the case in which, because of ignorance of the censure, the excommunication had not been contracted: concerning this question see n. 1401. q. 2°. R. 2°. Notes to nn. 109-117 - printed sequence 1. 1 The Italian one, namely. | 2 I report the conditions only substantially, translated from Italian into Latin. | 3 That is, with no agreement added by which the debtor renounces the benefit of a law perhaps to be passed.