Article — Marc, Institutiones Morales
Article II: To Whom the Obligation of Law Extends
Things to be noted beforehand. 1. As Lehmkuhl rightly observes, I, n. 225: It is one thing to be subject to law, to be ruled by law; another thing subjectively to be able to sin against law. In the latter case, it suffices that one can act against law with actual advertence; in the former, this is not necessary. Those who sleep are subject to law, although they can exercise no advertence.
- If we ask: to whom law extends, we do not intend to speak of natural law. For it is evident that all men, from the fact that they exist, are subject to the right of nature; and therefore we said it was wrong to induce anyone to such acts as the law of nature reprobates (cf. n. 124).
We undertake discourse concerning positive law, especially human law.
- It will scarcely be necessary to add that the things which here will be said concerning law do not hold exactly of a precept. For a precept, since it has been made for a person, accompanies the subject everywhere, and everywhere reaches him: for it clings to his bones.
- GENERAL PRINCIPLE. By the obligation of positive law there is reached every man who, having attained the use of reason and having been enrolled into a community or society, is properly and in every way subject to the jurisdiction of the legislator.
It is said 1. Every man who has attained the use of reason; and the reason is that law is a rule directing human actions according to the will of the legislator. But everyone who has attained the use of reason, and he alone, can know the law, and can be directed by it in a human way. Therefore.
Enrolled into a community or society; and the reason is, because law is made immediately for a community. Therefore, just as it can oblige no one foreign to the community or society, so it obliges all who have been enrolled into it on account of some title from which enrollment follows: namely, on account of the title of baptism, from which follows enrollment or entry into a society universal in every respect, that is, into the Catholic Church; on account of the title of birth, attainment of the right of citizenship, domicile or quasi-domicile, from which follows enrollment or entry into some local society, for example, into a kingdom, into a diocese; lastly, on account of the title of pure election, yet accepted by the society, from which follows enrollment or entry into some particular society, for example, into a religious Order.
Properly and in every way subject to the jurisdiction of the legislator; properly is said; and the reason is, because the legislator can impose laws only on those who are truly subject to him. And hence it is why he himself, although he is a member of the community, nevertheless is not subject like the others to the laws which he makes for it; hence also it is why travelers are not held to all the particular laws of some place. They are indeed in the territory, but not of the territory, which latter condition is absolutely required so that one may be properly subject to the legislator, as will be said below, n. 206; in every way is said; and the reason is, because with respect to matter, in which someone is not a subject, he can be bound by no law: thus regulars are not held to all laws of a bishop; and with respect to territory into which a subject betakes himself, he is not always held to the law. Thus those who leave a diocese remain subjects of the Bishop, and nevertheless are not bound by his laws.
With these things having been generally premised, it must be investigated in particular: to what extent, on account of defect of reason, children and others lacking the use of reason are not held to laws; then to what extent, on account of defect of subjection, unbelievers and heretics are not held to the laws of the Church; clerics to civil laws; travelers to local laws; and lastly the legislator himself to his own proper laws.