§ 4. On Newcomers, Travelers, and Wanderers

Schmalzgrueber, l. 2, tit. 2, n. 16, 19; Wernz, IV, n. 177; Feije, n. 204; Bucceroni, I, n. 198. Attend especially to the causes argued before the Tribunal of the Sacred Roman Rota.

203. Things to be noted beforehand. I. In the broader sense, the words newcomer, traveler, and wanderer designate promiscuously any FOREIGNERS.

In the strict sense, a newcomer is said to be one who, outside the place of origin, has a domicile or quasi-domicile. To him is opposed the inhabitant, who remains in the place of his origin. A traveler is he who, having a domicile or quasi-domicile somewhere, remains accidentally in another place, although for a long time, for example, to visit a friend, and does not have the intention of dwelling there. A wanderer is said to be one who has nowhere a domicile or quasi-domicile, but transfers himself from one place into another.

It can happen that someone ought for the moment to be called a wanderer, namely when he has left his old domicile, and has not yet acquired even a quasi-domicile, for example, if someone were to migrate from Europe into the regions of America.

II. ON DOMICILE. Domicile is habitation in some parish,¹ with the intention of remaining there perpetually, unless something calls one away from there. In order that it be acquired, two things must be present at the same time: 1. that someone begin to dwell somewhere, and 2. that he have the intention of remaining there perpetually.

If such intention is not clear, it is judged in the external forum that this mind is or was present, either by ten-year or assiduous habitation, when the will of departing has not been signified, or by the transfer of the greater part of goods, or by purchase or building of a house, or by assertion under oath. Cf. A. A. S., IV, p. 328, 676 ff.

In order that domicile be lost, it is required that the two aforesaid things be absent at the same time. Neither departure alone, nor the intention alone of not remaining, brings about the loss of domicile.

Note. Besides the domicile which we have just described, which they call voluntary, there is given legal domicile, which someone necessarily acquires from the disposition of law. That truly is determined for wives, who acquire the domicile of the husband, and retain it after the death of the husband, until they have acquired another; for wards, who obtain the domicile of guardians; for children, whose domicile, until they become of their own right, is the same as that of the parents, and remains the same even after majority, until they have acquired another, the former having been left behind.

Thus civil law, whose dispositions concerning legal domicile ecclesiastical law holds ratified: from which it follows that all who have legal domicile cannot acquire another true domicile elsewhere, though they can acquire a quasi-domicile. As regards others, who do not have legal domicile, no ecclesiastical law prohibits them from choosing several domiciles (A. S. S., vol. 15, p. 222), provided they dwell almost equally in all. Several civil rights concede the same, for example, German Civil Law, § 7.

III. ON QUASI-DOMICILE. Quasi-domicile, which civil rights do not recognize, is habitation in a place together with the intention of dwelling there for the greater part of the year.

It is acquired by the very fact that habitation with such an intention begins, nor is it required that someone in fact have dwelt in the chosen place for some time.

But note: habitation is required, nor is it sufficient that someone pass the whole day for months or years in a workshop, about to return in the evening to his own or his paternal house. A fortiori, it is not sufficient that, after the manner of one traveling, he migrate from region to region, from place to place.

It was said: for the greater part of the year, and thus the Sacred Congregations express themselves (Holy Office, June 7, 1867). By these words there is commonly intended the mind of dwelling for six months (cf. Noldin, I, n. 152). Cf. also A. S. S., 31, p. 346. Therefore he who with that intention has begun habitation has acquired quasi-domicile in the parish, so that, as regards fulfilling laws and receiving sacraments, he becomes subject to the competent legislator.

If a doubt arises concerning the mind of remaining for the greater part of the year, in the external forum it is judged to be present if various indirect indications are given: for example, habitation for a month, rental of a house for six months. The mind can also be proved directly by oath.

Note. 1. In order to contract matrimony, the Sacred Congregation of the Council declared, in the celebrated decree Ne temere, that one month's stay suffices. Therefore then the question is no longer of domicile or quasi-domicile, since no mention is made of the mind of remaining there for a longer time of the year. This declaration confirms the practice introduced in the United States of North America by Leo XIII in the year 1886.

2. Authors dispute whether someone can have two quasi-domiciles, and whether children acquire the legal quasi-domicile of parents (Wouters, op. cit., p. 102 ff.). Whatever may be the case concerning the controversy, it is certain that nothing stands in the way of children choosing a quasi-domicile for themselves, as many servants or workers, students, soldiers, public officials, etc., do.

3. As regards the sick received in a hospital, if a question is raised concerning their domicile or quasi-domicile, it must be seen whether they are admitted for a brief or long time, whether after an incurable illness, so that a true judgment can be made.

204. PRINCIPLES. I. Foreigners are obliged, just as the inhabitants of the place, both by the laws of common right and by the laws which the security or convenience of the place wills to be observed by all.² The reason for the first is, because all are subject to the common legislator. The reason for the second is, because the common good of the place, and right order, impose the law on all (I, 156).

Wherefore, local law, besides the necessity of avoiding scandal, binds all, if it regards: a) the form and solemnity of contracts, because the place rules the act,³ so that confusion may be avoided (A. S. S., vol. 32, p. 363); b) the vindication of a delict committed against common right, because the delinquent obtains the forum where he committed the delict; c) dangerous things to be carried away, or directly the governance of travelers.

We said: just as the inhabitants of the place, that is, neither more nor less, since right order requires this. Hence: 1. Foreigners enjoy the privileges of the place, nor are they bound by a law of common right, if it has been abrogated in this place; or if a contrary custom is in force, or an exemption, for example, in monasteries of regulars, or finally a dispensation which affects not persons, but the territory itself.

2. They do not enjoy the privileges of their homeland, because they have lost these by departure. Wherefore they are held to the common law, for example, of fasting or of a universal feast, as it is observed in the place in which they dwell, or through which they pass. In this case that saying holds: If you shall have been at Rome, live in the Roman manner; if you shall have been elsewhere, live as there.

He, however, who has already satisfied the common law in his homeland, more probably is not held to satisfy it again, if he comes to a place where the same precept urges later. Thus an Italian who fasted in his homeland on the vigil of St. Peter is not held, scandal being set aside, to fast again in France, where the fast is transferred to the following Saturday; because there is not given an obligation of fulfilling the same precept twice (Gury, I, 97, 7.).

But what if someone, while they are fasting in his homeland on account of the vigil of a universal feast, is staying in a place where the fast is transferred to the following Saturday, and returns to his homeland before Saturday? Some say that he ought to fast once, wherever he may remain; others judge that he can use epikeia, and that the law ought not to be imposed on him, provided he has not arranged all things thus on purpose. Cf. Noldin, I, n. 148; Lehmkuhl, I, n. 236.

205. II. Newcomers are released from the laws of the homeland from which they departed; but they are held to the laws of the place in which they establish domicile or quasi-domicile, as soon as they have arrived there. The reason for the first is, because local law does not go beyond the territory. Except if someone physically absent is reputed morally present by a fiction of right, for example, by reason of the office which he bears, or the goods which he possesses in the homeland. For then actions or omissions are judged to be done in that territory, or to have effect there (Bouquillon, Theol. mor., n. 106, 243). The reason for the second is, because newcomers, when they have acquired at least quasi-domicile, are now subject to the jurisdiction of the Superiors of the place; therefore they are also held to the laws, just as the inhabitants themselves (I, 156; ed. G., I, p. 136).

206. III. Travelers and wanderers are regularly immune both from the laws of the homeland and from the laws of the place in which they are staying. The reason for the first is the same as for newcomers, because they are outside the territory of the legislator. The reason for the second is both because laws oblige only subjects, such as travelers are not, since they are by no means subjected to the jurisdiction of the Superior of the place on account of that brief stay; and because he is not said morally to dwell in some place who does not remain there, nor has the mind of remaining, for the greater part of the year. This opinion, more probable to St. Alphonsus, has now already become more common and is entirely safe in practice. See the Holy Doctor, l. c. (ed. G., I, p. 135). Except if a Superior of higher order willed particular laws to be observed also by travelers, for example, that an imposed prayer be said.

We said: regularly; for travelers are held to the laws of the homeland, not only in the same cases as newcomers, but also in the case in which a special prohibition of departing stands in the way, such as is had in absolving reserved cases (cf. n. 1278). But with such a prohibition excluded, which would bind the subject after the manner of a personal law (A. S. S., vol. 36, p. 222), each one can leave the homeland or betake himself to an exempt place, even to exempt himself from the law (see St. Alphonsus, l. c., n. 157); because then not fraud, but the condition of the place favors the one departing.

The general rule can be expressed briefly in this way: In order that someone actually be obliged to a local law, it is regularly necessary that he be in the territory and of the territory; in order that he enjoy a local privilege, it is required and suffices that he be in the territory.

207. From these things you resolve: 1. If in your territory there is a special feast, and you are going to set out for another place where there is no feast, you are not held to hear Mass before departure, provided you arrive outside the place where the precept is in force before the hour of the last Mass, at which time the precept would already urge.

2. If in your territory there is a fast, and on the same day you go to a place where there is no fast, you can breakfast in the morning, but not likewise eat meats. The reason for the first is, because, since fasting is indivisible, as consisting in one meal, he is not held to fast to whom several meals are conceded on the same day. The reason for the second is, because abstinence is divisible, and must be observed for the whole time in which one remains in the place where the law obliges.

3. Existing in the morning in a place where there is no fast, you can eat meats there, even if about midday you are about to return to a house where there is a fast; at home, however, you are held to abstain from meats (I, 157).

208. Note. The things said above hold concerning laws. Things are otherwise if we consider precepts alone. For these follow subjects wherever they may have been, as we have already noted. It must be noted besides that the best mode of avoiding anxieties of conscience, especially if someone ought to undertake a long journey, consists in this, that a personal privilege be acquired (cf. n. 243). For we can use this everywhere (Noldin, I, n. 134; Genicot, I, n. 119).