Article V: On the Subjects of Ecclesiastical Law

355. The subjects of the general laws of the Church are all and only the faithful or baptized persons, habitually endowed with the use of reason, to whom the law is suited (Council of Trent, sess. 7, can. 8, and sess. 14, c. 2 and 5, can. 12 and 13); whence canon 13, § 1: "All throughout the whole earth for whom they have been made are bound by general laws." It is said:

1. the faithful, namely, in the external forum, that is, the baptized, even the perfect and spiritual.

Hence a) infidels, Jews, catechumens are not bound, because they have not entered the Church through Baptism nor are they its subjects (c. 12); b) per se heretics, apostates, schismatics, and the excommunicated are bound, because by Baptism they have been made subjects of the Church, and they do not cease to be such on account of the state of rebellion; nevertheless they are often excused from sins on account of ignorance, indeed sometimes the Church is judged or presumed not to will to obligate them to laws when the obligation would yield to destruction rather than to edification, as it expressly declared for the impediment of clandestinity (c. 1099, § 2). Thus, according to some, this is to be presumed for all laws which directly regard the sanctification of souls, such as laws of fasting, feast days, etc.; nevertheless this has no foundation in the law (cf. can. 87). But certainly they are obligated to laws which are directly enacted on account of the common good, for the decorum of religion or for removing abuses, e.g., to impediments of marriage, unless the Church expressly declares the contrary (can. 1070, § 2).

2. habitually endowed with the use of reason: for law is the rule of human acts, whence it is made for those alone who are capable of obedience and of direction to the common end, or who are capable regularly of positing human acts and of knowing the promulgation of the law.

Hence a) the perpetually or habitually insane are not bound, nor children before the use of reason (can. 12), indeed b) not even children who have the use of reason before the completion of the seventh year, because laws are made for things ordinarily occurring and children before the completed seventh year are not judged to have the use of reason (can. 12); whence they are not bound unless something else is expressly provided in law, as for the law of annual confession or Paschal communion (can. 906 and 859). c) But if after the seventh year there is doubt concerning the use of reason, in the external forum they are judged to have the use of reason because it judges from things ordinarily occurring; in the internal forum, if the doubt is not negative but positive, founded on grave reasons, the obligation becomes truly doubtful and therefore is not to be urged. On the contrary, d) those sleeping, drunk, or half-insane, who have lucid intervals, are bound, since in these the defect of reason is only accidental and transitory.

From these things it follows that those acting against an ecclesiastical law who, for example, are not themselves subject to it because they are not baptized or do not habitually have the use of reason, do not even materially transgress the law to which they are not subject, and those who induce such persons to this do not sin, e.g., by furnishing meats on Friday, by imposing servile work, unless by reason of scandal or contempt. On the contrary, the faithful who habitually have the use of reason but here and now are deprived of it, sin materially, indeed also formally if they culpably placed the cause of the transgression (e.g., by making themselves drunk), just as those also sin formally who induce such persons to transgression of the law.

3. to whom the law is suited: for sometimes certain conditions or age are required for certain acts or penalties, e.g., the twenty-first year for fasting (can. 1254), the years of puberty (14) for penalties (e.g., censures) of latae sententiae (can. 2230).

356. Is a superior bound by his own laws? - The rector of a community, who alone exercises legislative power, such as the Pope, or a bishop for a diocese, 1) is not bound by his own laws as to coercive force: for no one is properly compelled by himself, nor can he be compelled by others, because he alone has supreme power; 2) as to directive force: a) he is not bound directly, that is, by force of the ecclesiastical law itself: for no one obligates himself, nor can someone at the same time be superior and inferior to himself; b) nevertheless indirectly he is obligated by force of natural law, that is, from honesty, fittingness, and natural equity, which demands both that the head be conformed to the members, and that the legislator concur for the common good by enticing subjects by his example, and also lest his authority become cheap among subjects; yet this obligation, as being from fittingness alone, is light, unless there is danger of scandal, great harm for the community, notable injury of a third party as can happen in contracts, etc.; c) he is not obligated even indirectly if his laws do not suit his condition, such as a law concerning pontifical vestments not to be worn, or a law imposing taxes.

It is said: who alone is legislator, for those who exercise legislative power with others in an assembly, e.g., in a council or chapter, are obligated to the laws: distributively, considered singularly and individually, they are inferiors to the assembly itself or to the collection of all, which alone has supreme authority.

357. Particular laws are some territorial, others personal. - The Pontiff and inferior legislators, such as bishops and prelates, can make particular laws which obligate a part of the Church; of these, some are territorial, which immediately affect the territory and mediately persons of the territory as such, that is, insofar as they pertain to the territory; others are personal, which immediately affect certain persons, and which, like particular precepts, cling to their bones and accompany them and obligate them wherever they go: thus a priest suspended in his own diocese cannot celebrate in another. But since a community is defined by territory, and subjects are not obligated except insofar as they are part of the community, hence canon 8, § 2: "A law is not presumed personal, but territorial, unless something else is clear."

358. Subjects of particular laws. - In a territory there can be:

1. Inhabitants, who have domicile there, and newcomers, who have acquired quasi-domicile (can. 13, § 2): domicile is acquired in some parish (or quasi-parish) or at least in a diocese (or quasi-diocese) by residence prolonged to a completed decade, indeed even from the beginning by residence alone with the intention of remaining there perpetually; quasi-domicile is acquired by habitation prolonged for the greater part of the year, that is, after six months, and also from the beginning by habitation with the intention of remaining for the greater part of the year (can. 92). Both are lost by departure from the place with the intention of not returning (can. 95). These are obligated to territorial laws: a) while they are physically present in the territory (can. 13, § 2); b) also while they are physically absent but morally or juridically present, if transgression of the law in their own territory causes harm (can. 14, § 1), e.g., by reason of a thing situated in their own territory, or of an action or omission which they exercise there, or of a delict committed there; c) when absent from the territory and not morally present, they are not bound, because only those who are in some way in the territory are obligated; even if they depart precisely so that they may be exempted from the law, although thus they can sin by intention: for no one transgresses the law who uses his own right.

1. Let it be noted, according to canon 93, that a wife not legitimately separated from her husband necessarily retains the domicile of her husband; an insane person, the domicile of his curator; a minor, the domicile of him to whose power he is subject. But a minor, having passed beyond infancy, can obtain his own quasi-domicile; likewise a wife not legitimately separated from her husband can obtain a quasi-domicile, and one legitimately separated can even obtain a domicile.

2. Travelers, who elsewhere have domicile or quasi-domicile, but accidentally for a short time are staying outside their own territory with the intention of returning, such as merchants and travelers making excursions:

a) generally they are not bound by the laws of their own territory, unless the transgression harms their own territory, as was said under 1), b) and c) (can. 14, § 1);

b) nor per se are they bound by the laws of the territory in which they are present, even if they are similar to the laws of their own territory, because law obligates only subjects or members of the community;

c) nevertheless per accidens they are bound, by force of the common law, by reason of the thing about which they are acting or of the action which they exercise there or of the delict which they commit (because by this reason they are subjects), or from natural law, by reason of the order to be preserved and disturbance and scandal to be avoided; whence they are bound to laws of public security or those which are specially enacted for travelers. Hence canon 14, § 1, 2: "nor by the laws of the territory in which they are staying, except those which provide for public order (insofar as they provide for order), or determine the solemnities of acts";

d) nevertheless they are bound to the universal laws of the Church even if in their own territory they had been abrogated, e.g., to abrogated feasts (can. 14, § 1, 3);

e) but they are not bound to those universal laws if in the place in which they are present they have been abrogated, because local privileges are participated in by all who are staying in the place (can. 14, § 1, 3);

f) but if in one place they have already satisfied the common law, in another they are not bound, except by reason of scandal, because the Church is judged not to will to obligate twice to the same thing.

3. Vagabonds, who have domicile or quasi-domicile nowhere, but pass or wander from place to place, are now obligated by laws both general and particular which are in force in the place in which they are staying (can. 14, § 2); whence they become subjects of the Ordinary or pastor of the place where they are actually dwelling (can. 94, § 2).

4. Exempt persons, who by a fiction of right are judged to be outside the territory and are withdrawn from the jurisdiction of the territory, such as religious strictly so called with regard to the laws of the Ordinary of the place (can. 615):

a) these are not bound to territorial laws per se and by force of the laws themselves;

b) per accidens they can be bound from fittingness or equity, namely, by reason of scandal to be avoided, or the common good to be obtained, with regard to those things which are not repugnant to their exemption and privilege;

c) they are bound with regard to certain causes expressed in law (e.g., with regard to the care of souls) according to the principles of can. 336, § 2 and 619.

Such causes are:

1. by reason of doctrine (the bishop is at the same time as it were an apostolic delegate in a matter of faith), e.g., with regard to the public preaching of the word of God (can. 1338, § 2; 1334 and 609, § 3; Council of Trent, sess. 5, c. 2; sess. 24, c. 4); with regard to schools, oratories, patronages, and other works in those things which regard religious and moral instruction (can. 1382), prior censorship of books to be published (can. 1385-86), prohibition of books (can. 1395, § 1), examination of those to be ordained (can. 996-997);

2. in protecting divine worship (can. 1261, 1265, 1274, 1279), e.g., with regard to prayers and solemnities (can. 612), processions (can. 1291-1292), pious associations (can. 686, § 3; 703), feasts and fasts (can. 1244); laws regarding celebration of Mass, stipend, collections (can. 831, § 3; 804, § 3), etc.;

3. in the care of souls, not only if they are pastors, but generally, not only with regard to instruction and morals, as was said, but also with regard to the administration of the sacraments toward seculars and religious women (can. 874, § 1; 876);

4. in certain matters of discipline, censures and interdicts upon the people, promulgating indulgences (can. 919);

5. by reason of a delict committed outside the convent, when the superior, having been warned, neglects to punish (can. 616, § 2).

1. Some deny this; but it is not demonstrated that the received discipline was changed by the new Code of right.

359. Cases.

1. as to a prohibiting law (e.g., abstinence from meats or from servile works): a) per se he is bound to observe it as long as he is in the former place, because a negative precept obligates always and for always; b) nevertheless per accidens he is not bound if the precept is indivisible (e.g., fasting): for he has the right of not observing the law in the other place, and if he uses that right, now the precept becomes impossible to observe even in the first place;

2. as to a preceptive law (e.g., hearing sacred Mass): a) he is bound to observe it if during the whole time in which the possibility or opportunity of observing the law is given he remains in the former place, because while he is subject to the law he cannot, by beginning a journey, place an impediment to fulfilling the law; hence he must hear Mass if before the last Mass or, while only one is celebrated, before that one he will not be in the other place; b) if before the end of this time in which the law can be observed he arrives at the other place, he is probably not bound, because he has the right of waiting for the last opportune time for fulfilling the law, e.g., if before the time at which the only or last Mass is celebrated he will arrive at the other place. Nor does it stand in the way that one foreseeing an impediment is bound to forestall it, because that is true only when, the force of the precept remaining, someone is to be impeded; but here he is absolved from the obligation of the precept.

1. as to a prohibiting law: a) per se he is bound to observe it from the moment at which he is in the second place, e.g., to abstain from meats or to fast, because at this moment he is subject to the law; b) nevertheless per accidens he is not bound if the precept has already become impossible to fulfill, e.g., if in the former place he had already used his right of eating several times so that fasting has become impossible; but if he has not used that right, and the fast can still be observed, he is bound to it unless there would be grave inconvenience;

2. as to a preceptive law, he is bound to observe it if he has returned before the end of the time in which it can still be observed, e.g., if before the last Mass, because from this moment he is subject to the law and obligated to it, unless, however, it cannot be fulfilled morally, that is, without grave inconvenience.

C. One who in traveling merely passes through a place where there is obligation, although he is not obligated in the place from which he set out or to which he is going, is not judged to be obligated unless he remains in the place of transit, because to interrupt a journey is a sufficiently great inconvenience and as it were an extraordinary means.

D. One who has satisfied the common law in one territory is not per se bound to satisfy again if he comes into a place where the same precept urges to be observed, because there does not exist an obligation of fulfilling the same precept twice.

Let it be noted that in the aforesaid cases an obligation is often given per accidens by reason of avoiding scandal.