First Article. On The Subject Itself Of Law

142. The subject of law generally is only the subjects of the legislator: for to make law is an act of superiority and jurisdiction; but jurisdiction cannot be exercised except over subjects.

The subject of law can be obliged in two ways: either only habitually, or in first act; or habitually and at the same time actually, or in second act. Obligation in first act is called imperfect, but obligation in second act perfect. One who is actually obliged by law and does not observe it sins formally; one who is held by law only habitually and transgresses it sins materially.

143. The subject of law in species. 1. All men are held by natural law by this very fact, that they have rational nature, even if they have not attained the use of reason; for this law is referred to those things which per se and necessarily agree or disagree with rational nature.

Those who have attained the use of reason are held by the law of nature in second act; those who have not attained the use of reason, in first act. Therefore it is not licit to incite children or the perpetually insane to something which is prohibited by natural law, for example to blasphemy, impurity, etc.; for even children, acting against the law of nature, sin materially. But one who induces a child to violating the law of nature, as the principal cause of the violation, sins formally. As soon as children have the use of reason, in transgressing the law of nature they themselves sin formally.

2. By positive divine law which was given by Christ for all men, all are held; but by law which was made for the faithful, only the faithful are held, as soon as they have attained the use of reason. Therefore all are held to enter the Church and receive baptism; but none are held to confess and receive the Eucharist except the faithful.

Therefore if there are divine laws which already fit the age of children, children are held to observe them; thus children too who have committed mortal sin are held to confess, and in death all who have attained the use of reason are held to receive Viaticum.

3. By human law are held all and only subjects who have come to the use of reason, that is, have completed the seventh year and are still habitually self-possessed in reason. The reason for the first: only subjects can be bound by laws made by a superior. The reason for the second is that it belongs to positive law to direct the actions of subjects to the end of the community; but the actions of those who are not yet self-possessed in reason cannot be directed.

a. Unbelievers or the non-baptized are not held by the laws of the Church, because they are not subjects of the Church; therefore per se it is licit to enjoin servile works upon them on feast days.

b. Infants and the perpetually insane are not subject to the laws of the Church, because they do not use reason even habitually; therefore it is licit to provide meats to them on prohibited days.

c. The insane who have lucid intervals, the drunk, those delirious (for a brief time), are subject to the laws of the Church, because they use reason habitually; therefore it is not licit to provide meats to them on prohibited days. For although by eating meats they do not sin formally because of defect of knowledge, nevertheless they sin materially, because they are held by law, since they are habitually self-possessed in reason and only here and now lack its use.

144. Whether heretics are held by the laws of the Church. There is no doubt that heretics, schismatics, and apostates per se are held by the laws of the Church: for through baptism they have been made subjects of the Church. Nevertheless they are for the most part excused from sin, because most are ignorant that they are held by the laws of the Church.¹

There are, however, authors who think that heretics who are born in a sect already established for a long time are not held by those laws which tend immediately to the sanctification of the soul, such as the law concerning sanctification of feasts and fasting; for they judge that the Church does not will to urge these laws, because this would redound more to destruction than to edification. But they are held by laws which intend the protection of public order, such as laws concerning impediments of marriage.² Nevertheless, from the fact that heretics are not held by these laws, it is not licit to infer that Catholics can advise or enjoin the violation of laws upon them, because the Church does not permit them to be induced by Catholics to acting against the law.

Now it is asked in what way the following are held by human laws: a. the legislator himself; b. children; c. clerics; d. regulars; e. travelers; f. vagi.

¹ Greek Catholics are not bound by pontifical laws except in a threefold case: a. in the matter of dogmas; b. if they are implicitly extended to them, namely where the matter itself shows that they are comprehended, because there is question not of a merely ecclesiastical law, but natural and divine law is declared; c. if the laws are explicitly extended to them also.

² G. Marc, Institutiones morales Alphonsianae, 10th ed. (Rome: Guggiani, 1906), I, n. 198. Genicot, Casus conscientiae (Louvain: Polleunis and Ceuterick, 1901), p. 22.

145. On the legislator.

a. First of all, a twofold force of law must be distinguished: preceptive or directive, which obliges only to observing the law and to incurring fault in conscience; and coercive, which also obliges to undergoing the penalty established for transgressors. Besides this, one preceptive force is called direct, if the obligation arises from the law itself and the will of the legislator; another indirect, if the law is only the occasion which, once posited, causes obligation to proceed from another source, for example from natural law. Now it is asked whether a legislator is held by laws made by himself.

b. The legislator is either a college of several persons, which alone can exercise legislative power, as in a republic the college of deputies, or a provincial synod, or a general chapter in certain religious orders; or he is a singular person, as the Pope, a bishop, an emperor, who alone can establish laws.

1. Those who compose a college marked with legislative power are held by laws made by themselves: for the individual members are truly subject to the college which possesses legislative power. Therefore the president of a republic is held by the laws of the republic, a metropolitan by the laws of a provincial synod, a regular prelate by the laws of a general chapter.

The singular relation by which the supreme pontiff is referred to an ecumenical council, namely that he is above the council, brings it about that he himself is not subject to laws made in an ecumenical council.

2. A legislator who alone can make laws is not held by his laws with regard to coercive force, but only with regard to preceptive force, yet only indirectly.

The reason for the first is that no one can oblige himself by coercive force, which all concede; therefore neither the Pope nor a bishop incurs censures made by himself. The reason for the second is that by natural law the legislator is held to conform himself to his subjects in the observance of laws which he himself has established: for the common good, which he is held to procure, is most greatly promoted by good example; besides this, it befits the head of the community to conform himself to the community over which he presides. The reason for the third is that only an inferior can be truly and directly obliged by his superior, but no one by himself, which is commonly conceded by authors.

3. But a legislator who without cause does not observe a law made by himself, with scandal excluded, does not sin gravely; and when a reasonable cause is present, he is altogether excused from the law, even if subjects violating it sin gravely. For he himself is obliged by another law and from another end, namely that he conform himself to the community over which he presides, which equity and fittingness demand.

146. On children.

It must be noted that those are called infants who have not yet completed the seventh year of age; after the seventh year has been completed, they are called impubescent: boys indeed until the completed fourteenth year, but girls until the completed twelfth year of age. When this age has been completed, they are called pubescent.

1. Children before the completed seventh year are not held by ecclesiastical laws, even if they have already attained the use of reason. For human laws do not oblige except those self-possessed in reason; but because human laws attend to things which commonly happen, and it does not commonly happen that children before the completed seventh year have the use of reason, therefore by ecclesiastical law they are not judged to be obliged before the completed seventh year, even if it is established that they already have the use of reason.

a. If it is certain that after the seventh year has been completed they have not yet come to the use of reason, they certainly are not held by laws; likewise, if it is doubtful whether they have arrived at it, they are not held.

b. Therefore children who before the completed seventh year eat meats on prohibited days or do not hear Mass on feast days do not sin, not even materially, even if they have already attained the use of reason. Parents, however, are to be admonished to accustom children even before the seventh year to observing the laws of the Church: for afterward, already accustomed, they will observe them more easily.

2. Children after the completed seventh year are held by ecclesiastical laws which fit their age: for at this age they are capable of obligation; therefore obligation affects them unless the Church determines otherwise. Therefore they are held to hear Mass, to abstain from meats, and to confess at least once in the year; but they are not held to fast, nor immediately after the completed seventh year to receive Paschal communion.

3. The impubescent do not incur ordinary ecclesiastical penalties: for although they can be punished by ecclesiastical penalties, nevertheless they are not yet judged subject to those which are latae sententiae, because at this age they do not yet understand ecclesiastical penalties and their reason. Therefore they do not incur censures, with one exception which is specially expressed in law.¹

¹ The censure made against those violating the enclosure of nuns is signified. Cf. De poenis ecclesiasticis, n. 78. From incurring reserved cases the impubescent are not ordinarily exempted; nevertheless in this diocese of Brixen, from a special disposition of the ordinary, they do not incur reserved cases.

147. On clerics subject to civil laws.¹ 1. The supreme pontiff, even if he were not a secular prince, as the supreme head of the Church of Christ, which is a perfect society diffused through all the kingdoms of the earth, by divine law is immune from any jurisdiction of civil authority, unless he freely wills to subject himself to it for a time, just as the supreme pontiffs of the first centuries were subject to the Roman emperors in fact, not in law.

2. To the supreme pontiff belongs the right of exempting both bishops and clerics from civil jurisdiction. There are some who teach that bishops as princes of the Church are already exempt by that very fact from civil jurisdiction.

The Council of Trent teaches that the immunity of ecclesiastical persons has been constituted by the ordinance of God and by canonical sanctions.² For since the Church from divine institution is a perfect society and, by reason of its end, divine institution, and means, a much nobler society than civil society, it follows that ecclesiastical persons and things sacred to God must be immune from the power of civil princes. Therefore by divine law clerics are exempt from secular power and are subjected solely to ecclesiastical power. At the same time the power has been given to the Church of extending and determining the clerical order, who and in what matters ought actually to be immune from secular jurisdiction.³

3. Clerics are held to observe civil laws which are not opposed to the dignity of the clerical state, with regard to directive force.

a. All agree that clerics are held in conscience to the observance of civil laws, but not all derive the obligation from the same source: for some judge that it descends from the law of nature, others from the civil law itself, and finally others from the will of the Church. In our time Wernz (I, n. 108) defends the second opinion, Lehmkuhl (I, n. 140) the third.

b. Clerics are not held to observe laws which do not befit the clerical state, such as military laws: for the Church does not exact their subjection toward these laws, but rather rejects it; but against the will of the Church civil power cannot subject clerics to its laws. If nevertheless they are forced to observe even laws of this kind against the will of the Church, after a protest against the force inflicted has been premised, if it is judged necessary for preventing scandal, they must yield to force and observe the law.

4. Clerics are not held to observe civil laws with regard to coercive force: for by the privilege of the forum the Church has in fact constituted clerics immune from laws decreeing punishment. Since today, however, civil power no longer recognizes this exemption of clerics, but subjects clerics equally with laymen to all civil laws, it must be seen whether the Church permits or at least tolerates the subjection of clerics under certain penal laws, either expressly through concordats or tacitly through a certain agreement.

¹ The things established here cohere with the doctrine of law concerning personal ecclesiastical immunity. Cf. Suarez, De legibus, l. 3, c. 34. Lehmkuhl I, n. 130 f.

² Sess. 25, c. 20, De reformatione.

³ Ballerini-Palmieri IV, n. 521.

148. On regulars subject to the laws of the bishop. 1. Exempt regulars per se are not held by the laws of the ordinaries in whose dioceses they exist: for the privilege of exemption consists in this very thing, that regulars are exempted from the ordinary jurisdiction of bishops and are immediately subject only to the Roman Pontiff.

2. Nevertheless there are many cases in which exempt regulars are subjected to the jurisdiction of bishops, whether ordinary or delegated.¹

Sometimes per accidens they must also subject themselves to bishops in those matters in which they are per se exempt, namely when subjection is necessary either for avoiding scandal or for promoting the common good.

3. Churches and monasteries of regulars can probably be considered as exempt places, so that non-exempt persons are not subject to diocesan laws so long as they remain in them.²

¹ Ballerini-Palmieri VII, n. 51 f., enumerates these cases.

² Cf. St. Alphonsus, l. 1, n. 156. Ballerini-Palmieri I, n. 346 ff.

149. On travelers.

a. A traveler is called one who has a domicile or quasi-domicile somewhere, but is outside it with the intention of remaining there only for a brief time.

b. The principle from which the individual questions pertaining here are solved is this: in order that law oblige, besides knowledge of the law two things are required: a. that someone be a subject of the legislator; b. that he be in the territory which is affected by the law.¹

1. Travelers are not held by the particular laws of their domicile: for laws are territorial, that is, affixed to the territory in such a way that they do not extend themselves outside it; but the traveler is outside the territory which is affected by the law.²

a. One who on the day of a particular fast is outside his territory is not held to observe the fast. One who, leaving in the morning from a place where there is no fast, returns to the place of his domicile, where a fast must be observed, can there in the morning fully refresh himself with meats, even if he knows that at noon he will already be in the place of his domicile; nevertheless at home he must abstain from meats and observe the fast insofar as it can still be observed, namely as to abstinence. One who in the morning leaves his domicile, in which there is a fast, knowing certainly that in the evening he will be in a place in which there is no fast, can already in the morning fully refresh himself, because the fast is commanded as an undivided thing; but in his domicile he must abstain from meats, because abstinence prohibits individual meals.³

b. Nevertheless one who leaves the territory only after the time useful for fulfilling the law has elapsed, and has not satisfied the law, sins against the law; as if someone leaves a place in which a particular feast is celebrated after the time of the last Mass has elapsed, without having heard Mass. But one who leaves it in such a way that before the time of the last Mass he has arrived outside the place where the feast is celebrated does not sin if he hears no Mass; for if he had remained in the place where the precept obliged, he could have deferred fulfillment until that time, but when he arrives at another place, the obligation ceases.⁴

2. They do not enjoy the privileges of their domicile: for privileges are in like manner territorial, and therefore travelers lose them by departure from the place of domicile.

One who comes from the place of his domicile where on ember days it is licit to eat meats and stays in a place where this privilege does not exist cannot licitly eat meats.

3. They are not held by the particular laws of the place in which they are staying: for laws oblige only subjects; but only one who has domicile or quasi-domicile in the territory of the legislator is a subject. But if the same law is in force in each domicile, some, adhering more closely to the principles expounded above, declare travelers immune from the law; others, however, from a certain equity probably oblige them to observing the law.⁵

One who leaves the place of his domicile, in which there is a particular fast, and comes into a place where likewise there is a special fast, is not held to fast: not by reason of the precept of his domicile, because he is outside the territory; not by reason of the precept of this place, because he is not a subject of the legislator.

4. Travelers enjoy the privileges of the place in which they are staying: for they would have to undergo too great an inconvenience if they themselves were held to observe laws which others in the same place do not observe.

One who during the time of Lent is staying in the diocese of Brixen can eat meats twice in a day on days on which the indult has been granted, even if this privilege does not exist in the place of his domicile.

5. Nevertheless travelers are held by common laws which are in force in the place where they are staying, even if in their own domicile they have been abrogated. Thus Germans at Rome must fast on the days of Holy Week according to the Roman manner: for the law affects the territory, and the traveler himself is subject to the common legislator. Besides this, they are held to observe: a. local laws which regard contracts, for concerning these the axiom holds: place (that is, local law) rules the act; b. local laws whose transgression would turn to the detriment of the place in which they are staying, as if it were prohibited to export goods, or, by reason of security, to carry weapons; c. laws which have been made specially for travelers.

For preventing damages and for warding off transgressions of universal laws, it is commanded that travelers produce testimony of their domicile and their state, and that traveling priests who wish to celebrate produce testimony of the state of priesthood and of immunity from irregularities and censures.

6. One who has already satisfied a common law in his own territory is not held to satisfy it again if he comes to a place where the same precept urges later, because there does not exist an obligation of fulfilling the same precept twice.

Thus an Italian who fasted at home on the vigil of St. Peter is not held to fast again in France on the following Saturday, to which the fast is there transferred. If, however, he would be a scandal to others because he does not observe the law from which he is immune, by reason of scandal he would be held to observe it.⁶

¹ If ever elsewhere, certainly in this place it must be warned that moral theology, which by its office treats of licit and illicit things, does not primarily teach to what the spirit of the law moves and induces, but chiefly must determine that which the letter of the law strictly demands from us.

² Laws and statutes of regular superiors oblige even outside the territory, because the jurisdiction of regular superiors affects subjects not by reason of territory, but by reason of the vow of obedience, by which they are personally subjected to superiors.

³ What is said of a traveler, namely that he stays outside the territory, holds also of one who is found in an exempt place: for an exempt place can be considered as a place positioned outside the territory of the legislator. Moreover, exempt places certainly are parishes or towns which are subject to another ordinary, and probably also churches and monasteries of regulars. Hence if a bishop under excommunication prohibited dice-playing to clerics, clerics playing in an exempt place would not incur the excommunication. Cf. De praeceptis, n. 663, n. 670.

⁴ St. Alphonsus, n. 157.

⁵ By precept of the Church, prayers (collects) commanded by the bishop of the place must be recited by absolutely all priests celebrating Mass in the diocese, both by regulars and by travelers. S.C.R., April 3, 1821, n. 2613; March 5, 1898, n. 3985.

⁶ Case. In place S., the feast of the holy Apostles Peter and Paul has been transferred to the following Sunday, and on Saturday the fast of the vigil is to be observed; in place U., the feast of the princes of the Apostles is kept on the very day, June 29, and on the preceding day the fast is observed, which day in this year is supposed to fall on Wednesday. a. If a citizen of place S. is staying on Wednesday in place U., knowing certainly that on the next Saturday he will be in the place of his domicile, in rigor of law he must fast in U., because the obligation of the universal law urges. If, however, he had a just cause of fasting rather at home on the following Saturday, he can transfer the fast to this day, provided that he observes the universal law of the Church once. But if in place U. he is not legitimately excused from the fast, he is held to fast at home on Saturday. b. If a citizen of place U. is staying on Wednesday in S., and on Saturday, the day on which they fast in S., is again found at home, in rigor of law he must fast once: for no dispensation from the fast is granted, neither in place S. nor in place U.; therefore he cannot use the privilege of dispensation which is granted nowhere. Nevertheless, since in place S. there exists the privilege of deferring the fast to the following Saturday, he can use this privilege. But if by fasting on that day on which otherwise no one fasts he must undergo great inconvenience, per accidens in that year he is excused from the fast because of this inconvenience.

150. On vagi. A vagus is called one who has neither domicile nor quasi-domicile anywhere. a. There are some (Suarez, Sanchez, and others) who say that vagi are held to the laws of the place in which they are staying. But others (Lessius, Laymann, etc.) teach that they are not held to any particular laws of places, except in the threefold case of which above (5) it is said, but only to the universal laws of the Church. Since this opinion is probable, it is licit to follow it. b. All concede that vagi can be punished where they commit offenses, lest their crimes remain unpunished.

Note. A personal precept, likewise a personal privilege, follows the one to whom it has been given everywhere. Therefore everywhere he can use the dispensation, just as everywhere he is bound by the precept.