Section — Prümmer, Manuale Theologiae Moralis
§ 3. On Peregrini and Vagi, Insofar as They Are Subject to Local Laws
193. Notions. As to residence, according to the Code of Canon Law c. 91, four kinds of persons are distinguished: 1. peregrini; 2. vagi; 3. inhabitants; 4. newcomers.
1. A peregrinus is called one who indeed has a domicile or at least a quasi-domicile in some place, but now is staying outside this place, for example, for the sake of a journey, yet with the intention of returning after a short time to the place of domicile or quasi-domicile.
2. A vagus or vagabond (Wohnsitzloser) is properly called one who has a domicile or quasi-domicile nowhere, either because, having left his proper domicile or quasi-domicile, he has not yet acquired a new one, or because he has never had a true domicile or quasi-domicile. Thus, for example, as vagi are held those craftsmen or beggars who run about through diverse places, choosing a fixed habitation nowhere. The state of a vagus is judged in canon law to be something extraordinary and odious, and therefore is not to be presumed, but strictly proved.69
3. An inhabitant is called one who stays in the place of his domicile. Domicile in some place is acquired by residence which is either a) joined with the intention of remaining there perpetually (or at least for an indefinite time), or b) prolonged to a completed ten-year period.70 The mind or intention of remaining perpetually must be proved in the external forum, which indeed can be done in diverse ways, for example, by oath, by transferring a great part of one's goods, by prolonged habitation, etc. But when this intention is present, domicile is acquired as soon as habitation begins.71 Whence, for example, some schoolmaster who for an indefinite time has accepted his office in some place acquires domicile in this place from the first day of habitation. - Domicile is lost with more difficulty than it is acquired, both because in doubt concerning a domicile left behind its preservation must be presumed, and because domicile is judged for the faithful to be something favorable and its loss something odious. Wherefore a domicile once possessed is not lost except by renunciation or by the acquisition of another true domicile.
4. A newcomer is called one who resides in the place of his quasi-domicile. But someone acquires quasi-domicile in a place when he dwells in it for the greater part of a year, or at least with the intention of remaining there for the greater part of a year. The greater part of a year is certainly judged to be a time exceeding six months; wherefore a residence prolonged for 181 days in some place always suffices for acquiring quasi-domicile, without inquiry needing to be made concerning the intention of remaining there for the greater part of a year.72 Nor is it necessary that this residence be uninterrupted; for a small interruption does not destroy the intention of residing in that place. Quasi-domicile is usually had, for example, by students staying in academies outside their homeland, soldiers in camps (commonly, garrison), servants in the domicile of the master, etc.
Divisions of Domicile. 1. Domicile or quasi-domicile is distinguished as parochial or diocesan, according as it is obtained either in some parish or quasi-parish, or only in a diocese, apostolic vicariate, apostolic prefecture.73 Therefore someone can have a diocesan domicile (quasi-domicile) without a parochial domicile; but everyone who has a parochial domicile (quasi-domicile) thereby also has a diocesan domicile.
2. Domicile is distinguished as voluntary, which is acquired by one's own choice according to the two modes indicated above; and necessary or legal, which is acquired by another's choice from the disposition of law. Thus a wife (not legitimately separated from her husband) has the domicile of her husband; an insane person the domicile of his curator; an underage son the domicile of the one to whose power he is subject (c. 93).
69 Cf. Sacred Rota, March 4, 1916 (Act. Ap. Sed. VIII, 373).
70 Cod. iur. can. c. 92.
71 Cf. St. Alphonsus, Theol. mor. l. 6, n. 778.
72 Cod. iur. can. c. 92, § 2.
73 Ibid., § 3.
194. Principle 1. A peregrinus is not held to the strictly territorial particular laws of his domicile or quasi-domicile, unless, however, their transgression in his own territory would do harm.74
The reason is obvious. For such laws are territorial and oblige only those who in fact are staying in such territory. Hence, for example, an inhabitant of Spain who on July 25 is living outside Spain is not held to hear Mass, to which he would be obliged if existing in Spain on account of the feast of the Apostle James. - Indeed authors commonly teach that some inhabitant can leave the place of domicile or quasi-domicile precisely for this cause, that he may be exempt from the particular law of his own place.75 For example, if there is a fast in some parish because the parish church is to be consecrated on the next day, a parishioner could leave the limits of the parish for the purpose of not being obliged to the fast. For no strictly territorial law prohibits departure from the territory itself, since everyone remains free to dwell in his own territory or not.76 - But I said that a peregrinus is not held to strictly territorial particular laws. For if some law of a place is not strictly territorial, but rather personal, then it obliges subjects everywhere on earth and follows them everywhere as a shadow follows the body. Thus, for example, laws concerning military service to be undertaken oblige subjects even living in another land, unless, however, they have obtained legitimate expatriation. Not rarely it is rather difficult to discern whether some particular law is strictly territorial or personal. Thus laws and penalties made by some bishops for their clerics about not approaching taverns and spectacles, about not playing cards, etc., are not clearly known as territorial or as personal; and therefore then it is not clearly established whether a cleric transgressing laws of this kind outside his own diocese contracts the special penalties determined by the bishop. If solid doubt remains concerning the mind of the legislator, the penalty made is not incurred, since it is of strict interpretation.77 Indeed it is generally established in law: "A law is not presumed personal, but territorial, unless something else is established."78
A peregrinus is held to observe the particular laws of his domicile or quasi-domicile if their transgression in his own territory would do harm; for example, if a diocesan law rightly forbids all inhabitants to furnish aid to some harmful institute existing in the diocese, then an inhabitant, even while journeying outside the diocese, cannot licitly furnish such aid.
74 Ibid., c. 14, § 1.
75 The contrary is asserted, but not sufficiently proved, by Concina (De iur. nat. et gent. lib. 1, diss. 4, c. 2, q. 8).
76 St. Alphonsus, Theol. mor. l. 1, n. 157.
77 Thus also Génicot, Cas. consc. I, 21 (de leg., cas. 1).
78 Cod. iur. can. c. 8.
195. Principle 2. A peregrinus is not obliged by the particular laws of the place where he dwells outside his own domicile or quasi-domicile, except in three cases: 1. if otherwise scandal or some other detriment would arise for the inhabitants; 2. if there is question of contracts to be entered into; 3. if there is question of penalties inflicted on account of a delict committed.79
It is declared: A peregrinus generally is not obliged by the particular laws of the place where he dwells, because he is not subject to the legislator of that place; for he is subject to the legislator not from the fact that he dwells for a short time in his territory, but from the fact that he acquires domicile or at least quasi-domicile there.80 Wherefore if, for example, a bishop prescribed a feast day in his diocese, he neither could nor wished to oblige anyone except his own subjects.
But the three enumerated cases are excepted, in which not now the particular positive law, but rather the natural law itself induces the obligation. This indeed appears easily by inspecting the individual cases. For 1. if a peregrinus by not publicly observing a feast day prescribed by particular law would give true scandal, he would be held to observe it.81 Likewise, 2. if by his transgression he would cause some other detriment to the inhabitants; for the natural law itself prohibits causing scandal or detriment to others. - The same reason applies concerning contracts and other acts to be entered into under a special juridical form. Hence that adage: The place rules the act.82 For if a peregrinus did not observe particular laws made concerning the validity of acts and contracts, the act or contract would be invalid, and the peregrinus could always withdraw from the act or contract entered into, which would cause great detriment to the inhabitants. Whence if, for example, someone wishes to make a contract of purchase in some foreign place, he is held to fulfill the conditions required by the particular law of this place. As to the civil contract of marriage, special international stipulations have force. - 3. The third exception, namely, as to penalties contracted from a public delict, follows both from canon law establishing:83 "The accused obtains the forum in the place of the delict committed"; and from natural law. For if a peregrinus committing a delict in another place could not be punished by the legitimate authority of that place, he would often escape unpunished, or at least his chastisement would become very difficult. Whence also international law admits this exception. For if, for example, a Frenchman committed a crime in Switzerland and has been captured, he is condemned by a Swiss tribunal according to Swiss laws, but not according to the laws of France.84
79 In this way this principle is stated in Cod. iur. can. c. 14, § 1, n. 2: "Peregrini are not bound by the particular laws of the territory in which they are staying, excepting those which provide for public order, or determine the solemnities of acts."
80 Cf. St. Alphonsus, Theol. mor. l. 3, 332.
81 In this case not only is that advised, but it is truly commanded:
82 Cf. Cod. iur. can. c. 1565.
83 Cf. c. 3 and 20, X, 2, 2; Cod. iur. can. c. 1565.
84 In the Spanish Civil Code it is expressly stated: "Penal laws, laws of police, and laws of public security oblige all who dwell in Spanish territory" (a. 8). The same code establishes similar things concerning the form and solemnity of contracts (a. 11). - Sometimes peregrini, from a special statute, are held to observe other particular territorial laws. Thus from the statute of the Supreme Pontiff, for example, a priest saying Mass in another church is held to observe the directory of that church if a feast double and above is celebrated there. All priests, even peregrini and exempt, must recite the Collects (prayers) commanded by the bishop of the place (S. C. R., March 5, 1898. Decret. auth. 3985).
196. Principle 3. A peregrinus is held to common laws which are observed in the place of his actual residence, although in the place of his domicile or quasi-domicile these laws have been abolished or suspended by legitimate dispensation,85 or more briefly: Peregrini cannot use the privileges of their own territory.
The reason is that such dispensations exercise no liberating force outside the territory for which they have been granted. Wherefore, for example, an inhabitant of some region in which there is in force an Indult of eating meat on Ember days cannot use this Indult if he is staying in another place where the common law is in force. - But it is plain of itself that such an inhabitant can eat meat everywhere on earth if he has obtained a personal Indult.
If you have been at Rome, live in the Roman manner;
If you have been elsewhere, live as they do there!
85 Cod. iur. can. c. 14, § 1, n. 3.
197. Principle 4. A peregrinus can use the privileges and indults in force in that territory in which he is here and now staying.86
The reason is that a territorial privilege or Indult is judged to be given for all, whether inhabitants or travelers, who are staying in such territory (unless, however, the contrary has been expressly established, as, for example, Pius X did in the Constitution Provida). Hence, for example, an Italian traveling in Switzerland can use the privileges there in force concerning fasting and abstinence. - On the contrary, on account of the same reason, a peregrinus cannot use the particular privileges in force in the place of his own proper domicile or quasi-domicile, as is plain from Principle 3.
86 Cod. iur. can. ibid.; St. Alphonsus, Theol. mor. l. 1, n. 161.
198. "Vagi are obliged by both general and particular laws which are in force in the place in which they are staying." Thus the Code of Canon Law c. 14, § 2 expressly establishes, and therefore the controversy formerly existing about this matter is finished. In some matters, and especially as to the celebration of marriage, special laws have been made for vagi, as will be said below in the treatise on marriage.
199. Scholion. On Some Particular Cases. If someone has already fulfilled the precept of a common law in one place, he is not held to fulfill it again if he comes to another place where this precept now obliges. For it is not equitable that one and the same precept cause a double obligation and have to be fulfilled twice. Whence, for example, if an inhabitant of Holland fasted on August 14 on the Vigil of the feast of the Assumption of the Blessed Virgin Mary, he is not held to fast again on the following Saturday, when the Vigil of this feast is celebrated in Prussia, if at that time he is staying in Prussia. On the contrary, the opinion of several theologians seems too formalistic (although probable), teaching, for example, that an inhabitant of Holland who on August 14 is staying in Prussia is not held to fast in Prussia, because on that day there is no fast there; and also that he is not held to fasting on the following Saturday, when he is then returned to Holland, because on that day there is no fast in Holland, since the feast of the Assumption has already been celebrated.
There are several matters in which the principles given above must be applied; notably in the absolution of reserved cases, for example, whether a penitent who committed a reserved sin in his domicile can be absolved outside his domicile by any confessor whatever. - But it will be better to treat the individual cases in their proper places.