Chapter IV. On the Subject of Law

Every man is born and remains subject to the natural law; but by human law only subjects are bound, provided they are habitually possessed of reason. The reason for the first is that, as St. Thomas says, 1-2, q. 91, art. 2, "the natural law is nothing other than the participation of the eternal law in the rational creature"; therefore wherever a rational creature is found, there is present there a subject of the natural law. But the reason for the second is that human law cannot be made except through an act of jurisdiction, which can be exercised only over subjects. Finally, the reason for the third is that men habitually lacking the use of reason cannot be directed by laws.

You Will Resolve. 1st. It is not licit to provoke infants and the insane to a thing intrinsically evil, because, since they have a rational nature, they are bound by the natural law in first act or radically; and therefore those formally sin who induce them to blasphemies or indecent things. Cf. Sanchez, lib. 1, Decal. cap. 10. - Reuter, n. 167.

2nd. It is licit, on prohibited days, to give flesh-meat to be eaten by the perpetually insane, or by infants who have not yet attained the use of reason; but not to those insane for a short time, nor to the drunk or sleeping. The reason for the distinction is that the former are in no way subject to human law, but the latter are subject. - Cf. St. Alphonsus, n. 155.

3rd. Those who have not received baptism are not held by merely ecclesiastical laws, nor baptized persons who do not enjoy sufficient use of reason, nor those who, although they have attained the use of reason, have not yet completed the seventh year of age, unless something else is expressly provided by law (Can. 12).

See also can. 859, § 1; 906; 1099, § 2; 1254, § 1.

4th. Heretics, schismatics, and all other baptized persons whatsoever, even if not Catholics, are of themselves held by ecclesiastical laws, because the foundation of subjection endures in them, which is the character of baptism; nevertheless, accidentally, in practice they do not seem to sin, because they commonly do not know that by their condition they are held to observing these laws, even if perhaps they already know the necessity and obligation of entering the Catholic Church. Indeed it also seems probable that material heretics, such as very many among our own are judged to be, are in no way bound by at least certain ecclesiastical laws, namely those which regard the sanctification of souls, such as the laws of feasts and fasting; not because the Church cannot bind them, but because she is reasonably thought not to wish to bind them. - Cf. Mazzella, de Eccles. disp. 3, art. 10, n. 567. - Tarquini, Jur. Eccl. Publ. Inst. nn. 63 and 65. - Kenrick, tract. 3, part. 1, n. 28.

5th. The excommunicated, although they have been cast out of the Church, are bound by the laws of the Church as regards acts which are not interdicted to them; otherwise they would gain an advantage from their own malice.

6th. § 1. By general laws all persons everywhere on earth are held for whom they were made.

§ 2. To laws established for a particular territory those persons are subject for whom they were made and who have a domicile or quasi-domicile there and at the same time actually reside there, with the prescription of can. 14 remaining firm (Can. 13).

Here, by reason of the necessity of the matter, we place those things which are had in the Code concerning domicile. For very many things depend on the well-understood notion of it.

7th. § 1. Domicile is acquired by residence in some parish or quasi-parish, or at least in a diocese, apostolic vicariate, or apostolic prefecture; which residence is either joined with the intention of remaining there perpetually, if nothing calls one away from there, or has been prolonged for a completed decade.

§ 2. Quasi-domicile is acquired by residence as above, which is either joined with the intention of remaining there at least for the greater part of the year, if nothing calls one away from there, or has in fact been prolonged for the greater part of the year.

§ 3. A domicile or quasi-domicile in a parish or quasi-parish is called parochial; in a diocese, vicariate, or prefecture, but not in a parish or quasi-parish, diocesan (Can. 92).

Diocesan domicile is now already admitted. The difficulty formerly connected with the condition concerning intention now vanishes, once the clause has been posited, or it has been prolonged for a completed decade or for the greater part of the year.

8th. The Code also determines the domicile of diverse persons:

§ 1. A wife, not legitimately separated from her husband, necessarily retains the domicile of her husband; the insane person, the domicile of the curator; the minor, the domicile of him to whose power he is subject.

§ 2. A minor who has passed out of infancy can obtain a quasi-domicile proper to himself; likewise a wife not legitimately separated from her husband; but one legitimately separated can obtain even a domicile (Can. 93).¹

9th. In the same way it is determined through domicile, etc., who is the pastor.

§ 1. Whether by his domicile or by his quasi-domicile, each person obtains his own pastor and Ordinary (Can. 94).²

Domicile and quasi-domicile are lost by departure from the place with the intention of not returning, saving the prescription of can. 93 (Can. 95).

There is a manifold application of these canons to diverse cases, especially matrimonial ones.

¹ Cf. Addenda, p. 1087, n. 1; p. 1106, n. 48.

² Cf. Addenda, p. 1087, n. 1; p. 1106, n. 48.

Question 1. Are clerics held by civil laws?

Response. Affirmatively, excepting those which are repugnant to their state, or to some ecclesiastical immunity still in force. The reason is that clerics are part of the political community, and receive many advantages from it. Wherefore the Apostle says, Rom. xiii, 1: "Let every soul be subject to higher powers." - To these words St. John Chrysostom adds: "Therefore even if you were an Apostle, even if an Evangelist, even if a Prophet, even if anyone else whatever; for this subjection does not overturn piety." - Cf. Scav. n. 221.

I have said, 1st, excepting those which are repugnant to their state; for the state is of divine right, and laws which are opposed to the stronger right cannot oblige.

I have said, 2nd, or to some ecclesiastical immunity still in force. Immunity is a certain exemption granted by the Church either to a person, or to a place, or to a sacred thing. Therefore civil laws which are opposed to this exemption do not of themselves oblige, because they injure the right of a superior order. But often the Church either expressly or tacitly does not urge these immunities, and then civil laws obtain their native efficacy. In this region very few immunities can be urged; the principal ones are: local, by which certain profane acts are not permitted to be exercised in sacred places; and real, by which, only in some places, ecclesiastical goods are exempted from taxes. - In relation to immunity of forum, those things are to be attended to which the Third Plenary Council of Baltimore has, n. 155, but especially canons 120 and 2343 of the Code.

Question 2. Are children held to ecclesiastical laws as soon as they have attained the use of reason, although they have not yet completed seven years?

Response. Negatively. They are not held by merely ecclesiastical laws unless something else is expressly provided by law. Cf. Can. 12. - Cf. St. Alphonsus, de tertio praec. Decal. n. 270. - Lacroix, 676. - Reuter, n. 167.

Question 3. Are pilgrims held by the laws of their own territory?

Before the question is answered, it must be said what comes under the name of inhabitant, newcomer, pilgrim, and vagus:

A person is called: an inhabitant, in the place where he has domicile; a newcomer, in the place where he has quasi-domicile; a pilgrim, if he is staying outside the domicile and quasi-domicile which he still retains; a vagus, if he has no domicile or quasi-domicile anywhere (Can. 91).

Response. Negatively, generally speaking:

§ 1. Pilgrims;

1st. Are not bound by the particular laws of their own territory so long as they are absent from it, unless either their transgression harms in their own territory, or the laws are personal (Can. 14).

Moreover, a law is not presumed personal but territorial, unless something else is clear, Can. 8, § 2. - Cf. St. Alphonsus, n. 156; and Hom. Ap. n. 39. - Lacroix, n. 683. - Elbel, n. 370. - Scav. n. 222.

Question 4. Are pilgrims held by the laws of the place in which they are staying?

Response. Pilgrims are not bound by the laws of the territory in which they are staying, excepting those which provide for public order, or determine the solemnities of acts (Can. 14).¹

3rd. But they are held by general laws, even if these do not have force in their own territory, but by no means if they do not oblige in the place in which they are staying (Can. 14). They are also held by laws as regards contracts, as regards delicts, and as regards those things which are necessary for the common good. - Cf. St. Alphonsus, n. 156.

¹ Cf. Addenda, p. 1087, n. 2; p. 1094, n. 27.

Question 5. By what laws are vagi held?

Response. § 2. Vagi are obliged by both general and particular laws which are in force in the place in which they are staying (Can. 14).

You Will Resolve. 1st. If in your territory there is fasting, and on the same day you go on to a place where there is no fasting, you can eat supper in the evening. Indeed, probably you can also breakfast, and the reason is that fasting is something indivisible.

2nd. Existing in the morning in a place where there is no fasting, you are not bound to fast, even if around midday you are going to return home, where there is fasting. Yet at home you are bound to abstain if it is also a day of abstinence.

3rd. If in your territory there is a special feast of precept and you are about to depart to another place where there is no feast, you are not bound to hear Mass before departure, provided you will arrive outside the place where the precept is in force before the time of obligation ceases. The reason is that the precept does not oblige you to wait.

4th. Pilgrims are held by all common laws in force in that place, even if in their own territory they had been abrogated, or by dispensation did not oblige here and now. The reason is that they are subject to the common legislator, and while absent they do not enjoy the privilege of their own territory. Thus a Cuban staying in this region is held to abstinence on Friday.

5th. Probably pilgrims are not held to observing the particular law of some place, even if the same particular law is in force in their own territory. The reason is that they are held neither by the laws of their homeland, because they are absent, nor by the laws of the place in which they are staying, because, as pilgrims, they are not subject to them. - Cf. St. Alphonsus, nn. 156 and 157; and Hom. Ap. nn. 39 and seq. - Lacroix, n. 686.¹

¹ Cf. Addenda, p. 1087, n. 2; p. 1094, n. 27.