§ 3. On the Subject of Ecclesiastical Law

— I. Principle. Universal ecclesiastical laws of themselves oblige all the baptized who are habitually capable of reason. For human law cannot reach those to whom the use of reason is lacking. Wherefore neither unbelievers nor catechumens are obligated by the precepts of the Church.

— What of baptized heretics or schismatics?

a) No question is raised concerning those who by a recent apostasy have gone over to the non-Catholic camp, or have professed unbelief. These, by their own fault, have deprived themselves of the goods of ecclesiastical communion; nor can they report from their rebellion the benefit of exemption.

b) But others belong to sects established long ago by quasi-birth itself or by education in infancy, so that a far greater presumption of good faith must be said to profit them.

The controversy which arose concerning them after the pseudo-Reformation of the sixteenth century seems able to be solved briefly in this way.

Some ecclesiastical laws have been directly constituted to protect public order and the common good of Christian society: such are the laws concerning the form and conditions of marriage. Heretics and schismatics are of themselves subject to those laws. Nevertheless, by a positive concession, which was first made general by the decree Ne temere, 2 Aug. 1907, and now is confirmed by c. 1099 of the Code, non-Catholics who contract among themselves are nowhere held to observing the Catholic form of marriage. But they must be said to be subject to ecclesiastical impediments, except disparity of cult from c. 1070.

Other laws directly intend the sanctification of individual persons. There are various precepts and prohibitions concerning the observance of feasts, concerning fast, abstinence, books to be published or read, etc. Baptized non-Catholics have the title of subjection in baptism. Is it the mind of the Church that we should hold them as exempt? A positive indication is lacking. Indeed, c. 87 indirectly manifests the contrary mind of the Church. For after it has said: "By baptism a man is constituted a person in the Church of Christ, with all the rights and duties of Christians," it immediately adds: "unless, as regards rights, there stands in the way an obstacle impeding the bond of ecclesiastical communion, or a censure laid by the Church." Therefore the law seems to deny that anything stands in the way of duties. Nor is a general dispensation necessary for sparing many sins: for by ignorance or by persuasion of immunity from formal sin there are excused not only those who adhere in good faith to a heretical sect, but also, at least of themselves, others who remain in a non-Catholic sect with doubtful or bad faith.

Nevertheless it seems to be according to the mind of the Church that today Catholics, in their civil dealings with non-Catholics of whom we are speaking, should not be held back by scruples of cooperation in acts which, on account of ecclesiastical prohibition alone, are materially evil.

Therefore we shall say: saving the positive exemption from the form of celebration of marriage, non-Catholics are bound by ecclesiastical laws, even merely preceptive ones. Nevertheless, with non-Catholics whose marriage Catholics know to be invalid on account of an impediment of ecclesiastical law, Catholics will deal as with putative spouses, in regions where non-Catholics enjoy every civil right; and they will readily furnish those things which heretics desire against positive law unknown by them; yet they will not induce them to violate those precepts.

We allow its probability to the more benign opinion, which judges non-Catholics to be truly exempt from these precepts. Wherefore we admit with Frassinetti that heretics, when they are converted to the true Church, are not to be interrogated about violated precepts of the Church concerning Sacred Times. Yet distinguished writers who report the benign opinion, Lehmkuhl, I, 228; Noldin, I, n. 147; Prummer, Manuale, I, n. 186, warn that it is forbidden to Catholics to induce non-Catholics to act against the law.

— What of those who are doubtfully baptized?

1° In the external forum, if it is established at least probably that baptism was conferred, baptism is presumed valid, and therefore gives the rights of Christians and imposes the duties. If the fact itself is not established, recourse will be had to presumptions. These failing, that principle will remain to be applied: A fact is not presumed but proved.

2° But in the internal forum, presumptions are not necessary. Wherefore, if baptism is only probable, we shall use this principle, that no one is held by an uncertain precept. That solution is confirmed by the very reason of equity. For, in his whole spiritual life, a man only probably baptized can promise to himself no certain fruit of absolution, the Eucharist, etc. Why would you make burdens more certain than advantages? Ball.-Palm. I, tr. 3, c. 2, n. 335 incline to this side, against Lehmk. II, 426, and Ill. D. Magnaiolt, in his learned discussion of this argument. Cf. our Epitome iuris can. I, § 1.

— "By merely ecclesiastical laws there are not held ... the baptized 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." Therefore:

1° The habitually insane are immune, to whom, therefore, on days of abstinence meats may be offered.

But what if they have lucid intervals? Of themselves, indeed, they are held by laws; but since c. 88, § 3 expressly establishes: "To infants are assimilated all who are habitually destitute of the use of reason," we can consider them as simply exempt even through lucid intervals.

Nevertheless c. 2201 must be observed, which pronounces incapable of delict only those who actually lack the use of reason. For penal laws, although they are of strict interpretation, protect public order more directly.

Moreover those remain subject to laws and are excused by ignorance alone who labor only under accidental or temporary insanity.

2° All are immune who, by reason of age, have not yet attained ready use of reason. Such persons from can. 88 are judged to be impubes persons who have not yet attained a full seven years. Indeed, by the positive sanction of c. 12, although they may have attained the use of reason, they are not obligated by ecclesiastical laws before the completed seven years, "unless something else is expressly provided."

The exceptions are: the obligation of Paschal communion, from c. 859, § 1; of annual confession, from c. 906.

And it is expedient that, insofar as it can reasonably be done, children from tender years be accustomed to observing the laws of the Church.

— From c. 2230, impubes persons are excused from penalties latae sententiae. Before the Code, however, the received interpretation, founded on cc. Pueris and Referente, 1 and 2 De delictis puerorum (V. 23), equated girls and boys in this matter, so that, in order to delict, the common age of puberty was established as fourteen years. From c. 6, 2° and 3° this interpretation seems even now able to be sustained. Cf. Genicot-Salsmans, II, 566.

— From c. 1254 § 2, from the law of fasting are exempt all who have not yet completed the twenty-first year, and all who have begun the sixtieth.

— Preliminary matters. In order to discern who are subject to laws which have been enacted for a particular territory, one must distinguish inhabitants (incolae), newcomers (advenae), travelers (peregrini), and vagi. On these there is c. 91. "A person is called: an inhabitant, in the place where he has domicile; a newcomer, in the place where he has quasi-domicile; a traveler, if he is staying outside the domicile and quasi-domicile which he still retains; ¹ a vagus, if he has domicile or quasi-domicile nowhere."

Therefore, since this division of persons is taken from domicile or quasi-domicile, the notions of ecclesiastical domicile ² and quasi-domicile must here be set forth. Ecclesiastical, I say.

In civil law they are accustomed to distinguish domicile from residence. Some laws, thus English, Belgian, French, Italian law, acknowledge for the same person only one general domicile, while other laws, thus Roman law formerly and now German law (Code art. 7), do not exclude a plurality of domiciles. Therefore the Code of Italy (art. 16), imitating the Code of France, defines domicile as the place where someone has the principal seat of his affairs and things, while from the Code of Germany domicile is had wherever there is residence with the will of stable abiding.

Civil laws are moreover accustomed to permit that, for the transaction of certain affairs, a particular domicile be chosen, in which the parties can judicially be summoned and sued. Thus industrial societies are accustomed to establish for themselves a domicile which is called the social seat (le siege social).

The same canonical Code permits this in c. 1565 § 2, although it abstains from the name of domicile for designating the place chosen by contract in which the contracting parties can be cited and sued.

In the common notion, domicile designates the stable seat or habitation of someone. But in law necessary domicile and voluntary domicile are distinguished.

Necessary or legal domicile, by the law itself, independently of every fact, is assigned to a wife not separated, to an insane person, to a minor under twenty-one years: these respectively have the domicile of the husband, of the curator, of the person to whose power they are subject (c. 93).

Voluntary domicile, from present law, is acquired by abiding in some place with the mind (intention) of remaining there perpetually, if nothing calls one away from there, or by abiding prolonged to a completed decade. When abiding is joined with the mind of remaining, domicile is acquired from the first day. In the other case, it is necessary that ten years have elapsed. But the place, by present law, can be a parish or quasi-parish, or a diocese or quasi-diocese (apostolic vicariate, apostolic prefecture). Hence domicile can be parochial or diocesan (c. 92).

But this is to be carefully noted: abiding can be strictly personal, when the person himself, in a morally continuous manner, is present there; and a relatively brief absence does not impede this continuity. And it can be quasi-real, i.e. continuing in a house built, bought, or rented for oneself. Thus one is judged to remain perpetually, and consequently to acquire and have domicile, in the place where he has procured for himself a stable summer house.

Quasi-domicile is a certain imitation or diminished manner of domicile. By present law quasi-domicile is acquired by abiding in a parish (or quasi-parish), or at least in a diocese (or quasi-diocese), either joined with the mind of remaining there at least for the greater part of the year, if nothing calls one away from there, or in fact prolonged for the greater part of the year (c. 92 § 2).

A minor, after he has gone out from infancy, and a wife can obtain quasi-domicile; a legitimately separated wife can obtain even domicile (c. 93 § 2).

Domicile and quasi-domicile are lost by departure from the place with the mind of not returning. Yet a wife, an insane person, and a minor cannot have this efficacious will as regards domicile (95).

The Code does not expressly say how legal domicile is lost. But it seems that this must be said from the nature of the matter. Legal domicile ceases as necessary, when personal independence has been acquired. Yet it will remain as voluntary, as long as the person who is his own master has preserved the mind of dwelling there or of returning.

The same Code assigns legal quasi-domicile to no one. Therefore there is no reason why, with R. P. Maroto, ¹ we should think that legal or necessary quasi-domicile is obtained by persons who are not their own masters. Therefore the fact is to be considered. If, however, the husband, the curator, or the person to whom the minor is subject has nowhere domicile, but only quasi-domicile somewhere, the person who is not his own master has acquired his own quasi-domicile or has not. In the former case, he will participate only in that quasi-domicile. In the other case, lest he be called a vagus, the quasi-domicile of the husband, tutor, or curator will enter into the place of legal domicile. We say this, supplying the silence of the law from the norm of c. 20.

Nothing prevents someone from having two or three domiciles. The classic case is that of him who is accustomed to dwell half the year in one place, the other half in another place. Someone can also easily have a domicile distinct from a quasi-domicile. But can the same person have two quasi-domiciles at the same time? Before the Code this was commonly denied; and it still seems to have to be denied, since neither in fact nor in intention can someone dwell in two places at the same time for the greater part of the year. Yet the difficulty can now be raised from c. 95, by which quasi-domicile is not said to be lost except by departure without the mind of returning. Wherefore R. P. Maroto ¹ has gone over into the different opinion.

Moreover, someone can be a vagus in a parish who has domicile in the diocese, but not conversely; and he is not fully a vagus unless he possesses not even domicile or quasi-domicile in the diocese.

But now let us return to our matter, i.e. to subjection to law.

¹ D'Annibale, Summula, I, 80, separates travelers from wayfarers. In the Code, however, that distinction seems to be passed over.

² On Domicile, cf. Laurin, Archiv. XXVI, 165 ff.

¹ Institutiones iuris canonici, I, n. 410, note.

¹ Ibid. n. 413.

— Principle concerning personal subjection. 1. The inhabitants and newcomers are subject to particular laws of the territory if at the same time they actually abide there. Yet even when absent, they are held by the laws of their own territory, if the transgression of them harms in their own territory, or if the laws are personal (c. 13, § 2; 14, § 1, 1°).

2. Travelers:

a) are held by general laws even if these do not have force in their own territory, but by no means if the place in which they are staying is exempt;

b) are not held by the laws of their own territory, except for the reason which was just mentioned under n. 1;

c) are not held by the laws of the territory in which they are staying, "except those which provide for public order, or determine the solemnities of acts."

Public order is to be understood as immediately public; it includes those dispositions whose public observance seems to have to be required indiscriminately: v.g. a local interdict, precautions concerning the admission of celebrants in a church, laws which cannot be violated without scandal, and all laws which have been expressly established concerning travelers. For the words "public order" are rather little defined, and they receive interpretation from the will of the legislator and from received usages. Perhaps it can be said that public order is provided for by those laws which have been enacted rather for averting common harm than for promoting the common good. For travelers of themselves ought not to cooperate with the common good of another territory; yet they cannot be harmful. (Ball.-Palm., I, tr. 3, n. 362, use this formula: they are held "by laws ... which have been specially enacted for the good of that place by reason of the necessity of the republic.")

Therefore, of themselves travelers participate in the exemptions and advantages, but not in the burdens, of the places in which they are staying. And this holds even if the particular law has force both in their own territory and in the place where they are staying: for travelers escape each particular law. ¹

Yet the case would be different if the law, v.g. in a provincial or national council, were imposed upon several dioceses at the same time. An inhabitant of that province or a citizen of that nation is bound to that law as long as he is staying in the province or nation (Ball.-Palmieri, I, tr. 3, n. 362).

3. Vagi, contrary to what many thought concerning particular laws, from the clear disposition of c. 14, § 2, "are obligated by both general and particular laws which have force in the place in which they are staying."

¹ Many, however, with St. Alphonsus, l. 1, n. 156, reject this.

— Applications. 1. He who, on a day of fast or feast, is staying in a place where then there is no fast or feast, need neither fast nor abstain from servile works.

2. A traveler who is staying in a place where on that day a fast or feast is to be observed must further inquire this: whether the precept to be observed is of common law or of particular law. In the former case, but not in the latter, he will have to observe the fast or feast. He must moreover guard against scandal, from the general law.

3. One departing from a town where there is no fast or abstinence will be able there to eat meats and to take a full meal twice, although on the same day he has returned home where he would have had to fast. But having returned home, he will have to abstain from meats; yet he will no longer have the possibility of fasting, since by two full meals the fast has already been substantially injured.

4. One about to depart from a place where fasting has force from the general law, but on the same day about to arrive at an exempt place, will have to observe the law of abstinence having force there, but not the law of fasting, because the observance of fasting is indivisible, and for part of the day he will be exempt. Cf. Baller.-Palm., I, tr. 3, n. 351.

5. Travelers, before they leave their own territory, probably are not bound to observe precepts there, when, within the useful time for fulfilling those precepts, they will arrive at a place immune from those precepts. Thus, he who before dinner is about to arrive at a place where there is no feast, is not bound to hear Mass in his own territory.

6. A Belgian or German cannot at Rome, on days of fasting, eat cheese in the evening collation. For although, while the Code has force (c. 1250), abstinence from milk foods now no longer pertains to common law, nevertheless common law, or c. 1251, commands that on days of fasting, morning and evening, the approved custom of places be observed concerning the quantity and quality of foods.

7. It is sometimes conceded that the twofold weekly abstinence which, from c. 1252 § 2, must be observed during Lent on Friday and Saturday, be observed on Wednesday and Friday. What then is it permitted for travelers to do?

a) In a place where the days indicated by the Code are observed, they will have to observe abstinence just as the inhabitants of that place: for the inhabitants observe the common law. Cf. c. 14, 3;

b) In a place where abstinence is kept on Wednesday, if they spend the whole week there, they will have the option of observing Wednesday or Saturday. For in the case, the local privilege is not one of dispensation, but of a changed day. Therefore travelers can use the local privilege so that they transfer their obligation to Wednesday; and they can also observe the common law on Saturday;

c) If on Wednesday they have used the local privilege and therefore have observed abstinence, they will not be bound to abstain from meats a third time because on Saturday they have fallen upon a place where the common law is observed;

d) But what if they so travel that on Wednesday they are in a place where abstinence is kept on Saturday, but on Saturday in a place where abstinence is to be kept on Wednesday? You might say at first sight that they are held by the Saturday abstinence. Yet, the Church so permits travelers to accommodate themselves to the usages of places, that it can probably be said that they are not held by the Saturday abstinence: the Church is not judged to wish to bind one to a singularity. In a similar cause concerning fast, after Sanchez, ¹ Laymann, ¹ and Lacroix, ² Lehmkuhl ³ admits this, calling it a benign interpretation of the mind of the Church. Yet he himself forbids that one deliberately pass from one place to another to avoid the obligation. However, the mind of present law permits us to disregard that exception. For concerning the very reservation of cases, c. 900, 3° declares that it lacks force outside the territory of the one reserving, even if the penitent has departed from it to seek absolution. Cf. also Noldin, Princ. 149.

¹ In Decal. l. 1, c. 12, n. 30.

¹ Theol. mor. l. 1, tr. 4, c. 11, n. 8.

² Theol. mor. l. 3, p. 2, n. 1271.

³ Theol. mor. I, 236.

— Local subjection or exemption. Nor do particular laws oblige in a fully exempt place. ⁴ Such indeed is a place which is judged to be outside the territory, because another exercises similar power there. Cf. Schmalzgrueber, in l. 5, t. 39, n. 49.

But today are the houses of exempt religious sufficiently exempt, so that lay guests ought to observe no other laws except personal laws or those by which the regulars themselves are held, and so that they are not there liable to episcopal censures? With Suarez, ⁵ we think this should rather be denied.

For those places are not exempt according to themselves, but only by reason of the religious. Wherefore the Code nowhere directly says: houses of regulars are exempt places; but it has elegantly expressed in c. 615 the exemption subordinated to persons in this way: "Regulars ... with their houses and churches ... are exempt from the jurisdiction of the local Ordinary." Moreover, contrary to what happens in another territory, where, as much as the common good demands, they are bound by local laws, in that house lay persons would have no superior who could command them. Finally, the regulars themselves do not avoid in their exempt houses the diocesan laws to which they are subject; why would a layman there avoid the laws to which he himself is subject? And those houses are so much in the territory that the parish priest of the place can validly assist at marriages there.

Yet St. Alphonsus, I, 157, judged the opposite opinion very probable; Ballerini-Palmieri, De legibus, I, 347, do not wish to decide the matter; and even while the Code has force, approved authors, such as Noldin, I, 151; Genicot-Salsmans, I, 97; Cappello, De censuris, n. 9, adhere to the same. Wherefore we do not deny probability to the opinion which thinks that guests, in houses of regulars, are of themselves immune from episcopal laws and censures. For the rest, today rare cases will occur.

⁴ Cf. Suarez, De censuris, l. 5, c. I, n. 5; D'Annibale, I, 205 (12); 306 (28).

⁵ Ibid. n. 6.