§ III. On Some Subjects of Law Specifically

I. Those not yet seven years old, although they have obtained the use of reason, are not held to ecclesiastical laws, unless something else is expressly provided by law (can. 12). That is, the legislator attends to those things which happen commonly. Moreover, children for the most part lack sufficient use of reason before the completed seventh year (St. Alphonsus, III, 270). I said: unless something else is expressly provided by law; moreover, something else is provided as regards the law of annual confession and communion (can. 859, § 1, and 906).

In doubt whether an impubescent person enjoys sufficient use of reason, before the completed seventh year he is presumed not to enjoy it; after the completed seventh year he is presumed to enjoy it (can. 88, § 3; St. Alphonsus, III, 270). Nevertheless, children who act against the law often seem not to sin mortally because of a defect of sufficient deliberation.

II. The legislator is held by his own law in this way:

1. If he is a member of a legislative college, he is held by the laws of the college equally with the other subjects. The reason is that he is subject to the legislative college. The case obtains in the aristocratic, oligarchic, democratic, and constitutional-monarchical form of government. The same holds as regards bishops with respect to laws which have been passed by a general or provincial Council.

2. If he is an absolutely monarchical legislator,¹ according to all he is held by laws which befit him; but it is disputed whether he is held immediately by his own law, or only by uprightness, by which he ought equally with others to conduce to the common good and to conform himself to others. Some deny that he is immediately held by his own law, because legislative power carries with it coercive power; but the legislator cannot be coerced, for no one is properly coerced by himself. Others affirm it, because the legislator, as a member of society, is subject to himself as superior of society; hence the law affects him equally with others, insofar as it can affect him, that is, as regards directive force (cf. St. Thomas, I-II, q. 96, a. 5, ad 3; St. Alphonsus, I, 154).

Corollary. If the legislator is immediately held by his own law, his obligation is as great as that of the other subjects; if he is held from uprightness alone, of itself he sins only lightly. Nevertheless, by accident he can sin gravely, for example, by reason of grave scandal (cf. St. Alphonsus, loc. cit.).

¹ Such is the Supreme Pontiff, a bishop in his own diocese, and an autocratic monarch in the civil state.

III. Heretics who have passed from the Catholic faith to heresy are held by ecclesiastical laws equally with Catholics. Other heretics, by the consent of all, are held, unless they are expressly exempted,¹ to laws which regard public order, of which sort are, for example, laws which establish impediments of marriage; likewise, according to some, the law of abstaining from servile work on Sundays and feast days. But there is dispute concerning laws which are proximately ordered to the sanctification of souls, such as the law of fasting, abstinence, etc. Yet it seems it must be said that heretics are bound also by the aforesaid laws. For: 1. the Supreme Pontiffs have on repeated occasions declared that "heretics are held by laws," no exception having been added. Thus, for example, Benedict XIV² and Pius VII;³ 2. the responses of the Sacred Congregation de Propaganda Fide⁴ manifestly favor this doctrine; 3. the sources of law, whether ancient or new, furnish no foundation for this exception. Indeed, the new Code does not even indicate that exception in can. 12, by which the persons not bound by ecclesiastical laws are enumerated; moreover, canons 87 and 1254 favor our opinion according to their obvious sense. 4. Finally, the reason of the adversaries, namely that those laws are not observed by heretics, also holds for laws which regard public order, at least for many of them. Indeed, there is a graver reason for exempting heretics from the latter laws, since these multiply not only material sins but also acts, especially invalid marriages.

Note. A reason for cooperating in the transgression of an ecclesiastical law is more easily present if there is question of heretics than if there is question of Catholics, because the former for the most part sin only materially.

¹ When this happens will be explained in its own place; cf. the treatise on Matrimony.

² Brief Singulari nobis, February 9, 1749.

³ Brief Tridentina Synodus, October 8, 1803.

⁴ June 26, 1820 (Collectanea, nn. 747 and 748).

IV. Whether and how far the doubtfully baptized are held by the laws of the Church is sharply disputed.¹ Furthermore:

1. If the fact of Baptism is certain, but its validity is doubtful, they seem to be held by ecclesiastical laws. For order requires that every human being, even in some way in religious matters, for example as regards impediments of marriage, be able to be ruled unto some worship of God by some society, and this by native or devolutive right, as it is called. But it seems especially normal that he can be ruled by the society to which he was ascribed by an external rite, until that rite is proved invalid, indeed publicly proved.²

2. If the very fact of Baptism is doubtful, it is difficult to determine by whom the doubtfully baptized person can be ruled in religious matters: whether, at least in some way, by civil society, because the fact is not presumed but must be proved; or by the Church, whose right perhaps prevails in every doubt.

¹ Cf. Lehmkuhl, II, n. 426; Aertnys-Damen, I, n. 148; Genicot, II, n. 448, note; Straub, De Ecclesia Christi, II, n. 1307, note.

² Cf. Holy Office, February 4, 1891.

V. Travelers and vagi. Considering can. 14:

1. Travelers:

a) They are held by the general laws of the Church, even by those which do not have force in their own territory by reason of abrogation or dispensation. Likewise they are held by laws established by a provincial or national Council, provided that they are staying in the territory of the province or nation.

b) Generally, they are not held by the particular laws of their own territory, from which they are absent; and this holds even if they departed with the intention of being exempted from the law. The reason is that they are not in the territory of the law (n. 125, VI; St. Alphonsus, I, 157). I said generally, because they are held by laws whose transgression does harm in their own territory. Thus, for example, a pastor who is illegitimately absent and omits those things which he ought to perform by office in his own territory becomes a transgressor of the law.

c) Generally, they are not held by the particular laws of the territory in which they are staying. The reason is that they are not of the territory of the law (n. 126, VI; St. Alphonsus, I, 156). The doctrine handed down holds also in the case in which the particular law has force both in the territory in which the traveler is staying and in his own territory. The reason is that in the supposed hypothesis the traveler is not held to observe the law of the place in which he is staying: neither by force of the law having force in his own territory, since he is outside that territory; nor by force of the law having force in the foreign territory, since he is not of the foreign territory. I said generally, because they are held by laws "which provide for public order or determine the solemnities of acts" (can. 14, § 1, 2°). Considering these words of the cited canon, and the particular dispositions of the Code or other dispositions, travelers are held by laws:

alpha) Which determine the solemnities of acts, for example, contracts, including transactions and testaments (cf. can. 1529, 1301, 1926).

beta) Which regulate external order, for example, as regards places in churches and processions.

gamma) Which have been made for travelers as such.

delta) Which regard the reservation of sins (can. 893, compared with the response of the Commission for the Interpretation of the Code),¹ or approved customs as regards the quantity and quality of foods on days of fasting and abstinence (can. 1251, § 1, compared with the Sacred Congregation of the Council), or a local interdict (can. 2269, § 2), or the license of celebrating, or celebret as it is called (can. 804, § 3), or certain rubrics in force in the territory, for example, the calendar to be followed, the prayer commanded.

Note. Nevertheless, as regards liturgical laws, can. 2 is to be noted: "The Code, for the most part, decrees nothing concerning the rites and ceremonies which the liturgical books, approved by the Latin Church, prescribe to be observed in the celebration of the Sacraments and sacramentals and in the performance of other sacred things. Wherefore all liturgical laws retain their force, unless some one of them is expressly corrected in the Code." Hence, for example, a law or precept by which the bishop of the place has prescribed a collect must be observed by all celebrating there, both regulars and seculars (S.R.C., April 3, 1821, n. 2613; March 5, 1898, n. 3985). Note also that in the Canon of the Mass the name of the bishop of the place must be named.

epsilon) Finally, they are held by accident to observe laws if the avoidance of scandal requires this. Indeed, the Sacred Congregation of the Council, in circular letters² concerning priests staying in the countryside outside the diocese, established: "The Ordinaries of places to which priests are accustomed to betake themselves for reasons of health... should establish suitable penalties by which they will be affected if they give scandal... They can also threaten suspension to be incurred by the very fact, if they go to public theaters, cinemas..." (n. 6).

d) They are held to either one if a universal law has been modified in the territory in which they are staying, that is, they are held either to the universal law as it has force of itself, or to the modified law. This is deduced from a response of the Holy Office to the question: "Whether and on what day, in the time of Lent, travelers are held to observe the Saturday abstinence in places where, by a special disposition of the Holy See, the same abstinence must be observed on Wednesday"; the response was: "They are held on either day at will, scandal however being removed."³

e) They can use the privileges and dispensations, for example from the law of fasting, of the place in which they are staying; but they cannot use privileges or dispensations which perhaps have force in their own territory.

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

3. Travelers and vagi are everywhere held by personal precepts which have been imposed upon them, unless the superior does not wish, or even, which has place in some orders in some cases, cannot oblige outside the convent or convents.

Corollary I. One who, in the case in which a universal law has been affixed in different places to different days, twice stays in a place where the law is observed, scandal excluded, satisfies by fulfilling the law once; for this must be considered the mind of the Church. Hence one who, for example, fasted on the vigil of the feast of Saints Peter and Paul is not held to fast again in a territory where the obligation of fasting has been transferred to the following Saturday.⁴

Corollary II. One who, in the hypothesis just supposed, never stays in a place where the law is observed, scandal excluded, seems immune from the observation of the law, since it does not urge in the place where he is actually staying.⁵ There is added the fact that, if this solution were rejected, he would have to observe the law on the day on which the inhabitants of the place in which he is staying would not be held to it; this is not considered to be required by the Church. Nor does it seem that one who acted thus deliberately is to be excepted.

Corollary III. One who is in the place of domicile where a particular feast is celebrated is not held before departure to assist at Mass, provided that he has arrived at a place where the law does not have force before the only Mass, or, if several Masses are celebrated, the last Mass, has begun in the place of domicile. Nor object: if several Masses occur and one of them is celebrated before departure, he ought to assist at this one, because one who foresees an impediment to fulfilling an obligation is bound to anticipate it. For that is true only when someone foresees that he will be impeded while he remains subject to the law; this does not obtain in our case (St. Alphonsus, I, 157, 157, 6°).

¹ November 20, 1920 (A.A.S. 1920, p. 575).

² November 15, 1924.

³ Holy Office, February 9, 1924 (A.A.S. 1924, p. 94).

⁴ Cf. Beyersbergen in N. K. St., 1931, p. 80.

⁵ July 1, 1926 (A.A.S. 1926, p. 312).

VI. Religious, insofar as they are subject to the laws of the local Ordinary, see in the treatise on the duties of religious (cf. can. 615 and 618, § 1).