Domicile and Quasi-domicile

463. Who Is the Proper Bishop. 1. As regards the ordination of seculars, from a threefold title a bishop can be the proper bishop of the bishop to be ordained:

a. If the ordinand in the diocese has domicile together with origin.

alpha. He who was born by chance in some diocese on the occasion of a journey or another temporary, even lengthy, stay of the father in that place must be ordained by the bishop of the place where the father then had domicile; and if he then had no domicile, where the father was born. Therefore the bishop of the domicile or, this failing, of the origin of the father is the bishop of origin of the son who by chance was born in some diocese, unless afterward the father acquired domicile where the son was born by chance. For in this case the bishop of that place is the proper bishop of the son by reason of origin.

beta. If the ordinand is illegitimate, his domicile is the domicile of the mother; if he is exposed, his domicile is the place where he was found; if he is a baptized infidel, a neophyte, his place of origin or domicile is not, as up to this point, the place of baptism, but the place in which at the time of baptism the father had domicile or quasi-domicile, Cn. 90, 1.

b. If the ordinand in the diocese has domicile without origin and confirms by oath that he has the intention of remaining perpetually in the diocese.

Nothing prevents someone from having two domiciles in different dioceses and therefore being able to be ordained by either bishop; but once an order has been received by one bishop, he cannot more broadly pertain to each diocese. For by ordination received from his proper bishop he is incardinated into that diocese; but it is repugnant that someone be incardinated into two dioceses.¹

c. If in the diocese he is incardinated,² either alpha. by first tonsure,³ or beta. by a residential benefice which he obtained in the diocese.⁴

Note a. If the ordinand has only a diocese of origin, he ought to be incardinated so that he can be ordained by the bishop of origin.

b. A non-proper bishop can ordain someone who is his subject by reason of domicile, although for the future he is destined for the service of another diocese.

2. Religious who have been legitimately dismissed by their superiors to a bishop can licitly be ordained by this bishop.⁵

Note. Concerning those dismissed from a seminary or from a religious institute. a. A bishop may not admit to his seminary an alien subject unless first by secret letters from the bishop of the petitioner he has learned whether he was dismissed from his own seminary. He is altogether forbidden to admit a dismissed man unless he has found that there is nothing in him which is less fitting to the priestly state.⁶ But if in good faith he admits him and retains him after having known his condition, he is judged ascribed to this diocese, while nevertheless the canonical rules for his incardination and ordination are preserved.

b. Nor can he admit a man dismissed from some religious institute unless first by secret letters from the superiors of the institute he has inquired and established that there is nothing in the dismissed man which is less fitting to the priestly state.

c. Those dismissed from a seminary, if afterward in another diocese they are enriched with sacred orders, are forbidden to return to the diocese from whose seminary they had been dismissed and to have a stable domicile there. The same must be held if those dismissed from a religious institute are ordained and afterward depart from there.⁷

¹ Cf. Gasparri II, n. 857.

² Concerning the nature of incardination and the manner of carrying it out, see the canonists.

³ Cn. 111, 2.

⁴ Cn. 114.

⁵ Cn. 965, 966.

⁶ Cn. 1363, 3.

⁷ S. C. C., December 22, 1905.

Particular ecclesiastical laws are made for particular countries, or provinces, or dioceses, by the competent authority, and bind all subjects living within the territories in question. One is subject to local law by having a domicile or quasi-domicile in the territory for which the law is made. To constitute a domicile in ecclesiastical law, two conditions are required. The person domiciled must have taken up his abode in a parish, or quasi-parish, or at least in a diocese, vicariate apostolic, or prefecture apostolic; and this abode must be joined either with the intention of perpetually remaining there, if they are not called away, or with the actual dwelling there for ten years.

A quasi-domicile is acquired by taking up his abode in the place as above, joined with the intention of remaining there for the greater part of a year if not called away, or with the actual dwelling there for the greater part of a year.

A domicile and a quasi-domicile are lost by those who have them leaving their abode with the intention of not returning there; but wives always retain the domicile of their husbands unless they are lawfully separated from them, and minors that of their guardians (Can. 13, 92, 93, 95).

Whoever, then, resides in a place, having therein a domicile or quasi-domicile is subject to the particular laws of that place. Contracts, too, are governed by the law of the place where they are made, and whoever commits a crime is amenable to the law of the country where it is committed.

While outside the limits of the territory in which one is domiciled, there is no obligation to obey the particular laws of that territory, for the law is territorial and does not bind beyond the limits of the territory for which it was made.

A stranger (peregrinus), or one who has a domicile in another place, but at present is staying elsewhere, is not bound by the particular laws of the place where he is staying; for he is not subject to their authority by having either a domicile or a quasi-domicile in the place, And so, if an English Catholic happened to be in Dublin on the feast of St Patrick, which is kept there as a day of obligation, he would not be bound to hear Mass; nor would a Dublin man who happened to be staying on that day in England. However, a stranger staying in a place where the common law of the Church is observed is bound to act according to its provisions, though there may be a dispensation from its observance in the place where he has his domicile. And so an English Catholic staying in Rome should abstain from flesh meat on Saturday as well as on Friday in Ember week. Moreover, any contracts that he may enter into or crimes that he may commit subject him to the laws of the country where he is staying in those respects (Can. 14).

Homeless people (vagi) are bound by the general and particular laws which are in force in the place where they are staying (Can. 14, sec. 2).

Regulars and their monasteries are exempt from episcopal authority, and so in general are not subject to the laws made by the Bishops for their dioceses. There are, however, many exceptions to this general rule, for in spite of their exemption regulars have in special cases been subjected by the Holy See to the ordinary or else delegated authority of diocesan Bishops. The special cases are treated of by canonists (Can. 615).

V. Domicile, quasi-domicile. These imply a certain stable residence in some territory, and are distinguished: 1. into proper or voluntary, and legal or necessary, according as it is constituted by personal residence or by the residence of another; 2. into parochial and diocesan, according as it is had in a parish or quasi-parish, or in a diocese, vicariate, or prefecture, but not in a parish or quasi-parish (can. 93, § 1). These things noted, let there be:

1. Acquisition of domicile and quasi-domicile:

a) Proper domicile is acquired by residence in some parish or quasi-parish, or at least in a diocese, apostolic vicariate, or apostolic prefecture; and this residence is either joined with the intention of remaining there perpetually, if nothing calls one away from it, or has been prolonged to a completed ten years (can. 92, § 1). Therefore proper domicile is acquired: 1. when both the fact of residence and the intention described are simultaneously present; 2. by the very fact that someone has resided somewhere for ten completed years. The intention of remaining perpetually can be evident both from the declaration of the inhabitant and from facts disclosing the intention, for example, from the transfer of family, the transfer of the greater part of goods, etc.

b) Proper 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 it, or has actually been prolonged to the greater part of the year (can. 92, § 2), that is, as the Instruction of the Holy Office¹ signified, for at least six months. Therefore quasi-domicile is acquired: 1. as soon as both things concur simultaneously, namely, both the fact of residence and the described intention; 2. by the very fact that someone has resided somewhere for the greater part of the year.

c) As regards legal domicile, these things hold: "A wife not legitimately separated from her husband necessarily retains the domicile of her husband; an insane person, the domicile of the curator; a minor, the domicile of the one to whose power he is subject" (can. 93, § 1). A professed religious acquires domicile in the place of the religious house to which he is ascribed.

Note. A minor who has passed beyond infancy can obtain proper quasi-domicile; likewise a wife not legitimately separated from her husband can obtain it, and one legitimately separated can obtain even domicile (can. 93, § 2). A wife maliciously deserted by her husband cannot obtain a proper and distinct domicile unless she has obtained perpetual separation, or separation for an indefinite time, from an ecclesiastical judge.²

2. Effects of domicile and quasi-domicile:

a) By either domicile or quasi-domicile each person obtains his own pastor and Ordinary (can. 94, § 1).

b) The proper pastor or Ordinary of a vagus is the pastor or Ordinary of the place in which the vagus is actually residing (can. 94, § 2).

c) Of those also who have only diocesan domicile or quasi-domicile, the proper pastor is the pastor of the place in which they are actually residing (can. 94, § 3).

3. Loss of domicile and quasi-domicile: domicile and quasi-domicile are lost by departure from the place with the intention of not returning (can. 95).

These things suffice here; more in the treatise on marriage.

¹ June 7, 1867.

² Commission for the Interpretation of the Code, July 14, 1922 (A.A.S. 1922, p. 526).

There are two kinds of domicile. (a) A true domicile or home is acquired in a place in two ways: immediately, when one takes up one’s abode there, with the intention of remaining permanently or indefinitely; finally, after ten years, when one has lived there so long, even though there was no intention of remaining permanently (Canon 92, Sec.1). (b) A quasi-domicile or residence is acquired in a place in two ways: immediately, when one takes up one’s abode there with the intention of remaining there for at least the greater part of the year; finally, after the greater part of the year, when one has lived there so long (Canon 92, Sec.2).

Can there be an invincibly erroneous conscience concerning the precepts of natural law? - "It is certain that in the first principles of natural law, as also in the proximate conclusions and certain obligations of one's own state, invincible ignorance is not given, because by the very light of nature such things are known to all, except to him who closes his eyes lest he see them.... On the contrary, however, the unanimous opinion of theologians is... that in mediated and obscure conclusions, or those remote from the principles, invincible ignorance is indeed given and must be admitted." L. 1. 1. n. 8. 170 seq.; Struggl tr. 3. q. 1. n. 10-13; S. Th. Quodl. 3. a. 36, De Verit. q. 17. a. 2; De Malo q. 3. a. 8; Rom. 2:14. 15. In the first principles of natural law, for example: good is to be done, evil avoided; the highest good is to be loved, evil detested; what you do not wish for yourself, do not do to another; thanks are to be given to benefactors, etc. In proximate conclusions, for example: God is to be worshiped, parents are to be honored, theft is not to be committed, etc. In remote conclusions, for example: private revenge is not to be exercised, abortion is not to be procured, etc. Eternal law, existing in the divine mind, most perfectly exhibits the order of things. Natural law, which is the application of eternal law, exists in the human mind. Therefore natural law, by the very fact that it is manifested through human reason, falls short of the highest perfection of eternal law.

Hence it happens that not always what we think and judge, in more difficult matters, corresponds to the rules of the divine mind, and remains obscure and unknown to us. Whence that thing, although materially and in itself it pertains to natural law, nevertheless does not pertain formally and as regards us, since it has not been sufficiently promulgated to us by the natural light. - Wirceburg. De Actib. hum. c. 1. a. 3.

Who is the minister of baptism? - The minister of baptism is one kind ordinary and another extraordinary. The extraordinary minister is twofold: namely a minister of solemnity and of necessity. - Every priest and only a priest, by force of his ordination, is the ordinary minister of baptism. This is clear from Florence, Decree of Union, and also from the universal practice of the Church. - A deacon, unless he is a pastor, is an extraordinary minister and a minister of solemnity, that is, able to baptize solemnly, but only from the delegation of the pastor, at least interpretative, and from a grave cause. This is clear from the Roman Pontifical, the instruction of the bishop to deacons in ordination, etc.; C. Diaconos 13, Dist. 93. Cf. C. n. 527. Solemnly to baptize, i.e., by observing the rites and ceremonies prescribed by the Church. - Any human being using reason, whether man or woman, whether Catholic or heretic, whether faithful or unbeliever, is an extraordinary minister of baptism, so that he can always validly, and in necessity also licitly, baptize. Florence, Decree for the Armenians.

Although every priest by force of ordination has the power of baptizing, nevertheless he cannot licitly use it, even privately, outside the case of necessity, unless deputed by the Ordinary or by the proper pastor for baptizing. For the legitimate minister is only the Ordinary or one's own pastor. From the Roman Ritual, de Bapt. adult.: "the baptism of adults, where it can conveniently be done, should be referred to the bishop, so that, if it pleases him, it may be conferred more solemnly by him; otherwise let the pastor himself baptize, with the fixed ceremony." Florence, Decree for the Armenians; Roman Ritual, de Min. bapt. - At present the minister regularly is the pastor, Roman Ritual ibid., and it is grave. Clement I, de Priv. - L. 116, 236; St. Thomas 3 p., q. 67; E. M.

You will resolve: Neither a pastor nor a bishop, without commission, outside his own parish and diocese, or within it, licitly baptizes subjects of another. And therefore parents also sin who without permission of their own prelate bring their offspring to another to be baptized, since they violate the right of the pastor. L. 114. - A stranger can be baptized with the permission, whether expressed or reasonably presumed, of his own priest. L. 115. Religious can baptize in a case of necessity, or with the same permission of the pastor and of their own superior, since this is prohibited by no law. L. ib. "A priest baptizing without permission outside necessity, even without solemnity, sins gravely." L. 115.

Can any Bishop licitly confer orders? - For licitly conferring and receiving orders it is required that the one to be initiated, even with first tonsure, be ordained by his own Bishop, or by another, but with his permission. Therefore a Bishop cannot licitly ordain except subjects, either by reason of origin, or by reason of domicile, or by reason of benefice, or by reason of familiarity, and indeed by reason of the necessity of dioceses. C. Cum nullus 3, de Temporum ordin. in 6; C. Eos qui 2, e.t.; Trent, sess. 23, C. 3, 8, 9, de Ref.; Pius X, Encyclical Letter to the Bishops of Italy, July 28, 1906; L. 760, 769, 771.

By reason of origin, if namely they were born in his diocese. But one who is born somewhere by chance must be ordained by the Bishop of the domicile of his father, unless the father afterward contracted domicile there where the one to be initiated was born; or by the Bishop of the place where the father was born, if the father at the time of the birth of the son had domicile nowhere. But if the son is illegitimate and not legitimated, the domicile of the mother is attended to. But exposed infants whose parents are unknown are judged natives of the place in which they were exposed. Finally, neophytes are judged natives of the place in which they were baptized. Paul III, Constitution Cupientes, March 31, 1542. But no account is taken of baptism under condition. Kenrick, tr. 20, n. 15. - Honorante, Praxis Secr. Urb. Vic., c. 1, note 9; Schmalzgrueber, l. 1, p. 3, tit. 11, n. 37, 38; Giraldi, p. 2, s. 96; L. 760, 770, 772, 773.

By reason of domicile, only he is to be judged a subject as regards orders who comes somewhere with the intention of remaining there perpetually, and proves this intention either by habitation of ten years, or by building a house with the carrying over of the greater part of his goods, while remaining there at the same time for some notable time; and he must swear that he then has this intention. Innocent XII, Constitution Speculatores, Nov. 4, 1694; L. 760, 770, 773, 778; Lucidi, Visit. sacr. lim., c. 2, n. 88, 91.

From the more recent Decree of the S. C. C., July 20, 1898, a cleric legitimately excardinated in perpetuity from his own diocese by legitimate document, and legitimately incardinated in another diocese, namely by written document, with the oath prescribed by Innocent XII having been taken, and in perpetuity, and with suitable documents having first been obtained from the dismissing Bishop concerning birth, morals, and studies, can indeed be promoted to orders by the Ordinary of the new diocese.

Likewise a layman can obtain letters from his own Ordinary, by force of which, dismissed from his own diocese, as an extra-diocesan he can become proper to a benevolent receiving Bishop, and by this title be promoted by him to clerical tonsure and to sacred orders, provided however that: 1. Dismissal by his own Bishop is granted from a just cause, in writing, and for a determined diocese; 2. Acceptance is made, with the rules established for incardinating clerics observed, and with the Decree Vetuit, Dec. 22, 1905, also observed as regards pupils dismissed from seminaries; 3. The oath is taken according to the path of the Constitution Speculatores before clerical tonsure. S. C. C., Nov. 24, 1906.

By reason of benefice, it does not suffice that someone is immediately going to receive a benefice from some Bishop, so that he can be ordained by him or receive first tonsure; but it is required that the benefice actually be possessed, and of itself suffice for suitable sustenance without the supplement of patrimony. One who has a benefice in two dioceses can be ordained in either. C. Cum nullus, de Temp. ord. in 6; L. 760, 770, 774, 776, 777.

By reason of familiarity, so that a Bishop, but not merely a titular Bishop, can ordain someone, it is required that for three years he has maintained him with himself in his actual service, and that within a month he confer on him a benefice sufficient for suitable sustenance, so namely that the one to be ordained, when the familiarity ceases, may have from which he can live. Therefore it matters little in what diocese the benefice is placed; and, if the one to be ordained has a benefice or patrimony, this obligation of conferring a benefice on him ceases. Nor does it matter that he does not dwell in the buildings of the Bishop, provided he lives in the place where the Bishop is or nearby. - Trent, sess. 14, C. 2, de Ref.; sess. 23, C. 9, de Ref.; Innocent XII, Constitution Speculatores; L. 760, 770, 778, 780; Giraldi, p. 1, s. 97.

The one to be ordained can choose whichever he wishes among these various Bishops, and then vary in each order. But he who is chosen cannot ordain him without testimonial letters of the Bishop of origin, of domicile, and of that place in which perhaps someone has stayed at that age and for so long a time, namely about six months morally continuous, that he could have contracted a canonical impediment. L. 789. But if there is question of those to be promoted who were formerly assigned to military service, testimonial letters are necessary as often as they have stayed in some diocese at least for a trimester morally continuous. S. C. C., Sept. 9, 1893; Jan. 26, 1895; June 25, 1904; S. C. Disc. Reg., Nov. 27, 1892. And if they cannot obtain the aforesaid testimonial letters from the Ordinaries of places, then, after faculty of the Holy See has first been obtained, they are to be admitted to taking a supplementary oath for the time in which they were assigned to military service. Holy Office, March 12, 1896. Testimonial letters; namely not given generally, but for receiving orders; and therefore they must bear witness concerning the requisites for receiving orders, concerning birth, age, morals, and the absence of any canonical impediment. Those to be ordained by the Bishop of benefice, if they are going to return to their own diocese, must be examined by the Bishop of domicile before the granting of testimonial letters. Trent, sess. 23, C. 8, de Ref.; Innocent XIII, Constitution Apostolici ministerii, § 5; Benedict XIII, Constitution In supremo; S. C. C., Aug. 8, 1733.

It is grave to confer orders or tonsure on the subject of another without express consent, or without dimissorial letters of his Bishop, Trent, sess. 7, C. 10, 11, de Ref.; sess. 14, C. 2, de Ref.; sess. 23, C. 10, de Ref., or of his vicar general when the Bishop is acting for a long time in remote places, C. 3, de Temp. ordin. in 6, or of the capitular vicar after a year of vacancy, or within the year, but only on those constrained by reason of a benefice already received or to be received; i.e., either already obtained, or if they have been elected to it. Cf. Trent, sess. 21, C. 2, de Ref.; Lucidi, C. 2, n. 72. A neighboring Bishop can also ordain the subject of another if his own Bishop has been declared suspended by public sentence. C. Eos qui 2, de Tempor. ordinat. in 6. - A Bishop is bound by himself to confer orders on his own subjects; yet when a just cause intervenes, of sickness or another similar cause, e.g., absence, it is lawful for him to dismiss them to another Bishop. But the cause why the proper Bishop does not ordain must be expressed in the dimissorial letters. Trent, sess. 7, C. 11, de Ref.; sess. 23, C. 3. But they can be given to any Catholic Bishop, S. C. C., March 16, 1624, except to one who has renounced the episcopate, if he has yielded both the place and the dignity, C. 1, de Ordin. ab Episcopo, qui renuunt. And if they have been given by name to one in favor of the one to be ordained, it is open to him, with that one passed over, to approach another. L. 788. But they are had as in the manner of a grace made; therefore they do not expire when the right of the one giving is resolved, L. 787, nor are they suspended when he is suspended, unless they were given for a definite time or were revoked. - Lugo, Resp. Mor., l. 1, d. 32; E. M.

The praised Decree Vetuit of the S. C. C., Dec. 22, 1905, His Holiness Pius X established and decreed: "1. That in the future no local Ordinary admit into his Seminary a subject of another diocese, whether cleric or layman, unless he has first asked by secret letters from the proper Bishop of the petitioner and has learned whether this man was formerly dismissed from his Seminary. But if this is established, omitting judgment about the causes or determination whether the other Bishop acted justly or unjustly, let him bar entrance into his Seminary to the one asking. "2. But those who were admitted in good faith, because they kept silent that they had previously lived in another seminary and afterward were dismissed from it, as soon as this condition of theirs is known, are to be admonished to depart. But if they wish to remain, and this is permitted to them by the Ordinary, by that very fact they remain ascribed to this diocese, with the canonical rules for their incardination and ordination nevertheless observed; but once advanced to the priesthood, they are prohibited from returning to the diocese from whose Seminary they were dismissed and from having a stable domicile there. "3. Likewise, since almost a similar reason holds, those who, dismissed from Seminaries, enter some religious institute, if they leave it after they have been initiated in sacred orders, are forbidden to return to the diocese from whose Seminary they were dismissed. "4. But those dismissed from some religious Institute are not to be admitted into a Seminary unless the Bishop has first, by secret letters, sought information from the moderators of the same Institute about the morals, character, and ability of those dismissed, and it is established that there is nothing in them which is less suitable to the priestly state. Cf. here n. 279 bis. "Finally let Bishops remember that it is not lawful for them, in their own name, to impose hands on anyone who is not subject to them in that way and by one of those titles which are established in the Constitution Speculatores of Innocent XII and in the decree of the S. C. of the Council which begins A primis, on July 20, 1898. And likewise no one can be ordained who is not useful or necessary for the church or pious place for which he is assumed, according to the prescriptions of the holy Council of Trent in chap. 16, Sess. 23, de reform."

What was clandestinity of marriage formerly, according to the Council of Trent? Besides the thing, the cause, and consent, in marriage its solemnities are to be considered, namely that extrinsic form of marriage by which marriage as a contract is validly effected, and by which the sacrament is entered holily. Hence another impediment of marriage arises, namely clandestinity. We set forth here first those things which had to be observed from the preceding law, both because they can still serve practice and because they serve for an adequate knowledge of canon law. Afterwards we will set forth those things which are to be observed under the present law now in force.

A clandestine marriage is called that which is contracted without the solemnity required by the Church, i.e., without the assistance of the proper pastor and at least two witnesses. This impediment is of ecclesiastical law alone, since it was constituted by Trent, sess. 24, chap. 1, de R. M.

Here the proper pastor is the pastor of domicile or quasi-domicile, Benedict XIV, Const. Paucis abhinc; Collectanea S.C. de Propaganda Fide, n. 1409, not likewise of origin, unless perhaps someone has a domicile there; and as regards wanderers, the pastor of the place in which they are when they contract, although only one of the spouses is a wanderer. L. 1089. If someone has domicile in two places, or domicile in one and quasi-domicile in another, he can contract before any of these. But the proper pastor is that of either the bridegroom or the bride in his own parish. Indeed, "the pastor of the man suffices even in the parish of the woman, because marriages are matters of voluntary jurisdiction, and because the Council expressed nothing concerning place, and because the Council seems to have wished the presence of the pastor and witnesses for removing only clandestinity, for which one pastor, whether of the man or of the woman, suffices." Sacred Congregation apud Fagnan, in C. Quod nobis, de Clandest. despons., n. 33; Barbosa, de Offic. parochi, part 2, chap. 21, n. 45; Benedict XIV, Notification 33, n. 5 ff.; Quaest. Can., 182; L. 1087. Pastor; the marriage is equally valid if it is contracted before the Bishop or his Vicar General, Benedict XIV, Quaest. Can., 182, or, while the See is vacant, before the Capitular Vicar. Cardinals also have the faculty of assisting at marriages, each in his own Title, and pontifical Legates in the provinces entrusted to them. For Cardinals in their Titles are Ordinaries and have episcopal jurisdiction; and likewise pontifical Legates, whether ordinary or extraordinary, whether a latere, whether merely sent, or even born, have ordinary jurisdiction in the provinces entrusted to them. Ferraris, v. Matrimonium, a. 3, nn. 12, 20, 45; v. Cardinales, a. 3, nn. 12, 20; v. Legatus, nn. 12, 45. Pastor; a pro-pastor also validly assists, or vicar, who from the Ordinary or from the pastor himself has absolute, full, and unrestricted power in the parish. Benedict XIV, de Syn., book 13, chap. 23, n. 1.

Since the pastor is present as a qualified, authorized witness, no power of order or jurisdiction is needed. Therefore he is licitly present even if he is only a cleric; and validly even if he is suspended, irregular, excommunicated, vitandus, or non-Catholic, schismatic, even if the Bishop has prohibited this to him. The same must be said of the Vicar General if, against the prohibition of the Bishop, either he himself assists at the marriage, or gives to some priest the faculty of assisting. The same pastor is validly present, although he is falsely pastor, if he has a colored title and by common error is reputed pastor; and more probably even if only common error is present, without a colored title. The pastor is validly present even in another's territory, even against the will of the pastor or Ordinary of that place, although he cannot solemnly bless the marriage. He can likewise delegate another, provided that he delegates a priest, not a deacon, and validly any priest whatever, even a vitandus. Not a deacon, unless perhaps by common error he is held as a priest. Sanchez, book 3, disp. 22, n. 61. General delegation also suffices, even tacit or extorted by fear, but not presumed, e.g., for exercising parochial duties. But a vice-curate also can delegate another, since he himself is delegated for the universality of causes. Ferraris, v. Matrimonium, a. 2, nn. 179-181.

It makes no difference if the pastor and witnesses are present by chance, fraud, or induced by force. For it suffices that they know what is being done, whether from words, if they are blind and recognize the voices of the contracting parties, or from signs, if they are deaf, or through an interpreter, if they are ignorant of the language. Therefore the marriage is valid even if the pastor pretends that he does not hear, stopping his ears with his fingers, that he does not see, closing his eyes, or that he does not understand, provided that in reality from antecedent and consequent acts he has perceived the consent of the parties; if, for example, he did not at all hear the voice of the bride or bridegroom, but saw the bridegroom holding the bride by the hand, Sacred Congregation of the Council, January 12, 1715, or handing her a ring, Sacred Congregation of the Council, November 28, 1671. For it suffices that all be morally present as witnesses, who must give testimony concerning the matter performed. Benedict XIV, de Syn., book 13, chap. 23; L. 899. For the validity of marriage any witnesses whatever suffice, whether men or women, even parents, nuns, unbelievers, whether adults or minors, provided they have the use of reason and are able to testify concerning the contracted marriage.

If marriage is contracted by proxy or by letters, the marriage is valid when the declaration of marriage is made by the proxy before the pastor and witnesses, or when the letters of each contracting party are read before the pastor and witnesses.

Domicile and quasi-domicile here are to be reckoned by Canon Law, not Civil Law, namely by the intention of dwelling in a place, i.e., in a parish, and not only in a diocese, perpetually or for the greater part of a year. Nor indeed is the fact itself of habitation for the aforesaid time needed, but as soon as one has come into that place, he acquires domicile or quasi-domicile and validly contracts.

But it was declared for the United States of America that habitation for the space of at least one month suffices, and inquiry need not be made concerning the intention of remaining in the place for the greater part of the year. Holy Office, May 6, 1886. This Declaration for the United States of North America, May 6, 1886, concerning sufficient residence of one month for the validity of marriage, without inquiry needing to be made concerning the intention of remaining there for the greater part of the year, was extended to the Archdiocese of Paris. Holy Office, May 20, 1905, A.S.S., vol. 38, p. 210. As regards students, young men, girls in colleges and monasteries, foundlings, and the sick in hospitals, if they are to remain in that place for the greater part of the year, the proper pastor of quasi-domicile is not the rector, confessor, or chaplain of the college, monastery, or hospital, but the pastor in whose parish the college, monastery, or hospital is situated. Likewise as regards servants, the proper pastor is the pastor in whose parish the masters whom they serve have their domicile, although perhaps in the same city or town the servants themselves have a house and domicile. Persons detained in prisons, whose case has not yet been concluded and for whom the prison is only a place of custody, must be joined in marriage by the pastor of their proper domicile or quasi-domicile. But if their case has been concluded, and they have been condemned perpetually or for a determined time, and the prison is a place of punishment, then their proper pastor is the one in whose parish the prison is situated. Benedict XIV, Notification 33, 88; Pirhing, book 3, tit. 28, § 1, n. 12; Ferraris, v. Moniales, a. 1, n. 36; Lugo, Responsa Moralia, book 1, disp. 35, 37; D'Annibale, 457.

Clandestine marriages are altogether invalid in all places where the Decree of the Council has been promulgated, and, in doubt, where at some time it was observed in the parish as the Decree of the Council. Sacred Congregation of the Council, January 18, 1663. Indeed Trent renders those contracting clandestinely incapable of henceforth contracting thus, i.e., without pastor and witnesses. Therefore those also contract invalidly there who, both spouses or only one of them, have domicile or quasi-domicile in places where Trent is not in force.

But they are not invalid in places where this promulgation, whether culpably or inculpably, was omitted; or where the Decree went into desuetude, although only one of the spouses has domicile or quasi-domicile there, while the other has domicile or quasi-domicile in a place where Trent is in force, because of the indivisibility of the contract. Benedict XIV, de Syn., book 6, chap. 6, n. 12; Clement XIII, 1762, to the Archbishop of Mechlin; Collectanea, cited, n. 1400. Therefore in these places the marriage called civil is ratified. In the same places the marriage is valid of those who have domicile or quasi-domicile in a place where Trent is in force, unless they came to that place in fraud, i.e., with the sole intention of contracting marriage without pastor and witnesses; but by no means if they also had first acquired domicile or quasi-domicile there; for then their marriage is valid. Sacred Congregation of the Council, September 5, 1626; Urban VIII, Brief to the Archbishop of Cologne, August 14, 1626; Benedict XIV, Const. Paucis abhinc annis, Notification 33. Indeed the more common opinion held that the marriage is also valid of those who, having domicile or quasi-domicile in a place where Trent is in force, come to another place where Trent is not in force, without the intention indeed of acquiring domicile or quasi-domicile, but at the same time without the intention of contracting clandestinely, if afterwards they contract clandestinely there. Nevertheless the decisions of the Sacred Congregation of the Council and of the Holy Office are now contrary to this, by which it has been declared that the Tridentine law is at once local and personal; and also because in the external forum fraud is presumed from the very fact. Cf. Sacred Congregation de Propaganda Fide, June 7, 1867, n. 1407; A.S.S., vol. 36, p. 222 ff.

Finally, the marriages are invalid of those who, having and retaining domicile where the Tridentine decree has not been promulgated, come into a place where it has been promulgated and contract there without any pastor or witnesses, or even before witnesses and the pastor of this place. For in order that they contract validly there before witnesses and pastor, it is necessary either to acquire domicile or quasi-domicile in that place, or to contract before the pastor of the prior retained domicile, or a priest delegated by him. Sanchez, book 3, § 13, nn. 27, 28, 35; Lugo, Responsa Moralia, book 1, disp. 36; Pontius, book 5, chap. 9, nn. 2, 7; Engel, book 4, tit. 3, n. 20, "I say third"; Barbosa, de Offic. Episc., part 2, alleg. 32, n. 153; Reiffenstuel, book 4, tit. 3, n. 123; Verricelli, tract de Apost. miss., tit. 15, q. 251; A.S.S., vol. 32, p. 419.

A marriage contracted in the house of the legation of that nation in which the Decree of Trent is not in force is null if the legation is found in the place of a nation in which the Decree of Trent is in force, and the Tridentine form is not observed in that marriage. Holy Office, August 1, 1900.

Clandestine marriages are everywhere illicit and prohibited under grave obligation. For the Church has always detested them, as Trent declares and Benedict XIV clearly shows, de Syn., book 8, chap. 12, n. 4. St. Thomas, Suppl., q. 45, a. 5.

The Tridentine Decree is acknowledged as received in Italy, Spain, Portugal, France, Holland, present-day Belgium, the Grand Duchy of Luxembourg, Austria strictly taken, Ireland, Bavaria, etc. But it was not received in England, Scotland, Sweden, Saxony, Denmark, Prussia strictly so called, and several federated Provinces of Switzerland, etc. Cf. Perrone, de Matr., book 2, sec. 1, chap. 6; Zitelli, Apparatus Iur. eccles., book 2, chap. 2, a. 7, list of places, etc.; Ferraris, Supplement, v. Matrim. clandest.; Collectanea S.C. de Propaganda Fide, nn. 1387, 1392, 1399, 1402, 1408, 1412.

Lastly Benedict XIV issued a Declaration on November 4, 1741, in which he established that clandestine marriages, entered or to be entered in Holland and in the federated Provinces of Belgium which had previously been subject to Spain, between heretics, or between one heretical party and the other Catholic, are valid. But he established nothing concerning marriages of Catholics among themselves. Indeed Benedict XIV expressly declared that that disposition in no way regards Catholics. "Let them know," he says, "that unless they have celebrated nuptials before a Catholic minister and two witnesses, they will never be true and legitimate spouses either before God or before the Church." Letter of September 17, 1746, to Simon, Missionary in Holland, § 3, Bullarium, vol. 3, Supplement, n. III; see also de Syn., book 6, chap. 7. L. 1078 ff.; Pontius, book 5; A.S.S., vol. 23, p. 751; E.M.

6. Zephirina, her husband having died, remained in her parish. Civilly married to Lucretius, who lived in another parish, she was led into his house. After a week they contract marriage before the parish priest of the former parish of Zephirina. Is it valid?

R. A woman has the domicile of her husband, and having become a widow she preserves it until she acquires another. C. I. 18; C. G. 108. But when other marriages intervene, the domicile of the woman is changed. L. 22, Ad Municip. Therefore Zephirina, although only civilly married, having been led into the house of the man living in another parish, first lost her domicile and acquired a new one. Therefore even if she had contracted marriage not after a week, but on the same day, before the parish priest of the former domicile, the marriage would have been null. - I. M. 199.

854. 1° Notion. Matrimonial banns (from the German word bann, public promulgation) are public promulgations which are sent before a future marriage, especially for this end, that impediments, if there are any, may be detected.

Already in antiquity the practice prevailed of approaching the pastor before the nuptials, so that he could inquire whether there was any impediment or not. Thus Charlemagne, in the year 802, ordered that nuptials not be celebrated before the priests, with the elders of the people, had diligently inquired into the consanguinity of those being joined. Likewise in many places espousals were contracted publicly, so that the future marriage might become known to all: which was equivalent to banns.

But the manner of publicly announcing marriage in churches took its beginning in Gaul,¹ then in England; afterwards it was extended to the whole Church by the decree of the Fourth Lateran Council (1216), which the Council of Trent confirmed and enlarged. According to the Lateran Council, it suffices that the publications be made once; but three are required according to Trent. Therefore where Trent has not been promulgated as to the part which regards the banns, one publication strictly speaking suffices, although a threefold one often is more prudent.

¹ Thus Odo de Subiaco, Bishop of Paris, at the beginning of the thirteenth century, ordered that marriages be published in church, so that all the faithful could denounce to the episcopal court impediments which they knew.

Notion. From the Tridentine law, namely the decree Tametsi, in order that marriage be valid, a certain solemnity is required which consists in the presence of the pastor and of at least two witnesses. Hence a marriage is called solemn which is contracted according to the form of law; on the contrary, clandestine, which is contracted outside the form of law. Since, however, the Tridentine form was notably changed by the decree Ne temere³ and by the Code, we shall speak: 1° of the Tridentine form; 2° of the form of the new law.

² For the ancient discipline: Decret. Gratiani, C. XXX, q. 5; Decretals, lib. IV, tit. 3, de Clandestina Desponsatione; Trent, sess. XXIV, cap. 1 de reformat. Matrim.; Sanchez, lib. III; St. Alphonsus, n. 1078-1094; Gasparri, n. 871-999; Deshayes, Questions sur le Mariage, q. 91-150. - For the form of the new law: De Smet, ed. 3, n. 103-150; Vlaming, ed. 3, n. 561-609; Fourneret, p. 140 sq.

³ Which began to be in force on April 19, 1908, for the whole world, except the empire of China, in which it is in force from April 11, 1909. - Hence marriages entered before this time must be judged according to the discipline of the decree Tametsi.

I. On the Tridentine Form.

Trent had established this law: "Those who shall attempt to contract marriage otherwise than in the presence of the pastor, or of another priest with the permission of the same pastor or of the Ordinary, and of two or three witnesses, the holy Synod renders altogether incapable of so contracting: and it decrees that contracts of this kind are invalid and null, just as by the present decree it makes them invalid and annuls them."

Yet lest that decree (which is called Tametsi, because it begins with this word) should affect heretics, who were not going to receive it, the Council willed that the decree not have the force of law except after thirty days from the first publication in each parish; for thus an opportunity was furnished to heretics, who formed separate communities, of evading the law.

Concerning that discipline, now antiquated, we shall hand down only a few things, nevertheless necessary to know for judging the validity of marriages entered before April 19, 1908; if perhaps more difficult cases occur, let the authors cited above be consulted.

1028. (B) But in the Latin Church, can. 1099 declares who are subject to this law, namely:

(a) All baptized in the Catholic Church, when they contract among themselves, even if afterwards they have fallen away from the faith; - that is, all who by Baptism itself are freely enrolled in the Catholic Church, if adults are in question; with parents consenting, if little children are in question; but not those who are baptized by a heretical or schismatic minister by the will of the parents, even if the parents were Catholic; nor, at least more probably, the children of non-Catholics who, with the parents unaware and unwilling, were baptized by a Catholic maidservant. But the doubtfully baptized, with respect to marriage, are presumed validly baptized.

(b) All also who have been converted from heresy or schism and already baptized; but not the children of converts, unless they themselves also embrace the Catholic faith. - This holds good even if afterwards they fall away from the faith, because it is not fitting that this defection profit them.

(c) All likewise the aforesaid Catholics or converts, when they contract with non-Catholics, even after a dispensation has been obtained from the impediment of mixed religion or disparity of cult¹. Likewise Catholics who contract with Orientals. - Thus the discipline is reformed by which an immune party communicated his immunity to the other, while on the contrary today the bound party communicates his bond to the other.

¹ By the Constitution Provida (January 18, 1906), Pius X had exempted any mixed marriages to be contracted in Germany from the decree Ne temere. But that exemption is to be considered abrogated according to the mind of can. 6, 1° (Pontifical Commission, December 9, 1917).

(d) But non-Catholics, whether baptized or not baptized, are by no means subject to the law of clandestinity when they contract among themselves; therefore under this head the marriages of non-Catholics will not be invalid, which, as regards form, are subject only to natural and civil law. But if a baptized non-Catholic party contracts with an infidel, the marriage will be null from the impediment of disparity of cult, which has by no means been removed (above, n. 924).

1141. For the validity of ordination: a) the ordinary minister is every and only consecrated bishop; b) the extraordinary minister is he who, although he lacks episcopal character, has received from law or from the Apostolic See, by indult, the power of conferring some orders¹.

¹ Codex, c. 951, 957.

For the liceity of ordination: a) for the Episcopate, the only minister is the Roman Pontiff, or a bishop by pontifical mandate²; b) for the other orders: 1) as regards a cleric ordained by the Roman Pontiff, the minister is he who obtained from the Holy See the faculty of ordaining³; 2) as regards seculars, it is the proper bishop by himself, or through another who has obtained legitimate dimissorial letters⁴; 3) as regards privileged religious, regularly it is the bishop of the diocese in which is situated the religious house to whose family the one to be ordained belongs⁵.

² Codex, c. 953.

³ Codex, c. 952.

⁴ Codex, c. 955.

⁵ Codex, c. 965.

That an ordination may be licit, 1° it must be conferred by the proper Bishop, or with his license; 2° and indeed with the canonical rules observed.

I. On The Proper Bishop.

The former law partly abrogated

114. 1. By the former law, by order of Alexander VII, those dwelling in the Pontifical State had to offer their books to be approved by the previous censure of the Cardinal Vicar of the City and of the Master of the Sacred Palace. Now the special obligation, if any remains, is circumscribed to the City alone.

Force of the present article. It imposes an obligation

2. Proceed now: the obligation seems to remain. For although the sentence of the law is in itself ambiguous and can be taken of a mere privilege,¹ nevertheless the reason of the former disposition remains in such a way that a correction of that law, which would be inexplicable, does not seem to have to be admitted. The usage of the City agrees, in which the Masters of the Sacred Palace urge their right in this way.²

But the reason of this sanction is drawn from a certain peculiar authority with which books that are considered to have been written under the eyes of the Holy See are vested, so that they seem to have to be fortified by the caution of Roman censure.

And it confers a privilege

3. At the same time, however, the article confers a most equitable privilege, by which these books, even if they are published elsewhere, need have no other approval. Thus the law is not made harsher for the inhabitants of the City, and fitting honor is given to Apostolic censure.

Whom it affects

4. Those properly dwell in the City who there have at least a quasi-domicile.³ Those, however, who actually stay at Rome even for a shorter time will be able, as pilgrims, to share in the privilege of the inhabitants.

¹ Cf. Palmieri, in this place; Ojetti, Analecta Eccl., 1898, pp. 383, 384.

² Cf. Wernz, n. 121, note 104.

³ Quasi-domicile is acquired by real habitation joined with the intention of staying in some place for the greater part of the year. Thus the opinion received in the curia, although some, as Lehmk. II, 775, are content with staying through a notable part of the year: as, for instance, through 4 months. Penn., A. S. S., cited place, n. 74, p. 495, judges that no space of stay is required for the use of that privilege.

A particular law is one made for a limited class of persons or for a particular territory only. Particular laws of the latter kind bind those for whom they are made, who have a domicile or quasi-domicile in the territory concerned and actually reside there.

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.

767. 2. A domicile or quasi-domicile, or at least a month's residence, of either person about to marry in the place where the matrimony is celebrated.⁵⁶

a) A domicile, which is the place "where someone establishes his household and the sum of his affairs and fortunes; whence he would not again depart if nothing called him away; whence, when he has departed, he seems to be traveling; to which, if he has returned, he has now ceased traveling,"⁵⁷ is acquired as soon as someone begins to dwell in that place with the intention of remaining there perpetually, that is, for an indefinite time.⁵⁸ This intention must be proved in the external forum. It is proved in diverse ways, for example, by the transfer of a great part of one's goods, by the assumption of some office perpetual of itself or at least not limited to a fixed time, by ten years' residence, by taking an oath, and so forth. A quasi-domicile differs from a domicile in this alone: that it does not require the intention of remaining perpetually in some place. The intention of remaining there for the greater part of a year suffices, or at least a residence actually prolonged for the greater part of a year.⁵⁹ When domicile or quasi-domicile is lacking, a month's residence in the place where the matrimony is to be celebrated suffices. Since the proper parish priest of those also who have only a diocesan domicile or quasi-domicile is the parish priest of the place where they are actually residing,⁶⁰ such a parish priest can validly and licitly assist at their matrimony. Therefore a diocesan domicile or quasi-domicile suffices, and a parochial one is no longer required. Thus at least if those about to marry do not have a parochial domicile or quasi-domicile elsewhere.

b) A month's residence requires nothing other than presence for thirty continuous days; nevertheless, those days are not to be computed mathematically. Hence if the contracting parties had been absent from the parish on one or another day during the month before the celebration of the matrimony, nevertheless they could enter matrimony before the parish priest of the place not only validly but also licitly. For a little is reckoned as nothing.

3. Permission of the parish priest (or Ordinary) of the domicile or quasi-domicile or month's residence of either contracting party, unless a grave necessity intervenes which excuses from seeking permission.⁶¹

The parish priest indeed always assists validly at marriages in his territory, but acts illicitly unless a) either contracting party has a domicile or quasi-domicile or month's residence there; or b) unless there is question of travelers actually journeying; or c) grave necessity intervenes. But if he nevertheless assists at the matrimony, he does not make the stole fees his own and is bound in justice to remit them to the proper parish priest of the contracting parties,⁶² even before a declaratory sentence, and indeed to the proper parish priest of the bride, unless legitimate particular statutes decree otherwise. Stole fees are that tax which is owed according to diocesan law to the priest who assists at the matrimony; they do not, however, include the Mass stipend and other gifts perhaps offered.

⁵⁶ Thus the Code of Canon Law, can. 1097, § 1, n. 2.

⁵⁷ Thus from Roman law, L. 7, C. X, 40 (39); cf. Voetius, Ad Pandectas, l. 5, tit. 1, n. 92. Canonists, for example, Reiffenstuel, In tit. De foro competenti, n. 16 ff., receive and explain this definition. Therefore for a domicile it is required that someone establish his household there, that is, the center of private and domestic life; and consequently he does not acquire a domicile in a place or places where he has workshops alone. Cf. the Paris case in Act. Ap. Sed. III, 326 ff.

⁵⁸ Cf. Benedict XIV, Instruction 33.

⁵⁹ Code of Canon Law, can. 92.

⁶⁰ Ibid., can. 94, § 3.

⁶¹ Thus the Code of Canon Law, can. 1097, § 1, n. 3.

⁶² Ibid., § 3.

357. Particular laws are some territorial, others personal. - The Pontiff and inferior legislators, such as bishops and prelates, can make particular laws which obligate a part of the Church; of these, some are territorial, which immediately affect the territory and mediately persons of the territory as such, that is, insofar as they pertain to the territory; others are personal, which immediately affect certain persons, and which, like particular precepts, cling to their bones and accompany them and obligate them wherever they go: thus a priest suspended in his own diocese cannot celebrate in another. But since a community is defined by territory, and subjects are not obligated except insofar as they are part of the community, hence canon 8, § 2: "A law is not presumed personal, but territorial, unless something else is clear."

358. Subjects of particular laws. - In a territory there can be:

1. Inhabitants, who have domicile there, and newcomers, who have acquired quasi-domicile (can. 13, § 2): domicile is acquired in some parish (or quasi-parish) or at least in a diocese (or quasi-diocese) by residence prolonged to a completed decade, indeed even from the beginning by residence alone with the intention of remaining there perpetually; quasi-domicile is acquired by habitation prolonged for the greater part of the year, that is, after six months, and also from the beginning by habitation with the intention of remaining for the greater part of the year (can. 92). Both are lost by departure from the place with the intention of not returning (can. 95). These are obligated to territorial laws: a) while they are physically present in the territory (can. 13, § 2); b) also while they are physically absent but morally or juridically present, if transgression of the law in their own territory causes harm (can. 14, § 1), e.g., by reason of a thing situated in their own territory, or of an action or omission which they exercise there, or of a delict committed there; c) when absent from the territory and not morally present, they are not bound, because only those who are in some way in the territory are obligated; even if they depart precisely so that they may be exempted from the law, although thus they can sin by intention: for no one transgresses the law who uses his own right.

1. Let it be noted, according to canon 93, that a wife not legitimately separated from her husband necessarily retains the domicile of her husband; an insane person, the domicile of his curator; a minor, the domicile of him to whose power he is subject. But a minor, having passed beyond infancy, can obtain his own quasi-domicile; likewise a wife not legitimately separated from her husband can obtain a quasi-domicile, and one legitimately separated can even obtain a domicile.

2. Travelers, who elsewhere have domicile or quasi-domicile, but accidentally for a short time are staying outside their own territory with the intention of returning, such as merchants and travelers making excursions:

a) generally they are not bound by the laws of their own territory, unless the transgression harms their own territory, as was said under 1), b) and c) (can. 14, § 1);

b) nor per se are they bound by the laws of the territory in which they are present, even if they are similar to the laws of their own territory, because law obligates only subjects or members of the community;

c) nevertheless per accidens they are bound, by force of the common law, by reason of the thing about which they are acting or of the action which they exercise there or of the delict which they commit (because by this reason they are subjects), or from natural law, by reason of the order to be preserved and disturbance and scandal to be avoided; whence they are bound to laws of public security or those which are specially enacted for travelers. Hence canon 14, § 1, 2: "nor by the laws of the territory in which they are staying, except those which provide for public order (insofar as they provide for order), or determine the solemnities of acts";

d) nevertheless they are bound to the universal laws of the Church even if in their own territory they had been abrogated, e.g., to abrogated feasts (can. 14, § 1, 3);

e) but they are not bound to those universal laws if in the place in which they are present they have been abrogated, because local privileges are participated in by all who are staying in the place (can. 14, § 1, 3);

f) but if in one place they have already satisfied the common law, in another they are not bound, except by reason of scandal, because the Church is judged not to will to obligate twice to the same thing.

3. Vagabonds, who have domicile or quasi-domicile nowhere, but pass or wander from place to place, are now obligated by laws both general and particular which are in force in the place in which they are staying (can. 14, § 2); whence they become subjects of the Ordinary or pastor of the place where they are actually dwelling (can. 94, § 2).

4. Exempt persons, who by a fiction of right are judged to be outside the territory and are withdrawn from the jurisdiction of the territory, such as religious strictly so called with regard to the laws of the Ordinary of the place (can. 615):

a) these are not bound to territorial laws per se and by force of the laws themselves;

b) per accidens they can be bound from fittingness or equity, namely, by reason of scandal to be avoided, or the common good to be obtained, with regard to those things which are not repugnant to their exemption and privilege;

c) they are bound with regard to certain causes expressed in law (e.g., with regard to the care of souls) according to the principles of can. 336, § 2 and 619.

Such causes are:

1. by reason of doctrine (the bishop is at the same time as it were an apostolic delegate in a matter of faith), e.g., with regard to the public preaching of the word of God (can. 1338, § 2; 1334 and 609, § 3; Council of Trent, sess. 5, c. 2; sess. 24, c. 4); with regard to schools, oratories, patronages, and other works in those things which regard religious and moral instruction (can. 1382), prior censorship of books to be published (can. 1385-86), prohibition of books (can. 1395, § 1), examination of those to be ordained (can. 996-997);

2. in protecting divine worship (can. 1261, 1265, 1274, 1279), e.g., with regard to prayers and solemnities (can. 612), processions (can. 1291-1292), pious associations (can. 686, § 3; 703), feasts and fasts (can. 1244); laws regarding celebration of Mass, stipend, collections (can. 831, § 3; 804, § 3), etc.;

3. in the care of souls, not only if they are pastors, but generally, not only with regard to instruction and morals, as was said, but also with regard to the administration of the sacraments toward seculars and religious women (can. 874, § 1; 876);

4. in certain matters of discipline, censures and interdicts upon the people, promulgating indulgences (can. 919);

5. by reason of a delict committed outside the convent, when the superior, having been warned, neglects to punish (can. 616, § 2).

1. Some deny this; but it is not demonstrated that the received discipline was changed by the new Code of right.

359. Cases.

1. as to a prohibiting law (e.g., abstinence from meats or from servile works): a) per se he is bound to observe it as long as he is in the former place, because a negative precept obligates always and for always; b) nevertheless per accidens he is not bound if the precept is indivisible (e.g., fasting): for he has the right of not observing the law in the other place, and if he uses that right, now the precept becomes impossible to observe even in the first place;

2. as to a preceptive law (e.g., hearing sacred Mass): a) he is bound to observe it if during the whole time in which the possibility or opportunity of observing the law is given he remains in the former place, because while he is subject to the law he cannot, by beginning a journey, place an impediment to fulfilling the law; hence he must hear Mass if before the last Mass or, while only one is celebrated, before that one he will not be in the other place; b) if before the end of this time in which the law can be observed he arrives at the other place, he is probably not bound, because he has the right of waiting for the last opportune time for fulfilling the law, e.g., if before the time at which the only or last Mass is celebrated he will arrive at the other place. Nor does it stand in the way that one foreseeing an impediment is bound to forestall it, because that is true only when, the force of the precept remaining, someone is to be impeded; but here he is absolved from the obligation of the precept.

1. as to a prohibiting law: a) per se he is bound to observe it from the moment at which he is in the second place, e.g., to abstain from meats or to fast, because at this moment he is subject to the law; b) nevertheless per accidens he is not bound if the precept has already become impossible to fulfill, e.g., if in the former place he had already used his right of eating several times so that fasting has become impossible; but if he has not used that right, and the fast can still be observed, he is bound to it unless there would be grave inconvenience;

2. as to a preceptive law, he is bound to observe it if he has returned before the end of the time in which it can still be observed, e.g., if before the last Mass, because from this moment he is subject to the law and obligated to it, unless, however, it cannot be fulfilled morally, that is, without grave inconvenience.

C. One who in traveling merely passes through a place where there is obligation, although he is not obligated in the place from which he set out or to which he is going, is not judged to be obligated unless he remains in the place of transit, because to interrupt a journey is a sufficiently great inconvenience and as it were an extraordinary means.

D. One who has satisfied the common law in one territory is not per se bound to satisfy again if he comes into a place where the same precept urges to be observed, because there does not exist an obligation of fulfilling the same precept twice.

Let it be noted that in the aforesaid cases an obligation is often given per accidens by reason of avoiding scandal.

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.

Lucius, an Englishman, having been ordered by his doctor to seek southern regions because of the mildness of the climate, determines within himself to go to Rome and spend the winter there. A man of timorous conscience, he first asks his usual confessor to resolve certain doubts concerning the manner of life to be adopted at Rome. For he doubts whether he will be bound with the Romans to abstain from meat not only on Friday but also on Saturday; whether he can eat meat with them on Wednesday during Advent; whether, notwithstanding a certain decree of the Cardinal Vicar of the City, it is lawful for him to visit Protestant churches there even when offices, or “services” as they are called, are being celebrated; whether he is bound to observe all the holy days of obligation, several of which are not obligatory in England; and finally whether the same answer is to be given even if he remains there for six or seven months. The confessor replies that the simplest rule is to be observed: “When you are at Rome, live according to the Roman manner,” and dismisses him. Hence it is asked:

Henrietta, the daughter of Caia, who was French by nationality and retained her domicile in London throughout the entire time to which the case extends, lived for the sake of education in a certain convent of nuns in Paris. A German foreigner who fell in love with her there sought her in marriage. Henrietta promised him marriage and, immediately after her education was finished, left the convent; until the marriage could be celebrated after some weeks, she lived in rooms in a certain inn with her mother, who had come from London for this purpose; finally, the marriage was celebrated before the parish priest of that place. The outcome, however, was unhappy, for because of her husband’s adulteries and cruelty she sought and obtained in a civil court a divorce from the bond. Now, however, Henrietta would like to marry Julius if this is permitted to her by ecclesiastical laws. Hence it is asked:

Titius and Caia, Catholics, had duly contracted betrothal and wished to enter marriage within a few weeks. Titius, twenty-two years of age, was numbered among the members of a certain theatrical company who wandered from place to place, and was not accustomed to remain in one place beyond a month. For about one month each year Titius returned to his father’s home in Scotland; at other times he was always wandering with his companions. Caia lived with her parents in Manchester. Titius fixed his residence for three weeks near the city of Liverpool, where he approached Lucius, a priest, and, after relating the aforesaid circumstances, asked him where he could celebrate the marriage and what must first be done according to ecclesiastical and civil laws. Hence it is asked: