The Subjects of Law Generally

142. The subject of law generally is only the subjects of the legislator: for to make law is an act of superiority and jurisdiction; but jurisdiction cannot be exercised except over subjects.

The subject of law can be obliged in two ways: either only habitually, or in first act; or habitually and at the same time actually, or in second act. Obligation in first act is called imperfect, but obligation in second act perfect. One who is actually obliged by law and does not observe it sins formally; one who is held by law only habitually and transgresses it sins materially.

143. The subject of law in species. 1. All men are held by natural law by this very fact, that they have rational nature, even if they have not attained the use of reason; for this law is referred to those things which per se and necessarily agree or disagree with rational nature.

Those who have attained the use of reason are held by the law of nature in second act; those who have not attained the use of reason, in first act. Therefore it is not licit to incite children or the perpetually insane to something which is prohibited by natural law, for example to blasphemy, impurity, etc.; for even children, acting against the law of nature, sin materially. But one who induces a child to violating the law of nature, as the principal cause of the violation, sins formally. As soon as children have the use of reason, in transgressing the law of nature they themselves sin formally.

2. By positive divine law which was given by Christ for all men, all are held; but by law which was made for the faithful, only the faithful are held, as soon as they have attained the use of reason. Therefore all are held to enter the Church and receive baptism; but none are held to confess and receive the Eucharist except the faithful.

Therefore if there are divine laws which already fit the age of children, children are held to observe them; thus children too who have committed mortal sin are held to confess, and in death all who have attained the use of reason are held to receive Viaticum.

3. By human law are held all and only subjects who have come to the use of reason, that is, have completed the seventh year and are still habitually self-possessed in reason. The reason for the first: only subjects can be bound by laws made by a superior. The reason for the second is that it belongs to positive law to direct the actions of subjects to the end of the community; but the actions of those who are not yet self-possessed in reason cannot be directed.

a. Unbelievers or the non-baptized are not held by the laws of the Church, because they are not subjects of the Church; therefore per se it is licit to enjoin servile works upon them on feast days.

b. Infants and the perpetually insane are not subject to the laws of the Church, because they do not use reason even habitually; therefore it is licit to provide meats to them on prohibited days.

c. The insane who have lucid intervals, the drunk, those delirious (for a brief time), are subject to the laws of the Church, because they use reason habitually; therefore it is not licit to provide meats to them on prohibited days. For although by eating meats they do not sin formally because of defect of knowledge, nevertheless they sin materially, because they are held by law, since they are habitually self-possessed in reason and only here and now lack its use.

144. Whether heretics are held by the laws of the Church. There is no doubt that heretics, schismatics, and apostates per se are held by the laws of the Church: for through baptism they have been made subjects of the Church. Nevertheless they are for the most part excused from sin, because most are ignorant that they are held by the laws of the Church.¹

There are, however, authors who think that heretics who are born in a sect already established for a long time are not held by those laws which tend immediately to the sanctification of the soul, such as the law concerning sanctification of feasts and fasting; for they judge that the Church does not will to urge these laws, because this would redound more to destruction than to edification. But they are held by laws which intend the protection of public order, such as laws concerning impediments of marriage.² Nevertheless, from the fact that heretics are not held by these laws, it is not licit to infer that Catholics can advise or enjoin the violation of laws upon them, because the Church does not permit them to be induced by Catholics to acting against the law.

Now it is asked in what way the following are held by human laws: a. the legislator himself; b. children; c. clerics; d. regulars; e. travelers; f. vagi.

¹ Greek Catholics are not bound by pontifical laws except in a threefold case: a. in the matter of dogmas; b. if they are implicitly extended to them, namely where the matter itself shows that they are comprehended, because there is question not of a merely ecclesiastical law, but natural and divine law is declared; c. if the laws are explicitly extended to them also.

² G. Marc, Institutiones morales Alphonsianae, 10th ed. (Rome: Guggiani, 1906), I, n. 198. Genicot, Casus conscientiae (Louvain: Polleunis and Ceuterick, 1901), p. 22.

145. On the legislator.

a. First of all, a twofold force of law must be distinguished: preceptive or directive, which obliges only to observing the law and to incurring fault in conscience; and coercive, which also obliges to undergoing the penalty established for transgressors. Besides this, one preceptive force is called direct, if the obligation arises from the law itself and the will of the legislator; another indirect, if the law is only the occasion which, once posited, causes obligation to proceed from another source, for example from natural law. Now it is asked whether a legislator is held by laws made by himself.

b. The legislator is either a college of several persons, which alone can exercise legislative power, as in a republic the college of deputies, or a provincial synod, or a general chapter in certain religious orders; or he is a singular person, as the Pope, a bishop, an emperor, who alone can establish laws.

1. Those who compose a college marked with legislative power are held by laws made by themselves: for the individual members are truly subject to the college which possesses legislative power. Therefore the president of a republic is held by the laws of the republic, a metropolitan by the laws of a provincial synod, a regular prelate by the laws of a general chapter.

The singular relation by which the supreme pontiff is referred to an ecumenical council, namely that he is above the council, brings it about that he himself is not subject to laws made in an ecumenical council.

2. A legislator who alone can make laws is not held by his laws with regard to coercive force, but only with regard to preceptive force, yet only indirectly.

The reason for the first is that no one can oblige himself by coercive force, which all concede; therefore neither the Pope nor a bishop incurs censures made by himself. The reason for the second is that by natural law the legislator is held to conform himself to his subjects in the observance of laws which he himself has established: for the common good, which he is held to procure, is most greatly promoted by good example; besides this, it befits the head of the community to conform himself to the community over which he presides. The reason for the third is that only an inferior can be truly and directly obliged by his superior, but no one by himself, which is commonly conceded by authors.

3. But a legislator who without cause does not observe a law made by himself, with scandal excluded, does not sin gravely; and when a reasonable cause is present, he is altogether excused from the law, even if subjects violating it sin gravely. For he himself is obliged by another law and from another end, namely that he conform himself to the community over which he presides, which equity and fittingness demand.

146. On children.

It must be noted that those are called infants who have not yet completed the seventh year of age; after the seventh year has been completed, they are called impubescent: boys indeed until the completed fourteenth year, but girls until the completed twelfth year of age. When this age has been completed, they are called pubescent.

1. Children before the completed seventh year are not held by ecclesiastical laws, even if they have already attained the use of reason. For human laws do not oblige except those self-possessed in reason; but because human laws attend to things which commonly happen, and it does not commonly happen that children before the completed seventh year have the use of reason, therefore by ecclesiastical law they are not judged to be obliged before the completed seventh year, even if it is established that they already have the use of reason.

a. If it is certain that after the seventh year has been completed they have not yet come to the use of reason, they certainly are not held by laws; likewise, if it is doubtful whether they have arrived at it, they are not held.

b. Therefore children who before the completed seventh year eat meats on prohibited days or do not hear Mass on feast days do not sin, not even materially, even if they have already attained the use of reason. Parents, however, are to be admonished to accustom children even before the seventh year to observing the laws of the Church: for afterward, already accustomed, they will observe them more easily.

2. Children after the completed seventh year are held by ecclesiastical laws which fit their age: for at this age they are capable of obligation; therefore obligation affects them unless the Church determines otherwise. Therefore they are held to hear Mass, to abstain from meats, and to confess at least once in the year; but they are not held to fast, nor immediately after the completed seventh year to receive Paschal communion.

3. The impubescent do not incur ordinary ecclesiastical penalties: for although they can be punished by ecclesiastical penalties, nevertheless they are not yet judged subject to those which are latae sententiae, because at this age they do not yet understand ecclesiastical penalties and their reason. Therefore they do not incur censures, with one exception which is specially expressed in law.¹

¹ The censure made against those violating the enclosure of nuns is signified. Cf. De poenis ecclesiasticis, n. 78. From incurring reserved cases the impubescent are not ordinarily exempted; nevertheless in this diocese of Brixen, from a special disposition of the ordinary, they do not incur reserved cases.

147. On clerics subject to civil laws.¹ 1. The supreme pontiff, even if he were not a secular prince, as the supreme head of the Church of Christ, which is a perfect society diffused through all the kingdoms of the earth, by divine law is immune from any jurisdiction of civil authority, unless he freely wills to subject himself to it for a time, just as the supreme pontiffs of the first centuries were subject to the Roman emperors in fact, not in law.

2. To the supreme pontiff belongs the right of exempting both bishops and clerics from civil jurisdiction. There are some who teach that bishops as princes of the Church are already exempt by that very fact from civil jurisdiction.

The Council of Trent teaches that the immunity of ecclesiastical persons has been constituted by the ordinance of God and by canonical sanctions.² For since the Church from divine institution is a perfect society and, by reason of its end, divine institution, and means, a much nobler society than civil society, it follows that ecclesiastical persons and things sacred to God must be immune from the power of civil princes. Therefore by divine law clerics are exempt from secular power and are subjected solely to ecclesiastical power. At the same time the power has been given to the Church of extending and determining the clerical order, who and in what matters ought actually to be immune from secular jurisdiction.³

3. Clerics are held to observe civil laws which are not opposed to the dignity of the clerical state, with regard to directive force.

a. All agree that clerics are held in conscience to the observance of civil laws, but not all derive the obligation from the same source: for some judge that it descends from the law of nature, others from the civil law itself, and finally others from the will of the Church. In our time Wernz (I, n. 108) defends the second opinion, Lehmkuhl (I, n. 140) the third.

b. Clerics are not held to observe laws which do not befit the clerical state, such as military laws: for the Church does not exact their subjection toward these laws, but rather rejects it; but against the will of the Church civil power cannot subject clerics to its laws. If nevertheless they are forced to observe even laws of this kind against the will of the Church, after a protest against the force inflicted has been premised, if it is judged necessary for preventing scandal, they must yield to force and observe the law.

4. Clerics are not held to observe civil laws with regard to coercive force: for by the privilege of the forum the Church has in fact constituted clerics immune from laws decreeing punishment. Since today, however, civil power no longer recognizes this exemption of clerics, but subjects clerics equally with laymen to all civil laws, it must be seen whether the Church permits or at least tolerates the subjection of clerics under certain penal laws, either expressly through concordats or tacitly through a certain agreement.

¹ The things established here cohere with the doctrine of law concerning personal ecclesiastical immunity. Cf. Suarez, De legibus, l. 3, c. 34. Lehmkuhl I, n. 130 f.

² Sess. 25, c. 20, De reformatione.

³ Ballerini-Palmieri IV, n. 521.

148. On regulars subject to the laws of the bishop. 1. Exempt regulars per se are not held by the laws of the ordinaries in whose dioceses they exist: for the privilege of exemption consists in this very thing, that regulars are exempted from the ordinary jurisdiction of bishops and are immediately subject only to the Roman Pontiff.

2. Nevertheless there are many cases in which exempt regulars are subjected to the jurisdiction of bishops, whether ordinary or delegated.¹

Sometimes per accidens they must also subject themselves to bishops in those matters in which they are per se exempt, namely when subjection is necessary either for avoiding scandal or for promoting the common good.

3. Churches and monasteries of regulars can probably be considered as exempt places, so that non-exempt persons are not subject to diocesan laws so long as they remain in them.²

¹ Ballerini-Palmieri VII, n. 51 f., enumerates these cases.

² Cf. St. Alphonsus, l. 1, n. 156. Ballerini-Palmieri I, n. 346 ff.

149. On travelers.

a. A traveler is called one who has a domicile or quasi-domicile somewhere, but is outside it with the intention of remaining there only for a brief time.

b. The principle from which the individual questions pertaining here are solved is this: in order that law oblige, besides knowledge of the law two things are required: a. that someone be a subject of the legislator; b. that he be in the territory which is affected by the law.¹

1. Travelers are not held by the particular laws of their domicile: for laws are territorial, that is, affixed to the territory in such a way that they do not extend themselves outside it; but the traveler is outside the territory which is affected by the law.²

a. One who on the day of a particular fast is outside his territory is not held to observe the fast. One who, leaving in the morning from a place where there is no fast, returns to the place of his domicile, where a fast must be observed, can there in the morning fully refresh himself with meats, even if he knows that at noon he will already be in the place of his domicile; nevertheless at home he must abstain from meats and observe the fast insofar as it can still be observed, namely as to abstinence. One who in the morning leaves his domicile, in which there is a fast, knowing certainly that in the evening he will be in a place in which there is no fast, can already in the morning fully refresh himself, because the fast is commanded as an undivided thing; but in his domicile he must abstain from meats, because abstinence prohibits individual meals.³

b. Nevertheless one who leaves the territory only after the time useful for fulfilling the law has elapsed, and has not satisfied the law, sins against the law; as if someone leaves a place in which a particular feast is celebrated after the time of the last Mass has elapsed, without having heard Mass. But one who leaves it in such a way that before the time of the last Mass he has arrived outside the place where the feast is celebrated does not sin if he hears no Mass; for if he had remained in the place where the precept obliged, he could have deferred fulfillment until that time, but when he arrives at another place, the obligation ceases.⁴

2. They do not enjoy the privileges of their domicile: for privileges are in like manner territorial, and therefore travelers lose them by departure from the place of domicile.

One who comes from the place of his domicile where on ember days it is licit to eat meats and stays in a place where this privilege does not exist cannot licitly eat meats.

3. They are not held by the particular laws of the place in which they are staying: for laws oblige only subjects; but only one who has domicile or quasi-domicile in the territory of the legislator is a subject. But if the same law is in force in each domicile, some, adhering more closely to the principles expounded above, declare travelers immune from the law; others, however, from a certain equity probably oblige them to observing the law.⁵

One who leaves the place of his domicile, in which there is a particular fast, and comes into a place where likewise there is a special fast, is not held to fast: not by reason of the precept of his domicile, because he is outside the territory; not by reason of the precept of this place, because he is not a subject of the legislator.

4. Travelers enjoy the privileges of the place in which they are staying: for they would have to undergo too great an inconvenience if they themselves were held to observe laws which others in the same place do not observe.

One who during the time of Lent is staying in the diocese of Brixen can eat meats twice in a day on days on which the indult has been granted, even if this privilege does not exist in the place of his domicile.

5. Nevertheless travelers are held by common laws which are in force in the place where they are staying, even if in their own domicile they have been abrogated. Thus Germans at Rome must fast on the days of Holy Week according to the Roman manner: for the law affects the territory, and the traveler himself is subject to the common legislator. Besides this, they are held to observe: a. local laws which regard contracts, for concerning these the axiom holds: place (that is, local law) rules the act; b. local laws whose transgression would turn to the detriment of the place in which they are staying, as if it were prohibited to export goods, or, by reason of security, to carry weapons; c. laws which have been made specially for travelers.

For preventing damages and for warding off transgressions of universal laws, it is commanded that travelers produce testimony of their domicile and their state, and that traveling priests who wish to celebrate produce testimony of the state of priesthood and of immunity from irregularities and censures.

6. One who has already satisfied a common law in his own territory is not held to satisfy it again if he comes to a place where the same precept urges later, because there does not exist an obligation of fulfilling the same precept twice.

Thus an Italian who fasted at home on the vigil of St. Peter is not held to fast again in France on the following Saturday, to which the fast is there transferred. If, however, he would be a scandal to others because he does not observe the law from which he is immune, by reason of scandal he would be held to observe it.⁶

¹ If ever elsewhere, certainly in this place it must be warned that moral theology, which by its office treats of licit and illicit things, does not primarily teach to what the spirit of the law moves and induces, but chiefly must determine that which the letter of the law strictly demands from us.

² Laws and statutes of regular superiors oblige even outside the territory, because the jurisdiction of regular superiors affects subjects not by reason of territory, but by reason of the vow of obedience, by which they are personally subjected to superiors.

³ What is said of a traveler, namely that he stays outside the territory, holds also of one who is found in an exempt place: for an exempt place can be considered as a place positioned outside the territory of the legislator. Moreover, exempt places certainly are parishes or towns which are subject to another ordinary, and probably also churches and monasteries of regulars. Hence if a bishop under excommunication prohibited dice-playing to clerics, clerics playing in an exempt place would not incur the excommunication. Cf. De praeceptis, n. 663, n. 670.

⁴ St. Alphonsus, n. 157.

⁵ By precept of the Church, prayers (collects) commanded by the bishop of the place must be recited by absolutely all priests celebrating Mass in the diocese, both by regulars and by travelers. S.C.R., April 3, 1821, n. 2613; March 5, 1898, n. 3985.

⁶ Case. In place S., the feast of the holy Apostles Peter and Paul has been transferred to the following Sunday, and on Saturday the fast of the vigil is to be observed; in place U., the feast of the princes of the Apostles is kept on the very day, June 29, and on the preceding day the fast is observed, which day in this year is supposed to fall on Wednesday. a. If a citizen of place S. is staying on Wednesday in place U., knowing certainly that on the next Saturday he will be in the place of his domicile, in rigor of law he must fast in U., because the obligation of the universal law urges. If, however, he had a just cause of fasting rather at home on the following Saturday, he can transfer the fast to this day, provided that he observes the universal law of the Church once. But if in place U. he is not legitimately excused from the fast, he is held to fast at home on Saturday. b. If a citizen of place U. is staying on Wednesday in S., and on Saturday, the day on which they fast in S., is again found at home, in rigor of law he must fast once: for no dispensation from the fast is granted, neither in place S. nor in place U.; therefore he cannot use the privilege of dispensation which is granted nowhere. Nevertheless, since in place S. there exists the privilege of deferring the fast to the following Saturday, he can use this privilege. But if by fasting on that day on which otherwise no one fasts he must undergo great inconvenience, per accidens in that year he is excused from the fast because of this inconvenience.

150. On vagi. A vagus is called one who has neither domicile nor quasi-domicile anywhere. a. There are some (Suarez, Sanchez, and others) who say that vagi are held to the laws of the place in which they are staying. But others (Lessius, Laymann, etc.) teach that they are not held to any particular laws of places, except in the threefold case of which above (5) it is said, but only to the universal laws of the Church. Since this opinion is probable, it is licit to follow it. b. All concede that vagi can be punished where they commit offenses, lest their crimes remain unpunished.

Note. A personal precept, likewise a personal privilege, follows the one to whom it has been given everywhere. Therefore everywhere he can use the dispensation, just as everywhere he is bound by the precept.

151. Notions. 1. Someone becomes the subject of a particular legislator by the fact that he acquires domicile or quasi-domicile in his territory. Therefore in this place, as far as can be done, it must be accurately determined: a. how someone acquires and loses domicile in a parish; b. how he acquires and loses quasi-domicile in a parish.¹ Domicile in a diocese can be acquired only by means of domicile in some parish of the diocese.

2. Domicile is habitation in a parish with the intention of remaining there perpetually, if nothing calls one away from there; quasi-domicile is habitation in a parish with the intention of remaining there for the greater part of the year.

3. A twofold domicile is distinguished: voluntary domicile, which is acquired of itself, i.e. by one's own choice, and legal or necessary domicile, which is acquired through another or from the disposition of law.

It is clear that one must attend not to civil laws, but to the statutes of ecclesiastical law, where there is question of acquiring or losing ecclesiastical domicile. Therefore the place of domicile is the parish, not a city or town, and the conditions required for acquiring or losing domicile are to be sought from canon law, not from civil law, unless canon law adopts them.

¹ Cf. Laurin, Wesen und Bedeutung des Domizils (Archiv f. k. Kirchenrecht: Bd. 26. S. 165).

152. How it is acquired or lost.

I. On acquiring domicile.

1. For acquiring voluntary domicile two things must concur at the same time: a. the fact of habitation, i.e. that someone actually begins to dwell in some place; and b. the intention of remaining there perpetually, unless some new reason calls him away.

a. Domicile is acquired from the day on which these two are present at the same time; it is not necessary that someone already have dwelt there for some time.

b. If the intention of remaining there perpetually is not established, it must be concluded from various indications which produce moral certitude. Indications of this kind are: constant habitation, the transfer of the greater part of one's goods, the acquisition of immovable goods, an assertion especially confirmed by oath.

c. By ecclesiastical law nothing prevents someone from having several domiciles; however, it is required that he dwell in those places in an almost equal manner, e.g. in wintertime in one place, in summertime in another.

2. The persons determined in law acquire legal domicile: a. a wife acquires the domicile of her husband and, if she has become a widow, retains it until she has acquired another; b. children have the domicile of their parents, so long as they are under their power; a son of the family who has become of age retains domicile in the paternal (maternal) house until, having left it, he has acquired another; c. wards have the domicile of their guardians.

a. Where minors and wards have domicile must be taken from civil law (provincial, not Roman), since canon law disposes nothing concerning this matter. Now by civil law minors and wards can acquire quasi-domicile, but they have and retain the domicile of the father (and, he being deceased, of the mother) or of the guardian.¹

b. The distinction between minor and adult children as regards domicile in the paternal house is this: minors have necessary domicile there, so that they cannot abandon it by their own will, whereas adults have free domicile, so that they can abandon it at will.

II. On losing domicile:

Domicile is lost if these two things concur at the same time: a. actual departure from the place of domicile; and b. the intention of not returning. Just as departure alone from the place of domicile does not suffice for losing domicile, so neither does the intention alone of no longer remaining in that place suffice.

Domicile is lost from the day on which these two things are present at the same time, nor is it necessary that domicile or quasi-domicile have been acquired elsewhere.

III. On acquiring quasi-domicile.

Quasi-domicile is acquired if these two things concur at the same time: a. the fact of habitation in some place; and b. the intention of remaining there for the greater part of the year, i.e. for six months.

a. Quasi-domicile also is acquired from the day on which these two things are present at the same time, nor is it required that someone already have dwelt there for some time.

b. Authors do not agree how long it is necessary, for acquiring quasi-domicile, that someone wish to remain in the place: for some say that it is required that he have the intention of remaining for the greater part of the year and therefore for six months; others judge it sufficient if he have the intention of remaining there for a notable part of the year and therefore for four or five months. Nevertheless, the more recent decrees of the sacred congregations require habitation for the greater part of the year.²

c. For acquiring quasi-domicile in some place, true and properly so-called habitation in that same place is required; it does not suffice that someone migrate in some region, after the manner of an itinerant, from place to place.

d. Therefore public officials, judges, professors, students, male servants, female servants, etc., who by reason of office, study, or business to be carried on stay in some place with the intention of remaining there for a longer time (six months), have quasi-domicile in that place. If the intention of remaining for a longer time in some place is not established, it must be presumed from various indications.

IV. On losing quasi-domicile.

Quasi-domicile is lost if these two things concur at the same time: a. actual departure from the place of quasi-domicile; and b. the intention of not returning.

¹ German Code § 8. 11.

² S. Officium, 7 June 1863.

I. All human beings are subject to the natural law, even infants and the perpetually insane. The reason is that the natural law is founded in human nature itself (n. 81). Hence neither infants nor the perpetually insane may be induced to violate the natural law¹ (St. Alphonsus, I, 153).

¹ There are, nevertheless, acts which, when placed by infants or by the perpetually insane, or by those who lack reason only actually, for example by the drunk, lose their objective disorder, such as insulting words (St. Alphonsus, V, 78). Nevertheless, it is difficult to determine precisely which acts ought to be referred to this class.

II. To the law of nations, insofar as it is said to pertain to the law of nature (n. 92), the same persons are subject who are subject to the law of nature. Insofar as it is said to differ from the law of nature (n. 92), all are subject to it to whom the matter of that law, that is, of the law of nations, pertains, not only inferiors but also governors. The reason is that this law, as introduced by the consent of all nations, is superior to the governors of individual kingdoms.

III. In order that someone be subject to positive law, it is required that he be the subject of the respective legislator, and, if there is question of human law, that he habitually enjoy the use of reason. I said:

1. That he be the subject of the respective legislator, that is, that he be subject to his jurisdiction in such matter.

2. That, if there is question of human law, he habitually enjoy the use of reason. Namely:

a) The divine legislator can bind all, at least in first act, and, as authors commonly seem to teach, He has in fact bound all.

b) A legislator lower than God is not considered to have received the power of binding, not even in first act, those human beings who cannot know the law and be directed by it. Therefore infants and the perpetually insane are excluded; but not the half-witted or those who have lucid intervals, nor those who lack the use of reason only actually, such as the drunk or sleeping. One who induces these latter, for example a drunk man, to violate positive law does not of itself commit the sin of scandal, because the drunk man lacks formal fault, but he sins against the law to whose material transgression he incites him. Moreover, observe that a perpetually insane person, although he is not subject to the directive obligation of law, nevertheless participates in the rights and other effects of laws. Thus, for example, their acts, that is, acts placed in their name by a guardian, can be invalidated, etc.

Corollary I. All human beings are subject to universal divine positive law. Hence Christ declares: "Going, teach all nations... teaching them to observe all things whatsoever I have commanded you."¹

Corollary II. All baptized persons habitually enjoying the use of reason are subject to universal ecclesiastical law (cf. can. 12). So, at least generally.

Therefore unbelievers are excluded, as those who are not subject to the jurisdiction of the Church. Hence the Apostle says: "What is it to me to judge those who are outside?"² Therefore it is licit, for example, to set meat before the aforesaid persons on days of abstinence.

I said: so, at least generally; for 1. concerning some, certain special things must be noted, which we shall do in § III; 2. concerning subjects of the Eastern Church, can. 1 is to be observed: although in the Code of Canon Law the discipline of the Eastern Church also is often referred to, nevertheless the Code regards only the Latin Church and does not oblige the Eastern Church, unless there is question of those things which from the very nature of the matter affect the Eastern Church also.

Corollary III. To a particular law, whether ecclesiastical or civil, there are subject those who habitually enjoy the use of reason and, if there is question of a law established for a territorial community,³ are both of the territory and in the territory, with the prescription of can. 14 remaining firm. I said:

1. They are of the territory; in other words, it is required that they have domicile or quasi-domicile in the territory of the community. This condition, if there is question of an inferior legislator, for example of a bishop, is necessary, because only through domicile or quasi-domicile is someone constituted a subject of an inferior legislator placed over a territorial community (can. 94). But if the Supreme Pontiff imposes a law on a community of this sort, he is presumed to bind only those who are subjects of the governor of that community, and therefore have domicile or quasi-domicile in his territory.

2. They are in the territory; in other words, it is required that they actually dwell in the territory of the community, namely, a territorial law does not affect subjects except by means of the territory. And this holds also as regards those who have gone out of the territory in fraud of the law, as it is said, that is, for the purpose of being exempted from the law.

3. With the prescription of can. 14 remaining firm, which canon concerns travelers and vagi; considering that canon, some are at times held by territorial law, although they are not in the territory or lack domicile or quasi-domicile in it (n. 131).

¹ Matt. 28:19-20.

² 1 Cor. 5:12.

³ For example, for a diocese.

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).

Those Subject to Law.—Only those are morally obliged to observe human law who are subjects of the lawgiver and who have the use of reason. (a) Those who are not subjects in any sense are not bound, for to obligate by law is an act of authority and jurisdiction; (b) those who have not reached the age of reason, or who are habitually insane, are not themselves morally bound, since they are incapable of moral obligation. Of course, they may be restrained as to acts, and their rights may be determined.

The lawgiver himself, even though not subject, is held to observe the laws he makes. Thus: (a) if the lawmaking power resides in a legislative assembly, each legislator is subject to the body and hence to its laws; (b) if the lawmaking power is vested in an individual, he is not subject to the coactive force of his own laws, since he cannot punish himself; but he is subject to their directive force, inasmuch as the higher law of nature requires that the superior show good example by observing what he requires of others.

188. Notions. Before the first seven-year period has been completed, a man is called an infant, or child, or little one; from the seventh year until legal puberty has been attained (that is, until the fourteenth year of age has been completed, if he is male, and until the twelfth year of age has been completed, if she is female), a man is called impubes;⁵⁹ then until majority (which is usually granted when the twenty-first year of age has been completed) he is called minor or underage;⁶⁰ afterward, however, major or of age. An infant and an impubes are also called by the common name pupils. To a pupil a tutor is given; but to a minor a curator is given.

⁵⁹ With regard to delicts, several writers perceive no serious reason why puberty in girls should be placed earlier than in boys; and therefore they demand the age of 14 years both for boys and for girls. Thus also Vermeersch, Theol. mor. I, n. 283.

⁶⁰ Cod. iur. can. c. 88.

189. Principle 1. Infants are not held (unless something else is expressly provided by law) to human laws, even if they have in fact already attained the use of reason.

Thus the opinion today is certain.⁶¹ The reason is that infants before the first seven-year period has been completed are judged not yet habitually to enjoy the use of reason, and therefore are not subject to human laws, as was said. But if in an exceptional case infants have already obtained sufficient use of reason before the first seven-year period has been completed, certainly it is best that they be induced to the observance of ecclesiastical law proportioned to their own state, for example, of assisting at Mass, of abstaining from meats; yet no strict obligation of observing these laws exists. Wherefore the Angelic Doctor teaches:⁶² "The legislator attends to that which is held commonly and occurs in the greater number." There is also the common adage: "Those things which happen rarely legislators disregard."

Note. The precepts of confessing mortal sin and of receiving holy communion are not merely ecclesiastical precepts, but also divine. For this reason an infant who is certainly conscious of a mortal sin committed is held to confess; likewise an infant who has sufficient discretion must receive the Eucharist; nevertheless, in the rigor of law he is not held to observe the precept of the Eucharistic fast, since it is merely ecclesiastical.

⁶¹ Ibid., c. 12. Very rarely does the law expressly oblige infants; for example, it forbids their entrance into cloister, cc. 598 and 600.

⁶² S. theol. II-II, q. 147, a. 4.

190. Principle 2. Impuberes are held to human laws, and especially ecclesiastical laws, fitting to their state, provided, however, that they have in fact attained the use of reason and no special exemption has been granted to them from written or customary law.

The reason is that impuberes are judged to have sufficient habitual use of reason. If, however, in an exceptional case a man after the first seven-year period does not have the ready use of reason, he is not obliged by human laws.

There are some laws, both ecclesiastical and civil, to which impuberes are not subject, for example, the law of ecclesiastical fasting, several penal laws. Wherefore impuberes are excused from penalties latae sententiae, and should rather be corrected by educative punishments than by censures or other graver vindictive penalties.⁶³ But from incurring episcopal reserved cases, impuberes are not exempt by common law; not rarely, however, they are exempt by the particular law of some dioceses.

⁶³ Cod. iur. can. c. 2230.

A twofold distinction must be premised: 1. The force of law is one thing as preceptive, another as coercive. The preceptive force of law causes the observance of the law; but the coercive force punishes the transgressor of the law with established penalties. 2. The legislator is either an individual person, as the Pope, a bishop, etc., or some legislative college, for example, a provincial council, the general chapter of some religious order, a parliament, etc.

191. Principle 1. The individual members of some legislative college are held to the laws made by this college, just as the other subjects are.

Thus all teach, and it is plain of itself. Thus, for example, a religious prelate is held to the laws made in the chapter of which he himself was a member; members of parliament are held to laws made by parliament; bishops are held to laws made by a provincial council, etc. But how bishops and religious prelates are able to dispense in laws of this kind is determined in ecclesiastical law.⁶⁴

⁶⁴ Cf. our Man. iur. can. 29. Since the Pope is above an ecumenical council and not only a member of it, he is not subject to laws made by an ecumenical council.

192. Principle 2. A legislator who has made laws as an individual person is held to his laws only as to their directive force, and that in an indirect way; but not as to their coercive force.

Thus St. Thomas,⁶⁵ St. Alphonsus,⁶⁶ and other theologians commonly. The Angelic Doctor says: "The prince is said to be released from the law as to the coercive force of the law; for no one is properly coerced by himself; but law does not have coercive force except from the power of the prince ... but as to the directive force of the law, the prince is subject to the law by his own will. ... Whence as to the judgment of God (that is, in the forum of conscience), the prince is not released from the law as to its directive force; but he must fulfill the law voluntarily, not coerced."⁶⁷ And truly it would be unbecoming if the legislator himself did not observe the laws which he has made, and by his transgressions stirred up subjects to despise the law that had been made. - But is the legislator held to the observance of his law under grave obligation or under light obligation? St. Alphonsus answers:⁶⁸ "It is probable, scandal being excluded, that he is held only under light obligation; because he is obligated to the law only from fittingness." But scandals and other inconveniences easily arise if the legislator without sufficient reason transgresses his own law. For thus the nerve of discipline is gradually broken in the subjects.

A legislator who is an individual person is not held to his laws as to coercive force, since no one is coerced by himself. Hence, for example, if a bishop (whether within or outside a diocesan synod) has imposed suspension upon clerics visiting the theater, he himself committing such a delict does not incur this censure.

It is plain of itself that the legislator can for a reasonable cause dispense with himself in the observance of the law, just as with his subjects.

⁶⁵ S. theol. I-II, q. 96, a. 5 ad 3.

⁶⁶ Theol. mor. l. 1, n. 154.

⁶⁷ Cf. Cajetan on this article, who rightly thinks this obligation arises from eternal and natural law, from which every human law must be derived.

⁶⁸ Theol. mor. l. 1, n. 154.

355. The subjects of the general laws of the Church are all and only the faithful or baptized persons, habitually endowed with the use of reason, to whom the law is suited (Council of Trent, sess. 7, can. 8, and sess. 14, c. 2 and 5, can. 12 and 13); whence canon 13, § 1: "All throughout the whole earth for whom they have been made are bound by general laws." It is said:

1. the faithful, namely, in the external forum, that is, the baptized, even the perfect and spiritual.

Hence a) infidels, Jews, catechumens are not bound, because they have not entered the Church through Baptism nor are they its subjects (c. 12); b) per se heretics, apostates, schismatics, and the excommunicated are bound, because by Baptism they have been made subjects of the Church, and they do not cease to be such on account of the state of rebellion; nevertheless they are often excused from sins on account of ignorance, indeed sometimes the Church is judged or presumed not to will to obligate them to laws when the obligation would yield to destruction rather than to edification, as it expressly declared for the impediment of clandestinity (c. 1099, § 2). Thus, according to some, this is to be presumed for all laws which directly regard the sanctification of souls, such as laws of fasting, feast days, etc.; nevertheless this has no foundation in the law (cf. can. 87). But certainly they are obligated to laws which are directly enacted on account of the common good, for the decorum of religion or for removing abuses, e.g., to impediments of marriage, unless the Church expressly declares the contrary (can. 1070, § 2).

2. habitually endowed with the use of reason: for law is the rule of human acts, whence it is made for those alone who are capable of obedience and of direction to the common end, or who are capable regularly of positing human acts and of knowing the promulgation of the law.

Hence a) the perpetually or habitually insane are not bound, nor children before the use of reason (can. 12), indeed b) not even children who have the use of reason before the completion of the seventh year, because laws are made for things ordinarily occurring and children before the completed seventh year are not judged to have the use of reason (can. 12); whence they are not bound unless something else is expressly provided in law, as for the law of annual confession or Paschal communion (can. 906 and 859). c) But if after the seventh year there is doubt concerning the use of reason, in the external forum they are judged to have the use of reason because it judges from things ordinarily occurring; in the internal forum, if the doubt is not negative but positive, founded on grave reasons, the obligation becomes truly doubtful and therefore is not to be urged. On the contrary, d) those sleeping, drunk, or half-insane, who have lucid intervals, are bound, since in these the defect of reason is only accidental and transitory.

From these things it follows that those acting against an ecclesiastical law who, for example, are not themselves subject to it because they are not baptized or do not habitually have the use of reason, do not even materially transgress the law to which they are not subject, and those who induce such persons to this do not sin, e.g., by furnishing meats on Friday, by imposing servile work, unless by reason of scandal or contempt. On the contrary, the faithful who habitually have the use of reason but here and now are deprived of it, sin materially, indeed also formally if they culpably placed the cause of the transgression (e.g., by making themselves drunk), just as those also sin formally who induce such persons to transgression of the law.

3. to whom the law is suited: for sometimes certain conditions or age are required for certain acts or penalties, e.g., the twenty-first year for fasting (can. 1254), the years of puberty (14) for penalties (e.g., censures) of latae sententiae (can. 2230).

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