Those Subject to Civil Law

Those Subject to Civil Law.—Civil laws oblige all those who are in any way subject to their authority.

(a) Citizens, when in the country, are bound by all the laws that pertain to them; when outside the country, they are bound by some laws, such as those that regulate their personal status and office, but not by others, in particular such as are of a territorial character.

(b) Aliens are bound by the laws of the country that include them, such as those that regulate public order and the making of contracts.

91. Principles. - I. Every man is born and remains subject to natural law. For since natural law is the divine will itself prescribing things consonant with right reason, it is imprinted on the mind of every man with an indelible character. Therefore it happens per accidens ¹ that, reason being enveloped, it is not immediately recognized, or sometimes ceases to be known.

¹ These things must be said thus, because man is never considered exempt from natural law, but is only excused from guilt when, in violating it, the perfection of the act is lacking. Hence it also follows that he whose use of reason is impeded cannot be impelled to acts opposed to natural law; which happens otherwise if the discussion is of merely human laws.

II. All and only subjects habitually possessed of reason are subject to human law. - The reason for the first is that law cannot be made except for subjects. The reason for the second is that men habitually lacking the use of reason cannot be directed by laws.

III. Only men actually using reason can morally violate law; because, cognition being lacking, no one can sin, according to the things said in the Treatise on Human Acts, no. 4. - Hence those who lack reason for a brief time are said to be excused from fulfillment of the law, although they are subject to it.

92. Resolves. - 1. It is not licit to provoke infants and the insane to a thing intrinsically evil, for example to blasphemies, indecencies, etc.; because they, as having a rational nature, are obligated by the natural law in first act, or radically; and therefore they sin formally who provoke them to acts intrinsically evil. - Reuter, no. 167.

2. Infants and the perpetually insane are not subject to human law, as is clear from principle II. Therefore it is licit to give them flesh meat to be eaten on days on which it is prohibited by the Church, etc. ².

² Nevertheless this is not expedient with little children who before the seventh year begin to have some use of reason, although very imperfect. For it is of the greatest interest that from their little nails they become accustomed to bear the yoke of the Lord.

3. Yet the insane for a brief time, or those who have many lucid intervals, the drunk and the sleeping, are subject to law, because they are in a habitual state of the use of reason; nevertheless per accidens they are excused from it, if they are not actually possessed of reason. Hence it is not licit to give them flesh meat on prohibited days. - St. Lig., book 1, no. 155, etc.

4. Unbelievers, namely whoever have not been cleansed by Baptism, are not obligated by ecclesiastical laws; because they are not yet subject to the jurisdiction of the Church, although they are held to enter the Church ³.

³ Therefore marriages among them are valid, although they are contracted with some impediment of merely ecclesiastical law.

5. Heretics, schismatics, and any other baptized persons, even if not Catholics, are held per se by ecclesiastical laws; because although they are rebels, they do not cease to be subjects of the Church: nevertheless per accidens in practice they do not seem to sin; because they scarcely know that from their condition they are held to observe these laws, even if perhaps they already know the necessity and obligation of entering the Catholic Church.

6. For the same reason, excommunicates are bound by the laws of the Church, although they have been cast out of the Church; otherwise they would obtain a benefit from their own malice ⁴.

⁴ Except unless the excommunication itself forbids the exercise of those acts which otherwise are commanded, for example, to be present at Mass.

93. Questions. - QUESTION 1. Whether Clerics are held by civil laws?

I answer 1. Certainly they are not obligated by laws which are repugnant to ecclesiastical immunity still in force, or to their state, or to the sacred Canons. Thus commonly. - 2. Certainly they are obligated to all laws which immediately regard the common good. - 3. As to other laws, they seem to be held just like the rest, because they are part of the community, and the Church requires and commands this. - Thus more commonly. - Suarez. - Reuter, no. 168.

QUESTION 2. Whether children are held to ecclesiastical laws as soon as they have attained the use of reason, although they have not yet completed the seventh year?

I answer affirmatively as more probable. Because every man using reason is by that very fact subject to law, as is clear from principle II. - St. Lig., no. 155 (as more probable). - Nevertheless not a few probably deny, because, as they say, the Church is considered to attend to those things which happen commonly. - Thus Lacroix, no. 676 (as probable). - Reuter, no. 167. - St. Lig. (as probable), book 3, no. 270. - Elbel, no. 369.

94. • QUESTION 3. Whether travelers are held by the laws of their own territory?

I answer 1. Generally no, because law, which regards a community, is territorial, and does not affect persons except through territory. - Thus all.

I answer 2. If they depart with the intention of withdrawing themselves from the obligation of the law, it is disputed.

Concina, Collet, Antoine, and certain others affirm; because, as they say, one's own fraud ought to patronize no one.

But the Doctors more commonly and more probably deny; because one departing from the territory does not act in fraud of the law, but uses his own right. - St. Alph., book 1, no. 156. - Elbel, no. 370. - Lacroix, no. 683, etc. ⁵.

⁵ What is said of the laws of one's proper territory is valid also of the law of common right, when the traveler is staying where this is not in force. St. Ligorius, book 1, no. 156. Yet what is added, that it does no harm if someone leaves his territory with that intention, has no place if he leaves his territory in order to be absolved from reserved sins, or in order to celebrate matrimony clandestinely in a place where the decree of Trent concerning the necessary presence of the parish priest and two witnesses for the validity of matrimony is not in force.

QUESTION 4. Whether travelers are held by the laws of the place in which they are staying?

I answer 1. Affirmatively, if they have a quasi-domicile there ⁶, which is acquired by habitation and the intention of living somewhere for the greater part of the year. The reason is that through quasi-domicile they become truly subjects of that place. - Thus nearly all. - St. Lig., book 1, no. 156.

⁶ But now if they have a quasi-domicile there, they are no longer travelers. For a traveler is called whoever is staying somewhere, having neither domicile nor quasi-domicile.

I answer 2. All travelers and vagrants are held to the special laws of the place in which they are staying, 1. as to contracts, 2. as to things necessary for the common good. - Thus all.

I answer 3. As to other laws, there is a threefold probable sentence.

The first sentence, more probable, excuses them, scandal being excluded, because law does not oblige except subjects. - Thus St. Lig., book 1, no. 156, etc.

The second sentence obliges them to all laws, because he who feels the advantage ⁷ ought also to feel the burden. - Collet. - Antoine.

⁷ The traveler feels the advantage insofar as he is both exempted from observing the proper laws of his own territory, and enjoys the privileges of the place in which he travels.

The third sentence distinguishes thus: They are held to all laws if they have arrived at the end of the journey; but if they have not arrived, only they are held to negative laws. - Thus Suarez with certain others ⁸, who nevertheless concedes that the first sentence also is probable.

⁸ Suarez (On Religion, tr. 2, book 2, ch. 14, nos. 18 and 23) in reality contends that travelers, even those passing through, for the time in which they rest in some place, are held by its laws, and indeed not only negative, but also positive, unless they bring some harm or inconvenience; and therefore he judges that a traveler who remains there for the whole morning time of a feast day is obligated to hear Mass. Nevertheless, from the general canon the mere probability of this sentence is not sufficient to induce an obligation. Wherefore also void and of no value is that conclusion which Suarez deduces from this sentence of his, that a traveler is subject to the reservations of sins proper to the territory in which he travels.

95. From the things said concerning travelers you will resolve. - 1. If in your territory or parish there is a fast, and on the same day you go to a place where there is no fast, you can dine in the evening. - Thus commonly.

2. Probably you can also breakfast, if you are about to depart in the morning, as Busembaum, Lessius, Sanchez, etc., teach against others, and the Salmanticenses with Suarez judge probable, according to St. Lig., no. 157 ⁹. The reason is that fasting is something individual.

⁹ ** St. Alphonsus merely writes: The Salmanticenses, On Law, ch. 3, no. 70, judge it probable with Suarez. Yet in reality the Salmanticenses (On Law, ch. 3, no. 68), and after them St. Alphonsus, here gratuitously allege Suarez, who in the place alleged by the Salmanticenses (On Law, book 3, ch. 32, no. 3) has nothing concerning this question. Besides, the Salmanticenses (ibid., no. 70) preferred to proceed by another way, namely establishing that account must be had of the territory in which someone stays for the greater part of the day. And indeed this opinion also pleased Laymann, who nevertheless (book 4, tr. 4, ch. 11, no. 7), no otherwise than the Salmanticenses, judges the Author's sentence probable.

3. Being in the morning in a place where there is no fast, you can eat flesh meat, even if around midday you are going to return home, where there is a fast. At home, however, you are certainly held to abstain from flesh meat. - St. Lig., no. 158.

4. If in your territory or parish there is a special feast, and you are about to set out to another place where there is no feast, you are not held to hear Mass before departure, provided you are going to arrive outside the place where the precept is in force before the time of obligation ceases. The reason is that the precept does not oblige you to wait. - St. Lig., book 1, no. 157. - Salmanticenses, no. 66, against Antoine, etc.

5. Travelers are held to all common laws in force in that place, even if in their own territory they were abrogated, or through dispensation did not oblige here and now. The reason is that they are subject to the common legislator, and while absent they do not enjoy the privilege of their own territory. Thus a Frenchman outside his homeland is held to Mass on the day of Epiphany, etc.; a Spaniard to abstinence on Saturday, etc. - St. Lig., Apostolic Man, no. 39.

6. Probably travelers are not held to observe the particular law of some place, even if the same particular law is in force in their own territory: the reason is that they are neither held by the laws of their homeland, because they are absent; nor by the laws of the place in which they are staying, because as travelers they are not subject to them. - Reuter, no. 479. - Lacroix, no. 686, against St. Lig., book 1, no. 156.

7. If someone has already satisfied a common law in his homeland or his territory, more probably he is not held to satisfy it again when he arrives in a place where it urges later. Thus an Italian or Spaniard, who fasted in his homeland on the vigil of St. Peter, is not held to fast again in France, where this fast is transferred to the following Saturday. The reason is that there is no obligation of fulfilling the same precept again, since it has already been fulfilled in its own time: for where a determinate debt has already been paid, it is not to be paid again. - See Cases, no. 79 and following.

Things to be noted beforehand. 1. As Lehmkuhl rightly observes, I, n. 225: It is one thing to be subject to law, to be ruled by law; another thing subjectively to be able to sin against law. In the latter case, it suffices that one can act against law with actual advertence; in the former, this is not necessary. Those who sleep are subject to law, although they can exercise no advertence.

2. If we ask: to whom law extends, we do not intend to speak of natural law. For it is evident that all men, from the fact that they exist, are subject to the right of nature; and therefore we said it was wrong to induce anyone to such acts as the law of nature reprobates (cf. n. 124).

We undertake discourse concerning positive law, especially human law.

3. It will scarcely be necessary to add that the things which here will be said concerning law do not hold exactly of a precept. For a precept, since it has been made for a person, accompanies the subject everywhere, and everywhere reaches him: for it clings to his bones.

193. GENERAL PRINCIPLE. By the obligation of positive law there is reached every man who, having attained the use of reason and having been enrolled into a community or society, is properly and in every way subject to the jurisdiction of the legislator.

It is said 1. Every man who has attained the use of reason; and the reason is that law is a rule directing human actions according to the will of the legislator. But everyone who has attained the use of reason, and he alone, can know the law, and can be directed by it in a human way. Therefore.

2. Enrolled into a community or society; and the reason is, because law is made immediately for a community. Therefore, just as it can oblige no one foreign to the community or society, so it obliges all who have been enrolled into it on account of some title from which enrollment follows: namely, on account of the title of baptism, from which follows enrollment or entry into a society universal in every respect, that is, into the Catholic Church; on account of the title of birth, attainment of the right of citizenship, domicile or quasi-domicile, from which follows enrollment or entry into some local society, for example, into a kingdom, into a diocese; lastly, on account of the title of pure election, yet accepted by the society, from which follows enrollment or entry into some particular society, for example, into a religious Order.

3. Properly and in every way subject to the jurisdiction of the legislator; properly is said; and the reason is, because the legislator can impose laws only on those who are truly subject to him. And hence it is why he himself, although he is a member of the community, nevertheless is not subject like the others to the laws which he makes for it; hence also it is why travelers are not held to all the particular laws of some place. They are indeed in the territory, but not of the territory, which latter condition is absolutely required so that one may be properly subject to the legislator, as will be said below, n. 206; in every way is said; and the reason is, because with respect to matter, in which someone is not a subject, he can be bound by no law: thus regulars are not held to all laws of a bishop; and with respect to territory into which a subject betakes himself, he is not always held to the law. Thus those who leave a diocese remain subjects of the Bishop, and nevertheless are not bound by his laws.

With these things having been generally premised, it must be investigated in particular: to what extent, on account of defect of reason, children and others lacking the use of reason are not held to laws; then to what extent, on account of defect of subjection, unbelievers and heretics are not held to the laws of the Church; clerics to civil laws; travelers to local laws; and lastly the legislator himself to his own proper laws.

194. PRINCIPLES. I. Those who have only the habit of reason are not held to positive laws. The reason is clear from the aforesaid, because they cannot be directed in a human way. Therefore it is lawful for them to eat meat on a forbidden day, etc.; to omit Mass on feast days, etc.

195. II. Children using reason are subject to positive laws as regards Confession and Paschal Communion.

This is clear from the celebrated decree Quam singulari, given on August 8, 1910 (A. A. S., II, p. 582), by which all things are reduced to the norm of the Lateran Council.

Note. In order that children be subject to these laws, it is not required that they have in fact reached the age of seven; it suffices that they use reason; or better, to use the words of St. Thomas (3, q. 80, a. 9 ad 3), it suffices that they begin to have some use of reason ... so that they can conceive devotion to this Sacrament. As regards the other things required in children, see what will be said in the treatise on Communion.

III. Children using reason, after the seventh year, are subject to the other laws of the Church, and after puberty, to ecclesiastical penalties.

The first part is clear; for as regards these children all things are verified which are indicated in the general principle enunciated above. Whence rightly the Sacred Penitentiary, March 15, 1837: "Children, after the seventh year, are held to observe the quality of foods prescribed by the Church." Cf. De Angelis, Prael. Jur. can., l. 3, tit. 46, n. 5.

The second part rests on the reason that every censure presupposes contumacy and deceit on the part of the one to be punished, which crimes are commonly judged to be present only in those who have reached puberty.

Note, however (cf. n. 1261), that even those who have not reached puberty incur censures against violators of the enclosure of nuns and strikers of clerics, as is expressly noted in words in the Law. St. Alph., VII, n. 14; ed. G., p. 277; Vermeersch, de Relig., I, n. 310.

We said: children using reason, after the seventh year, are obliged. This obligation must also be maintained if, concerning some child who is seven years old, it is doubted whether he has attained the use of reason; for the use of reason is presumed to be present. St. Alph., III, n. 270; ed. G., I, p. 550; Lehmkuhl, I, n. 230.

But what if children become possessed of reason before the seventh year? There is a twofold opinion. The first, which seems more probable to St. Alphonsus (III, n. 1012; ed. G., II, p. 391, and the place indicated above), affirms. The reason: the laws of the Church oblige without distinction all who are endowed with reason.

The second opinion, also probable, denies. The reason: law is given for cases commonly occurring (cf. St. Thom., 2.2, q. 147, a. 4). We can safely follow the latter opinion, to which the response of the Sacred Penitentiary communicated above lends support. Nevertheless, the first opinion is much to be commended, so that children, from their first age, may become accustomed to the yoke of the Lord.

196. III. Drunken persons, and those delirious for a time, remain subject to positive laws. The reason: because the law which reached them when they had arrived at the use of reason perseveres in retaining its force upon them, as still enjoying reason habitually.

Whence, if in the time of drunkenness or delirium they do something prohibited by positive law, for example, if they use forbidden foods, they violate the law materially; although, on account of defect of actual knowledge, they are excused from formal sin. "For it is one thing not to be held to law, as children and the insane are not held to laws; another thing to be excused from law, as the drunken, the ignorant, and those sleeping are excused. Hence it is a sin to offer meats on a forbidden day to the second group, but not to the first; just as also it is a sin to incite all those persons to something evil by natural right" (I, n. 153, 155; ed. G., I, p. 131).

197. As we have already observed, men are aggregated to the Church, and are subjected to her jurisdiction, only through baptism.

PRINCIPLES. I. Unbelievers, Jews, and catechumens are not held to the laws of the Church. Whence, scandal and contempt of law, or public disturbance of festal quiet, being excluded, it is not illicit to offer meats to the same persons on days of abstinence, to impose servile works on feast days, etc.

They themselves, however, are held to embrace the Evangelical law and to receive baptism, as soon as they have been sufficiently instructed concerning our faith. Indeed, although they cannot be compelled to embrace the faith, nevertheless they can be driven to hearing an exposition of the faith (I, 154, 2.; II, 18; III, 272). Cf. below n. 437.

198. II. Heretics, apostates, schismatics, and the excommunicated, of themselves, are held to the laws of the Church. For these, although they are rebels, nevertheless always persevere under the dominion of the Church. The same must be said of heretics, concerning the validity of whose baptism there is doubt; for, in the external forum, one must stand for the validity of the act (cf. n. 51).

It was said of themselves: 1. because many heretics do not know, although they know the obligation of returning into the bosom of the Church, that they are held to the laws of the Church. Whence, they are easily excused on account of ignorance; 2. because often there are present circumstances on account of which it must be judged that the Church does not will to oblige heretics by her laws, because the observance of them would bring great inconveniences upon them. And this will of the Church is to be presumed with respect to those laws which directly tend to the sanctification of souls, such as laws of fasting, feast days, etc. For in these things the Church acts more mildly, lest sins be multiplied.

It is otherwise with respect to laws which have been made for restraining abuses and protecting public order, for example, concerning impediments of matrimony. For that heretics are held to these laws has several times been declared by ecclesiastical authority, explicitly or at least implicitly (De Angelis, l. I, tit. 2, n. 13; Lehmkuhl, I, n. 228).

See what Wernz observes upon this opinion (I, n. 103), where he entirely rejects the immunity of heretics which we admit for some laws.

An inferior, even if he is a legislator, can do nothing against the law of a Superior. From this axiom, which presides over the whole matter, the following things follow.

199. PRINCIPLES. I. Regulars exempt from episcopal jurisdiction are not held to the laws of the Bishop, even if they dwell in his territory. The reason is, because through exemption, as soon as they have fulfilled the required conditions, they are no longer subject to his jurisdiction.

Except the cases excepted by right itself, for example, concerning censures and interdicts issued by the Bishop, or concerning feast days appointed by him for them, as was decreed by Trent (Sess. 25, c. 12). See particular cases n. 2189. Cf. St. Alph., de Privil., n. 72; ed. G., I, p. 224.

200. II. Clerics are held to civil laws, insofar as these laws are not opposed to ecclesiastical immunity still in force. The reason for the exception is, because laws which violate immunities are unjust, since they go beyond the power of the civil legislator (cf. n. 149, 2.).

But clerics are bound to the other laws as to their directive force, because they too are members of the political community. Nor indeed, as to these same laws, can the civil legislator exercise coercive force upon clerics, because by this exercise also ecclesiastical immunity would be violated.

Concerning the immunity of the Supreme Pontiff from civil jurisdiction, see what Lehmkuhl has, I, n. 231. The saying of Leo XIII is known, when he was Bishop of Perugia: "In the first centuries," he says, "Pontiffs were subjects as to fact, not as to right." Cf. pastoral letters concerning the temporal principate of the Roman Pontiff.

201. It was said 1.: Insofar as they are not opposed to ecclesiastical immunity. Now this immunity is threefold: personal, local, and real.

Personal immunity comprehends the exemption of clerics: a) from the lay forum, in both civil and criminal causes; b) from those burdens which are considered vile or sordid, such as the repair of roads and bridges; c) from military service, from the reception of soldiers, and other prestations by reason of military service; d) from tutelage and curatorship, and generally from those things which either do not befit the holiness of the clerical state, or cannot be composed with the offices annexed to the same (cf. n. 2224 ff.).

Local immunity consists chiefly in two things: a) in the prohibition lest profane acts be carried out in sacred places, especially such as are more gravely repugnant to their holiness; b) in the right of asylum, by which it is provided that those fleeing to sacred places not be drawn out from them, except under certain conditions (cf. n. 582 and n. 1332).

Real immunity is the exemption of goods, both of the Church and of ecclesiastics, from taxes and burdens imposed by secular power. How far this extends, see among the canonists.

It was said 2.: Insofar as they are not opposed to ecclesiastical immunity STILL IN FORCE. For the Church can renounce the exercise of her right, either expressly, for example, through a Concordat, or tacitly, as regards this or that immunity, for the good of peace. Wherefore the Concordats of the Holy See with various kingdoms are to be inspected. But tacit renunciation is not easily to be presumed; because the things on which it is presumed to rest are commonly not done spontaneously, but unwillingly (Lessius, de Just., l. 2, c. 33, dub. 3).

202. IT IS ASKED. How ought clerics, or even laymen, conduct themselves, lest they seem to wound the RIGHT OF IMMUNITY, when laws which stand against the same are proposed to them as to be observed?

Resp. I. IN GENERAL: 1. Against laws of this kind one must protest, whenever, if protestation were omitted, scandal would have to be feared; 2. One must yield to force in such a way that open acts of violence are not provoked, which serve only to multiply injuries to be inflicted on the Church.

II. IN PARTICULAR: 1. A pastor, or inferior cleric, likewise a civil official, should have recourse to the Bishop, unless the matter concerns a case in which either there is danger in delay, or a contrary custom has grown up. 2. The Bishop "should believe that he will do abundantly enough for his office" (says Benedict XIV, de Syn., l. 9, c. 9, n. 12), "if he takes care lest the secular prince ever arrogate to himself the right of sacred things, that is, lest ... he mix himself in causes ... merely ... spiritual and ecclesiastical"; likewise, lest the lay judge also invade that part of immunity which has thus far remained untouched.

Schmalzgrueber, l. 2, tit. 2, n. 16, 19; Wernz, IV, n. 177; Feije, n. 204; Bucceroni, I, n. 198. Attend especially to the causes argued before the Tribunal of the Sacred Roman Rota.

203. Things to be noted beforehand. I. In the broader sense, the words newcomer, traveler, and wanderer designate promiscuously any FOREIGNERS.

In the strict sense, a newcomer is said to be one who, outside the place of origin, has a domicile or quasi-domicile. To him is opposed the inhabitant, who remains in the place of his origin. A traveler is he who, having a domicile or quasi-domicile somewhere, remains accidentally in another place, although for a long time, for example, to visit a friend, and does not have the intention of dwelling there. A wanderer is said to be one who has nowhere a domicile or quasi-domicile, but transfers himself from one place into another.

It can happen that someone ought for the moment to be called a wanderer, namely when he has left his old domicile, and has not yet acquired even a quasi-domicile, for example, if someone were to migrate from Europe into the regions of America.

II. ON DOMICILE. Domicile is habitation in some parish,¹ with the intention of remaining there perpetually, unless something calls one away from there. In order that it be acquired, two things must be present at the same time: 1. that someone begin to dwell somewhere, and 2. that he have the intention of remaining there perpetually.

If such intention is not clear, it is judged in the external forum that this mind is or was present, either by ten-year or assiduous habitation, when the will of departing has not been signified, or by the transfer of the greater part of goods, or by purchase or building of a house, or by assertion under oath. Cf. A. A. S., IV, p. 328, 676 ff.

In order that domicile be lost, it is required that the two aforesaid things be absent at the same time. Neither departure alone, nor the intention alone of not remaining, brings about the loss of domicile.

Note. Besides the domicile which we have just described, which they call voluntary, there is given legal domicile, which someone necessarily acquires from the disposition of law. That truly is determined for wives, who acquire the domicile of the husband, and retain it after the death of the husband, until they have acquired another; for wards, who obtain the domicile of guardians; for children, whose domicile, until they become of their own right, is the same as that of the parents, and remains the same even after majority, until they have acquired another, the former having been left behind.

Thus civil law, whose dispositions concerning legal domicile ecclesiastical law holds ratified: from which it follows that all who have legal domicile cannot acquire another true domicile elsewhere, though they can acquire a quasi-domicile. As regards others, who do not have legal domicile, no ecclesiastical law prohibits them from choosing several domiciles (A. S. S., vol. 15, p. 222), provided they dwell almost equally in all. Several civil rights concede the same, for example, German Civil Law, § 7.

III. ON QUASI-DOMICILE. Quasi-domicile, which civil rights do not recognize, is habitation in a place together with the intention of dwelling there for the greater part of the year.

It is acquired by the very fact that habitation with such an intention begins, nor is it required that someone in fact have dwelt in the chosen place for some time.

But note: habitation is required, nor is it sufficient that someone pass the whole day for months or years in a workshop, about to return in the evening to his own or his paternal house. A fortiori, it is not sufficient that, after the manner of one traveling, he migrate from region to region, from place to place.

It was said: for the greater part of the year, and thus the Sacred Congregations express themselves (Holy Office, June 7, 1867). By these words there is commonly intended the mind of dwelling for six months (cf. Noldin, I, n. 152). Cf. also A. S. S., 31, p. 346. Therefore he who with that intention has begun habitation has acquired quasi-domicile in the parish, so that, as regards fulfilling laws and receiving sacraments, he becomes subject to the competent legislator.

If a doubt arises concerning the mind of remaining for the greater part of the year, in the external forum it is judged to be present if various indirect indications are given: for example, habitation for a month, rental of a house for six months. The mind can also be proved directly by oath.

Note. 1. In order to contract matrimony, the Sacred Congregation of the Council declared, in the celebrated decree Ne temere, that one month's stay suffices. Therefore then the question is no longer of domicile or quasi-domicile, since no mention is made of the mind of remaining there for a longer time of the year. This declaration confirms the practice introduced in the United States of North America by Leo XIII in the year 1886.

2. Authors dispute whether someone can have two quasi-domiciles, and whether children acquire the legal quasi-domicile of parents (Wouters, op. cit., p. 102 ff.). Whatever may be the case concerning the controversy, it is certain that nothing stands in the way of children choosing a quasi-domicile for themselves, as many servants or workers, students, soldiers, public officials, etc., do.

3. As regards the sick received in a hospital, if a question is raised concerning their domicile or quasi-domicile, it must be seen whether they are admitted for a brief or long time, whether after an incurable illness, so that a true judgment can be made.

204. PRINCIPLES. I. Foreigners are obliged, just as the inhabitants of the place, both by the laws of common right and by the laws which the security or convenience of the place wills to be observed by all.² The reason for the first is, because all are subject to the common legislator. The reason for the second is, because the common good of the place, and right order, impose the law on all (I, 156).

Wherefore, local law, besides the necessity of avoiding scandal, binds all, if it regards: a) the form and solemnity of contracts, because the place rules the act,³ so that confusion may be avoided (A. S. S., vol. 32, p. 363); b) the vindication of a delict committed against common right, because the delinquent obtains the forum where he committed the delict; c) dangerous things to be carried away, or directly the governance of travelers.

We said: just as the inhabitants of the place, that is, neither more nor less, since right order requires this. Hence: 1. Foreigners enjoy the privileges of the place, nor are they bound by a law of common right, if it has been abrogated in this place; or if a contrary custom is in force, or an exemption, for example, in monasteries of regulars, or finally a dispensation which affects not persons, but the territory itself.

2. They do not enjoy the privileges of their homeland, because they have lost these by departure. Wherefore they are held to the common law, for example, of fasting or of a universal feast, as it is observed in the place in which they dwell, or through which they pass. In this case that saying holds: If you shall have been at Rome, live in the Roman manner; if you shall have been elsewhere, live as there.

He, however, who has already satisfied the common law in his homeland, more probably is not held to satisfy it again, if he comes to a place where the same precept urges later. Thus an Italian who fasted in his homeland on the vigil of St. Peter is not held, scandal being set aside, to fast again in France, where the fast is transferred to the following Saturday; because there is not given an obligation of fulfilling the same precept twice (Gury, I, 97, 7.).

But what if someone, while they are fasting in his homeland on account of the vigil of a universal feast, is staying in a place where the fast is transferred to the following Saturday, and returns to his homeland before Saturday? Some say that he ought to fast once, wherever he may remain; others judge that he can use epikeia, and that the law ought not to be imposed on him, provided he has not arranged all things thus on purpose. Cf. Noldin, I, n. 148; Lehmkuhl, I, n. 236.

205. II. Newcomers are released from the laws of the homeland from which they departed; but they are held to the laws of the place in which they establish domicile or quasi-domicile, as soon as they have arrived there. The reason for the first is, because local law does not go beyond the territory. Except if someone physically absent is reputed morally present by a fiction of right, for example, by reason of the office which he bears, or the goods which he possesses in the homeland. For then actions or omissions are judged to be done in that territory, or to have effect there (Bouquillon, Theol. mor., n. 106, 243). The reason for the second is, because newcomers, when they have acquired at least quasi-domicile, are now subject to the jurisdiction of the Superiors of the place; therefore they are also held to the laws, just as the inhabitants themselves (I, 156; ed. G., I, p. 136).

206. III. Travelers and wanderers are regularly immune both from the laws of the homeland and from the laws of the place in which they are staying. The reason for the first is the same as for newcomers, because they are outside the territory of the legislator. The reason for the second is both because laws oblige only subjects, such as travelers are not, since they are by no means subjected to the jurisdiction of the Superior of the place on account of that brief stay; and because he is not said morally to dwell in some place who does not remain there, nor has the mind of remaining, for the greater part of the year. This opinion, more probable to St. Alphonsus, has now already become more common and is entirely safe in practice. See the Holy Doctor, l. c. (ed. G., I, p. 135). Except if a Superior of higher order willed particular laws to be observed also by travelers, for example, that an imposed prayer be said.

We said: regularly; for travelers are held to the laws of the homeland, not only in the same cases as newcomers, but also in the case in which a special prohibition of departing stands in the way, such as is had in absolving reserved cases (cf. n. 1278). But with such a prohibition excluded, which would bind the subject after the manner of a personal law (A. S. S., vol. 36, p. 222), each one can leave the homeland or betake himself to an exempt place, even to exempt himself from the law (see St. Alphonsus, l. c., n. 157); because then not fraud, but the condition of the place favors the one departing.

The general rule can be expressed briefly in this way: In order that someone actually be obliged to a local law, it is regularly necessary that he be in the territory and of the territory; in order that he enjoy a local privilege, it is required and suffices that he be in the territory.

207. From these things you resolve: 1. If in your territory there is a special feast, and you are going to set out for another place where there is no feast, you are not held to hear Mass before departure, provided you arrive outside the place where the precept is in force before the hour of the last Mass, at which time the precept would already urge.

2. If in your territory there is a fast, and on the same day you go to a place where there is no fast, you can breakfast in the morning, but not likewise eat meats. The reason for the first is, because, since fasting is indivisible, as consisting in one meal, he is not held to fast to whom several meals are conceded on the same day. The reason for the second is, because abstinence is divisible, and must be observed for the whole time in which one remains in the place where the law obliges.

3. Existing in the morning in a place where there is no fast, you can eat meats there, even if about midday you are about to return to a house where there is a fast; at home, however, you are held to abstain from meats (I, 157).

208. Note. The things said above hold concerning laws. Things are otherwise if we consider precepts alone. For these follow subjects wherever they may have been, as we have already noted. It must be noted besides that the best mode of avoiding anxieties of conscience, especially if someone ought to undertake a long journey, consists in this, that a personal privilege be acquired (cf. n. 243). For we can use this everywhere (Noldin, I, n. 134; Genicot, I, n. 119).

209. There is a twofold genus of legislators. For some, as the Pope, a bishop, a monarch properly so called, enjoy absolute authority. Others, as senators, deputies, and the king himself in representative government, make one moral body, by which legislative power is exercised. Hence it is established:

I. In representative States, such as republics and constitutional kingdoms, the legislators and the president of the government himself are subjected to laws made by common counsel and will. And the reason is, because the legislator is properly not the singular person, but the moral body itself, which is superior to any member. The same holds for Bishops, with respect to laws which have been established in a provincial or general Council.

II. In the Church and in a pure monarchy, a singular legislator is not properly held to his own laws; because he is subject neither to himself nor to his predecessors.

He is not held to them: 1. neither as to coercive force, because no one is coerced by himself, and from another source it is repugnant that a Superior be judged or punished by an inferior; 2. nor as to preceptive force, because no one owes obedience to himself.

Nevertheless he is held as to directive force and indirectly, as the natural law proclaims, insofar namely as, from a certain equity, he ought to conform himself as head to the members. But it is probable, scandal being set aside, that he is held only under light matter. Yet this is limited if the law has been made concerning the taxing of a price, or concerning the invalidation of a contract; for even the prince is held to stand by such a law, lest he wound justice (I, 154; H. Ap., II, 28). See what Lehmkuhl has, I, n. 237.

109. Principles. - I. The subject of law is subjects actually obliged, or to be obliged, by law. I say: obliged or to be obliged; for there are those who deny that infants and the perpetually insane are subject to the natural law, since it has not been promulgated to them, as they lack the use of reason. Those who affirm respond that rational nature, which is in them also, and the natural law cannot be separated from one another, and therefore that they are subject to it in first act. But all agree that it is wicked to provoke them to blasphemies, etc.; and this logically only those can admit who, with St. Alphonsus,¹ affirm that infants and the insane are held by the natural law in first act.

110. • II. All and only subjects habitually capable of reason are subject to human law. - The reason of the first is that law cannot be made except for subjects. The reason of the second is that men habitually lacking the use of reason cannot be directed by laws.

From the former part of this principle it follows that infidels, or non-baptized persons, are not obliged by ecclesiastical laws, because they are not yet subjected to the jurisdiction of the Church. Nevertheless they are held to enter the Church, since they are subjected to divine law, in this case the Evangelical law. On the contrary, it follows that heretics, schismatics, and any other baptized persons, even if not Catholics, are held of themselves by ecclesiastical laws, because, although they are rebels, they do not cease to be subjects of the Church.² I said: of themselves; because 1° they almost do not know that they are held to those laws, even if perhaps they already know the necessity, that is, the obligation, of entering the Catholic Church; in which case in practice they do not sin; and 2° sometimes circumstances are present, with which concurring the Church must be judged not to will to oblige heretics by its laws, or by some certain law, namely lest they be more and more stained with sins.³ In a word: it is one thing that the Church can oblige heretics by all its laws, another that she wills to do so. In practice, heretics returning to the bosom of the Church are not to be forced in confession to accuse themselves of not hearing Mass of precept or of not observing the law of fasting.⁴

It likewise follows that excommunicated persons are bound by the laws of the Church, although they have been cast out from the Church; otherwise they would report advantage from their malice. Besides, it rests with them that they be loosed from excommunication.

From the latter part of the principle it is clear that infants and the perpetually insane are not subjects of human law. Therefore it is licit to give them meats to eat on days on which those meats are prohibited by the Church. Yet this is not expedient with little children who before the seventh year begin to have some use of reason, although very imperfect. For it is of the greatest importance that from their earliest years they become accustomed to carry the yoke of the Lord. Nevertheless the insane for a short time, or those who have many lucid intervals, the drunk, and those sleeping, are subject to law, because they are in the habitual state of the use of reason. Hence it is not licit to give them meats on prohibited days.¹

111. • III. Only men actually using reason can morally violate a law, because, knowledge being lacking, no one can sin.

112. Questions. - Quaer. 1° Are clerics held by civil laws?

Resp. Affirmatively, as to their directive force, excepting however those which are repugnant to ecclesiastical immunity, still in force. For all parts of the political community are obliged by political laws; but clerics are parts of the political community. Therefore.

I said: 1° excepting however those which are repugnant to ecclesiastical immunity. This is distinguished as threefold, namely personal, local, and real.

Personal immunity comprehends the exemption of clerics 1) from the lay forum in causes both civil and criminal;² 2) from taxes, to which their goods are not subject, both ecclesiastical goods and goods acquired in any other way whatsoever;³ 3) from those burdens which are judged base or sordid, as the repair of roads and similar things; 4) from military service, from the reception of soldiers, and other prestations for the sake of military affairs; 5) from tutelage and curatorship, and generally from those things which either do not befit the sanctity of their state, or cannot be combined with the offices annexed to that state.

Local immunity consists especially in two things, namely 1) in the prohibition that in sacred places certain acts be performed, namely profane acts, especially such as more unbecomingly oppose their sanctity;⁴ 2) in the right of asylum, by which provision is made that those fleeing to sacred places or religious houses not be drawn out from them, except under certain conditions.⁵

Real immunity, or the immunity of ecclesiastical goods, is from taxes and burdens imposed by secular power. How far this extends, see, if you please, in Craisson.⁶

To ecclesiastical immunity pertain propositions 30, 31, and 32 condemned by Pius IX in the Syllabus. See p. xl.

I said: 2° which are repugnant to ecclesiastical immunity still in force; for the Church can renounce its right as to this or that immunity either expressly, as by a concordat, or tacitly. But tacit renunciation is not easily presumed, since ordinarily it rests on facts posited under compulsion, not voluntarily. Hence:

113. • Quaer. 2° What must 1° a Bishop, 2° a Cleric, 3° a civil Official do, lest they seem to injure the right of ecclesiastical immunity, when they are forced to observe laws opposed to the same?

Resp. I. Generally, 1° They are bound to protest against laws of this kind, if, every protestation being omitted, scandal would have to be feared. Nevertheless this is not to be feared where the faithful know that impossibility of acting otherwise is present. 2° One must yield to force, without provoking open violences, which serve only to multiply offenses of God and to inflict injuries on the Church.¹

Resp. II to the individual points. To the 1st. "Let him believe that he will do more than enough for his office," says Benedict XIV,² if he takes care 1° "That the secular prince never arrogate to himself the right of sacred things, that is, that he not . . . involve himself in causes merely spiritual and ecclesiastical." 2° "That a lay judge," or secular power, "not invade also that part of jurisdiction" or immunity "which up to now perseveres intact."

To the 2nd. 1° Unless it is a question of a case in which either danger is in delay, or a contrary custom has already become established, let him recur to the Bishop.

2° "Where a difficulty arises with a man even secular and concerning temporal things, let them not call anyone into law, or voluntarily present themselves when called, unless the matter cannot be settled otherwise."³

3° "He despises the honor of the Church and tramples the sacred canons under foot, whoever brings a lawsuit against an ecclesiastical or Religious person . . . concerning a matter of strictly ecclesiastical right . . . before a profane judge,"⁴ namely as plaintiff and not simply as defendant.

To the 3rd. Let him act as was said concerning a cleric at the 2nd under 1°; for neither can he act otherwise without grave harm to himself or even to Religion, or without danger of the loss of an office perhaps to be committed to a non-Catholic or wicked Catholic. More concerning a civil official in its own place.

114. • Quaer. 3° What immunities can the Church generally use in the Federated States without becoming liable to the penalties of civil laws?

Resp. a) As to personal immunity, clerics are not distinguished from other citizens, except as to tutelage and curatorship in Louisiana.¹ For the rest, in the remaining States no one at all is compelled to this. Thus likewise they are not held to be among the number of jurors ("members of the jury"). b) As to local immunity, only that prohibition of the Sacred Canons by which provision is made that certain acts not be performed in sacred places can be urged; but not the right of asylum. c) As to real immunity, see the things to be said in the Treatise on Right and Justice, n. 620.

115. • Quaer. 4° Are children held to ecclesiastical laws as soon as they have attained the use of reason, although they have not yet completed the seventh year?

Resp. The sentence is twofold. Those who affirm rely on principle II (n. 110), according to which every man using reason is by that very fact subject to laws. Those who deny bring this reason, that the Church is judged to attend to those things which commonly occur, which to St. Alphonsus² does not seem improbable, except when it is a question of children who have sinned mortally; for these are held to the precept of annual confession, by which all who have arrived at the years of discretion are obliged.

116. • Quaer. 5° Are travelers held by the laws of their own territory?

Resp. Negatively, unless by a fiction of law they are judged still to be in their own territory. The reason is that law, by this very fact that it regards a community, is territorial, and in this it differs from a precept, because law does not affect persons except through territory (n. 98, 5°); and this has force also concerning a law of common right, when a traveler is staying where it does not flourish. Thus, if in your own territory there is a fast, and on the same day you go to a place where there is not a fast, in the evening you will be able to dine. Likewise, existing in the morning in a place where there is not a fast, you will be able to take breakfast and eat meats, even if about noon you are going to return home, where there is a fast. At home, however, you are certainly bound to abstain from meats, but not from a second or further eating; for the precept of abstinence is divisible, but the precept of one eating only is indivisible.¹ For the same reason, if you are about to leave a place where there is a fast and are going on the same day to arrive at a place where there is not a fast, in the place from which you depart you will be able to take breakfast, but not however to eat meats.² Thus also, if in your territory there is a special feast, and you are about to set out to another place where there is not a feast, you will not be held to hear Mass before departure, provided you are going to arrive outside the place where the precept flourishes before that hour at which the last Mass will be celebrated there. The reason is that on one side the precept does not oblige either that you wait, or that from the many Masses which are celebrated you hear some one which is said before the last; but on the other side, once you have arrived outside your territory, you are no longer held by its laws. But if only one Mass is celebrated in your territory, and you are going to depart after it, you are held to hear this Mass.³

I said: unless by a fiction of law they are judged still to be in their own territory. Thus a non-resident pastor is judged to offend in his own territory, and incurs the penalties established there against non-residents. (1) p. 478.

Some also except the traveler going out from his own territory for this reason, that he may withdraw himself from the law, because, they say, he would act in fraud of the law; but "his fraud ought to patronize no one," as the adage of law has it. But St. Alphonsus,⁴ with others, does not admit this exception; and rightly indeed, since no one seems to act by fraud who uses his own right, as another adage of law has it. But that traveler uses his own right; for the law does not prohibit going out from one's own territory, but only prohibits its precepts from being violated by those who are in the circumference of the law, or in the territory in which it flourishes. Nor does it make to the point that he who leaves the territory with precisely this mind, that he contract marriage clandestinely in a place where the decree of Trent concerning the necessary presence of the parish priest and two witnesses does not flourish, contracts invalidly; or that one cannot be absolved from sins reserved in his own territory, who tends to a place where they are not reserved with this principal end, that he may be absolved from them. For in each case he truly acts in fraud of a law expressly prohibiting this: namely, in the former, in fraud of the Constitution of Urban VIII; in the latter, in fraud of the Constitution of Clement X.

117. • Quaer. 6° By what laws are travelers held in the place in which they are staying?

Resp. I. They are held 1°, as is clear in itself, by the natural law of avoiding scandal; for natural law obliges everywhere. Therefore he would sin who violated the particular law of some place in such circumstances in which that violation would cause scandal. Thus, for example, a priest would sin who with scandal of the people did not observe a law made for the clergy of the diocese through which he passes.

2° By laws of Common Right, although not flourishing in their own territory; for the reason of the privilege, or legitimate custom, on account of which it does not flourish in their own territory, affects only that territory and persons staying in it through the territory, and therefore ceases when the territory has been left. Hence a New Orleanian at Baltimore on the feast of the Circumcision of the Lord is held to assist at Mass.

3° By the laws of contracts, and this so that confusion may be avoided. Hence that saying: "the place rules the act." Cf. n. 1612, q. 1°.

4° By laws punishing crimes; for the delinquent obtains the forum of the place where he offends. See, however, n. 1667, q. 4°.

5° By laws regarding the advantages of that place. L. I, n. 156 § end. You have an example of this rule in n. 635, 1°.

6° According to St. Alphonsus,¹ by the particular law of the place in which they are staying, if the same particular law flourishes in their own territory. Yet this obtains rather by force of custom than of principles.² (1) p. 478.

Resp. II. They are more probably not held by the other laws of the place in which they are staying, because laws do not oblige except subjects, such as travelers are not. For by law no one is subjected to the power of another except by reason either of crime, or of contract, or of domicile or quasi-domicile, or by reason of a thing situated in the territory, or finally in certain cases by reason of origin.

Notes to preceding text - note sequence 1.

1 L. I, 156. | 2 Ibid., 154. | 3 Tarquini, Jur. Eccl. Publ. Instit. n. 64, 65. | 4 Frassinetti, Compendio della Teologia Morale, note 7.

Notes to preceding text - note sequence 2.

1 L. I, 156. | 2 S. Alph. de Privil. n. 19. | 3 Ibid., n. 20. | 4 Craisson, Manuale, n. 4828-4837. | 5 Craisson, n. 4838-4840, and S. Alph. de Priv. n. 25-28. | 6 n. 5288-5291.

Notes to preceding text - note sequence 3.

1 Frassinetti, Comp. della Theol. Mor. n. 136. | 2 De Syn. L. IX, c. 9, n. 12. | 3 Conc. Pl. Balt. II, a. 155. | 4 Ibid. and a. 156.

Notes to preceding text - note sequence 4.

1 Civ. Code of Louisiana, art. 292, ad 7. | 2 L. I, 155. IV, 270, 1012.

Notes to preceding text - note sequence 5.

1 L. I, 157 ad 4. | 2 Ibid. ad 5. | 3 Ibid. ad 6. | 4 Ibid. n. 157.

Notes to preceding text - note sequence 6.

1 L. I, 156. | 2 Bonac. Th. Mor. D. I, q. I, P. III, n. 52. Suarez, de Relig. Tr. II, L. II, c. XIV, n. 15.

St. Thomas, I-II, q. 96, a. 5 and 6.

290. Principle. To civil laws are obligated all and only the subjects of the power bearing the law, habitually endowed with the use of reason, for whom the law was borne. - Hence according to St. Thomas: a) the perfect also are subject to human law insofar as it is the rule of human acts, because thus natural and divine law also establishes, as the Church defined against the Beghards and Beguines, condemned in the Council of Vienne (a. 3); b) nevertheless, as to the coercive force of law, the just and virtuous whose will is consonant with law are not subject, but only the wicked whose will is discordant from the law.

291. Personal and territorial laws.

Some laws are personal, which immediately affect persons and are concerned principally with their state and capacity (lois qui composent le statut personnel: nationalite, capacite, majorite, filiation, etat civil), and accessorily with goods: to these probably pertain laws concerning movable goods, which are judged to adhere to persons. Others are territorial, which immediately affect the territory of society and mediately persons insofar as they pertain to the territory; among these are numbered real laws, which are concerned principally with immovable goods and accessorily with persons, laws which determine the forms and execution of acts, because acts are to be constituted and executed according to the laws of the place in which they are constituted or committed to execution, according to the principle: place rules the act; laws regarding the external order and public tranquility of the territory and the security of persons and dominions (lois de police et de surete), to which pertain laws which punish delicts.

292. Various persons are subject to laws in various ways.

In the territory there can be:

1. Citizens or nationals, who are members of society, whether by birth, by law, by adoption, or by annexation: a) those present in the territory are held by all laws; b) those absent are held by personal laws (Civil Code, a. 3, § 3), but are not held per se by territorial laws, for example, concerning public order or the form of contracts; c) nevertheless they are held per accidens, if they are morally present by reason of goods which they possess in the territory for real laws, or by reason of an action or omission which they exercise there, for example, for fulfilling offices toward society, or if by fiction of law they are present by reason of a delict exercised against a fellow citizen: for this is judged to be done in the territory of the community.

2. Strangers, who are not members of the community, but have domicile or residence in the territory or pass through it. Now, because they are not members of the community, a) they are not held by personal laws; b) nor per se by territorial laws; c) nevertheless per accidens they are held, either 1) by reason of the common good, to laws which regard order (Civil Code, a. 3, § 1) or which have been specially borne for them, or 2) by reason of goods which they possess there for real laws (Civil Code, a. 3, § 2), or 3) by reason of an act which they exercise, do, or execute there, for laws which determine the form or execution of contracts (place rules the act), or 4) by reason of a delict which they commit there, for laws which establish penalty; d) if they are absent they are held only by laws which are concerned with goods possessed by them, or by reason of a crime perpetrated against society (at least if they are not sufficiently punished by their own superior).

3. Exempt persons, who by fiction of law are judged outside the territory and are withdrawn from the jurisdiction of the place. They are a) by human right: princes of other nations dwelling in it for any cause whatsoever; likewise their ambassadors with their attendants and domestics; b) from divine and ecclesiastical right: the Roman Pontiff as to all; clerics and religious for those things which are opposed to their dignity and office (concerning which it pertains to the Church to judge); for other things today they are held even directly by force of the laws themselves.

4. Whether the legislator himself is subject to law is no longer a practical question, because there is not a singular legislator; whence all who have concurred in the making of the law are subject to it. Nevertheless, as to the coercive force, the person of the king himself is exempt, and for that reason is declared inviolable (Belgian Constitution, a. 63).