Summa Theologiae Moralis, vol. I: De Principiis

On the Subjects of Civil Law.

S. Th. I-II, q. 96, a. 5 and 6.

290. Principle. All and only the subjects of the power enacting the law, endowed with the habitual use of reason, for whom the law is enacted, are obliged by civil laws. — Hence according to S. Thomas : a) the perfect are also subject to human law inasmuch as it is the rule of human acts, because so also does natural and divine law establish, as the Church defined against the Beguards and Beguines, condemned in the 12th cent. at the Council of Vienne (a. 3) ; b) as to the coercive force of the law however, the just and virtuous are not subject, whose will accords with the law, but only the wicked, whose will is at variance with the law.

291. Personal and territorial laws. — Some laws are personal, which immediately affect persons and which are concerned principally with their status and capacity (lois qui composent le statut personnel : nationality, capacity, majority, filiation, état civil), accessorily with goods : to these probably pertain the laws about movable goods which are considered to adhere to persons. Others are territorial : which immediately affect the territory of the society and mediately persons inasmuch as they pertain to the territory ; among which are reckoned real laws which principally concern immovable goods and accessorily persons, laws which determine the forms and execution of acts because the acts of constituting and executing are according to the laws of the place in which they are constituted or ordered to execution, according to the principle : the place governs 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 sûreté), to which pertain the laws which punish delicts.

292. Various persons are subject to the laws in various ways. — In the territory there can be :

1° Citizens or nationals, who are members of the society, either by birth, or by right, or by co-optation, or by annexation : a) those present in the territory are bound by all the laws ; — b) those absent are bound by personal laws (C. Civ. a. 3, § 3), but are not bound of themselves by territorial laws, e.g. about public order, or the form of contracts ; — c) they are bound however accidentally, if they are morally present by reason of goods which they possess in the territory for the real laws, or by reason of an action or omission which they exercise there, e.g. for the duties to be fulfilled toward society, or if by fiction of law they are present by reason of an offense committed against a fellow citizen : for this is considered to be done in the territory of the community.

2° Foreigners, who are not members of the community, but have a domicile or residence in the territory or pass through it. Now, because they are not members of the community, a) they are not bound by personal laws ; — nor b) of themselves by territorial laws ; — c) accidentally however they are bound, either 1) by reason of the common good, by the laws which regard order (C. Civ., a. 3, § 1) or which are specially enacted for them, or 2) by reason of the goods which they possess there for the real laws (C. Civ., a. 3, § 2), or 3) by reason of an act which they there exercise, do, or execute, by the laws which determine the form or execution of contracts (the place governs the act), or 4) by reason of a crime which they there commit, by the laws which establish a penalty ; — d) if they are absent they are bound only by the laws which concern goods possessed by them, or by reason of a crime committed against society (at least if they are not sufficiently punished by their own superior).

3° Exempt persons who by fiction of law are considered outside the territory and withdrawn from the jurisdiction of the place. They are a) by human law : the princes of other nations staying in it for any cause ; likewise their legates with theirs and domestics ; — b) by divine and ecclesiastical law : the Roman Pontiff as to all ; clerics and religious for those things which are opposed to their dignity and office (about which it pertains to the Church to judge) ; for other things today they are bound also directly by the force of these laws themselves.

4° Whether the legislator himself is subject to the law, is no longer a practical question, because there is no singular legislator ; whence all who have concurred in the making of the law are themselves subject to it. As to coercive force however, the very person of the king is exempt, who therefore is declared inviolable (Const. Belg., a. 63).