ON THE POWER OR OBLIGATION OF ECCLESIASTICAL LAW.

340. Thesis. Ecclesiastical law as such is truly moral, i.e. does not import mere coercion, but obliges in conscience and before God, even under grave [matter].

It is of faith from the Council of Constance, sess. 8, prop. 8, 11, 12 and 15 against Wyclif, and sess. 15, prop. 12 and 15 against Hus, and from the bull of Leo X against Luther, and from C. Trid. sess. 7, can. 8 on Baptism ; that the obligation is grave is clear from the universal preaching and practice of the Church of urging certain laws under grave [matter].

It is proved : a) Ecclesiastical law is enacted by a power granted by God, imposed in the name of God by his minister and sanctioned, whence those bound by it on earth are also bound in heaven, and those who despise the ministers, despise Christ (Mt. XVI, 19 ; XVIII, 17-18 ; Lk. X, 16).

b) Human law obliges in conscience so that he who resists the natural human power acquires damnation for himself (Rom. XIII, 2) ; a fortiori ecclesiastical law which is made by a supernaturally constituted power.

c) Whence in Scripture the faithful are often admonished about the religious obedience to be rendered to pastors (Acts XV, 28-29 ; II Cor. X, 6 ; I Thess. IV, 2, 8 ; II Thess. III, 14 ; Hebr. XIII, 17).

d) And so the common sense of the faithful holds, e.g. as to hearing Mass, abstinence from meat.

It is said 1) as such, i.e. not only inasmuch as it contains and applies natural and divine law. For the texts cited are altogether general, the obligation arises from the sole divine origin of the power, not from a presupposed similar divine precept, and several things are instilled by the Apostles which are in no way comprised by natural and divine law ;

2. even under grave [matter] : for those things which are necessary for human society, such as obedience toward authority, of themselves oblige under grave [matter], in grave matter.

On the Quantity or Gravity of Obligation.

S. Th. II-II, q. 105, a. 2.

341. The gravity of obligation in ecclesiastical law depends on two things : on the gravity of the matter and on the will of the legislator, who at least must have the implicit intention of obliging under grave [matter]. Whence

a) if the matter is in every respect, even in end and circumstances considered, light, the law cannot oblige under grave [matter] : for such matter is not capable of grave obligation, nor can the legislator make it so that light matter which contributes little and influences lightly the end or common good, contribute much and influence gravely, or that small disobedience be great ; otherwise such a law is not conformed to reason, nor would it tend to the common good, but rather would be an occasion of ruin ;

b) if the matter is grave and the legislator intends to oblige under light, the obligation is only light : for in distinction from natural law, in which the obligation and its gravity necessarily and immediately arise from the very gravity and necessity of the matter, the proximate and immediate cause of obligation in positive law is the will of the legislator ; so great therefore is the obligation as the legislator wills, and just as it depends on him whether the law exists and obliges, so whether it is grave or light. And although by so acting the legislator can sometimes sin, the obligation however, because it is the effect of his will, does not extend beyond what he has willed.

342. The gravity of matter is estimated by reason of the end and of the aptitude for this end :

A. Matter is indeed grave, when it is an efficacious means for a great good, namely when the special or proximate end is of great moment as to the common good, very useful, morally necessary, and at the same time that which is prescribed by the law greatly contributes to obtaining the end. Such is the dignity of sacred worship, the service of God, penance, the sanctity of the clergy, etc. to which the use of sacred vestments, the observance of feasts, abstinence from meat, celibacy greatly contribute. Whence a thing in itself light can be grave matter, as was the eating of the forbidden fruit in paradise by reason of the acknowledgment of God and of the subjection of man to God : so e.g. entering a house by reason of scandal or danger, mixing water and wine by reason of the representation of the great mystery in the sacrifice.

B. On the contrary, if the special end is not of great moment, or if it is of great moment and the action does not greatly contribute to the end, the matter is light ; thus to the glorification of God the order between the various hours of the breviary does not greatly contribute.

343. Practical rules for discerning grave or light obligation.

A. Positive law obliges under grave [matter], when the matter is grave, i.e. greatly contributes to an end of great moment, and at the same time the legislator wishes to prescribe under grave [matter].

B. But the legislator wishes to oblige under grave [matter]

a) if he uses gravely threatening or more severe words, e.g. if he commands in virtue of holy obedience, under the indignation of God, under the threat of the divine judgment, etc.

b) if he imposes a grave penalty, e.g. of death, mutilation, perpetual prison, exile, deposition, privation of honors, censure, irregularity, reservation, privation of ecclesiastical burial (can. 2218 § 2) ; for the penalty, in order to be just, must be proportioned to the offense ;

c) if in grave matter he uses ordinary words : we command, we prescribe, we forbid, etc. and does not express that he wishes to oblige under light, nor is this gathered from the circumstances, especially e.g. from the excessive burden which the law would impose, he is considered to oblige under grave [matter] : for he is reasonably presumed to act reasonably and ordinarily to oblige according to the capacity and exigence of the matter. Nor must he explicitly intend grave obligation : just as he must not explicitly intend obligation in conscience but make a law, and so implicitly wills the obligation, in the same way by prescribing grave matter, he is considered implicitly to wish to prescribe under grave [matter] ;

d) if the custom and usage of the faithful and the practice of the God-fearing so interpret the law ;

e) if the prudent, pious and learned so unanimously judge.

C. If there is doubt about these, the law is considered to oblige under light, unless the legislator urges it under grave [matter], because then the presumption stands for him.

On the Quality and Extension of the Obligation of Preceptive Law.

344. Preceptive or moral law is that which prescribes some good to be done or forbids some evil to be avoided. The observance of this law is not always an act of that species and virtue to which the matter of itself pertains, but of that from whose formal motive the law is enacted : for virtues and good human acts are distinguished by the formal object or motive. Thus fasting of itself is an act of abstinence, and the Lenten fast which is prescribed from such a motive, but the fast before communion is an act of religion which is imposed from the formal motive of religion. Whence he who transgresses the precept sins against that virtue from whose motive the precept is enacted.

From these it follows that the transgression of the precept is only a sin of formal disobedience if it is done from a special motive of obedience, but not in other cases, unless the transgression be from contempt. No ecclesiastical law seems to be enacted from a special motive of obedience.

345. Preceptive law founded on a presumption of law is that which rests on a reasonable conjecture or probability drawn from the circumstances often connected with the truth. For presumption is a probable conjecture of an uncertain thing (can. 1825 § 1) : thus e.g. a law obliging to abide by the judgment of a judge which is presumed to be just, to the execution of a contract which is supposed to have been validly entered into unless the contrary be proved ; likewise a law by which a boy is considered to have the use of reason from the age of seven (c. 88 § 3), an adolescent to know what matrimony is¹ (c. 1082 § 2).

Another is founded on a presumption of a particular fact when the superior presumes a fact, e.g. damage, fraud, consent, negligence not in general for the most part but in any particular case to exist, and therefore enacts a law for all similar cases : thus in the examples given ; — another is on a presumption of common danger when he presumes from such a work or manner of acting for the most part, ordinarily and commonly, damage, fraud, scandal, etc. to follow, and therefore forbids it, e.g. reading bad books : the fraud or scandal or damage is not supposed, but the danger of them.

The first of itself does not oblige, if the presumption in a particular case is false, because then the foundation of the law, which is the presumption of this particular fact, is lacking ; hence you are not bound to pay money for damage falsely presumed.

Whence the saying : the judgment is the same in the forum of conscience and in the external forum, is true in cases in which the external forum does not rest on a false presumption of a particular fact. Accidentally however in the external forum we are bound to obey, by reason of public order and of scandal, but then we can compensate ourselves secretly (even after the judgment of the judge) ; but we cannot obey if the thing be illicit, as if someone were to pay or render what is due in a marriage certainly invalid which is presumed valid in the external forum.

The second of itself always obliges, even in particular cases in which damage or its danger does not intervene, because the foundation of the law remains.

a) For the superior did not enact the law because he presumes damage in every case, but because he presumes it to be so commonly for men ; therefore as long as the common danger remains, so long does the law itself remain.

b) Otherwise the common good requires that no exception be admitted, otherwise evils to be avoided would not be efficaciously prevented because easily each one would persuade himself that in his regard there is no danger, which false persuasion the law intends to prevent, and likewise to render men diligent in avoiding damages. Thus ecclesiastical law enacted to prevent the general danger of perversity or spiritual detriment, just as civil law to prevent the general danger of negligence.

c) In other words : the law ceases only if the end ceases adequately, i.e. totally and with respect to all. But in the case, even if the danger does not exist for the individual, it persists for the community. Therefore the law does not cease. For its end is to avoid the common danger ; now the common danger cannot be efficaciously and certainly avoided if the law is not urged absolutely and for all, since easily each one would persuade himself that the danger is not present for himself, from which the end of the law would be frustrated.

Whence just as civil law, to prevent the general danger of negligence, obliges one guilty of merely juridical fault to repair the damage, e.g. to pay for damage caused by a dog without moral fault, by which law the judgment of danger is withdrawn from the subjects ; — so also ecclesiastical law obliges when it prohibits religious profession before the age of 16, invalidates clandestine marriage, prohibits mixed marriages or books placed on the Index, even if it is established that no fraud, or defect of liberty, or damage is present. Which doctrine is already confirmed by can. 21.

346. Law founded on a fiction of law is not to be confused with law founded on a presumption².

For presumption is a reasonable conjecture in an uncertain matter, but a fiction of law is a provision whereby the legislator from a just cause establishes the same for a feigned case as another law does in a true case, e.g. that canons absent from the choir because of infirmity are considered as present as to the daily distributions (can. 420), or that the marriage by which previous offspring is legitimated is considered valid from the time of its conception or birth (can. 1117), or that offspring born in a marriage which is afterwards proved null is considered legitimate (can. 1114), or that an invalid marriage, if healed in the root, is considered valid from the beginning (can. 1138).

Presumption therefore rests on verisimilitude, fiction on equity ; — presumption is assumed in a doubtful case according to verisimilitude, fiction in a certain case contrary to truth.

Such a law, if it be just, obliges in conscience.

Note however that 1) fiction has place only in cases expressed in law,

2. fiction ought not to operate more in the feigned case than truth in the true case,

3. it does not hold beyond what is expressed in the law : thus for the deceased and the heir the unity of person is held as to the inheritance, not as to other things,

4. finally it is to be strictly interpreted.

347. Permissive law is not the absence of law nor mere license or simple tolerance, but a true law which positively acknowledges in man an internal, or at least external or juridical, liberty or capacity for doing something. Such a law obliges others not to impede the aforesaid acts, and judges not to punish them. Likewise a concessive law of rights obliges others not to deprive them of those [rights] or to impede them from legitimate action. It is not however a merely prohibitive law for others, but grants a special right, concedes a faculty or capacity.

On the Quality and Extension of the Obligation of Penal Law.

348. The Church, since it has a public coercive power, can also establish penal laws (can. 2214) which oblige to undergoing even a graver penalty (can. 2291), whether they be merely penal laws, or mixed, i.e. moral and at the same time penal.

In fact, merely penal pontifical laws are not given, for the penalties inflicted in Canon Law all suppose true fault (can. 2215) ; however they are wont to be given in religious orders and institutes, and can be given in diocesan laws.

By reason of the manner in which the penalty is imposed, one is latae, another ferendae sententiae (can. 2217).

1° A penalty ferendae sententiae is one which is not incurred by the very fact but must be inflicted by a judge or superior, or which is established to be inflicted by a condemnatory judgment of a judge to be rendered later.

Such are those designated a) by words of future time : shall be excommunicated, will be excommunicated, etc. (c. 2315, 2321, 2328) ; b) by threatening words or requiring the ministry of a judge : under penalty, under the threat of excommunication, we have judged to be denounced, let him know that he will incur excommunication, will be forbidden the entry of the church, must be excommunicated ; c) by ambiguous words which do not sufficiently indicate a penalty of latae sententiae, e.g. let him be subject to excommunication, let him fall into excommunication, let him lose his place : for laws which establish a penalty are of strict interpretation (can. 19), whence according to can. 2219 : « in penalties a more benign interpretation is to be made », unless however the context indicates otherwise.

2° A penalty latae sententiae is one which is incurred by the very fact of the offense committed, that is to say by the very fact that the transgression of the law or sin is committed.

Such are those enacted a) by words which exclude another's ministry : by the very fact, by the very law (c. 2217), by that very fact (c. 2365), without another judgment ; b) by words of past or present time : he is excommunicated, we wish, let him know or be aware that he is excommunicated, we have excommunicated, by our authority or by the force of these presents let him be excommunicated, from now we have excommunicated ; c) by imperative words of the penalty itself, which indicate that the guilty party is here and now affected by the penalty : let him remain suspended, let him be anathema, excommunication holds (c. 2388, § 2).

If this requires for its execution an external executive action either of the delinquent himself or of another, and has a physical effect, ordinarily it requires a declaratory judgment of the judge : so for positive penalties of exile, scourging, prison, fine, or privative [penalties] of a good already possessed, namely of an acquired right, e.g. in confiscation of goods, deposition, degradation, privation of a benefice or office held, or of dignity acquired. On the contrary if it requires no external action, consisting in a moral effect alone, it is incurred immediately : thus penalties privative of a right or of the exercise of a right, e.g. spiritual privative [penalties] (censures), or negative penalties by which a good otherwise fully to be acquired is denied to the guilty party (e.g. irregularity from offense), or an incapacity for something is contracted, e.g. canons culpably omitting their office lose the right of receiving the fruits.

The condemnatory and declaratory judgment differ : the first falls upon the penalty itself and therefore the penalty is owed from the day of the judgment ; the second falls not on the penalty itself but upon the committed crime by declaring that it was committed, and therefore it is declared that the penalty was contracted and the owed penalty is retroacted to the time of the crime committed. Whence can. 2232, § 2 : « the declaratory judgment retroacts the penalty to the moment of the crime committed ».

349. Penal law, after transgression, obliges in conscience the judges to inflict the penalty, at least if the law uses not facultative but preceptive words (can. 2223, § 3) ; and the subjects to undergo it.

Before the judgment of the judge : 1° if the penalty is ferendae sententiae, they are not bound to undergo it until by the judgment of a judge they have been condemned to it : for the law does not inflict the penalty but decrees that it is to be inflicted ; whence it is even licit by honest means to avert the penalty to be inflicted and to escape ;

2° if it is latae sententiae and requires an external executive action, ordinarily they are not bound to undergo the penalty before the declaratory judgment. The reason is that the law must be morally possible and accommodated to human nature ; for it would be too harsh and inhuman if it compelled the guilty party so that he should be bound to despoil himself of his goods and rights.

Are excepted a) if the penalties are lighter or such as judges cannot inflict, such as fasting, recitation of prayers, moderate bodily chastisement, not leaving the assigned place, abstinence from foods ; b) if they are conventional.

3° if it requires no external executive action (e.g. censure, irregularity), it is incurred from the moment the crime to which it is attached is committed, and from this moment (apart from the danger of infamy) it obliges the subjects to undergo it without the judgment of a judge.

In the external forum however it is not held to be contracted without the declaratory judgment of a judge, unless the crime is notorious. — I said : apart from the danger of infamy (which is usually absent in the privation of active or passive voice), because if such danger exists and the delinquent cannot observe the penalty without infamy, the privative penalty would be equated to a positive penalty (can. 2232).

After the judgment of the judge : 1) the guilty party is obliged to execute the penalty himself, if it is not too harsh nor much repugnant to nature, e.g. to pay money that is exacted, to go to prison not long-lasting, for he is bound to obey a just and morally possible precept ;

2. he is obliged only to undergo the penalty without positive resistance, when it is very grave or repugnant to nature, although he can negatively resist by fleeing. This is a general principle in human law even civil ; e.g. one condemned to death is bound to mount the scaffold, to offer his neck, etc., yet he can flee. For no one is bound to perform such a penalty, but to suffer it, whence no one is bound to furnish that from which death, wounding, public scourging, perpetual prison, perpetual exile follows, and e.g. to remain in a place from which he would be led to death ; but he is bound to suffer it, i.e. not to resist him who inflicts it.

350. A conventional penalty is distinguished from the aforesaid penalties by which, when something, e.g. a benefice, is given to someone under a tacit condition that he do something, with the condition not fulfilled, what was granted is taken from him. It obliges by the very fact without the judgment of a judge, e.g. a parish priest, who formerly could be a deacon, not ordained to the priesthood within a year lost the benefice ; a bishop not receiving consecration within 3 months does not receive the fruits (C. Trid. sess. 23, c. 2), and neglecting this within 6 months, he remains deprived of the episcopate by the very law (can. 2398).

351. Remarks. — 1) Can. 2219, § 1 : « In penalties a more benign interpretation is to be made ».

2. Can. 2219, § 2 : « But if it is doubtful whether a penalty, inflicted by a competent superior, is just or not, the penalty must be observed in both forums, except the case of appeal in suspensive ».

There is no appeal in suspensive from a censure judicially inflicted (can. 2243, § 1), there is from vindictive penalties, unless it is otherwise expressly provided in law (can. 2287).

3. Can. 2219, § 3 : « It is not lawful to extend a penalty from person to person or from case to case, although an equal, indeed graver reason is present, saving however the prescription of can. 2231 », namely the case where several have concurred to the perpetration of one crime whether physically or by common consent or by command or in another manner, if the crime otherwise would not have been committed : these are bound by the same penalty unless the law expressly provides otherwise.

4. The judge can diminish and increase the penalty, for a just cause, if he himself is the legislator ; an inferior however cannot unless it is permitted by the law. So in the new law, according to can. 2223.

On the Quality and Extension of the Obligation of Irritant Law.

352. An irritant law is one which renders some act invalid or null. To it are reduced, as species to genus, an inhabilitating law, which decrees that some person is incapable for this or that act ; whence irritation directly regards the act, and incapacity directly regards the person ; in practice however and morally speaking both come to the same, because the act is always rendered invalid whether immediately or mediately.

Irritant law differs a) from a prohibiting law, because the latter renders the prohibited act illicit, not invalid ; whence are distinguished a merely prohibiting law (e.g. an impeding impediment of matrimony), a merely irritant law which only irritates and does not prohibit the act (as can happen if the superior irritates a religious vow), and a law both prohibiting and irritant (e.g. a diriment impediment of matrimony) ;

b) from a penal law strictly so called, because the latter establishes a penalty because of fault ; whence are distinguished a penal irritant law which irritates as a penalty for the offense (e.g. formerly ordained without a certain title, and still today a beneficiary omitting his office invalidly receives the fruits), and a directive irritant law which irritates for the common good (e.g. clandestine marriage) or for the protection of certain persons (e.g. religious profession before the age of 16, a promise extorted by fear, alienation of the goods of the Church without the consent of the chapter) : then the irritation is a penalty improperly so called ;

c) from a permissive law which does not acknowledge the act or allows it to be neglected by others, or from a simple absence of law by which the act is not protected in the external forum (irritation improperly so called).

Moreover, as penal law, so irritant law has effects by the very fact, or by the judgment of a judge : for sometimes by the very law or right the act is most fully irritated, as happens for matrimonial impediments, and for the simoniacal collation of a benefice (can. 729) ; — sometimes it is irritated by the law so that for the full effect the declaratory judgment of a judge is required, e.g. an election made if more than a third part of the electors were not lawfully convoked (can. 162, § 3), a resignation made from grave unjustly inflicted fear, fraud or substantial error or simony (can. 185) ; cf. also can. 1679, 2238 : in which case the force of the judgment is retroacted to the moment when the act was done and it is null from the beginning (can. 1679-1682) ; — sometimes it is not irritated by the law, but by a decreeing or annulling judgment of a judge, because the law establishes that the act can be invalidated by competent authority, or rescinded, as acts proceeding from grave fear or fraud (can. 103 § 2, 104, 153, 162 § 2, 1317 § 2, 1684 § I, 1689) : then the invalidity is from the moment of the judgment.

The judgment of the judge and consequently the annulment can be impeded by licit means, indeed the act remains valid, even if the judgment is impeded by illicit means ; which if done by unjust means, an obligation to repair the damage can arise.

353. Principles. I. An irritant law obliges judges to regard the act as invalid or to invalidate it ; others, not to omit the act, but to regard it as invalid or not to insist on an invalid act.

II. A penal irritant law does not oblige against a non-committed fault nor has effect if fault is lacking : for it is founded on a presumption of a particular fact ; whence invincible ignorance excuses from it, because the established penalty is for fault and supposes it. Thus if a beneficiary from inculpable forgetfulness omits, e.g. vespers of the office and compline, he makes his fruits.

III. An irritant law which is also directive always obliges and has effect even if fault is lacking or the law is ignored : it is founded on a presumption of common danger, and the cause of annulment subsists even in the case of ignorance, namely the common good. Hence canon 16, § 1 : « No ignorance of irritant or inhabilitating laws excuses from them, unless something else is expressly said ».

Accidentally however the obligation ceases

a) because of common necessity : thus the impediment of clandestinity ceases, if the parish priest or the Ordinary or the delegated priest who should assist at the marriage cannot be approached, and it is foreseen that this condition of things will last for a month (can. 1098) ;

b) also because of private necessity in a more urgent case, if the Church is known to dispense (or it can be presumed), as happens for almost all impediments of ecclesiastical law, both when the danger of death is urgent, and if, with all things ready for the marriage, the marriage cannot be deferred without probable danger of grave evil (can. 1043-1045 ; 1098).

354. Remarks. — 1) About irritant laws let there be noted can. 11 : « Those laws alone are to be regarded as irritant or inhabilitating by which either the act is null or the person is incapable is established expressly or equivalently (i.e. by words equivalent to it, e.g. by prescribing the necessary form of the act or the substantial conditions) ».

2. Hence irritation of itself is not presumed annexed to a prohibiting law, but of itself and certainly is to be proved. Whence can. 15 : « Laws, even irritant and inhabilitating, in doubt of law (founded and reasonable) do not urge ».

3. On the contrary, for an irritant law to be also prohibiting, an express declaration is required, unless the act is in itself base or otherwise illicit.

On the Subjects of Ecclesiastical Law.

355. The subjects of the general laws of the Church are all and only the faithful or baptized, endowed with the habitual use of reason, for whom the law is appropriate (C. Trid. sess. 7, can. 8, and sess. 14, c. 2 and 5, can. 12 and 13), whence can. 13, § 1 : « By general laws are bound everywhere all for whom they have been enacted ». It is said :

1. Faithful, namely in the external forum, i.e. 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) of themselves heretics, apostates, schismatics, excommunicated are bound, because by Baptism they have become subjects of the Church, and they do not cease to be such because of their state of rebellion ; however they are often excused from sins because of ignorance, indeed sometimes the Church is considered or presumed not to wish to oblige them to the laws when the obligation would redound to destruction rather than to edification, as it expressly declared for the impediment of clandestinity (c. 1099, § 2) : so according to some it is to be presumed for all laws which directly regard the sanctification of souls, such as laws of fasting, feasts, etc., which however has no foundation in law (cf. can. 87) ; but certainly they are bound by the laws which are directly enacted for the common good, for the honor of religion or to remove abuses, e.g. for matrimonial impediments, unless the Church expressly declares the contrary (can. 1070 § 2).

2. Endowed with habitual use of reason : for law is the rule of human acts, whence it is enacted only for those who are capable of obedience and of direction to a common end, or who are capable of regularly placing human acts and of knowing the promulgation of law.

Hence a) those who are permanently or habitually demented, or children before the use of reason (can. 12), are not bound ; indeed b) not even children who have the use of reason before the completion of seven years, because laws are enacted for the ordinarily contingent and children before the completion of 7 years are not considered to have the use of reason (can. 12), whence they are not bound unless the law expressly provides otherwise, as for the law of annual confession or paschal communion (can. 906 and 859) ; c) if after the seventh year there is doubt about the use of reason, in the external forum they are considered to have the use of reason because the judgment is ordinarily about what is contingent, in the internal forum, if the doubt is not negative but positive, founded in grave reasons, the obligation becomes truly doubtful and therefore is not to be urged ; — on the contrary d) the sleeping, drunk, half-demented, who have lucid intervals, are bound, in whom accidentally and only transiently there is a defect of reason.

From which it follows that those acting against ecclesiastical law who, e.g. themselves are not subject, because they are not baptized or do not have the habitual use of reason, neither materially transgress a law to which they are not subject, and those who induce such to this do not sin, e.g. by furnishing meat on Friday, imposing servile work, unless by reason of scandal or contempt ; — on the contrary the faithful who have the habitual 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 who induce such to the transgression of the law also formally sin.

3. For whom the law is appropriate : for some acts or penalties certain conditions or ages are sometimes required, e.g. the 21st year for fasting (can. 1254), the years of puberty (14) for penalties (e.g. censures) latae sententiae (can. 2230).

356. Is a superior bound by his own laws? — The rector of a community, who alone exercises legislative power, such as the Pope, the bishop for the diocese, 1) is not bound by his own laws as to coercive force : for no one is properly compelled by himself, nor can he be compelled by others because he alone has the supreme power ; 2) as to directive force a) he is not bound directly, i.e. by the force of the ecclesiastical law itself : for no one obliges himself, nor can anyone be at the same time his own superior and inferior ; b) indirectly however he is bound by the force of natural law, i.e. from uprightness, decency, natural equity which requires both that the head conform to the members, and that the legislator contribute to the common good, by his example attracting the subjects, and lest his authority become despised by the subjects ; this obligation however, as being from mere decency alone, is light, unless there is danger of scandal, of great harm for the community, of notable injury to a third party as can happen in contracts, etc. ; c) he is not bound not even indirectly if the laws do not suit his own condition, such as a law about not wearing pontifical vestments, or a law imposing taxes.

It is said : who alone is the legislator, for those who only with others exercise legislative power in a body, e.g. in a council or chapter, are bound by the laws : distributively, individually and as individuals considered, they are inferior to the body itself or to the collection of all which alone has the supreme authority.

357. Particular laws are partly territorial, partly personal. — The Pontiff and inferior legislators, such as bishops and prelates, can enact particular laws which oblige a part of the Church ; of which some are territorial which immediately affect the territory and mediately the persons of the territory as such, i.e. inasmuch as they pertain to the territory, others are personal which immediately affect certain persons, and which, like particular precepts, cleave to their bones and accompany them and oblige them wherever they go : thus a priest suspended in his own diocese cannot celebrate in another. Since however the community is defined by the territory, and the subjects are not bound except inasmuch as they are part of the community, hence can. 8, § 2 : « A law is not presumed to be personal, but territorial, unless something else is clear ».

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

1° Inhabitants who have a domicile there, and sojourners who have acquired a quasi-domicile (can. 13 § 2) : domicile however is acquired in some parish (or quasi-parish) or at least in a diocese (or quasi-diocese) by residence extended to the completion of ten years, indeed from the beginning by mere residence with the intention of remaining there permanently ; quasi-domicile by residence continued for the greater part of a year, i.e. after six months, and also from the beginning by residence with the intention of remaining for the greater part of a year¹ (can. 92) ; — both are lost by departure from the place with the intention of not returning (can. 95). These are bound by territorial laws a) while they are physically present in the territory (can. 13, § 2) ; b) also while they are physically absent but morally or juridically present, if the transgression of the law in their own territory would harm (can. 14, § 1), e.g. by reason of a thing situated in their own territory, or of an action or omission which they exercise there, or of a crime committed there ; c) absent from the territory and not morally present, they are not bound, because they are not bound except those who are in some way in the territory ; and even if they depart precisely to be exempt from the law, although they can thus sin by intention : for no one transgresses a law who uses his own right.

2° Travelers who have a domicile or quasi-domicile elsewhere, but accidentally stay for a short time outside their own territory with the intention of returning, such as merchants and travelers passing through :

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

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

c) accidentally however they are bound, by the force of common law, by reason of the thing about which they work or of the action which they exercise there or of the crime which they commit (because by this reason they are subjects), or by natural law, by reason of preserving order and avoiding disturbance and scandal ; whence they are bound by the laws of public security or which are specially enacted for travelers. Hence can. 14, § 1, 2° : « nor by the laws of the territory in which they are staying, except those which provide for public order (in so far as they provide for order), or determine the solemnities of acts » ;

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

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

f) if in one place they have already satisfied a common law, in another they are not bound, unless by reason of scandal, because the Church is considered not to wish to oblige twice to the same.

3° Vagrants who have nowhere a domicile or quasi-domicile, but go from place to place or wander, are now bound by the laws both general and particular which are in force in the place in which they stay (can. 14, § 2) ; whence they become subjects of the Ordinary or parish priest of the place where they actually reside (can. 94, § 2).

4° Exempt persons who by fiction of law are considered outside the territory and withdrawn from the jurisdiction of the territory, such as religious in the strict sense as to the laws of the Ordinary of the place (can. 615) :

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

b) accidentally they can be bound from decency or equity, namely by reason of avoiding scandal, or of obtaining the common good, as to those things which are not opposed to their exemption and privilege ;

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

Such causes are :

1. by reason of doctrine (the bishop is at the same time as if delegated by the apostle in matters of faith), e.g. as to the public preaching of the word of God (can. 1338 § 2 ; 1334 and 609 § 3 ; C. Trid. sess. 5, c. 2 ; sess. 24, c. 4) ; as to schools, oratories, patronage, and other works in those things which regard religious and moral instruction (can. 1382), the prior censorship of books to be published (can. 1385-86), the provision of books² (can. 1395 § 1), the examination of those to be ordained (can. 996-997) ;

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

3. in the care of souls, not only if they are parish priests, but in general, not only as to instruction and morals, as has been said, but also as to the administration of sacraments toward seculars and religious (can. 874 § 1, 876) ;

4. in certain matters of discipline, censures and interdicts to be promulgated to the people, indulgences (can. 919) ;

5. by reason of a crime committed outside the convent, when the superior warned has neglected to punish (can. 616 § 2).

359. Cases. — A. One who passes from a place in which he is bound to a place in which he is not bound, 1° as to a prohibitive law (e.g. abstinence from meat or from servile works) : a) of himself he is bound to observe it as long as he is in the former place, because a negative precept always and for always obliges ; b) accidentally however he is not bound if the precept is indivisible (e.g. fasting) : for he has the right not to observe the law in the other place, and if he uses this right, the precept becomes impossible to observe even in the first place ;

2° as to a preceptive law (e.g. hearing Mass) : a) he is bound to observe it if he remains during the whole time in which the possibility or opportunity to observe the law is given in the former place, because, while he is subject to the law, he cannot, by taking a journey, place an impediment to the fulfillment of the law ; hence he must hear Mass if before the last Mass or, when only one is celebrated, before this one, he will not be in the other place ; — b) if before the end of this time in which the law can be observed, he arrives at the other place, he is probably not bound, because he has the right to wait for the last opportune time to fulfill the law, e.g. if before the time at which the one or last Mass will be celebrated he arrives at the other place. Nor is it an obstacle that, foreseeing the impediment, he was bound to prevent it, because this is true only when, the force of the precept remaining, one must apply himself, here however he is freed from the obligation of the precept.

B. One who passes from a place in which he is not bound to a place in which he is bound, 1° as to a prohibitive law : a) of himself he is bound to observe it from the moment he is in the second place, e.g. to abstain from meat or to fast, because from this moment he is subject to the law ; b) accidentally however he is not bound if the precept has already become impossible to fulfill, e.g. if in the former place he has already used his right to eat several times so that fasting has become impossible ; which if he has not used the right, fasting can still be observed, he is bound to it unless there is a grave inconvenience ;

2° as to a preceptive law, he is bound to observe it if before the end of the time in which it can still be observed, e.g. if before the last Mass, he is returned, because from this moment he is subject to the law and is bound to it, unless however it can be fulfilled morally, i.e. without grave inconvenience.

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

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

Note that in the aforesaid cases the obligation frequently arises accidentally, by reason of avoiding scandal.

On the Fulfillment of Ecclesiastical Law.

360. A prohibiting law is satisfied either knowingly and willingly, by a human act also meritorious, or unknowingly, e.g. by a sleeping person, because it suffices to omit that which the law prohibits ; for omission a positive will of omitting or of abstaining from the work is not necessarily required. Hence he who fasts satisfies the law, whether he does so to save money, or for the sake of health, or because food is not given to him, or because he sleeps or does not think of food : for it is a negative precept. He who however omits unknowingly is rather to be called not to transgress the law than to fulfill it.

He who omits however cannot have a contrary will : for what the law prohibits is evil, and therefore the affection or will of this evil is prohibited by that very fact ; thus he from whom, against his will, meat is violently taken away, although he effectively does not transgress the law, sins however affectively against it and is guilty in will of violating it.

361. A preceptive law must be fulfilled by a human act, i.e. knowingly and willingly : for law is given to men, whence if it prescribes a personal act, it requires that it be done in a human way, hence a drunk or sleeping or completely forced person does not satisfy the obligation ; but if the law is real, imposing a thing to be furnished, it suffices that it be furnished by another, but by the command of him who is bound, or with his ratification.

For the law to be fulfilled in a human way, intention is required, which the substance of the act requires so that it be placed in its moral species ; whence

1. on the part of the subject the intention be at least virtual, i.e. had formerly and influencing the act here and now (e.g. one going to pray, distracted by an intention had at the beginning), and implicit, contained in another (e.g. the intention of praying in the act of taking up the breviary) ;

2. on the part of the object the intention be of placing the prescribed act, because without it the act prescribed by the law would not be placed.

There is not however required a) intention of the extrinsic end intended by the legislator (unless specially imposed) : for one thing is the end intended by the legislator, another is the act which as a means to this end he prescribes. Hence the axiom : the (extrinsic) end of the precept does not fall under the precept, and the end of the one acting can be opposed to the end of the legislator, e.g. one who eats fish from gluttony observes the precept of abstinence ; the law therefore is not deprived of common utility ;

b) nor explicit intention of satisfying or of fulfilling the law as such, because laws generally do not oblige to formal obedience, i.e. to doing because it is a precept, but only to doing that which is prescribed ; hence one who is ignorant that it is a feast day or intends to hear another Mass, nevertheless satisfies the precept ;

c) indeed probably he effectively satisfies the law with a contrary intention of not satisfying (provided the will of doing the prescribed work is predominant), because the legislator ordinarily prescribes only the substance of the work ; hence he who wishes to pray and not to satisfy the law, although he can sin affectively against the law, nevertheless effectively satisfies. For although it depends on the intention of the agent that an obligation which depends on his will, such as a vow, oath, sacramental penance, be fulfilled, nevertheless it does not depend on his but on the legislator's will that the law oblige to such a work and be fulfilled by such a work ; for the prescribed work being posited, the subject cannot prevent this work from fulfilling the law. Therefore, the substance of the work being posited, the law is necessarily fulfilled. — Exceptions occur if one is bound by several precepts, e.g. by law, vow, sacramental penance, to several similar acts : then it depends on his intention to which he satisfies.

362. Can the law be fulfilled with sin? — Law in general can be fulfilled 1) without the state of grace or having good, joy, delight, etc., because it prescribes the substance of the act, not the manner (prop. 16 of Baius damned) ; unless the manner or state of grace is positively and intrinsically required for the substance of the act, e.g. for confession (can. 907 ; prop. 14 Alex. VII) or for communion (can. 861 ; prop. 55 Inn. XI) ; — indeed 2) the law, not indeed universally taken or the law of charity, to which all sin is repugnant, but another particular law prescribing an act, can be fulfilled at the same time sinning, provided the act is fulfilled as to substance and the object and species remain good, and its goodness is not totally corrupted (as a null confession) ; namely a) by an act which is done at the same time for an extrinsic evil end which is not the sole reason for acting, e.g. to hear Mass also to see a woman (n. 156, 4°) ; b) by a good act which is merely accompanied by an evil extrinsic circumstance which does not pass into the object and does not influence the act, e.g. to hear Mass with evil thoughts or with the intention of stealing (he does not satisfy without sinning but satisfies sinning ; n. 154) : for the law does not prescribe the manner (extrinsic) but only the substance of the act ; unless the manner is of the intrinsic character of the act according to itself or as it falls under law. Hence the axiom : the (extrinsic) manner of the precept does not fall under the precept.

363. When the law must be fulfilled. — A preceptive law, if it does not determine the time of fulfillment, must be fulfilled as soon as, morally speaking, it can conveniently be done (e.g. within 3 days, if it must be done immediately), otherwise one could elude the law, always deferring. If however it determines the time, it must be fulfilled at this time ; if the time has elapsed, if it was fixed for ending the obligation, the obligation ceases, e.g. of Mass, of fasting ; if however for urging the obligation, it obliges as soon as possible, e.g. one who has not confessed within the year, or has not made paschal communion (can. 859 § 4), or who has not fulfilled a sacramental penance on a certain day.

About the time of obligation let the canons 31-35 be noted, especially can. 33 in which it is said : « In computing the hours of the day one is to stand by common use, but in the private celebration of Mass, in the private recitation of the canonical hours, in receiving holy communion, and in observing the law of fasting or abstinence, although there is another usual local computation, one can follow the time of the place, whether local, whether true or mean, or legal, whether of the region or another extraordinary ». The canon is to be understood according to the Response of the C.I.C., of 29 May 1947, in which it is declared that « the manner of computing time having been chosen here, by the force of can. 33 § 1, in formally diverse actions, it can be changed ».

Formally diverse actions are those which, even in an action perhaps materially one, regard diverse obligations or diverse precepts, which are not intrinsically connected or do not have an intrinsic affinity.

Thus : 1. Someone can on the same Friday eat meat because according to the earlier hour it is already midnight and the law of abstinence no longer urges, and satisfy the obligation of reciting the divine office of Friday, because according to the later hour it is already not midnight and the term of the obligation to be ended has not yet expired.

2. Indeed someone can on Friday eat meat because according to the earlier hour the day of abstinence has already passed and yet on Saturday celebrate Mass or go to the Sacred [rite] because according to the later hour Saturday has not yet begun. For that action, materially one, is formally manifold since it is the fulfillment of two obligations which do not have an intrinsic connection or affinity.

3. But he who on the night of the Nativity at the first Mass through error has taken the ablutions with wine so that he is no longer fasting, cannot celebrate the second and third Mass, choosing now the later hour to determine the midnight from which he must be fasting. For here it is a question of one formally action corresponding to one and the same precept.

364. To what does the law oblige. — Law 1) directly and explicitly obliges to its observance, which is the essential and chiefest obligation of the law in which others are implicitly and virtually contained ;

2. indirectly and implicitly to all the ordinary and proximately necessary means to observance : for he who is bound to the end, by that very fact is bound to the means which are proximately necessary for obtaining the end ; namely

a) to knowledge of the law, which is the previous medium immediately necessary without which it cannot be observed, and consequently to the ordinary means to be employed which conduce to the knowledge of the law ;

b) to other internal and external means, without which the law cannot be fulfilled, provided they are ordinary and the law is proximate, e.g. to procure a breviary for reciting the office ;

c) therefore to avoid or remove or prevent impediments which render its observance proximately impossible ;

d) to avoid proximate occasions which frequently expose to the danger of transgression or are morally joined with it.

365. Can several precepts be fulfilled at the same time? — Resp. 1° To several laws or precepts one can satisfy by one act, if they all prescribe the matter or act the same in species and number : thus a canon or religious priest by one recitation of the breviary satisfies ; — however he does not satisfy if they require diverse or distinct actions, e.g. a fasting prescribed by law and imposed by the confessor or superior, unless the same one impose it ; paying once 100 fr. if one owed it. When several laws are considered to fall on the same or on diverse actions, we have [it] from the intention of the one prescribing, the words, custom, other circumstances.

2° One also satisfies by several acts placed at the same time, provided they are compatible and the diversity of times is not prescribed, e.g. hearing Mass (or pilgrimaging) and reciting the hours ; — he does not satisfy if they are incompatible, e.g. hearing confession and reading the breviary.

366. Remark. — When at the same time several precepts occur that cannot be fulfilled together,

1. in law, if they are equally urgent, the greater is to be observed rather than the less : hence preference is to be given, other things being equal, to a negative precept over an affirmative, natural over positive, divine over human, ecclesiastical over civil, the precept of a higher or stricter superior or regarding the common or spiritual good over the precept of an inferior superior, of a less strict virtue, regarding a particular or corporal good ;

2. in fact the agent satisfies that which he intends to satisfy : for it depends on the intention of the agent to which he satisfies ; — if he has thought of no obligation determinately he is considered to satisfy the more urgent ; if they are equally urgent and the matter is divisible, he satisfies both in part ; if indivisible, the greater obligation, as has been said under 1°.

On the Interpretation of Ecclesiastical Law.

367. Ecclesiastical law, as being human, often needs interpretation, which can be merely declarative or comprehensive, or extensive and restrictive, and by reason of the author by which it is made, is called authentic or legal, usual, judicial or doctrinal (cf. n. 294). Moreover in ecclesiastical law not only legal is authoritative, but also usual from the use of subsequent law, given the conditions required for custom, about which we will say below (can.

27-29) ; item iudicialis sed quoad partes causae tantum ; doctrinalis vero est mere privata.

368. The Supreme Pontiff can delegate the Roman Congregations to authentically interpret laws by special mandate, or even by general mandate such as he gave to the Congregation of Rites for laws pertaining to rites, and to the Congregation of the Council for decrees concerning the morals and discipline of Trent ; now however according to the const. Sapienti 28 June 1908, each [Congregation] for the competence committed to it enjoys this right saving the approval of the Roman Pontiff (can. 244) ; moreover a special commission was instituted for declaring the canons of the Code (ex motu proprio 15 Sept. 1917). Whose acts enjoy not the same authority but such and so great as each one attributes to them. For :

1. Either they issue a solemn and general decree, approved by the special authority of the Pontiff, by which they settle the controversy : it has the same force as the law and can even extend it.

2. Or under approval in common form they give resolutions, declarations, general decisions, by which they set forth expressly the sense of the law : these are a merely declarative but authentic interpretation which holds for all cases.

3. Or they give responses to Dubia proposed for a particular case, without issuing a general decree : these are authoritative really for the case proposed and for the persons to whom they pertain, as a judicial interpretation (can. 17, § 3), — for others and as to similar cases they are not an authoritative interpretation nor of themselves obligatory, they however exhibit a probable and prudent reason for acting and have a greater doctrinal value than if they were given by private doctors, and so much the greater as they rest on firmer arguments, have been more often repeated, and the occurring cases are more similar. Indeed if there were a uniform, general, constant practice, it would be wrong to go against it : then the contrary would not be probable ; whence in responses sometimes is added : « given the constant practice of the Sacred Congregation ».

369. Does interpretation need promulgation? — Authentic extensive (or also restrictive) interpretation requires new promulgation, because it is really an extension (or change) of obligation which was not contained in the law, or a new law with respect to some point : such interpretation made by him who is deputed to simply interpret laws, does not have the force of law, unless it be given by special mandate of the legislator and by him legitimately promulgated, as is wont to be done for decrees of the Congregations (can. 17, § 2).

Comprehensive interpretation which declares the sense which is clearly enough contained in the law or necessarily deduced from it, does not require promulgation because it was sufficiently promulgated with the law ; but that which declares the sense which is obscurely contained in it so that before and of itself it would be doubtful or only probable, requires new promulgation. According to natural law this can be disputed : according to others it does not require promulgation because it does not make a new law but discovers the sense which was previously hidden ; according to others it requires [it] because that which was doubtfully or probably contained in the law was not sufficiently promulgated, whence the law was not totally promulgated. Regarding however the new ecclesiastical law, it must be promulgated according to can. 17, § 2.

370. Doctrinal interpretation must be made according to the rules established in law ; namely

1° « Ecclesiastical laws are to be understood according to the proper signification of the words in the text and context considered ; which if it remains doubtful and obscure, recourse is to be had to parallel places of the code, if there are any, to the end of the law and the circumstances, and to the mind of the legislator » (can. 18).

2° « Laws which establish a penalty, or restrict the free exercise of rights, or contain an exception from the law, are subject to strict interpretation » (can. 19).

3° « If there is lacking an express prescription of law, whether general or particular, about a certain matter, the norm is to be taken, unless it is a question of applying penalties, from laws enacted in similar matters ; from general principles of law with canonical equity observed ; from the style and practice of the Roman Curia ; from the common and constant opinion of the doctors » (can. 20).

4° « Laws enacted to prevent a general danger, are urgent, even if in a particular case the danger is not present » (can. 21).

5° « A later law, enacted by competent authority, derogates from a prior one, if it expressly so declares, or is directly contrary to it, or entirely reorders the whole matter of the prior law ; but a general law (of itself) in no way derogates from the statutes of particular places and singular persons, unless it is otherwise expressly provided in it » (can. 22).

6° « In doubt, the revocation of a pre-existing law is not presumed, but later laws are to be drawn to the prior ones and, as far as possible, to be reconciled with them » (can. 23).

371. Ecclesiastical law admits private interpretation of epikeia, and indeed in a threefold case : 1) if the law in a particular case becomes harmful or evil, e.g. if it cannot be observed without sin, as if you wished to leave for Mass one sick and in need of your help ;

2. if it is an impediment to good, or very burdensome, and too difficult to be urged by an equitable legislator, as if it exceeds human powers or causes grave unproportioned harm, e.g. if one gravely ill were held to fast ;

3. even if it is not sufficiently burdensome that it cannot strictly be imposed, if, the circumstances of time, place, persons being considered and especially the ordinary manner of prescribing with moderation, it is presumed that such was not the mind of the legislator : thus you are not bound to hear Mass lest an extraordinary great gain be lost.

But ordinarily epikeia does not occur in laws which render invalid, because of the common good, from which not even ignorance excuses ; unless it is expressly said (can. 16, § 1).

The interpretation of epikeia can be made by any private person, if the cause is evident ; — if it is doubtful, it is full of dangers, since man in his own cause is wont quickly to incline to the more favorable part ; whence the superior must be approached, who for such cases has the power of dispensing (can. 15) ; — but if it is a cause which does not admit of delay in having recourse to the superior and is sufficiently founded, so that there is positive doubt that the law still obliges, the very necessity dispenses : for then it suffices that the law has probably ceased to oblige.