Summa Theologiae Moralis, vol. I: De Principiis

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.