Summa summae S. Thomae, Tomus II

There are two offices of law: one to direct human actions, the other to compel the unwilling by penalties to its observance.

I.

Whether the legislator is bound by his own laws?

I say: A regular and absolute legislator, such as the Pope, a bishop, a king or any monarch, is not bound by his own laws as to their coercive force, but well indeed as to their directive force, at least indirectly, if the laws regard equally himself and his subjects.¹

The 1st part is plain; because a prince or legislator can be compelled by no one to observe his own law: not by himself, for no one is compelled by himself; not by another, since he has no superior by whose penalty he could be punished.²

It is proved as to the 2nd part. Natural equity requires 1° that a part conform itself to the whole, especially head to members. Whence Aug. says, lib. III Confess., c. 8, n. 15 : « Every part is base which does not suit its whole. » It requires 2° that the legislator concur in his way toward the common good, consequently toward the observance of the law which is laid down on account of the common good. But example moves far more than words toward this observance. Therefore.

You see that this obligation is not sought in the legislator immediately and directly from the very human law, because no one is inferior or superior to himself so as to be able to command himself; but from the natural law itself, with the human law supposed as condition, and therefore I said in the conclusion, « at least indirectly, » whereby you will solve certain objections that can be raised.

I said also in the conclusion: « If the laws regard equally prince and subjects, » such as, e.g., laws taxing the prices of goods or the value of moneys, indicating fasts, feasts, etc. Otherwise if there be question of laws whose matter is diverse in reason between prince and subject, and which would misbeseem the prince, as if a prince should make a law that no one walk girt with a sword, or be clothed in silks, etc.

For with these and similar laws the prince is not bound even as to their directive force, because they do not beseem him.

You will ask whether the legislator is bound under mortal sin to observe his own law in grave matter.

Resp. that he is bound under mortal sin if from transgression there follow grave scandal or grave injury to a third party; suppose that the supreme Pontiff did not publicly read the Hours, did not fast, did not communicate at Easter, did not keep the price of goods or of moneys taxed by himself, or the conditions imposed by himself upon contracts, etc. In this all agree.

But whether, setting aside scandal and injury to a third party, he would sin mortally in grave matter, is doubtful. Some affirm it; because, they say, he is bound to observe his law by the natural law. But the natural law obliges under mortal sin in grave matter. Therefore. Others will that he sin only venially; because the natural law commands him to observe his law only insofar as it unseemly that the head not conform itself to the members, a part to the whole. Yet this unseemliness, setting aside scandal or other grave circumstance, does not seem so great as to constitute mortal sin. Therefore.

To the opposing reason it can be answered that the matter prescribed by human law is not gravely such formally with respect to the legislator, because he is not bound to it as prescribed, like a subject — for he is not bound by his own law — but as subject to seemliness or unseemliness, his law presupposed: just as, although fasting be grave matter in itself, it is nevertheless not grave matter formally with respect to him to whom it is not prescribed under grave obligation.

[Note that the foregoing answers are to be understood, as said, of the sole singular and absolute legislator. For collective legislators, such are the bodies to whom it pertains to enact laws under democratic government, and the general chapters of religious orders, are altogether subject to the laws they themselves have enacted, because, taken privately, they are inferior to the community from which the laws proceed. The same must be said, for the same reason, of the leader of a republic and of the superior general of a religious order, to whom legislative power does not belong personally and absolutely.]

§ II

Whether clerics are bound by civil laws, and religious by episcopal laws?

I say 1° : Clerics are not bound by civil laws imposing tolls, tributes and burdens of this kind.

Thus it stands established 1° from civil law, L. Sancimus 22, c. de sacrosanctis ecclesiis, and Novella Item nulla, c. de episcopis et clericis. 2º From canon law, can. In qualibet, causa 28, q. 6. Cap. Quamquam de censibus in 6º. Cap. Clericis de immunit. ibid. 3° From the great Lateran council, from the councils of Vienne and Trent, sess. xxv, cap. 20, de reform. This I expounded more fully in the treatise on Justice, dissert. IX, a. 7, § 3.

[Here it helps to recall what the Council of Trent sanctioned in this matter, at the place cited: « Desiring that ecclesiastical discipline be not only restored among the Christian people but also preserved perpetually safe and sound from all impediments whatsoever, besides those things which it has decreed concerning ecclesiastical persons, the holy Synod judged that secular princes also are to be admonished of their duty, confiding in them, as Catholics whom God willed to be protectors of the faith and of the Church, that they will not only grant that their right be restored to the Church, but... nor permit that officials or inferior magistrates violate with any greed or any inconsiderateness the immunity of the Church and of ecclesiastical persons constituted by the ordinance of God and by canonical sanctions... It therefore decrees and commands that the sacred canons and general councils, and likewise other apostolic sanctions issued in favor of ecclesiastical persons, of ecclesiastical liberty, and against violators thereof, all of which it renews by the present decree, must be observed exactly by all. » Among the canonical sanctions here alluded to the principal place is held by the constitutions of Alexander IV and Boniface VIII related in the Sexto Decretal., lib. III, tit. 23, de immunit., cap. 1° Quia nonnulli, and 3º Clericis, wherein are reproved and punished with excommunication « the excesses of laymen who imposed collections, tallages and burdens upon clerics, and the excesses of clerics who consented to such things. » Whence it must be concluded that tributes of whatever kind, wherewith ecclesiastical goods are now burdened by force of civil law, are to be paid out of necessity only, not truly out of conscience, because such laws « resist God's ordinance and the canonical sanctions. »]

You will say: Ambrose, cited in can. Si tributum, causa 11, q. 1, says: « If the emperor demands tribute, we deny not; the fields of the Church pay tribute. If the emperor desires fields, he has power of reclaiming them. » And Pope Urban, can. Tributum, causa 23, q. 8: « Concerning exterior things of the Church, what was constituted of old is to be paid to emperors for the peace and quiet by which they ought to protect and defend us. » Therefore.

Resp. ad primum. St. Ambrose does not acknowledge that fields and tribute are owed to the emperor, but rather denies it; yet because it was perilous in those circumstances to deny them, he answers: « If the emperor demands tribute, we deny not; the fields of the Church pay tribute, » namely not with the law commanding but with fear compelling, lest worse happen. « If the emperor desires fields, he has power of reclaiming them, » of fact namely, not of right, « none of us intervenes. » Whence he subjoins: « Let no envy be made over the fields; let them take them if it pleases. To the emperor I do not give, but I do not refuse. »

To the second, it is to be understood of that which was constituted of old, not by authority of imperial laws, but by free concession of the supreme Pontiffs.

I say 2°: Clerics are bound by civil laws which regard the common government, and which clash neither with sacred canons nor with the state of clerics, as to directive, not coercive force. Such are laws taxing prices of goods and the value of moneys, prescribing the manner of building, of making wills, of contracting, and the like. So commonly.

It is proved as to the first part. Clerics are parts and members of the community. Therefore reason and natural equity require that they render those things which pertain to the common government and quiet of the republic, and conform themselves to the whole, according to the aforesaid dictum of Augustine.

It is confirmed, because otherwise there would be confusion and disturbance in the community, while some kept a certain price of merchandise, a certain value of moneys, a certain manner of contracting, etc., and others did not. Therefore.

True, these reasons prove only that clerics are bound by civil laws not by the force of the laws themselves directly, but by the force of the natural law itself, the laws themselves posited as conditions, as we said in the preceding § concerning the legislator himself.

But whether they are bound also directly by the force of these laws?

Resp. negatively; because, according to the canons, clerics are exempted from all civil jurisdiction.

And hence the second part of the conclusion is clear. For if princes have no authority over clerics, they cannot judge and punish them delinquent against the law, but they are to be referred to the ecclesiastical judge, by whom they can be punished either with the penalty taxed by the law or another arbitrary one.

I say 3º : Exempt religious, such as Mendicants, are subjected as to directive, not coercive force, to the laws of bishops regarding common observance and the devotion of the whole people, except in a few cases excepted.

The conclusion is plain from what was said about clerics with respect to civil laws; because, as clerics are exempted from civil jurisdiction, so privileged religious from episcopal jurisdiction. Whence, as clerics are bound by natural equity, that there be conformity in the members and disturbances avoided, by civil laws regarding the common government of the republic, with directive, not coercive force; so exempt religious are bound directive, not coactive, by episcopal laws regarding common observance and the devotion of the whole people.

I said: « Except in a few cases excepted, » on account of the decree of the council of Trent, sess. xxv, de reform. regul., cap. 12, of this tenor: « Censures and interdicts, not only emanating from the Apostolic See but also promulgated by Ordinaries at the mandate of the bishop, are to be published and observed by regulars in their churches. Also the feast days which the same bishop shall have commanded to be observed in his diocese are to be observed by all exempt persons, even regulars. »

§ III

Are those private in use of reason bound by human laws, and infidels and heretics by ecclesiastical laws?

I say 1° : Those constantly private in use of reason, such as infants and perpetual madmen, are not bound by human laws; because, since human law is a rational precept, they are not capable of this bond through defect of reason and liberty. Whence laws are not held to be laid upon them, nor do legislators comprehend them.

But those who are private in use of reason only for a time, such as the drunk, sleepers, madmen having lucid intervals, are bound by human laws; because although they lack the actual exercise of reason and liberty, this is per accidens, and they have both in habit, since reason in them is not extinguished but asleep, and therefore they are proximately capable of acknowledging and keeping the law. Nevertheless, through defect of actual cognition and liberty, so long as they lack them, they are excused from sin in transgressing the law.

Hence you will infer that infants and perpetual madmen can eat flesh on forbidden days, and that others may give it to them to eat; because, since they are not bound by the law, it is to cooperate in a licit thing. Otherwise of the drunk and the temporarily mad; because since these are bound by the law, it would be to cooperate in its material transgression, which is not lawful.

I say 2º : Children, when they have reached the years of discretion, since then they are capable of precept, are bound by all human laws both civil and ecclesiastical; provided however they suit their age. For there are certain laws from which they are exempted by reason of age, such as the law of fasting, by which they are not bound before the completion of the third septennium, on account of the necessity of nourishment for growth; and the law of paschal communion, on account of the reverence owed to the sacrament, which requires a more mature age, namely about the twelfth year. But a child is held to have reached the years of discretion after the completion of the seventh year.

I say 3° : Infidels are not bound by ecclesiastical laws, because they are not subjects of the Church. But heretics are bound, because through baptism they are subjects of the Church. Nor can it be presumed that the Church exempts from the obligation of her laws sons rebellious against their mother, since this would both foster their insolence and afford Catholics occasion of perversion.

IV

By what laws are wayfarers and pilgrims bound?

I say 1° : Wayfarers and pilgrims, as a rule, are not bound by the particular laws of their own territory while they are elsewhere, whether passing through or staying permanently, provided they do not absent themselves in passing through with this precise mind that they be exempted from the law, otherwise intending to remain.

It is proved 1° from canon law: Cap. Ut animarum de constit., in 6°, Boniface VIII says: « Upon the statute of a bishop whereby sentence of excommunication is promulgated upon all who commit theft, his subjects committing theft outside his diocese are known to be nowise bound. » And he subjoins the reason: « Since outside the territory of him who pronounces judgment, obedience is not paid with impunity. »

It is proved 2º By reason. 1° Because the jurisdiction of a prince or bishop is limited within his own territory, nor is it extended beyond. 2º The particular laws of some territory are properly local. Yet a local law affects the place immediately, and persons mediately through the place. Therefore those absent from the place are exempted from them. And herein these laws differ from those which are called personal, such as, e.g., the law of reciting the Hours, which affects the cleric independently of any determinate place.

I said 1º « as a rule; » because there are certain laws regarding a thing or the advantage or disadvantage of a territory, whose transgressions are consummated even by those absent within their own territory, such as the law obliging clerics to appear at a certain time at synod or chapter; likewise laws regarding benefices, fields, buildings, by which even those absent are bound.

I said 2°: « Unless they pass through absently, with this precise mind that they be exempted from the law, otherwise intending to remain; » because there intervenes fraud there, « but fraud and deceit patronize no one, » as all admit and as is enacted by law.

[You will ask 1º whether all who leave their own territory with the mind of withdrawing themselves from the obligation of the law are held to act in fraud of the law.

Resp. It is controverted. Concina, Collet, Antoine and certain others affirm. The reason is that, as said above, no one's fraud ought to patronize himself. But it is denied more commonly and probably, because one leaving his own territory acts not in fraud of the law but uses his right, as say St. Alphonsus, lib. I, n. 157, Elbel, n. 370, Lacroix, n. 683, and others. For one may always add exempting causes, and more probably even directly and proximately. The reason is that the law does not of itself make anyone its subject, but is borne toward him who already is subject; and therefore, at least speaking per se, it obliges no one so that he be or remain its subject, but obliges him who is and remains subject. Therefore if anyone withdraw himself from the dominion of the law by an action licit from elsewhere, he does not act in fraud of the law but uses his right.

Therefore acting in fraud of the law seems to occur in only two cases, whether the law be local or personal: 1° When by fiction of law one absent is held to transgress the law in his own territory. Which happens when the law deals with things situated in its own territory, such as fields, buildings, payment of real tributes, etc.; or commands or forbids actions to be done or omitted in the same territory, such as residence imposed upon beneficed clerics and presence at the diocesan synod for those who must belong to this assembly by law; or the introduction of certain merchandise, from which not only those present but also those absent are bound to abstain. 2° When it is expressly forbidden by some law. Thus the sacred Congregation of the council declared illicit and invalid the marriage of those who pass from the place where the Tridentine decree on clandestinity was promulgated into a place where the promulgation of this decree was not made, with this precise mind that they contract clandestinely there; which decision was confirmed by the constitution of Urban VIII.

You will ask 2° whether he who passes from his domicile, where a law is in force, e.g., for the keeping of some feast or fast, into a place where such law does not exist, is bound to observe it before departure.

Resp. It is controverted. Some affirm. Their reason is that a law which actually obliges ought actually to be fulfilled. Whence he who departs in the morning ought to hear Mass on the feast day, unless grave necessity urge, and it is not lawful for him to breakfast. Others deny, for this reason, that a law need not be actually fulfilled if afterwards it be not necessary that it be fulfilled. If therefore in your territory there is a local feast, and you are about to depart to another place where that feast is not observed, you are not bound to hear Mass before departure, provided you are about 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. So Gury, n. 95, 4°, with St. Alphonsus, lib. 1, n. 157, and Salmanticenses, n. 66. Likewise, if someone is about to leave a place where there is a fast, and knows with certainty that he will arrive in the evening at a place where there is no fast, then, although he cannot eat flesh there whence he departs, since that abstinence is divisible, he can nevertheless breakfast there and dine at midday — against some, as teach Lessius, cap. 2, dist. 8, and Sanchez, lib. I, cap. 12. So St. Alphonsus, ubi supra. The reason is that fasting is an individual thing. From which it follows also that he who leaves his territory where there is no fast and passes into another where fasting is observed can sup in the evening. This latter opinion is probable enough to be safely carried into practice. Nevertheless, with St. Alphonsus, ibid., we say that the contrary opinion can be urged as more pious, unless something stand in the way.

I say 2° : Not only those who have domicile or quasi-domicile in a foreign territory, but also those who are there in passing through, such as wayfarers, pilgrims and wanderers, are more probably bound by the particular laws of that territory, if they draw out there a stay proportioned to the observance of the law.

Of those who have domicile in foreign territory there is no difficulty: all agree that they are bound by the laws of that territory. He is said to have domicile in some territory who dwells or begins to dwell with the mind of dwelling there always; quasi-domicile, who dwells in it during a notable part of the year. Some say a greater, others a lesser [part], provided it be notable, such as students in academies, merchants in emporiums, princes at courts, etc. These therefore, by this very fact that they have fixed domicile or quasi-domicile elsewhere, are certainly bound by all the laws of that place, and acquire its forum, civil as well as ecclesiastical, and acquire a parish, no otherwise than other inhabitants, so that they can be summoned before its judge, contract marriage there, be dispensed by the Ordinary in votis, etc. Except the sacred Orders, which they cannot receive except from the bishop of the place of birth, on account of the contrary disposition of law or custom.

Therefore as to wayfarers, pilgrims and wanderers: It is proved 1° from Ambrose, in Augustine, Epist. 55³ , and related in cap. Illa, dist. 10, where Augustine asking him on behalf of his mother whether she might licitly not fast on Saturday at Milan, Ambrose answers: « When I come to Rome, I fast on Saturday; when I am at Milan, I do not fast. So do thou also, to whatever church thou chancest to come, observe its custom, if thou wouldst not give scandal to anyone, nor receive scandal from anyone. » Whence the common saying: « If you be at Rome, live in the Roman manner; if you be elsewhere, live as there. »

It is proved 2° By reason. 1° By the law of nations, with the consent of legislators, by usage and the common sense of peoples it has been established, to safeguard peaceful intercourse with and conformity to each place and avoid scandals, that everyone keep the laws of the territory in which he is; open indication of which is that superiors of that territory can compel newcomers to the observance of their laws and take notice of delinquents.

2° A brief absence suffices that pilgrims be exempted from the laws proper to their own territory, as we said. Therefore a brief presence suffices that they be subjected to the laws proper to the territory in which they are; for he who perceives the advantage ought also to perceive the disadvantage.

You will say: Wayfarers and pilgrims cannot contract marriage in the territory in which they are passing through, nor be dispensed in votis by its Ordinary. Therefore.

Resp. I deny the consequence, both because these things are not required for the peaceful government of the community like the observance of municipal laws; and because these things are excepted by the common law.

I said: « If he draws out there a stay proportioned to the observance of the law, » because no one is held morally to exist in a place with respect to the obligation and observance of the law if he exists in it no time accommodated to its observance. And hence authors commonly infer that he who passes through a place where there is a feast day, and tarries there only one or two hours, even before midday, is not bound to Mass; otherwise if he remained the whole morning.

[It must be enacted: 1° Pilgrims are bound by all the common laws in force in the place where they actually are, even if in their own territory these were abrogated, or would not bind here and now by dispensation. The reason is that they are under the common legislator, and leaving their own territory even for a time, they no longer enjoy the local privilege. Thus a Frenchman outside his country is bound to hear Mass on the feasts of Epiphany, Corpus Christi, etc., in places where these feasts have not been suppressed.

2° Whenever there is question both of contracts to be celebrated and of delicts, the pilgrim is subject to the laws of the place; because in the former case, as bears the adage of law, « locus regit actum; »

and in the latter, public order requires that crimes not remain unpunished.

3° Local statutes which regard the community are to be observed by all, even by foreigners. For these statutes affect the territory, and all persons actually existing there through the mediation of the territory. However this some understand, with Suarez, of those who have arrived at the term of the journey, not truly of those passing through the territory, who are bound only to observe negative laws.

4° Personal statutes bind citizens and inhabitants only, because they affect persons, not truly properly the territory. Whence they cannot be extended to foreigners. Indeed it can happen that pilgrims, in certain cases, ought to observe them to avoid scandal; but then the obligation is only indirect and does not proceed from the law itself.

You will ask whether he who has already satisfied the law in his own territory is again bound to subject himself to it if afterward he arrives where that law urges later, e.g., when some feast having a vigil with fasting is transferred there to the following day.

Resp. If anyone has already satisfied a common law in his own territory, he does not seem bound to observe the same law again in the place where it urges later. The reason is that there is not given an obligation of fulfilling the same precept twice, when it was already fulfilled at the time commonly appointed. For where a determinate debt has already been paid, it is not to be paid again, and then the adage can rightly be invoked: « Non bis in idem. » Whence, in the case supposed, he who has already fasted on the vigil of the day on which the feast falls everywhere will not be bound to fast on the other.]