Newsletter n.149 March 2007

1.  Papal Allocution to Rotal Auditors & Officials [Pope Benedict XVI] (27th January, 2007)
2.  A Question of Interpretation: The Roman Rota and the Theology of Marriage [Fr Aidan McGrath, OFM, JCD]
3.  Decision coram Civili – Slovakia (8th November, 2000)
4.  Determing Error [Rev Anthony Kerin]
5.  "Unauthorised Baptism" [Mgr Gordon Read]
6.  The Translation of 'Pro Multis' [Mgr Gordon Read]
7.  Notitiae Letter [Cardinal Arinze]
8.  "Pray Brethren"…. or "Brothers and Sisters" [Mgr Gordon Read]
9.  Extraordinary Ministers and the Purification of Sacred Vessels [Mgr Gordon Read]
10. Review: "Summa on Marriage" by Raymond of Penafort, translated with an introduction by Pierre Payer [Edward N Peters, JD, JCD]
11. Obituary: Mgr William Varvaro 


  • Papal Allocution to the Rotal Auditors and Officials

The Holy Father addressed the Rotal Auditors and Officials on Saturday 27 January 2007. It is very clear that the Holy Father’s Address to the Rotal Auditors and Officials springs from a growing consciousness and concern of what Christians now have to confront in society. Two special points seem to underline the Papal Address. The first is the background of attack on marriage as a heterosexual union; and a relativism and juridical positivism which consider marriage as a “mere social formalisation of emotional ties”. (See Document No.I)

The Pope makes the point that “indissolubility of marriage does not derive from the definitive commitment of those who contracted; rather it is intrinsic in the nature of the powerful bond established by the Creator”. That is to say that the indissolubility of marriage is not based on the strength of the commitment of the parties, but on the nature of marriage established by God. The Pope refers to the words of Jesus: “What God has put together let no man put asunder”. It has been the role of the Church’s jurists to establish precisely what “God has put together”. 

The Holy Father goes on to point out that one of the present day heresies is that the point is reached of maintaining that nothing is right or wrong in a couple’s relationship, provided it corresponds with the achievement of the subjective aspirations of each party. “In this perspective the idea of marriage in facto esse oscillates between merely factual relations and the juridical positivist aspect, overlooking its essence as an intrinsic bond of justice between the persons of the man and the woman.”

In the introduction to the Holy Father’s Address, the Dean, Bishop Antoni Stankiewicz gave some “hot off the press” statistics of cases involving the Rota. During the year 2006 the Rota had been involved in the examination of 1679 cases; during 2005 it had been 1637; an increase of 2.5%. The cases “on the books” at the beginning of 2007 numbered 1181: the origination of these cases was: 687 from Europe; 413 from the Americas; 64 from Asia; 12 from Africa and 5 from Australia and New Zealand [not all these numbers refer to marriage cases, but most of them do]. 

Perhaps one of the elements of comfort for the Holy See was the fact that the marriage cases presented to the Rota included 38 from the USA; 19 from Poland; 12 from the Lebanon, but the largest number of cases from Italy, i.e. 128. One must bear in min d that cases referred from around the world to the Rota are appeals. That is to say, “an appeal” means one instance has already received an affirmative or a negative decision; and the case must receive a third hearing at the Rota. This obviously means that the system (at least in Italy) of First and Second Instance agreeing and disagreeing with each other appears to be “working”.

  • Male Impotence Historical Studies

The history of Canon Law has been peppered with references to the matter of male impotence; i.e. what precisely constitutes (or constituted) that situation. The situation was apparently clear in the XVI Century but then there was a document or letter from Pope Sixtus V to his Nuncio in Spain in 1587. The letter was in response to a specific enquiry from the Nuncio concerning the capacity for marriage of men who had been castrated. The matter stayed there until cases arose prior to the Second World War involving persons who had been forced into vasectomies by the Nazis. Were such people able to marry? The Holy Office indicated that they might marry; the Roman Rota at that stage held a contrary view and set aside such marriages. 

There followed a decree in May 1977 given by the Congregation for the Doctrine of the Faith which was intended to resolve the dispute. A case was introduced to the Court in Rome in May 1974 on the grounds of alleged impotence of the Respondent male (based on medical evidence that the man could not produce living sperm). A negative decision was given on 4 May 1978. An appeal was made to the Rota where an affirmative decision was given. Because there had now been one decision in favour and one decision against, the case had to be heard in the Third Instance. The Dean of the Rota, realising that this was an absolutely crucial case, decided that it should be heard in the Third Instance not by three but by nine Judges. The Ponens was Monsignor José Serrano Ruiz who gave the decision on 27 January 1986. The whole story is analysed and developed by Father Aidan McGrath, OFM. Father McGrath first wrote this article in the Ecclesiastical Law Journal (39,8, Vol.8) for July 2006 The article is reproduced here with the permission of the Editor of the ELJ and the author. (See Document No.II).

  • Intention contra bonum coniugum: And Rescue by the Rota

A case before Monsignor Renzo Civili was eventually decided on 8 November 2000. The Petitioner named as Ludmilla was married to Peter on 23 August 1969. The union had already done badly by the end of 1969. Peter tried to obtain a divorce in February 1970; but Ludmilla resisted this and she was very much in love with her husband. She was some six years younger than he was. Eventually through the Respondent’s violence, abuse and bad behaviour, Ludmilla had to leave home in September 1970. This was a little over a year after the wedding.

In 1983 she submitted a Petition for Nullity to the competent Tribunal on the grounds of Peter’s defect of consent. The First Instance Tribunal (A) gave a negative decision; and a second negative decision on 24 February 1985 was given by the Appeal Tribunal. (B) At the Petitioner’s insistence, the papers were transferred to Tribunal (C) The Judicial Vicar of the latter Tribunal ruled that there were such serious errors of procedure, both in the First and Second Instances that both the sentences were invalid.

The case was returned to Tribunal (A) for a new hearing in First Instance on 10 April 1989 and returned an affirmative decision on the grounds of the exclusion of the bonum coniugum on the part of the Respondent. The case was appealed to Tribunal (B), which then gave a negative decision on 25 March 1990. The case was then appealed to the Rota on 10 December 1994. The Rota formulated the doubt (an intention contra bonum coniugum on the part of the Respondent) on 13 November 1996. The Respondent was cited (without success); witnesses were heard and eventually the Rota gave an affirmative decision on these grounds on 8 November 2000.

There were, of course, some special points which were before the mind of the Rotal Turnus. Firstly, the marriage was celebrated before the New Code came into existence and therefore the old law had to be applied. The old law did not speak of the good of the spouses but rather “ of the mutual assistance and remedy of concupiscence as being amongst the secondary ends of marriage”. The law section gave great consideration to what was meant by mutual assistance.

The law section defined this term and considered it in the light of the pastoral ConstitutionGaudium et Spes (No.48). In the light of the understanding of the old Code and of the text fromGaudium et Spes, the Rota describes the notion of mutual assistance as follows: “This expression signifies not only the help mutually offered through service, but also the complementarity and the interpersonal integration meant to attain a much fuller union” of the parties. [cf. c. Huber, 20.10.1995; RR Decis 87 (1995) p.577, n.3].

By examining the case under the old law and bringing to bear the understanding of the  jurisprudence of the New Code, the concept of the bonum coniugum is made very much clearer and in a most helpful fashion. It will be noted that Ludmilla married Peter on 23 August 1969; she left him in September 1970; she petitioned the first Instance Tribunal for the first time on 15 January 1983; there were two hearings in both Instances; and a hearing in the third Tribunal. Then there was reference to the Rota which decided the case on 8 November 2000; some six hearings and thirty years after the separation! No wonder the Rota could be seen as “the arrival of the cavalry”. (See Document No.III) [The translated decision appears by permission and courtesy and thanks to Studia Canonica and Professor Augustine Mendonça].

  • Error Determining the Will

Canon 1099 implies that sometimes error can determine the will. The questions arising from this statement of the Canon are not a few. How does the intellect react with the will? How does error determine the will? What is the difference between influencing the will and determining the will? Father Anthony Kerin, the Associate Judicial Vicar of the Tribunal of the Catholic Church for Victoria and Tasmania (i.e. Melbourne), dealt with these and more points in his paper to the Fortieth Conference of the Canon Law Society of Australia and New Zealand in September 2006. An interesting corollary which Father Kerin touches on is the co-existence (or not) of the ground of error determining the will with the ground of the lack of due discretion in the same party. He says that where a person can be shown to be in error, the prospect of the exercise of due discretion is totally eliminated. That gives rise to the conclusion that when the ground suggested is error determining the will, then perhaps for the sake of safety (on appeal) the lack of due discretion should always be included in the litis contestatio (See Document No.IV).

  • Unauthorised Baptism

Most readers will have come across Zenit on the internet. This gives information specially deriving from the Holy See. One of the items which has developed over the last three or four years is a section on liturgy which has been conducted by Father Edward McNamara, the Professor of Liturgy at the Academy Regina Apostolorum in Rome. Questions are put to this section of Zenit which are then described by Father McNamara with some kind of reply. A recent question was posed concerning the possibility of an unauthorised baptism. A Catholic man was married to a Jewish girl. Their child had not been baptised. The man’s (Catholic) mother secretly baptised her grandchild in a Church’s holy water stoup when leaving Mass. This question is also linked with information that the International Theological Commission had been examining a draft document on the status of children who die without baptism. (See Document No.V).

  • Liturgical Translation of Pro Multis

One of the biggest problems of “translations” is always the fact that when a particular rendering becomes familiar to one generation, a retranslation leaves that first generation somewhat legless so far as memory of the text is concerned. This has certainly been the case with the translations of the scriptures. A lot of Catholics grew up with the Challoner translation and indeed could remember “quotations” from the Scriptures in this translation. The People of God were given the Knox translations, then the revised standard version; then the Jerusalem version; and then a whole variety of revised standard versions; and (in spite of the clarity of the context) we get to the sadness of “I know mine and mine know me” compared with “I know my sheep and my sheep know me”. It is the claim of many priests who have lived their lives in their parishes that the proliferation of translations and Scriptures and of prayers has reduced people’s ability to say their prayers in a version that everyone knows, and even more, to teach prayers to their children.

Much of this has been happening in connection with the new translation of prayers within the Mass. Probably because of the circumstances, translations of the prayers of the Mass (beyond the matter of accuracy) are more concerned with style, elegance, clarity and crispness. Nonetheless, re-translation is not necessarily a virtue. When the matter of theology enters the ring, then there is even more of a problem.

In the words of Institution of the wine, the English translation for pro omnibus is for all. Note also: in Italian it is rendered as per tutti; and in German für alle. The direction has been given by Cardinal Arinze that the translation into English of pro omnibus should be the words for many. This is not a new topic. It goes back to the beginning of the vernacular translation of the liturgy. There is a piece in Notitiae of January 1970 dealing with this.

A very great deal of work has been done on the matter since that time. It considered by Father McNamara of Zenit in 2004. Monsignor Gordon dealt with it in December 2001 (CLSN NO.128). He has now considered the further arguments which have appeared. (See Document No.VI) In addition there is also a letter from Cardinal Arinze of 17 October 2006. His says that the previous year he had written to all the Presidents of Conferences of Bishops asking for their opinions on the subject. In his letter of October 2006 (Notitiae 481-482; September – October 2006) he states that the translation should be for many. However, in the light of the commentary of Monsignor Read as well as the Cardinal’s own letter, the expression for many and expression for all can be regarded almost as equivalent. (See Document No.VII).

  • Orate Fratres

“Pray brethren…”; or “pray brothers and sisters…”; or even “pray sisters and brothers…” are also terms which all create problems. Monsignor Read comments that people can become as worked up about this use of inclusive language though with far less reason. Monsignor Read – in talking about inclusive and exclusive language – draws attention to the material heresy of unitarianism through ICEL’s adoption of the draft Latin text Solus instead of the published Unus in the preface of Canon 4. He says: “I wonder how many celebrants have corrected this and yet clearly this is a major doctrinal issue. (cf. Document No.VIII).

  • Extraordinary Ministers and the Purification of Sacred Vessels

It has become a widespread practice for extraordinary ministers of Holy Communion to purify the sacred vessels, something not allowed for by G.I.R.M. n.183 & 192, or R.S. n.119. The document prepared by the Liturgy Commission for the Conference of Bishops of England and Wales, Celebrating the Mass, n.214 is silent on this point although the Conference had sought permission from the CDW, and this was refused. Those reading CTM alone might assume that this practice may continue.

The United States Conference of Catholic Bishops had obtained permission for this to continue for a period of three years, and asked for this to be continued. However, this request was refused. On 23rd October 2006 Bishop Williams Skylstad, President of the Conference, wrote to his fellow bishops to inform them of this decision. After consulting Bishop Donald Trautman of the Committee on the Liturgy, he included a resource entitled ‘Seven Questions on Distribution of Holy Communion under Both Kinds’ to assist in explaining the decision. [Origins, 2 November 2005, Vol.36, No.21, pp.336-229]

Cardinal Arinze has indicated that it is obviously inadvisable for large numbers of people to receive separately under both kinds. He points out that it is perfectly legitimate, and the most common form, for people to receive under the form of bread alone. The implication is that such a request (as made by the American Conference of Bishops) is unnecessary. He goes on to say: “the status of this text as legislation has recently been clarified by the Pontifical Commission for the Interpretation of Legislative Texts….”. However, research indicates that there is far more to the matter of Recognitio (specially on elements relating to G.I.R.M) than was made clear by Cardinal Arinze and from the Pontifical Council. The note about Recognitio (dealt with in Document No IX.) is most interesting.

  • St Raymond of Peñafort: Summa on Marriage

St Raymond of Pe┼łafort’s Summa has been translated (with an introduction) by Pierre Payer of the Pontifical Institute for Medieval Studies. A Review of the work has been prepared by Doctor Edward Peters of the Sacred Heart Major Seminary in Detroit, USA. The work covers a remarkable treasure chest of information from the Thirteenth Century. Points relating to a “ convert choosing one wife” (well known in the 16th Century) is even mentioned in the 13th Century book. The complications of engagement (i.e. betrothal) are myriad; as well as problems arising from the impediment of Spiritual Relationship. Doctor Edwards, the reviewer, commends “even the busiest Tribunal Officer to spend an evening or two with St Raymond’s short treatise on marriage law”. (see Document No.X).

  • Numbers of Catholics and Priests Rises

The 2007 Pontifical Statistical Yearbook was presented to the Holy Father on 12 February 2007. 
The statistics for the end of 2005 indicate there were 1.115 billion Catholics worldwide; and this compares with 1.098 billion at the end of 2004. Concerning Catholic populations in general, a Vatican statement summarising the numbers, said that “since this relative growth is quite close to that of the general population – 1.2% – the presence of Catholics in the world has remained substantially unchanged – 17.20% However, there are some areas where Catholic growth was greater than population growth. There was an increase of 3.1% of Catholics in Africa, whose population has grown by slightly less than 2.5%, the communiqué said. “The Asian and American continents have also registered a higher increase in Catholics than in population growth, 2.71% against 1.8% for Asia, and 1.2% against 0.9% for America”, continued the Vatican statement. There was a slight increase of Catholics in Europe.

Concerning the numbers of priests reflected in the statistics, the statistical Yearbook revealed that the number of diocesan and religious priests rose to 406,411 from 405,891, a relative increase of 0.13%. The percentage increases were much higher in Asia and Africa, 3.8% and 3.55%, respectively. This is in contrast to Europe and America with a percentage decrease of about a half point, and Australia, with a fall of 1.8% in the number of priests. Africa and Asia proportionately had more priests. The Vatican statement noted: “Africa and Asia together provided 19.58% to the world’s overall number in 2004; in 2005 their contribution had risen to 20.28%. The Americas maintained a percentage of around 29.8%, while Oceania stayed stable at slightly over 1% of the world’s priests, according to the communiqué.

The figures for Europe show a decline: “In 2004 the 199,978 priests represented nearly 49.3% of the total group; one year later it had diminished to 48.8%. The statistics showed that the number of seminarians had increased in Africa, Asia and America, while decreasing in Europe, and remaining stable in Oceania. In 2005, of every 100 candidates to the priesthood in the whole world, 32 were from the Americas, 26 Asian, 21 African, 20 European and one from Oceania”. 

  • Mrs Clare Pearce – Administrative Secretary: Retirement and Successor

Mrs Clare Pearce has been the Administrative Secretary of the Canon law Society for as long as
anyone can remember. Probably only she can give the actual date that she commenced. She was, early on, Secretary to Monsignor Gordon Read, who was the Secretary of the CLS. Then Clare acted as the Administrative Secretary in her own right; and the commencement of that work seemed to start in the very distant past. Her role as Administrative Secretary will conclude at the end of February. She is handing over her duties to another. 

Everyone has come to know Clare, specially when they needed help out of a muddle. She was ever alongside to put things right; and was always there to welcome those of us arriving at a Conference. She was for ever available to deal with any (all) minor and major problems – either personal for a member or deal actually with the production of the Conference. She will always be remembered for her coolness in a muddle, her charm, her welcoming manner and her utter competence in dealing with situations. She will surely be missed. We wish her well in her next venture.

Her successor is Miss Patricia Rafferty of 129 Berryknows Road, Glasgow G52 2BX, UK. Her e-mail address is Her telephone number will be published later. The Society welcomes Patricia and trusts that she will soon become used to the ways of the Society.Vale and Salve.

  • Monsignor William Varvaro: Former President of CLSA – RIP

Some members will recall the visit to the CLS Conference in 1984 by Monsignor Bill Varvaro, then the President of the Canon law Society of America. He was the Judicial Vicar of the Diocesan Tribunal of Brooklyn having taken over from the celebrated Monsignor Max Reinhardt. Bill Varvaro died on 25 January 2007. A tribute to our former member has been prepared by the Coordinator of the Canon Law Society of America (see Document No.XI).

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