LATEST NEWSLETTER
CONTENTS OF THE LATEST
EDITION OF THE SOCIETY NEWSLETTER,
WITH THE EDITOR'S COMMENTS.
The full edition of
the newsletter is available only to members of the society.
NEWSLETTER NO. 161 MARCH 2010
1. Pope Benedict XVI's Address to
the Rota [2010]
2. Motu Proprio Omnium in
mentem [26th October, 2009]
3. Unofficial translation
4. Comment (Mgr Gordon Read)
5. Worship of the Eucharist outside
Mass (Mgr Gordon Read)
6. Canonical Reflections on the
Closure of a Church (Rt Rev John Jukes, OFM Conv)
7. Seminary Formation and the
Discernment of Priestly Vocations (Mgr Gordon Read)
8. Judges as Witnesses in
Quaerelae Nullitatis Cases? (Fr Paul Gargaro)
9. Irregular Marriages and Admission
to Holy Communion (Rev Derek Vidler)
10. Comment (Mgr John Hadley)
11. "Into Something Rich and
Strange": Some Changes in Rotal Jurisprudence (Mgr James
Johnston)
12. The Compatibility of Consensual
Incapacity and Exclusion of Marriage (Rev Christopher Dawson)
13. Appointment of Patriarchs and
Bishops in the Eastern Catholic Churches [January 2009]
14. Comment (Mgr Gordon Read)
15. The President's Travels 2009
(Mgr David Hogan)
16. Book Review: "The Seal: A
Priest's Story" by Timothy J Mockaitis (Mgr John Chaloner)
17. Review: "Archdiocese of
Liverpool Clergy Handbook (2009)" (Mgr John Hadley)
18. Review: "Directory on the
Canonical Status of the Clergy: Rights, Obligations and
Procedures" (Mgr John Hadley)
The Dean of the Roman Rota, Bishop
Antoni Stankiewicz, commented on the activity of the
Rota and said that the Church must face the challenge of a
“widespread tendency that relativises truth especially in the
declaration of marriage annulment”. This was the theme pursued by
the Holy Father in his Address to the Rotal Auditors and other
Officials on Monday, 29 January 2010.
The Holy Father spoke to the Members of the Rota in the Clementine
Hall. After greeting all those present he pointed out that “it is
necessary to take note of the widespread and deeply rooted (though
not always evident) tendency to place justice and charity in
opposition to one another, as if the two were mutually exclusive”.
He also said that at times Canon Law is undervalued as if it were a
mere technical instrument at the service of any given subjective
interest, even one that is not founded in the truth. Indeed, he says
“I am thinking particularly of the advocates who must not only pay
full attention to respecting the truth of the evidence, but also as
trustworthy lawyers, must carefully avoid assuming patronage of
cases which, according to their conscience, cannot be objectively
supported”. This is, of course, in sharp contrast to the thinking
behind the role of an advocate in English common and criminal law.
Essentially, the Pope reminds the Rota and the tribunals of the
world “the Judge must always guard against the risk of misplaced
compassion which could degenerate into sentimentality and is itself
only pastoral in appearance. [See Document No.I] [The official
translation of the Holy Father’s Address is taken from
L’Osservatore Romano of Wednesday, 3 February 2010, p.3].
It will be recalled that there was
notice that Archbishop Coccopalmerio had talked about future changes
in the Code. He made reference to this at the Society’s meeting in
Rome in 2008. Subsequently, he was in touch with Canon Law Societies
around the world about this very point. The 1917 Code was only
altered once (in 1948: see below); but it would seem that the view
of Archbishop Coccopalmerio is that the very existence of the
Pontifical Council for Legislative Texts is the means by which
alterations to the Code can be considered without drama or problems.
On 15 December 2009, the Holy See published the text of a Motu
Proprio approved by Pope Benedict XVI on 26 October 2009. Since
no other provision is made in the document, its promulgation will
take place in accordance with Canon 8 §1 through its publication in
the Acta Apostolicae Sedis and the variations in the Code of
Canon Law set out in it will take effect three months from the date
on the cover of the issue of the AAS in which it appears.
Since the physical appearance of the Acta is usually several months
in arrears it is too early to specify the date of promulgation at
the time of writing.
At the time of the preparation of the CLSN for March 2010, there was
no official translation of the Motu Proprio. Hence the text
of the document [Document No. II] has been translated by Monsignor
Gordon Read [Document No. III; and a commentary has been prepared at
Document No. IV].
The Motu Proprio presents changes in two areas of the Code:
one in connection with the diaconate, the other in connection with
marriage. The first alteration concerning the diaconate was the
result of a statement in the Catechism speaking about the effect of
Holy Orders: “by ordination one is enabled to act as a
representative of Christ the head of the Church in his triple office
of priest, prophet and king” (No.1581). But this wording appeared to
extend to deacons the role of representing Christ as Head, which in
fact is reserved solely to Bishops and priests. The CDF ordered this
wording to be modified to “From Him (Christ) Bishops and priests
accept the mission and faculty of acting in the person of Christ,
the Head , whereas deacons (receive) the strengths to serve the
people of God in the diaconia of liturgy, word and charity”.
Hence the changes in Canons 1008 and 1009. An interesting point is
considered in the commentary in connection with the ordination of
women to the diaconate, following an article in The Tablet (9
January 2010) by Phyllis Zagano.
The other change concerns the exception from the form of marriage of
those who have defected from the faith. This has been a “rivers of
ink” topic since the promulgation of the Code. A whole variety of
local papers in Canon Law circles considered this. Eventually the
matter was formally addressed by the Pontifical Council for
Legislative Texts in a letter in 2006 setting out the principles for
the interpretation of how to determine a “defection from the faith”.
At that time our worthy Commentator assumed that the matter had been
closed (by the way so did everybody else). However, now the Canon
has been removed entirely!
But (the Canon still has its power to surprise), the actual
promulgation of this change did not date from the Motu Proprio
itself. As explained at the outset, the date of promulgation at
the moment (March 2010) cannot yet be determined. As Monsignor Read
notes, the “circular letter” of the Pontifical Council of 2006
remains in force for the jurisprudential concerns of marriage which
involve “defection from the faith” until the date of promulgation of
the Motu Proprio; as well as a twenty-six year window in
which marriages may have taken place from Advent 1983. [See Document
No.IV]
The worship of the Blessed Sacrament
exposed has been a very popular devotion in the life of the Church.
However, with the more frequent celebration of Mass (i.e. in the
afternoons and evenings) the exposition of the Blessed Sacrament
became less frequent.
But, of recent date arising from the request of the people, as well
as in response to the urging of the Holy See, Exposition is becoming
more frequent. The location of the tabernacle, the occasion of
exposition and the necessary safeguards all must be revisited. This
has been done by Monsignor Read bringing together the provisions of
the various curial instructions. There is even a consideration of
transparent or windowed tabernacles; or tabernacles with special
doors and so on. [See Document No.V]
Over the past few years there has been a
considerable amount of discussion and writing about the shrinkage in
the number of clergy, the resulting alterations in parishes and even
the closure of Churches. A good example of the latter occurred in
the Diocese of Shrewsbury in the parish of New Brighton. A large
Church had been built in 1935 to replace the one dating from 1879.
However, by the second millennium, the parish numbers had dropped
and the need for repairs had indicated horrendous costs; which costs
would have been far beyond the means of the parish. Consequently,
after serious consideration and the required consultation, the
Bishop decreed the closure of the Church. Unfortunately, this caused
a fearsome reaction from a small group of parishioners who referred
the whole matter to the Congregation of the Clergy. Some faltering
steps followed from the Congregation but the matter is now resolved,
backing the bishop’s decision. Bishop John Jukes has written a very
sensitive article about the role of the diocese and the parish in
all this; and has offered some considerable help for Bishops faced
with similar problems. (See Document No.VI)
One of the many spin-offs of the spate
of cases of clerical abuse over the last fifteen years has been the
more careful selection of vocations. The present Pope and his
predecessor have both written a number of documents; the most recent
being the Holy Father’s Address to the Counsellors and members of
the Latin American Episcopal Conference at the conclusion of its
plenary assembly on 20 February 2009. In a number of the documents,
especially the most recent, there is reference to the circular
letter of the Congregation of the Clergy. Great stress is placed on
the need for the Bishop’s personal knowledge of their students
during the period of formation and his direct interest and
involvement in that formation, rather than simply relying on the
reports of Directors of Vocations and seminary staff. (See Document
No.VII)
Father Paul Gargaro from Scotland has
been meditating on a particular point which the Editor and a number
of other consultantees had never ever thought of. Father Gargaro
asked himself the following question: “May Judges who have heard and
decided marriage nullity cases be questioned later if a Quaerela
Nullitatis had been raised against the decision?” Father Gargaro
also bowls in a googly by suggesting that such a question might even
be raised a little less than ten years after the decision had been
given.
In ordinary circumstances such a Quaerela Nullitatis would be
presented at once. If so, the Judge who gave the decision has to
deal with the Quaerela Nullitatis himself. But assuming that
the Judge is no longer a Judge, although still alive, Father Gargaro
asks can that Judge be called as a witness in such a case? The paper
should be studied: and there certainly must be comments which could
be raised on the matter. Comments and questions would be welcome.
(See Document No.VIII).
A year ago, the Canon Law Society
Newsletter [CLSN 157, March 2009] carried an article by
Father John Boyle (lecturer in Canon Law at Wonersh) with the title
Does There Exist An Internal Forum Solution? Father Boyle’s
article concluded with a reference to the last Canon of the Code, to
the effect that the Supreme Law of the Church is the Salus
Animarum (Canon 1752). That Salus Animarum is further
explored by Father Derek Vidler (See Document No.IX). He carefully
studies the existence of penance and the penitential rite in the
pre-medieval and medieval Church as well as bringing us up to the
present date. He then considers the rights of the persons; and he
follows that with a section on law, considering William of Occam and
Aquinas. He then analyses the whole concept of informed conscience
all of which is surrounded by the context in which one lives; and
the differences made thereby. A well instructed twenty-first century
man will have an informed conscience; but so will a cannibal!
Father Vidler then uses this background to consider what might be
called “hard cases” in the light of the Salus Animarum of
Canon 1752. Some of his sources are extremely valuable such as Dom
Peter Flood OSB, Paul Robbins in his book What God has not United,
Noldin and Cardinal Pompedda. Because of the importance of the
subject Monsignor John Hadley was asked to give a comment on Father
Vidler’s article (see Document No.X). Monsignor Hadley considers
Father Vidler’s paper under the headings of Conscience, Epeikeia
and Equity and then Divorce and Remarriage. He
also stresses the use of the Canon Penitentiary in such difficult
cases.
Monsignor John Johnston gave a seminar
at the 2008 Convention of the Canon Law Society of America. This
paper is gratefully reproduced with the permission of the CLSA
(Proceedings of the 70th Annual Convention of the CLSA, pp.158-176).
The paper concerns in particular alterations in the 1983 Code
(eschewing Canon 1095) which has given rise to new considerations in
jurisprudence. The author has limited his presentation to the more
traditional grounds of nullity, namely, force and fear, error of
quality and its fledgling cousin dolus .
One of the points of interest concerns force and fear and the
previous (old Code) requirement of the fear being iniuste
incussum. The case (of the 1950s) concerned Augustus and Maria;
alleged rape and the threat of civil law proceedings. This case went
through three rotal instances examining minutely the effect of the
term iniuste incussum. As Monsignor Johnston says: “the
odyssey of this unsavoury case through three Rotal hearings shows
how seriously auditors took the question of the justice or injustice
of the threat”. It is recalled how in the seventies the local
decisions were argued on the basis that (now) it was not possible to
allege that any force could be regarded as just . Monsignor Johnston
points to the now (new) rotal thinking since the 1983 Code.
What the author calls an excursus relates to evidence in force and
fear cases. The author points out that whereas the old law had
indicated that the “judicial deposition of the parties is not
admissible as proof against the validity of marriage”. (cf.
Provida Mater, art.117). The New Code now gives considerable
weight to the statements of the parties (see Canon 1536 §2; and
Dignitas Connubii art.179 §2). Clearly, this is of great help to
Judges in coming to their conclusions.
The author then looks at deceit and error of quality; and he
untangles the cases of a large number of parties viz Tony and
Angelica (error: c. Lopez-Illana, 14 April 1999; RRDec.XCI, 1999,
232-268); Laurentia and Gratian (Dolus: c. Defilippi, 4
December 1975, RRDec. LXXXIX, 1997, 853-865); Martha and Joseph (Dolus:
c. Alwan, 23 November 1999, RRDec.XCII, 2000, 602-608; Flavius and
Gabriela (Error: c. Defilippi, 10 November 1999, RRDec.XCI, 1999,
644-658); and so on. Monsignor Johnston’s tour of these grounds is
as pleasant as it is enlightening. (See Document No.XI).
To the working practitioner in local
tribunals, the matter of compatibility of grounds has usually been
resolved on a totally pragmatic basis. For example, a case might
have been instructed on the grounds of total or partial simulation
as well as Canon 1095 no.2 and 1095 no.3. Where there is clear
evidence of an exclusion of children, some Judges might indicate
that therefore there is no point in dealing with the allegations
under Canon 1095. Others very shortly concluded that Canon 1095 and
simulation are not compatible and therefore Canon 1095 no.2 is
irrelevant; on the other hand, another ponens might consider at
length the compatibility of both grounds; and indeed may have quoted
numbers of rotal decisions of the sixties and seventies to prove the
incompatibility of the grounds. The latter Judges will have
contributed greatly to the historical science of the Church’s
jurisprudence.
Father Christopher Dawson addressed the regional meeting of the
Southwark Metropolitan Tribunals on 13 October 2009. His topic was
precisely the compatibility of these grounds, However, he does not
treat the topic with “let’s cut out the technical stuff”. He goes
into the Nicomachean Ethics of Aristotle with comment by Sir Anthony
Kenny; St Thomas; the Church’s postconciliar documents and then a
tour through a paper by Lynda Robitaille and this with two
fascinating Rotal cases: one (the celebrated Bologna Hippy case);
and the other which went through three instances and eventually was
concluded by the judgement of Stankiewicz in 1997.
An important feature of this decision is the fact that in looking at
Canon 1095, one has to distinguish very clearly between the first
part of the Canon, namely amentia and nn.2 and 3 which deals
with inabilities. With the former, one is speaking of “the
incapacity to place an act” (every human act requires a use of
reason). The other two parties concern inabilities which
specifically and only relate to marriage [i.e. the acute and
successful city dealer cannot form a relationship or take on the
obligations of marriage]. These last [Canon 1095 n.2 and n.3] need
in no way prejudice a person’s rejection of children or permanence.
Father Dawson has put together a most interesting examination of the
topic [See Document No.XII].
L’Osservatore Romano of 28
January 2009 carried an interesting piece on the approval of
the newly elected Patriarch of the Syrian Church. His letter
requesting Ecclesiastical Communion for the Syrian Catholic Church
was set out in full; and the text of the Holy Father’s reply was
also published. No one reading the Holy Father’s letter to his
Beatitude Ignace Youssif III would not be moved by the warmth and
the kindliness of the Holy Father’s words. [See Document No. XIII]
Apart from an explanation of the Canons of the Eastern Code we now
know quite a lot of the historical background here upon this
election and appointment. Precisely how the Syrian Church became
part of the Catholic Church is explained; and the very sad history
of these Eastern Catholics, specially at the hands of the Turks. The
Syrian Church was based in Aleppo. The steady expansion of the
Syrian Catholic Church at the expense of the Syrian Orthodox Church
ended with the persecution and massacres which took place during the
First World War. More than half of the 75,000 Catholics in Aleppo
were massacred by Turkish nationalists. In the early 1920s, the
Syrian Catholic Patriarch residence was moved to Beirut, where many
Syrian Catholics in fact lived. [See Document No.XIV]
The custom of visiting the English
speaking Canon Law Societies and their Conferences was begun in
1969. At that time this was a private venture. Only in 1974 did it
become (for the CLSGBI) a Society venture. In 1969 the Society was
represented by the Convener of the CLS meetings at Woodhall. Then
when Monsignor Gerard Sheehy became President in 1973, an annual
visit took place to the USA and Canadian Conventions (and sometimes
the Australian meeting). It was, in fact, in 1973 that the President
travelled First Class. His advisers told him that the distances
would have a damaging effect upon his health, hence First Class
travel. However, the cost of this appeared in two successive sets of
accounts, much to the President’s embarrassment. After that any
travel was effected by Business Class.
Our present President had the unenviable job of flying to Australia
and back; but this was via Singapore, and then he had to travel to
North America from England once more. He has written a short account
of his travels; where he went, whom he met, what he did. Although it
all seems very jolly, the Editor is well aware of how tiring all the
air travel can be; as well as being on one’s best behaviour wherever
one goes. But the President certainly enjoyed his travels in 2009.
[See Document No.XV]
A rather sordid event took place in the
USA in the late 1990s in connection with the seal of confession. The
story is not that strange; but the attitude of the civil authorities
was not particularly helpful, at least at the beginning. The whole
matter turns on a request by a prison inmate to go to confession to
the Chaplain. The prisoner was awaiting trial for three murders. The
District Attorney permitted the cell to be “bugged”. The tape
recording was about to be introduced at the man’s trial. The
diocesan authorities in Portland Oregon at once set in motion an
appeal against this use of the recording. Lawyers acting for the
Archdiocese of Portland requested the destruction of the tape. This
was not granted by the hearing, but the Appeal Court made an
important legal decision. One of the three appellate Judges was the
well known Catholic Lawyer, John T. Noonan. The trial took place;
the tape was never used; and the prisoner was found guilty of the
three murders. He was sentenced to death. This was all written up by
the priest concerned, namely, Father Timothy Mochaitis. When the
book The Seal was published (2008) the prisoner was still on death
row. Monsignor Chaloner has written a review of the book. [See
Document No.XVI]
For some time a special team (the PM
Group) in the Archdiocese of Liverpool had been preparing a Diocesan
Handbook. It has been prepared with very wide consultation through
the country, and not just in Liverpool. The Handbook has now been
published (April 2009). The Handbook covers a whole range of topics
of concern to the clergy (including Bishops and Deacons). The
Handbook is divided into fifteen sections; and all of these have
been examined by Monsignor John Hadley who, himself, had a special
role in producing a similar document for the Diocese of Nottingham
called the Priests Vade Mecum). Consequently, he has much
experience in the contents of such Handbooks. [See Document No.
XVII]
This seems to be the season for
Handbooks and Directories for Bishops, Deacons and Clergy (and
it is issued by the Conference of the Bishops of England and Wales.
It is much more than a mere “priests’ guide and companion” in a
diocese. In particular, the second part of the Directory is given
over to Procedures. Some of these Procedures can be derived
(probably with some difficulty) from the Code of Canon Law. But a
number of the procedures are given which make the actions to be
followed by the Bishop and the cleric quite clear. The Review by
Monsignor Hadley is helpful and indicates areas for improvement in
future editions. [See Document No XVIII] Every Bishop, priest and
deacon will already have a copy of the Directory. It can be obtained
from the CTS at the price of £6.50 per copy.
Many CLSGBI members will have met Sr
Sharon Holland in Rome or in the United States. She has just been
honoured with the Lifetime Membership of the CLSA. The following is
a quotation from the CLSA Newsletter from December 2009.
“Sr Sharon Holland, IHM was awarded Lifetime Honorary Membership in
the Canon Law Society of America by acclamation of the membership
during the 71stAnnual Business Meeting in Louisville, Kentucky. The
resolution for this award was submitted by Patricia Dugan, Sr
Victoria Vondenberger RSM and Msgr. Ricardo Bass in recognition of
Sr Holland’s service to the Society, Canon Law, the Church and
especially women religious. To read Sr. Holland’s acceptance remarks
visit www.clsa.org”.
The 44th Annual Conference of the Canon
Law Society of Australia and New Zealand will be held between 13-16
September 2010. It will be held at the Holiday Inn, Surfers
Paradise, 22 View Avenue, Surfers Paradise, Queensland.
A correction must be made to CLSN No.160
(December 2009): Page 32, line 5: the sentence beginning “This is
spelt out should read: This is spelt out in article 11 of the norms.
Their position is analogous to that of Vicar or Prefect Apostolic.
(Canons 368 and 371). The text then continues: “Even though not
ordained Bishop….”.
