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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

 

  • TABLE OF CONTENTS

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)

 

  • Pope’ Address to Roman Rota Monday 29 January 2010

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].
 

  • Changes in the Code

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]
 

  • Worship of the Eucharist Outside Mass

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]
 

  • Closure of a Church in Canon Law

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)
 

  • Seminary Formation: Discernment of Priestly Vocations: The Pope to Latin American Episcopal Conference

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)
 

  • Judges as Witnesses in Cases of Quaerelae Nullitatis

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).
 

  • Irregular Marriages and Admission to Holy Communion

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.
 

  • Some Changes In Rotal Jurisprudence

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).
 

  • Compatibility of Grounds: Canons 1101 and 1095

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].
 

  • Appointment of Patriarchs: The Antioch Syrian Church

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]
 

  • Travels of the President

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]
 

  • Review: The Seal

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]
 

  • Review: Archdiocese of Liverpool Clergy Handbook

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]
 

  • Review: Directory on the Canonical Status of the Clergy

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.
 

  • Sister Sharon Holland, IHM

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”.
 

  • CLSANZ 2010 Conference

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.
 

  • Important Correction

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….”.