NEWSLETTER NO. 142 JUNE 2005
1. Article of
Cardinal Cormac Murphy-O'Connor in The Sunday Telegraph
(24th April, 2005)
2. Benedict XV
1914-1922
3. Pope Benedict
XIV and Canon Law [Mgr David Hogan]
4. From Prefect to
Pope [Bishop John Jukes, OFM Conv.]
5. Dignitas
Connubii: Instruction to be Observed by Diocesan and
Interdiocesan Tribunals in Handling Causes of the Nullity of
Marriage - An Introductory Comment [Mgr Gordon Read]
6. Remuneration,
Decent Support and Clerics Removed from the Ministry of the
Church [Rev James Donlon, JCD]
7. The Role of the
Expert in Tribunal Proceedings [Gerard T Jorgensen]
8. Invalid
Dispensation from Canonical Form [Mgr Gordon Read]
9. Questionnaire
of Fr Bill Naylor [Mary Alicia Sloan]
10. CLSGBI Annual
Conference [Michael Tully]
The March Number of CLSN went into
print after the death of John Paul II and indeed just after the
election of Pope Benedict XVI. However, the mood of the March
number was very much related to the sadness of the loss of the
Church; the loss of a Pope who will be forever remembered; and if
media comments are to be believed, one who will be in the news for a
long time to come with piecesson the probability of Canonisation:
the words of the placards in St Peter’s Square: Santo
Subito will not be forgotten.
However, the present number of CLSN
begins with the material on the successor of St Peter, Pope
Benedict XVI. The name of Cardinal Ratzinger was well known
as the head of the prestigious Congregation for the Doctrine of the
Faith; previously known as the Holy Office; and even before that by
the more sinister name of the Holy Inquisition! It should, of
course, be remembered that the Holy Inquisition merely played
analogously the same sort of role for religion in the Church as did
the Star Chamber for politics in England. No ruling authority has
ever been without something of this kind. But as the Annuario
Pontificio points out this body went through historical
changes as the centuries went by; and it was renamed in 1965 as the
Congregation for the Doctrine of the Faith with the task of
defending the faith and promoting (true) doctrine. It is hardly
surprising that the person who has run that office for twenty or
more years should be characterised by some as a theological ogre.
However, those who know the
present Pope and knew him in his previous role, all comment
on the kindly person that he is; theologically very acute
(and regarded by some as the outstanding theologian of the Church);
a record of having been an excellent diocesan bishop in Germany; and
one who knows where the bodies are buried! After the initial
electoral waltzing in the conclave, it surprised very few people
that Cardinal Ratzinger was elected.
A very great deal has already been
written about Benedict XVI, his background, his history, his
previous work, estimates of how his Pontificate will compare
with that of his predecessor. One of the electing Cardinals,
Cardinal Murphy O’Connor, wrote a piece in the Sunday Telegraph
which puts the whole history of those few days before the reading
public (see Document No.I).
Perhaps the most interesting thing
about the first minutes of his Pontificate was the Pope’s
choice of name: Benedict XVI. The Pope himself has already
indicated his background thinking about the choice of his name; and
about the pontificate of Benedict XV. (See Document II)
However, he did not expand on the connection between the choice of
name of Pope Benedict XVI and his previous namesake, Pope Benedict
XIV, Cardinal Prospero Lambertini. This further piece of historical
background has been researched by Mgr David Cousins who gave a paper
on the topic to the Canon law Society Conference in the year 2003.
(See Document No.III for brief resume of Benedict XV’s
history).
It is clearly the case that
Cardinal Ratzinger in his role as Prefect of the Congregation for
the Doctrine of the Faith has had an impact on the law of the
Church. However, the extent of this impact really only becomes clear
from analysis of the years between 1981 and 2005, the period during
which he was the Prefect of the Congregation. An extremely clear
and very detailed analysis of that period has been prepared by
Bishop John Jukes (see Document No.IV).
The first Code of the Roman Catholic
Church appeared in 1917 (promulgated by the present Pope’s name-sake
(Pope Benedict XV). That Code had been the remarkable work of more
or less one man, Cardinal Gasparri (who, of course, consulted very
widely indeed about the text). The subsequent Code was called for by
the Dispositions of the Second Vatican Council.
Following the 1917 Code, in 1935 a new
document was issued by the Holy See dealing with marriage procedure.
This was called Provida Mater. It drew together all the
elements from the 1917 Code dealing with the procedure for the
nullity of marriage. If a person was going to deal with a case of
marriage nullity, a proper grasp of Provida Mater was
called for; and every Tribunal trying to deal with nullity cases had
its own copy. This was provided in English translation by Cardinal
Doheny; and it could be described as the A-B-C Do-It-Yourself
instructions for a nullity case; which means that a person could go
through a series of stages without any references backwards or
forwards to complete a nullity case.
Some years after the 1983 Code emerged,
there were whispers of a new Provida Mater. However,
these whispers curiously became softer. Indeed, some years ago a
draft was circulated to diocesan bishops (through their
Conferences); but that consultation seems to have evaporated. There
was then a second draft. However, it would be seen that very little
consultation took place amongst working Canonists; although it is
known that a variety of Dicasteries were involved in such
consultation.
The Congregation for the Doctrine of the Faith,
the Congregation for the Discipline of the Sacraments and
Divine Worship, the Signatura and the Rota and especially the
Pontifical Council for Legislative Texts were all involved in the
work and preparation from 24th February 1996 onwards. A
definitive text was presented to the Holy Father on 8th
November 2004. He approved the text. The document is dated 25th
January 2005; and was published in March of the same year. All
this is conveyed at some length but with greater delicacy in the
introduction to the Instruction published in its usual
pristine elegance by the Libreria Editrice Vaticano (see CLSN
for March 2005, n.141). This text is now on sale with the combined
Latin text and English translation.
In his most helpful comment on the Instruction
by Monsignor Gordon Read (see Document No. V) has
drawn attention to a number of points which are going to require
attention in the future. Time will tell about these points.
However, Monsignor Read considers whether the whole document (which
has obviously involved a very great deal of labour) has produced an
elephant or a mouse. He concludes by opting for neither; but
indicates that the Instruction “provides a variable
handbook, as well as clarification on a number of points, and at the
price of just 15 Euros (plus postage and packing) it is good value
as well as essential reading for Tribunal staff”.
It will be recalled, when the matter of clergy being
given leave of absence or who have been accused of serious crimes
or who have been laicised has arisen, a number of articles have been
written on the topic. See for example, CLSN No.133, March 2003,
Document IV; and CLSN No.137, March 2004, Documents VII and VIII.
The whole question of precisely what to do in a variety of
circumstances has split general opinion like a shower of fireworks
into a series of further questions. How do we deal with those
priests and deacons accused of having sexually abused minors? How do
we deal with clerics who have been accused, but where the
allegations have not been established? How do we deal with the
cleric who has been found guilty of, or who has admitted an offence?
How do we deal with a cleric who has returned voluntarily or
involuntarily to the lay state? All these questions spin around
initially unanswered; and little by little they end up with a
financial question mark. Emotions frequently override rational (or
even just) thinking.
Father James Donlon, with immense courage,
confronted this issue (or these issues) at the Canon Law
Society Convention of 2004 (cf. Proceeedings 66,
pp.1-21. The paper has been reprinted here with the generous
permission of the Canon Law Society of America at Document No VI
under the title Remuneration, Decent
Support and Clerics Removed from the Ministry of the Church.
Having initially confronted the emotive issues, the
author goes on to examine the law. He analyses Canons 195,
281, 384, 1350. He concludes from this study that each of these
Canons all have one thing in common: a concern for the
individual. Having looked at the canonical background Father
Donlon then attempts to apply this background to a variety of
practical considerations. He looks at the five specific scenarios,
but acknowledges, of course, that there are many others. Clearly he
acknowledges that there are no simple answers no simple solutions.
He mentions the fear and anger that such actions can provoke. While
he realises this background, he says “whilst all this is
understandable, given the horrific acts of some clerics and given
the mistakes of Church leadership, somehow we have to get beyond the
fear and the anger, beyond the emotions, so that all the parties are
ultimately treated fairly and justly”.
[For the sake of general interest there
are three cases dealing with clergy remuneration (not relating to
those who have left the ministry) in CLSANZ Newsletter No.2, 2000,
pp.15-40; and a Decree of the Pontifical Council for the
Interpretation of the Legislative Texts of 29th April
2000, prot.no.7194/2000]
-
The Role of the
Expert in Tribunal Proceedings
In studying Rotal Decisions
(specially those commented upon or analysed by Professor Augustine
Mendonça in his writings in the Jurist and Studia
Canonica), one comes across cases which have sometimes
wandered into the fourth or fifth instances! Frequently in some of
those one comes across a case in which an expert has given an
opinion on the established facts; and then a case on appeal requires
the opinion of yet another expert; and this might even happen a
third time.
One often wonders whether after a Peritus
is replaced by a Peritior; and the latter is then
replaced in the next instance by a Peritissimus – is it
possible to go higher when the case goes further on appeal? There is
one case commented upon in CLSN No.138, June 2004, pp.37-86; but
this only goes to three experts within five instances!
The expert is a very powerful person
and it is vital that such a person and his expertise are only to be
deployed in the appropriate circumstances. Hence, the strict rules
which the law imposes. There is, of course, the reverse situation in
which a Judges takes upon himself the role of an expert and makes
medical or clinical or psychological or even psychiatric judgements
in connection with a case!
The Instruction Dignitas Connubii (Artt
203-213) devotes eleven articles to the whole question of the
use and nature and extent of the use of experts; and specially the
kind of questions to be asked of the experts by the Judge,
particularly dealt with in article 209 §2. Specially used for
reference in Father Donlon’s article is that of Cardinal Mario
Pompedda: “incapacity to assume the essential obligations of
marriage” in Incapacity for Marriage Jurisprudence and
Interpretation Ed.R. Sable, Rome, P.U.G. 1987.
The whole matter of “the role of experts
in Tribunal proceedings” is dealt with by Father Gerald G Jorgensen
in a paper to the 66th Convention of the Canon Law
Society of America. The paper is reprinted with the gracious
permission of the Canon Law Society of America:
Proceedings CLSA 66 (2004) pp.1-15 (see Document No.VII).
-
Invalid
Dispensation from Canonical Form
Readers of CLSN (No.74:1985) will
recall attention being given to the matter of Invalid Dispensations
Form. The point at issue at that time was simply that a Bishop could
not dispense from the form of marriage (i.e. for the marriage to
take place in a Church of another denomination) when both parties
were Catholic, but not only was this the case, but the Holy See
itself did not guarantee that itself would grant such a
dispensation.
The Judicial Vicar of the Nottingham
Tribunal should walk away in the present case with the jackpot for
having spotted the procedural invalidity of a particular marriage.
Suffice it to say that (a) Mary, a non-Catholic wishes to marry
John, a Catholic (resident in the Diocese of Y); (b) the couple wish
to marry in a non-Catholic Church; (c) the Bishop of the Diocese of
Y refuses the dispensation from the form; g) the couple obtained the
dispensation from the Bishop of the Diocese of X e) before the
wedding Mary was received into the Roman Catholic Church; f) the
wedding was celebrated in a non-Catholic Church. Quid de casu?
(See Document No.VIII).
Father Bill Naylor is involved in doctoral studiesat the University
of Derby in connection with marriage. He completed a Master’s paper
in the Department of Counselling and Psychotherapy. He is now
involved in some further research. As part of this research he has
sent out questionnaires to a number of Marriage Tribunals; and also
to the Canon Law Society of Great Britain and Ireland. Mrs Mary
Alicia Sloan of the Westminster Tribunal kindly agreed to prepare
answers on behalf of the Tribunal to the questionnaire. (See
Document No.IX).
The attention of Judicial Vicars is
drawn to the fact that recently the Signatura Apostolica has written
to a Tribunal concerning the Canon Law Society Jurisprudential
Course. The Signatura gave permission to one Tribunal for a lay
woman (with appropriate jurisprudential experience) to be appointed
as an Associate Judge (although she was not a qualified Canon
lawyer). The Signatura went on to say that until she had completed
the Canon law Society Jurisprudential Course she could not be
appointed as a sentence writing Judge. This may be of interest to
Tribunals looking to the Signatura for dispensations for Judges.
Enquiries should be made to the CLS Jurisprudential Course
(Monsignor Ralph Brown) at Westminster.
The following books are published by the
Canon Law Society of America:
Judging Invalidity (2002)
List Price: $20.95 vi + 95 pp. ISBN: 0-943616-96-4
Jurisprudence: a Collection of
U.S. Tribunal Decisions (2002) List price: $40.00 vii + 472
pp. ISBN: 0-943616-94-8
Law Sections (1994) List
Price: $8.00 iii + 93pp. ISBN: 0-943616-65-4
Marriage Studies 1 (1980)
List Price: $3.00 iv + 155 pp. ISBN: 0-943616-03-4
Marriage Studies 4 (1990)
List Price: $7.00 viii + 188 pp. ISBN: 0-943616-48-4
Marriage Studies 5 (2004)
List Price: $30.00 x + 226 pp. ISBN: 1-932208-04-6.
The Invalid Marriage (1996)
List Price: $15.00 v + 238 pp. ISBN: 0-943616-78-6.
These may be obtained from the CLSA
Publications, 9050 Junction Drive, PO Box 463, Annapolis Junction,
MD. 20701-0463 www.clsa.org
The books may be paid for by Visa or Mastercard.
Arrangements can be made for speedy handling [tel: (301) 362 8197].
The CLS Conference was held at the Dean
Park Hotel, Renfrew, Glasgow, between 16-20 May 2005. The
actual papers given (in bound form) can be obtained from Mrs Clare
Pearce (see back for address). It seems that the papers were found
to be of interest and the whole Conference went well.
When the momentous decision was made by
the Society to abandon a Conference/Pastoral Centre for hotel
accommodation for its annual Conference, various fears were
voiced. The principal fear was whether that the celebration of the
daily Mass would be compromised. However, the Conference organisers
over the past years have from the very start ensured that Mass could
be celebrated together within the Conference Centre, in a quiet
ambience, together with hymns and music. The social facilities have
been well looked after.
At the Annual General Meeting of the
Society, held on Thursday 19th May, a variety of items
were dealt with affecting the whole work and the future of the
Society. At the AGM those present heard of the need to increase the
annual subscription. The matter was raised some years ago and when
the subscription was increased from £30 to £45. However, it seems
that by the time the £45 per member was getting through, the actual
cost of running the Society per member was £50. This was explained
to the meeting. A possible figure in the range of £60 + or more was
mentioned. However, there was a suggestion from the floor that the
sum should be in the range of £100. This was agreed by the meeting
Nem.Com. [See Document No.X for a description
of the Conference by Monsignor Michael Tully, a letter from the
President and the Treasurer about this will be included with this
number of CLSN].
