NEWSLETTER NO. 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
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”.
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).
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 Constitution Gaudium et Spes (No.48). In the
light of the understanding of the old Code and of the text from
Gaudium 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].
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).
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).
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).
“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).
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 Peňafort’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).
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 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
trishraff129@hotmail.com
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.
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).
