NEWSLETTER NO. 152 DECEMBER 2007
1. Golden Jubilee Celebrations
of the Canon Law Society: Homily of Bishop John Arnold at the
Mass at Westminster Cathedral (24th October, 2007)
2. Text of the Papal Blessing
to the Society on the Occasion of the Golden Jubilee.
3. The 1701 Act of Settlement
[Mgr Gordon Read]
4. The Glorious Revolution and
the Protestant Succesion [Fr Nicholas Kavanagh]
5. New Norms for Papal
Elections [Mgr Gordon Read]
6. Sale of Church Property:
The Resignation of the Rector of St John's Seminary, Boston [Mgr
Gordon Read]
7. The CDF on the Doctrine of
the Church [Mgr Gordon Read]
8. Bishops in China [Mgr
Gordon Read]
9. The Cumberlege Commission
Report [Mgr Gordon Read]
10. The Resignation of Archbishop
Ncube [Mgr Gordon Read]
11. Exclusion of Bonum Coniugum
- Rotal Decision coram Turnaturi (13th May, 2004)
12. Review: "Critical Introduction
to Natural Law" by Javier Hervada [Fr John Hadley]
13. Obituary: Cardinal Rosalio
Castillo Lara
As part of the 50th anniversary
celebrations of the Canon Law Society there was a special Mass held
at the end of the Canon Law Conference held at Gateshead this May.
That Conference marked the beginning of a year of celebrations. The
next big event planned was the special Mass at Westminster Cathedral
to be celebrated by the Cardinal and Episcopal representatives from
England, Ireland, Scotland and Wales. This was followed by a
reception in the Throne Room of Archbishop’s House at Westminster.
Another item to mark the Jubilee celebrations will be the
Commemorative Issue of the Canon Law Society Newsletter. The work
has already started on this issue; and the items of interest will be
a mini-history of the Society; the history of CLSN and MDGBI as well
as CLA. There will be reflections on the spectacular advances that
have been made during the history of the Society especially in the
area of jurisprudence. One special feature will be obituaries of all
the Founding Fathers and other outstanding persons in the history of
the Society. There are still members of the Society who date back to
the early years of its existence; and three persons can be
identified as having joined before 1960. The present editor joined
in 1961. It will be helpful if any other early members of the
Society could make themselves known to the editor of CLSN.
Unfortunately there are not many photographs going back much more
than 25 years but there are group photos (now called images!) from
the early 80s and one back to the 70s. One of the treasures of the
Society was the published lecture by Lord Hailsham on the Natural
Law. This took place at Lincoln’s Inn to mark the 21st anniversary
of the foundation of the Society.
The other elements of the celebrations of the CLS Golden Jubilee
will be the Rome Conference in May 2008. Details of this Conference
have already been circulated; and an account of the proceedings in
Rome will appear in the CLSN for June 2008.
As part of the celebrations of the Golden Jubilee the Mass of the
Holy Spirit was celebrated by Cardinal Cormac Murphy-O’Connor on
Wednesday 24 October 2007 in Westminster Cathedral. Concelebrating
at the altar with the Cardinal were Bishop John McAreavey, Bishop of
Dromore, and Bishop Michael Smith, Bishop of Meath. Also present
representing England and Wales were Bishop Peter Doyle and Bishop
John Arnold. Representing Scotland was Bishop John Cunningham of
Galway. There were some sixty or so concelebrants.
The homily was given by Bishop John Arnold. He rehearsed very
briefly the beginnings of the Society; and then gave a fine comment
on the role of Canon Law in the Church; and the parts played by
Canon Lawyers; and he was able to point to the Canon Law Society of
Great Britain and Ireland as having made a most important
contribution to the pastoral and jurisprudential life of the Church.
[see Document No.I]. The occasion was also honoured by a Papal
Blessing which was read at the Mass by the President, Monsignor
David Hogan [Document No.II].
By courtesy and kind permission of the Cardinal, a reception was
held after the Mass in the Throne Room of Archbishop’s House. All
the priests attending joined the reception together with a
sprinkling of Sisters and laity all members of the Society; as well
as one or two guests who have been helpers of the Society during its
history, especially those involved in the Society’s publications,
Canon Law Abstracts, Canon Law Society Newsletter and Matrimonial
Decisions for Great Britain and Ireland. The next gathering of the
Society to conclude these celebrations will take place in May 2008
in Rome.
From time to time there arises the
spectre of a Protestant versus Catholic conflict: in particular the
possibility of the marriage of a Roman Catholic into the Royal
Family. Back in the late 70s and into the early 80s there are was a
situation involving Prince Michael of Kent and his loss of
succession to the throne by reason of his marriage to a Roman
Catholic. Hence the situation is not new in this country in the
twentieth and now twenty-first centuries. There have been other
members of the Royal Family who (losing their right of succession)
have married Roman Catholics in the Roman Catholic Church. Most
recently the matter arose again; this time when the son of Princess
Anne ( Peter Phillips) wished to marry a Canadian Roman Catholic.
This set up a ripple through the Catholic (and indeed some of the
non-Catholic) population. There were some (Cardinal Keith O’Brien of
St Andrews and Edinburgh for one) who loudly protested at the
discriminatory Act of Settlement of 1701.
Clearly there are two specific issues involved here: (1) precisely
what the Act of Settlement said and its historical background; and
(2) whether it should be changed and, if so, what advantages (or
disadvantages) would follow. Happily the CLSN has two offerings to
make on the whole topic. One is the precise background of the Act of
1701; and indeed the text of the Act itself. The second raises other
important elements which emerge from the consideration. A frequently
made statement is that the Act of Settlement does not permit a
Catholic to marry into the Royal Family; but it is quite feasible
for a Muslim or Hindu or anyone else to enter into such a marriage.
This point is dealt with by indicating that the person entering
marriage with a future or present Sovereign would need to take an
oath to preserve inter alia the “Protestant Reformed Religion”.
Moreover, it must be recalled that any Roman Catholic in a mixed
marriage is bound to promise to raise the children in the Catholic
faith. This undertaking would hardly be consonant with the oath to
preserve the Protestant Reformed Religion. There are other practical
points which arise over all this; and it might seem as if the
present situation should be left as it is. [Document No III] deals
with the historical background and the Act of Succession itself
written by Monsignor Gordon Read. Document No. IV examines some
practical points arising from a contemplated change of the law at
the present juncture. This piece was written by Father Nicholas
Kavanagh. See also Contributions to the Tablet by Bishop
Michael Scott-Joynt, Sir Patrick Cormack, Father Alan Horton and
Messrs.Shane Rees and Nick Agocs.
Pope Benedict XVI has made some minor
changes in the rules for the election of a Pope: significantly that
a two/thirds majority of voters is always required; but all this is
to be understood and interpreted in the context of Norms 74 and 75
of Universi Dominici Gregis (1996). It is important to be
reminded that the rules for the election of a Pope have been altered
no less than nine times during the twentieth Century, beginning with
a document by Pope Pius X in 1904 ending in that century with a
document by Pope John Paul II in 1996. In fact, all the Popes in
that century changed the voting rules. This is explained by
Monsignor Read who is not sure that the change is all that helpful.
[See Document No,.V].
The press (Catholic and other) reported
recently that the Rector of St John’s Seminary, Boston, has
resigned. The Seminary was established in 1883. The Rector resigned
before the completion of his term of office. It was published that
he did so in protest at the disposal of land adjoining the Seminary,
and handing over to the purchaser certain responsibilities for the
maintenance and catering of the Seminary. The purchaser is Boston
College. This College was founded by the Society of Jesus in 1863.
It became a University and expanded very considerably and is
presently an extremely successful Catholic Institution.
The sale already mentioned was made as part of an overall scheme of
redevelopment for the Archdiocese of Boston which plans to move its
Headquarters to a suburb of Boston which has been made available by
a generous benefactor. Unfortunately, the news of the sale was
leaked to the press in advance of the date for the release of a
statement; and this necessitated an explanatory statement from the
Archbishop himself. He emphasised his continued support for his
Seminary and there was no suggestion or threat of the Seminary being
prejudiced in any way. However, the result of all this is an
extremely interesting analysis of the financial situation of the
Archdiocese as shown in Document No. VI together with comments by
Monsignor Gordon Read.
On 29 June 2007 the CDF issued a
document entitled Responses to some questions regarding certain
aspects of the doctrines of the Church. This was adopted by the
CDF at its Plenary Session, and ratified and confirmed by the Pope,
who ordered its publication. Clearly, it is a doctrinal rather than
legislative document. However, in so far as it addressed the
question of the relationship between the Catholic Church, and
Churches and ecclesial bodies not in full communion, it has
implications for the correct understanding of Canons that have this
as their foundation, e.g. Canon 844 on communicatio in sacris.
This provision is not simply an ecclesiastical law, but arises from
basic theological principles. In the document the CDF seeks to
clarify five questions concerning the true meaning of expressions
open to misunderstanding:
1. Did the Second Vatican Council change the Catholic Doctrine on
the Church?
2. What is the meaning of the affirmation that the Church of Christ
subsists in the Catholic Church?
3. Why was the expression “subsists in” adopted instead of
the simple word “is”
4. Why does the Second Vatican Council use the term “Church” in
reference to the oriental Churches separated from full communion
with the Catholic Church?
5. Why do the texts of the Council and those of the Magisterium
since the Council not use the word “Church” with regard to those
Christian Communities born out of the Reformation of the sixteenth
century?
Monsignor Gordon Read examines the whole document very closely and
gives views on what occasioned the document and what it might
indicate. [See Document No.VII]
Until the Eleventh Century Bishops were
elected by the clergy and people of the diocese. This was true even
of Rome, where the Emperor had the right to ratify an election. In
Rome Pope Nicholas II (1059-1061) restricted the electorate to the
clergy, but still allowed ratification to the Holy Roman Emperor
(C.1, Dist.23). The right of electing the Pope was finally
restricted to Cardinals by Pope Gregory X (1271-1276), but the veto
exercised by Austria, France and Spain was abrogated only in 1908 (AAS
5 (1913) 252).
It can be seen from this that there is no matter of principle about
the manner in which Bishops can be appointed. Despite the
prohibition contained in Canon 377 §5, the Holy See could enter an
arrangement with the government of China which allowed them a say in
the appointment of Bishops, whether this took the form of nomination
or veto, if judged this for the greater good of the Church. However,
Pope Benedict XVI’s letter to China of May 2007 makes it clear that
he is holding out for complete freedom in the nomination of Bishops.
In 1951 a situation arose in the
People’s Republic of China, with the consecration of Bishops without
a Papal mandate, following the breakdown of relationships between
the Holy See and the new government, and the latter’s wish for
complete autonomy for all bodies within its jurisdiction, including
Churches. As a consequence, since 1951 two hierarchies have existed
side by side. One, in full Communion with the Holy See, operates
underground. Its Bishops and priests are not recognised by the
government, and are subject to periodic arrest and persecution. The
parallel hierarchy comprises Bishops who belong to the Patriotic
association, and are recognised by the Chinese government, but not
by the Holy See. Statistics are hard to come by but it is suggested
that the majority of Catholics adhere to the underground Church.
Relationships between the two groups are spiky to say the least. In
principle those Bishops adhering to the state-recognised Church are
subject to automatic excommunication, and the clergy to suspension.
Over the last couple of years there have been signs of an improving
atmosphere, albeit not without hiccups on the way. There have been
further episcopal ordinations without a papal mandate, but others
that have taken place with the prior approval of the Holy See. On
21st September 2007 L’Osservatore Romano reported that Pope
Benedict XVI had approved the ordinations of Fr Giuseppe Li Shan as
Archbishop of Beijing and of Fr Paolo Xiao Zejiang as coadjutor
Bishop of Guiyang. It appears that both presiding prelates, the
Bishops of Linyi and Guiyang respectively, are in communion with the
Holy See but that some of the other Bishops taking part in the
liturgies were not.
On 27 May 2007, Pope Benedict XVI issued a letter to the Church in
China expressing the hope that difficulties could be overcome.
Monsignor Read has written a commentary on the whole situation as
well as on the letter of Pope Benedict. [See Document No.VIII]
In the summer of 2007, the Cumberlege
Commission produced its report, entitled “Safeguarding with
Confidence: Keeping Children and Vulnerable Adults Safe in the
Catholic Church”. The Cumberlege Commission was set up at the
request of the Bishops’ Conference of England and Wales in 2006 to
review the progress made over the five years since the publication
of Lord Nolan’s reports. The report is very lengthy running to 132
pages with 72 recommendations.
The Bishops of England and Wales will consider the Report at their
November meeting, but whether this will give sufficient time to
absorb and reflect on such a lengthy report and so many
recommendations is doubtful. The Bishops tend to suffer from
overload as it is. The sheer volume of material that comes to them
from their various agencies can be overwhelming. As Cumberlege puts
it, “It has also become clear that COPCA’s policy recommendations
come to the Bishops’ Conference and Conference of Religious and
leave as national policies of the Catholic Church in all but name
alone. Because there is no real forum for debate, they are usually
rubber stamped through a practice that is counterproductive for
everyone. It is hardly surprising then that the
Bishops/Congregational leaders on occasion only pay lip service to
these as national policies” (n.317).
Monsignor Gordon Read has studied the Report and his comments are
given at Document No IX.
The 1983 Code provides not only for a
diocesan Bishop to offer his resignation from office when he has
completed his seventy-fifth year of age, but also “who, because of
illness or some other grave reason, has become unsuited for the
fulfilment of his office”. (Canon 401 §2) In fact, in this situation
he is earnestly requested to offer his resignation.
Archbishop Ncube of Bulawayo has been well known for his public
criticisms of the Government of Robert Mugabe, President of
Zimbabwe. This led to a campaign against him sponsored by the
government, culminating in accusations of adultery, and a case
currently before the High Court in Bulawayo. The Archbishop denies
the accusations, but did not want the case to be seen as an attack
on the Church. He wished to be free of his responsibilities so that
he could defend himself as an individual. He submitted his request
to the Holy Father in July, and the acceptance of his resignation
was made public on 11 September 2007.
Clearly Archbishop Ncube is entitled to the presumption of innocence
until proven guilty, whether in the civil courts, or an
ecclesiastical l forum. Canon 1045 §1, 3º reserves the penal trial
of Bishops to the Roman Pontiff. However, administrative measures
are preferred, as in the cases of Bishop Gaillot, or Archbishop
Millingo, evidently in the hope that the Bishop would think better
of his actions and resign, without the need for a formal process.
The Archbishop was born in 1946 and consecrated in 1998. Monsignor
Read reflects on the process involved in such cases. [See Document
No.X]
The CLSN has already run a number of
cases involving the exclusion of the bonum coniugum. Most of
these cases have been presented by Professor Augustine Mendonça with
his helpful commentaries. The present number of CLSN provides a case
which was heard in Third Instance by the Roman Rota coram
Turnaturi on 13 May 2004. It was reproduced in Studies in Church
Law. Volume 2, 2006, pp.279-321, and it is reproduced here with
the permission of the Editor of Studies. The sentence was
translated by Professor Augustine Mendonça.
The background of the case is not uncomplicated. Bernardo, the
Petitioner, had been married, had one child, and was no longer with
his wife. Bianca, the Respondent, had married Ricardo, had two
children, and was divorced from him. She went through a civil union
with Martino from whom she had one child and from whom she was
divorced in 1980. She entered a third (informal) relationship, but
the gentleman died. Bianca and Bernardo met in 1987 through a
newspaper advertisement. Bernardo was totally smitten by Bianca,
although her manner of conduct and her character hardly made for a
happy relationship. They began to cohabit in 1990. The same year
both their previous partners died. The couple married in the Church,
much to the consternation of friends and against the strong advice
of Father Francisco, who even advised them to marry (only) civilly.
However, the union was celebrated on 13 February 1994 in the Church.
The marriage ceased to exist in March 1996.
Bernardo presented a petition for nullity in May 1997 on the grounds
of total simulation or the exclusion of the bonum coniugum
on the part of Bianca. The First Instance decision was negative
on the grounds of total simulation; and affirmative on the
grounds of the exclusion of the bonum coniugum. The Appeal
Court reversed the affirmative decision; and the case was appealed
to Third Instance at the Rota. The latter, in a turnus headed
by Monsignor Aegidio Turnaturi considered the case on the sole
grounds of the exclusion of the bonum coniugum.
In the In Jure section Monsignor Mario Pompedda is quoted
(from his decision of 11 April 1988, RRD 80, 1988, p.202) as saying:
“In our opinion the question should be framed in such a way that the
good of the spouses….. is understood and presented in terms of a
right (and relative obligation) to the communion of life. In fact,
it must be understood in its broader meaning, ideally lived out in
conjugal love… essentially required by nature in interpersonal
relationships proper to spouses and having juridical significance”.
Monsignor Pinto is also quoted (in a decision of 30 May 1986
Monitor Ecclesiasticus III, 1986, p.390): “The good of the
spouses consist of those obligations without which it is at least
morally impossible to have the intimate union of persons and tasks
by which the spouses offer to each other mutual assistance and
service, and to which marriage is also ordered by its nature”. (cf
Gaudium et spes no.48). When this integration of persons and
tasks is seriously lacking, it is impossible to have the communion
of life (that is, the partnership of conjugal life in which marriage
essentially consists). (cf. Canon 1055 §1)” Precisely how this fits
into the case of Bernardo and Bianca is shown in Document No.XI.
This work on the natural law was
reviewed by Father John Hadley. He indicates that the author’s
purpose is to provide a clear foundation for the rule of the law.
This is to protect mankind from the danger of having human dignity
and freedom diminished by the “arrogance of social forces and the
potential arbitrary exercise of power”. He says that legal
positivism does not appear capable of guarding against such damage.
“Indeed, such legal positivism may even provide a semblance of
legitimacy for it”.
Our reviewer, however, is not totally overcome in favour of the
views of Professor Hervada. He has strictures about the author’s
ignoring St Thomas Aquinas when it comes to the definition of law.
Moreover, where the author cites positivism in his authorities,
those he cites are poles apart from our own legal positivists, (e.g.
Austin or Hart). Our reviewer welcomes an approach to the natural
law which is quite different from the traditional approach. “Perhaps
if this approach could be developed more systematically, and with a
clearer relationship with the work of other modern scholars… the
value of Hervada’s work would become more apparent”. [See Document
No.XII]
The March number 2008 of CLSN will be
the so-called “bumper number” which will celebrate the 50th
Anniversary of the Society dealing with its history and background.
After the “bumper number,” the June number 2008 will have some
information on the excommunications of the Army of Mary, and also
some writing in connection with the salvation of unbaptised persons.
There will be further jurisprudence together with a report on the
meeting of the Society in Rome in 2008.
The Holy Father appointed Cardinal
Agostino Vallini, Prefect of the Supreme Tribunal of the Apostolic
Signatura, as President of the Commission for Advocates (15
September). The Holy Father appointed as Members of the Supreme
Tribunal: Cardinal Carlo Caffarra, Archbishop of Bologna, Italy;
Cardinal Attilio Nicora, President of the Administration of the
Patrimony of the Apostolic See; and Bishop Giuseppe Versaldi of
Alessandria, Italy (15 September).
Cardinal Rosalio Castillo Lara died on
16 October, 2007. Cardinal Castillo Lara, a Salesian, died
at the age of eighty-five in Caracas, Venezuela. He was well known
to the Canon Law Society, and indeed attended a Conference of the
Society in Dublin. He was responsible for the invitation to the
Canon Law Society to send a representative to the presentation of
the Code of Canon Law to the Holy Father in 1983. He always showed
himself to be a friend of the Society. His obituary (from
L’Osservatore Romano of 24 October 2007 is at Document No.XIII.
