A Commentary on the New [1917] Code of Canon Law (vols. 1-8) [1.0]

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A COMMENTARY ON THE NEW

CODE OF CANON LAW

By THE REV. P. CHAS. AUGUSTINE, O.S.B., D.D. Professor of Canon Lanju

Volume

I

Introduction and General Rules (can. 1-86)

SIXTH EDITION, REVISED AND ENLARGED

B. HERDER BOOK CO., 15 & 17 SOUTH BROADWAY, ST. LOUIS, MO., AND 33 QUEEN SQUARE, LONDON, W.C. 1931

ALL RIGHTS RESERVED

Printed in U. S. A.

NIHIL OBSTAT Sti. Ludovici, die 22. Martii, 1931, Joannes Rothcnsteiner,

Censor Librorum IMPRIMATUR

Sti. Ludovici, die 23. Martii, 1931, •i> Joannes J. Glennon, Archiepiscopus

CUM PERMISSU SUPERIORUM

Copyright 191S BY JOSEPH GUMMERSBACH

Vail-Ballou Press, Inc., Binghamton and Xew York

FOREWORD TO THE FOURTH EDITION The three editions of this volume which followed one another since 1918 with rather unexpected rapidity were, on the whole, received kindly and welcomed by the rev­ erend clergy. Criticisms, of course, have not been want­ ing. To these we pay due attention in this new edition. To all, friends as well as critics, whose censures we wel­ come when just and made in a charitable manner, we here wish to express our sincere thanks. Those who sent us let­ ters of congratulation which we may have neglected to an­ swer are also included in this expression of gratitude. On March 19th, 1904 Pius X issued a Motu Proprio, in which he announced to the Catholic world that he was about to undertake the codification of all the laws that had emanated from the Church either in form of collections or loose and disconnected legislative decrees. This had been a desideratum of the Fathers of the Vatican Council and of many individual prelates. A Commission of Car­ dinals was established, over which the Pope himself pre­ sided. This Commission was assisted by consultors taken from canonists and theologians who belonged to the secu­ lar as well as the regular clergy. The results of their la­ bors were submitted to the Cardinals, five of whom formed, as it were, the executive committee. This in­ creased the number of consultors to twenty-five. Al­ though death caused a change in the ranks of the Cardi­ nals and consultors, yet amid all vicissitudes the famous cannonist, now Cardinal Pietro Gasparri, remained at work, sacrificing his time and even his health, in the pro­ motion of an almost superhuman task- The episcopate,

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FOREWORD

the superiors of religious orders and congregations, mem­ bers and faculties of Catholic universities were invited to give their views and express their desires. Nov. 13th, 1904, regular meetings were begun and the materials sifted, examined, and classified. The materials were taken from the Corpus luris Canonici, the Tridentine Council, papal constitutions, and decrees or decisions of the Roman Congregations. As the edition of Cardinal Gasparri shows, this programme was adhered to strictly and almost exclusively. The only exceptions are a few entirely new rules, which, however, are based more or less on recent Roman practice. At the meetings the different wota or proposals were submitted to a thorough discus­ sion, which was repeated as the importance of the sub­ ject required, and finally put to a vote. The sketch de­ cided on by the Commission was then forwarded to the consultors and their observation again submitted to the special Committee of Cardinals. The work went on si­ lently, and the secret to which all were solemnly bound, made it almost impossible for newspapers to get correct information. What leaked out came chiefly from the Or­ dinaries who had received copies of the preliminary code made up of several books for discussion at their meet­ ings.1 Even after the war had stirred Europe, and the occu­ pant of the papal throne had changed, the cheerful spirit of the Head of the Commission, who now became Car­ dinal Secretary of State, did not change. Two years after the death of Pius X, at whose behest the codification had been undertaken and during whose pontificate the matter had been " digested,” his successor was able to an­ nounce to the Cardinals assembled in secret consistory that the Code was ready. This was on Dec. 4th, 1916. 1 A. Ap. S., VIII, 466 s.

FOREWORD

iii

When Pope Benedict XV made this announcement he compared Pius X to the great lawgivers, Innocent III, Honorius III, and -Gregory IX. This compliment was fully deserved.2 The Code was promulgated on Pente­ cost day, May 27th, 1917, and declared to be in force from May 19th, 1918. That the Vatican and the Church at large feel great satisfaction after the promulgation of this monumental work is only natural. It was a colossal undertaking to gather the scattered sources into one organic and logically well constructed work, to combine the nova et vetera so as to form one uniform Code which reflects the traditional and perennial life of the Church adapted to modern cir­ cumstances and exigencies, breathing a spirit of toleration and accommodation.3 The canonist is grateful and in his heart will muse over Virgil9s verse “Redeunt Saturnia regna’” because, after a long period of relative neglect, his office again assumes its former importance. For, al­ though the advantages of the New Code are undeniable, a commentary is necessary to grasp the full meaning of the text. This calls for an observation which is alluded to in the decree of the Congregatio Semin, et Stud, of Aug. 7th, 1917, and in a letter of Benedict XV to the Patriarch of Venice.4 Both documents recommend and prescribe to the teacher of Canon Law to explain the New Code, not only synthetically, but also analytically, by closely fol­ lowing the order and text itself. The decree also calls for a historical survey, not indeed of every canon, 2 This sketch is chiefly drawn from the Praefatio of Card. Gasparri9s edition of the C. I. C. (40 ed., 1917); from the Eccl. Review, the Archiv fiir Kirchenrecht, I9I5> 1916, 1917, etc; Stutz, Der Geist des Codex Juris Canonici, 1918, pp.

3453, describes the history of Codi­ fication. 3 Stutz, l.c., p. 51, a non-Catholic canonist of great merit, gives full credit to the Code. 4 July 16th, 1017; both in A. Ap. S., ix, 381 f.; 439-

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FOREWORD

but of every institutum juridicum, i. e., a determined and defined topic, such as, for instance, election, benefices, property, penalties. No doubt, the S. Congregation thereby intended to recommend the lectura textus or read­ ing of the text in the order of the Code, as was the prac­ tice in the great centers of canonical learning in the Mid­ dle Ages with regard to civil and canon Law. It is quite intelligible that a continuous commentary should be con­ ducive to the realization of the method prescribed. Wherefore some historical notes were either prefixed or interspersed in our Commentary. We are aware that this method is not hailed by every school. Thus a complete and clear separation of the so-called dogmatic from the historical treatment of Canon Law has been loudly de­ manded. However, although it is undeniable that such a method would deepen study and knowledge, yet it would be practically impossible even at universities, unless an ex­ tended space of time were alloted to this branch. If this is true in schools for which the reading of the text, schola textus, is prescribed, it holds even more em­ phatically for seminaries, where Canon Law is generally taught in the form of < institutions,= a method derived from the so-called mos docendi gallicus. This consists or should now consist of an introduction containing a his­ torical review of the sources and literature, followed by a systematic exposition of the main subjects as treated in the Code. The division of the Code may serve as a skele­ ton, and each book should contain the chief canonical tracts as outlined in the titles. Thereby the strictly moral, liturgical and pastoral topics may be assigned to these respective branches. Such a treatment is not forbidden by the above named decree, which does not legislate for seminaries. May this Commentary contribute to a deeper study and understanding of the Code.

TABLE OF CONTENTS PAGE

FOREWORD................................................................................ i

PART I. INTRODUCTION..................................................... i Ch . I. Name and Definition of Law in General and Canon Law in Particular .................... i Ch . II. The Science of Canon Law and Its Impor ­ tance .................................................. 6 Ch . III. The Sources of Canon Law ................................ 9 Sect . i . The n. P. Ill, alleg. 73, n. 29. 10 Can. 2309.

11 Trid., Leas, iz, c. i de ref.; Richter, I. c., p. 71, n. if.; Benediet XIV, "Ad militantis," March 30, 1742, §§ 6, 10, 19, 21.

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the objects of an episcopal visitation, especially those which require a formal trial, e. g., the removal of a parish priest, the procedure against pastors refusing to comply with the law of residence, although a mere pre­ cept concerning that point would not exceed the paternal method;12 lastly, all criminal cases requiring trials. Can. 346 repeats the old and oft inculcated duty not to make the episcopal visitation disagreeable for those concerned, and more especially establishes the remunera­ tion allowed by law.13 The Code permits the procura­ tiones and expenses of the journey. By procurationes are understood food and lodging. No prescription is ad­ missible against this lawful claim of the visiting bishop.14 However, those who would have to furnish the procura