A Service Beyond All Recompense: Studies Offered in Honor of Msgr. Thomas J. Green 0813230144, 9780813230146

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A Service Beyond All Recompense

A SERVICE BEYOND ALL RECOMPENSE Essays in Honor of Monsignor Thomas J. Green edited by kurt martens

the catholic university of america washington, d.c.

Copyright  2018

The Catholic University of America Press All rights reserved

The paper used in this publication meets the minimum requirements of American National Standards for Information Science—Permanence of Paper for Printed Library materials, ANSI Z39.48-1984. ∞

Cataloging-in-Publication Data available from the Library of Congress ISBN: 978-0-8132-3014-6

Dana Rene Bowler/The Catholic University of America

Institutiones Iuris Ecclesiae II

Contents Editor’s Introduction kurt martens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Laudatio: In Praise of Monsignor Thomas J. Green john h. garvey, president, The Catholic University of America . . . . . . . . . . . . . . . . . . . . . . . . . . .  andrew v. abela, provost, The Catholic University of America . . . . . . . . . . . . . . . . . . . . . . . . . . .  monsignor j. brian bransfield, Secretary General, United States Conference of Catholic Bishops. . . . . . . . . . . . . . . . . . . . 11 monsignor ronny e. jenkins, Dean, School of Canon Law, The Catholic University of America . . . . . . . . . . . . . . . . . . . . . . . . . . .  monsignor. j. james cuneo, jcd, Diocese of Bridgeport. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 sister sharon a. euart, rsm, Executive Director, Resource Center for Religious Institutes . . . . . . . . . . . . . . . . . . . . . . . . 19 Curriculum Vitae of Monsignor Thomas J. Green

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Bibliography of Monsignor Thomas J. Green

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Studies in Honor of Monsignor Thomas J. Green robert j. kaslyn, SJ, Omnium in mentem: The Ad Intra Principles Underlying the Benedictine Emendations to the Code of Canon Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 nancy bauer, osb, The  Codex Iuris Canonici: A Holiness Code? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 kurt martens, Pastoral Solicitude and New National Interests after Post-War Territorial Changes: The Annexation of Eupen-Malmedy by Belgium after World War I . . . . . . . . . . . . 85 rose mcdermott, ssj, Promoting Communion between the Apostolic See and Institutes of Consecrated Life: Canon  Revisited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 sean o. sheridan, tor, Preaching the Joy of the Gospel . . . . . . . 139

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william l. daniel, The Reservation to the Judicial Vicar of the Introductory Stage of the Ordinary Marriage Nullity Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 john p. beal, The Tribunal Notary in North America: Glorified Secretary or Misunderstood Professional? . . . . . . . . . . . . . . . . 181

phillip j. brown, ss, Prescription and the Usefulness of Time . . . . . . . 205 ronny e. jenkins, The Case of the Missing Candles: An Illustration of Rotal Jurisprudence between its Reconstitution () and the Promulgation of the Pio-Benedictine Code of Canon Law () . . . . . 235

robert w. oliver, The Responsibilities of Judges for the Admission of Proofs in a Penal Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269

john d. faris, Particular Law and the Eastern Catholic Diaspora. . . . . . 287 jobe abbass, ofm, The Significance for the Latin Church of Eastern Canons ‒ on Ascription . . . . . . . . . . . . . . . . . . . . . . . . . . 313

kenneth pennington, The Biography of Gratian, the Father of Canon Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359

roch pagé, Can We Still Speak of the Principle of Subsidiarity in the Church? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393

james a. coriden, Canon Law as if the Holy Spirit Mattered . . . . . . . . . 413 Tabula gratulatoria

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Post-script

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kurt martens*

Introduction What type of gift do professors offer each other when they reach a significant milestone in their career or in their life? It could be a question for a quiz, and no, that is not the final exam. Such a question however has the potential of eliminating an entire class right away and keeping them from earning a passing grade. The answer is not that difficult for someone who knows the academic world. No, we do not buy flowers or a special gift in a fancy store. Rather, we offer the colleague a festschrift—in Latin a liber amicorum—prepared and written in his honor, with academic contributions from a number of select colleagues. The essays usually relate in some way to, or reflect upon, the honoree’s scholarly contributions to his field, but can, and often do, include important original research by each author. Since Monsignor Thomas J. Green is celebrating his eightieth birthday and the fifty-fifth anniversary of his priestly ordination this year, offering him such a festschrift was considered a fitting tribute to our beloved colleague. As his successor as editor of The Jurist, I feel extremely privileged that I am the editor of this volume. Before focusing on the various studies, a word of explanation about the title is most appropriate. A Service Beyond All Recompense derives from Pierre Corneille (1606–1684).1 Corneille is generally considered, along with Molière and Racine, one of the three major seventeenth-century French dramatists. The line is a quote from the tragedy Suréna, written in 1674: * Ordinary Professor, School of Canon Law, The Catholic University of America, Washington, DC. 1.  André Le Gall, Pierre Corneille en son temps et en son œuvre. Enquête sur un poète de théâtre au XVIIe siècle (Paris: Éditions Flammarion, 1997). See also: U. Meier, “Studien zur Lebensgeschichte Pierre Corneille’s,” Zeitschrift für neufranzösische Sprache und Literatur 7 (1885) 117–172.

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A service beyond all recompense Weighs so heavy that it almost gives offense.2

Suréna was the last play by Pierre Corneille who retired shortly after that; the plot of the play derived from the life of the Parthian general Surena who defeated the Romans at the Battle of Carrhae in 53 BC. The quote perfectly summarizes Monsignor Green: always ready to serve, and always without any complaint, a true gentleman in the traditional meaning of the word. We could have not found a more appropriate title. Six people with different backgrounds have graciously accepted to write a laudatio in honor of Monsignor Green. President John Garvey and Provost Andrew Abela write for the University at large and underscore the many contributions of Monsignor Green to The Catholic University of America as a scholar and a priest. Monsignor J. Brian Bransfield, General Secretary of the United States Conference of Catholic Bishops (USCCB), praises our honoree for the contributions he has made to the USCCB and the Church in the United States. Our own Dean of the School of Canon Law, Monsignor Ronny E. Jenkins, underscores that our dear colleague is just a fine human being. The same is obvious from the laudatio by Monsignor J. James Cuneo of the Diocese of Bridgeport, a dear friend to Monsignor Green. Monsignor Cuneo recalls his own personal experience, and we all can recognize in his laudatio our own experience with the honoree. Finally, Sister Sharon Euart, RSM, another dear friend to Monsignor Green, underscores once more how important our colleague has been and is for the canonical community in the United States through his lifelong service. The fifteen contributions clearly relate and reflect upon the honoree’s scholarly contributions to canon law. The topics are extremely varied, and illustrate how our colleague has been or is active in nearly every area of canon law. Virtually every book of the Code of Canon Law is covered, if not directly, at least indirectly. In the first contribution, Robert J Kaslyn uses the motu proprio Omnium in mentem of Benedict XVI to focus on a 2.  The text comes from Pierre Corneille’s Suréna [1674], act III, scene I. For the text in French, see Pierre Corneille, Théâtre complet. Texte préfacé et annoté par Pierre Lièvre, édition com­ plétée par Roger Caillois, Bibliothèque de la Pléiade 20 (Paris: Éditions Gallimard, 1950) 2: 1208: “Un service au-dessus de toute récompense “A force d’obliger tient presque lieu d’offense.”

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number of important principles of general norms. Unlike most commentators, his focus is ad intra, that is, on the code itself as a legal text and on the canonical principles that underlie such emendations. The contributions on book II of the Code are very diverse in nature. Nancy Bauer explores the idea of the 1983 Codex Iuris Canonici as a holiness code. Like the biblical Book of Leviticus, the 1983 Code of Canon Law is a legislative text. It contains norms by which the Church carries out its priestly, prophetic and governing functions and is concerned primarily with external acts. But laws, especially the laws of a community brought into being by God, are not to be dry bones. The laws of the Church presume the holiness of the people of God for whom they are made and foster the holiness of these same people. The Code of Canon Law is as much a “Holiness Code” as Leviticus 17–26. Kurt Martens studies an area close to the heart of Monsignor Green: the particular Church, and, in this case, how mundane changes affect the life of the particular Church. He looks into the territorial changes in Europe after World War I and what that meant for the particular Churches concerned. Rose McDermott revisits canon 592 and addresses its second paragraph, i.e., the responsibility of moderators of institutes and societies to promote and implement papal and curial documents referring to their members. She examines the provisions of canon 592 §2, obliging moderators of institutes of consecrated life and societies of apostolic life to promote knowledge and observance of the documents of the Holy See regarding their members. Sean Sheridan explores how the joy of the Gospel can be preached, and in a way combines books III and IV of the Code. His point of departure is Pope Francis’ apostolic exhortation Evangelii gaudium. He argues that effective preaching, both liturgical preaching and evangelizing in the non-liturgical setting, should deepen our relationship with Christ whether we are the cleric who delivers the message or the one who hears the message and is called to bring others to Christ. Given that Monsignor Green has done extensive work in procedural and penal law, five contributions focus on these aspects of the law. William L. Daniel explores the expansion of the function of judicial vicar, brought about by the August 15, 2015 reform of the marriage nullity process. Prior to these reforms, the judicial vicar had largely an extrajudicial or pre-judicial function. In addition to some of these functions, he now acts as judge in each trial precisely as judicial vicar. John P. Beal asks if the

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tribunal notary in North America is a glorified secretary or misunderstood professional. While notaries in most North American tribunals are hired for their secretarial skills and are then designated as “notaries”, the code does have another figure in mind: an official whose roles and responsibilities have been shaped by the civil law tradition of continental Europe of which canon law is a part. Phillip J. Brown offers a study on prescription and the usefulness of time, and looks into, among other elements, Roman law. The study of jurisprudence and cases can be very interesting, and Ronny E. Jenkins shows that in his study of the case of the missing candles. He takes a causa iurium for unlawful removal from office. The case arrived at the Rota in first instance shortly after its reconstitution and was decided by judicial sentence on February 1, 1912. The case remained there on appeal for two more hearings, receiving a final decision on July 14, 1913. One of the interesting aspects of the study is that it shows how the Roman Rota decided the cases in the short period between its reconstitution and the promulgation in 1917 of the first codified legislative text adopted by the Catholic Church. Moreover, the three decisions also represent an exceptionally rare instance of the Rota hearing a case from original jurisdiction to final appeal. Robert Oliver offers in his contribution the link between procedural law and penal law: he looks into the responsibilities of judges for the admission of proofs in a penal trial. He uses in a particular way the link with our honoree, by citing not a few of Monsignor Green’s publications, thus making this contribution particularly fitting for the festschrift. Our honoree has always had a keen interest in the law of the Eastern Catholic Churches, and has even taught the introductory course to our students. It is therefore very fitting to have two contributions dealing with aspects of the Codex Canonum Ecclesiarum Orientalium. Chorbishop John D. Faris focuses on particular law and the Eastern Catholic Diaspora. When the process of the elaboration of the first common code for the Eastern Catholic Churches began in 1930, the achievement of a balance between the common patrimony of all the Eastern Churches and the unique rites of the individual churches was considered the greatest challenge. As the century unfolded, an even greater challenge emerged: the creation of governance structures for Churches with faithful dispersed throughout the world. Individual rites became even more complex as they were implanted in new cultures. Both the Second Vatican Council and the Eastern Code grappled with this issue. John Faris identifies the weaknesses with the

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current arrangements. Jobe Abbass looks into the significance for the Latin Church of Eastern canons 29–38 on ascription. He takes the Explanatory Note of the Pontifical Council for Legislative Texts regarding CCEO canon 1. This document indicated that “the Latin Church is implicitly included by analogy each time that CCEO explicitly uses the term ‘Church sui iuris’ in the context of interecclesial relations.” The contribution focuses on CCEO canons 29–38 on ascription to determine the extent to which these Eastern canons expressly intend to regard or oblige even the Latin Church. Three more general studies complete this festschrift. A first one is historical in nature. Who was Gratian? Our own Kenneth Pennington writes the biography of Gratian, the father of canon law. The essay lets us discover the search for the real Gratian through the lens of various manuscripts and interpretations and readings of experts in the field. Roch Pagé examines the principle of subsidiarity and wonders if it still exists in the Church. In his encyclical letter Quadragesimo anno of May 15, 1931, Pope Pius XI noted that the natural object of any intervention of the State in social matters had, as its purpose, to assist the citizens, and not to destroy or absorb them. These preliminary words would lead to the formulation of the principle of subsidiarity and were the starting point of numerous studies which deal with subsidiarity with regard to its application in the Church. This present study is only one more effort to add a few ideas in view of helping in answering the question asked in the title. Finally, James A. Coriden, a dear friend and compagnon de route of our honoree, concludes the festschrift with an essay on the role of the Holy Spirit in canon law. It is our hope that this festschrift is truly a gift to our beloved colleague, Monsignor Thomas J. Green, priest, professor, teacher and scholar. As President Garvey writes in his laudatio: The final canon in the Code of Canon Law reminds us of the Christian’s ultimate task: “The salvation of souls, which must always be the supreme law in the Church, is to be kept before one’s eyes.” As a priest, scholar, and teacher, Msgr. Green has lived out this precept with conviction and zeal. The entire Catholic University of America gives thanks to God for the gift of Msgr. Green’s life and ministry.

We do indeed give thanks to God for the life and ministry of Monsignor Green. Ad multos annos, amice!

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As the president of The Catholic University of America, it is a privilege and a joy for me to write in praise of Monsignor Thomas Green. Msgr. Green has spent more than forty years of his priestly ministry teaching in the School of Canon Law at the University. This has been an extraordinary blessing for the University, the many men and women he has taught, and the entire Church. Msgr. Green is a towering figure in the field of Canon Law. In the postconciliar period he helped shape the revised Code of Canon Law through a series of commentaries on and critiques of the proposed revision. He has published scholarly articles on almost every aspect of Church law in The Jurist, Chicago Studies, Ecumenical Trends, The Living Light, Periodica, Revista Española de Derecho Canonico, and Studia Canonica. Msgr. Green served as editor of The Jurist from 2000 to 2011. Today he serves as a member of its editorial board. Since receiving his doctorate in Canon Law from the Pontifical Gregorian University in Rome in 1968, Msgr. Green has provided wisdom and counsel to the Church in many capacities. As a priest of the diocese of Bridgeport, Connecticut Msgr. Green served for five years in the Bridgeport chancery and on the tribunal for the diocese. He has served as consultor to the National Conference of Catholic Bishops Canonical Affairs Committee and as a member of a special task force on mixed marriages of the USCCB Secretariat of Ecumenical and Interreligious Affairs. In 1997 St.

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John Paul II made Msgr. Green a Chaplain of His Holiness and a member of the Pontifical Household for his service to the Church. It is perhaps as a teacher that Msgr. Green has done most to further Church law as a pastoral means of serving God’s people. Msgr. Green came to The Catholic University of America in 1974 after teaching for two years in the School of Divinity at Saint Louis University. Over the last forty-four years, he has taught almost every class in the Canon Law curriculum. He twice served as chair of the Department of Canon Law, before the re-establishment as a separate ecclesiastical School of Canon Law of the University in 2001. Since 1992 he has served as the Stephan Kuttner Distinguished Professor of Canon Law. Msgr. Green treats students and staff with the same respect he shows cardinals and bishops. He counsels students with wisdom, charity, and patience, and these men and women have gone on to offer invaluable service to the Church as bishops, priests, permanent deacons, and laity at the universal, provincial, and diocesan levels. The final canon in the Code of Canon Law reminds us of the Chrisultimate “The of souls, which must be the The final tian’s canon in thetask: Code of salvation Canon Law reminds us ofalways the Christian’s ultimate supreme law in the Church, is to be kept before one’s eyes.” As a priest, The salvation of souls, which must always be the supreme law in the Church, is to be kept b scholar, and teacher, Msgr. Green has lived out this precept with convicne’s eyes.” As a priest, scholar, and teacher, Msgr. Green has lived out this precept tion and zeal. The entire Catholic University of America gives thanks to onviction and zeal. entire University of ministry. AmericaWegives thanks GodThe for the gift Catholic of Msgr. Green’s life and ask the Lord to to God for the g Msgr. Green’s lifebless andMsgr. ministry. WeGreen ask the to bless Msgr. Thomas Thomas as heLord continues to run in the way of Green God’s as he continu n in the way of commands. God’s commands.

John Garvey John Garvey President President



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CUA

Office of the Provost Washington, DC 20064 202-319-5244 FAX 202-319-5199



It is my great pleasure as Provost of the Catholic University of America to contribute some words in honor of Msgr. Tom Green—recognizing at the same time that even this entire volume cannot do justice to his lifetime of scholarly contributions to the Church. Professionalism and service are certainly two of the myriad contributions that Msgr. Green has made to The Catholic University of America community over the past forty years. The roles of priest and scholar exist in Msgr. Green as a fruitful partnership, the one informing the other, to the delight and benefit of all who know him. A diligent professor, Msgr. Green holds his students to the same high standards by which he conducts his own scholarly research. At the same time, his spirit of cordiality and service endears him to his students and colleagues alike. Indeed, Msgr. Green embodies that rare combination of priest and scholar of which Pope Francis spoke in an address to the Roman Curia: I have such high regard for these “Monsignori” who are cut from the same mould as the curiales of olden times, exemplary persons . . . We need them today, too! People who work with competence, precision and self-sacrifice in the fulfilment of their daily duties. . . . They are also an example, and their example and their witness make me think of two hallmarks of the curial

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official, and even more of curial superiors, which I would like to emphasize: professionalism and service. Professionalism, by which I mean competence, study, keeping abreast of things… This is a basic requisite for working in the Curia. Naturally, professionalism is something which develops, and is in part acquired; but I think that, precisely for it to develop and to be acquired, there has to be a good foundation from the outset. The second hallmark is service: service to the Pope and to the bishops, to the universal Church and to the particular Churches. In the Roman Curia, one learns—in a special way, “one breathes in”—this twofold aspect of the Church, this interplay of the universal and the particular. I think that this is one of the finest experiences of those who live and work in Rome: “to sense” the Church in this way.1

I have never had the privilege of taking one of Msgr. Green’s classes. However, I do have a good sense of him as a teacher because of the numerous occasions when I have listened to him preach at the 12:30pm daily mass in Caldwell Chapel. Many times have I been moved and inspired by his thoughtful and heartfelt words. Msgr. Green delivers homilies that are well-organized, intelligent and full of conviction, once again demonstrating that the scholarly priest and the devout scholar make an admirable combination. I thank Msgr. Green for his dedication to the School of Canon Law, to the University as a whole, and above all, to the souls entrusted to his priestly care. We are all grateful for the gift of Msgr. Green’s presence at our University. He is a bulwark of wisdom, a fine example of academic excellence and integrity, and a haven of generosity and kindness.

Andrew V. Abela, Ph.D. Provost 1.  Francis, Christmas greetings to the Roman Curia, December 21, 2013: L’Osservatore Romano. Weekly Edition in English 47/1 ( January 3, 2014) 6.

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T H E C AT H O L I C U N I V E R S I T Y O F A M E R I C A

CUA

The Catholic University Of America Office of the Provost School of Canon Law Washington, DC 20064 Office of the Dean 202-319-5244 FAX 202-319-5199

As we walk on the path of life, the mentors and teachers we first meet seem larger than life and of a stature we are sure we will never reach. But with time and much support and hard work, we begin to feel more at home with those who prepared our way. We become a bit less wide-eyed, more familiar with them, and confident we can draw closer to what they represent. At least that is often how it happens. I met Monsignor Thomas Green when I began my studies in canon law at The Catholic University of America some 25 years ago. He was to me from the outset a giant whose depth of knowledge of the law, dedication to its study and teaching, and high degree of personal integrity were something I sensed I would never attain. That remains the case today. The Festschrift that now honors him honors a devoted priest, noted scholar, and constant gentleman. In a turn of phrase that Tom might use (to describe others), “He’s just a fine human being.” Monsignor Green is recognized by his colleagues for his extensive and growing body of scholarly works in canonical studies. He has left his mark on countless students over several decades of teaching. And throughout he has always shown a remarkable ability to ask the right questions about the promises of the future while holding fast to the changeless beauty of the past. And he achieves it all by persistent, dedicated, daily efforts.

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Together with my esteemed colleagues on the faculty of the School of Canon Law, I offer heartfelt congratulations and endless gratitude to Monsignor Tom Green for his lifetime of faithful service to the School of Canon Law and on the publication of this worthy Festschrift in his honor— Ad multos annos!

Monsignor Ronny E. Jenkins, Dean

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Laudatio CONGRATULATIONS, Monsignor Thomas J. Green, for the honor of a Festschrift being published on the occasion of your eightieth birthday. We celebrate your many years of service to the Catholic University of America and to the Church. You have always used your talents to help the Church as the Body of Christ and to assist personally many individuals. You have been a good friend and advisor to me since July in 1964. At that time you were a newly ordained priest just returning to the Diocese of Bridgeport from the North American College in Rome. The Diocese was asking me to accept an assignment to complete seminary training in Rome. You provided valuable information and encouraged me to overcome fears of leaving home for four years to study in such a different environment. Following your advice I joined seventy-five new classmates and a rewarding and exciting period of education in theology at the Gregorian University with almost daily immersion into ongoing discussions from the Second Vatican Council. In fact you, too, returned to Rome in the same period to pursue studies in canon law. Ever since those years you have been kind and helpful to me. Along with so many people, who know you, I thank you for your generous outreach and concern for us. As we honor Monsignor Tom Green for his services in the Church and at the Catholic University of America, we want to call attention to our late Bishop of Bridgeport, Most Reverend Walter W. Curtis. During one of the meetings of our Presbyteral Council Bishop Curtis spoke of the Second Vatican Council’s directives for a wider distribution of priests throughout the world, to help local churches with few vocations. Some local pastors expressed concern that such distribution would leave our local parishes without enough priests. Bishop Curtis answered: “Any diocese which is stingy with its priests to serve others, will not receive enough vocations to the priesthood for ourselves.” It should be known, then, that Bishop Curtis

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took great delight in releasing priests from the Diocese to undertake special studies and assignments outside the Diocese: Military Ordinariate, universities, missionary work in Peru and Brazil, full time positions with Committees of the Episcopal Conference and with national organizations or ministries. Thus, it was Bishop Curtis who recognized Tom Green’s interests and talents and released him from local assignments to offer his priestly and canonical gifts beyond diocesan borders. That leads me to call attention to the fact that Monsignor Green is always a priest while functioning as professor and canon lawyer. Hardly a day goes by when he does not concelebrate the Eucharist and pray the Liturgy of the Hours with other priests at Curley Hall. When visiting us at home in Stratford, Connecticut, he assists us in the parish. One may approach Monsignor Green for spiritual direction, personal advice as well as for canonical opinions. Now, when it comes to Monsignor Green and Canon Law, the two are almost inseparable. He maintains every text book, manual, document imaginable in his office and Curley Hall libraries. He still may have in his possession some books or periodicals belonging to the Tribunal of the Diocese of Bridgeport taken from back in the early 1970’s! Although so many resources in Canon Law are available to him in hard copy, this material remains also firmly accessible in his own mind, ready for dissemination to bishops, students, other members of the faculty, to friends and to anyone who calls upon him for information useful to solve problems or to direct the study of students. Monsignor lives with his books, articles and knowledge; he gives his life to learn and teach and serve. When he visits us in Bridgeport he brings literature and manuscripts for study or proofread while away from the CUA campus. Monsignor Green can be demanding on students writing dissertations or taking exams. I know his intention is to help each person become the best possible canon lawyer, upon whom dioceses, institutes of consecrated life, universities and any member of the Christian faithful will be able to depend. Monsignor Green shares with me and others the experience of studying many years under Jesuit teachers: first at Fairfield College Preparatory School in Connecticut and then at the Gregorian University in Rome for both theology and canon law. We can see in Monsignor Green’s dedication what we admired in so many Jesuit mentors. Our professors at the “Greg” lived simple lives. They resided in single rooms, sparsely furnished

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with bed, sink, desk, two or three chairs, a lonely light fixture hanging from the ceiling over their desks. Of course the room was filled with books and papers everywhere. From that austere, physical environment, they explored the sacred sciences: researching, writing books and articles, teaching multiple classes, advising the Roman Curia and Churches worldwide, directing theses, and receiving individuals knocking at their doors asking for help. They did this for decades, one generation to the next. In his own wonderful way Monsignor Doctor Professor Thomas J. Green exemplifies that beautiful characteristic of the best of canon lawyers. God bless you, Tom. Thank you. AD MULTOS ANNOS. AMDG! Rev. Msgr. J. James Cuneo, JCD Diocese of Bridgeport

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Laudatio It is truly an honor for me to offer a laudatio for Monsignor Thomas J. Green in celebration of his eightieth birthday. I am grateful to Dr. Kurt Martens for his kind invitation to contribute to this Festschrift in recognition of Monsignor Green. I first met Msgr. Green when I was a student of canon law at the Catholic University of America shortly after the promulgation of the revised Code of Canon Law. Later, during my service at the then-National conference of Catholic Bishops, Msgr. Green’s generous spirit was evident in the canonical advice and service he often provided to the Canonical Affairs Committee. Over the years I have had the privilege of working with him on the faculty at the Catholic University of America as a visiting lecturer and as a member of the Canon Law Society of America. I welcome this special opportunity to express gratitude to Msgr. Green for his academic excellence, his scholarly and pastoral commitment and for his past and continuing contributions to the field of canon law. I offer heartfelt congratulations and best wishes to Msgr. Green not only in celebration of his eightieth birthday but also for his outstanding service to our Church and the Canon Law community as a priest, scholar, teacher and practitioner of the law. A member of the Canon Law Society of America for forty-six years and a consultant to bishops and church leaders, Msgr. Green’s contributions are numerous. His service to the Society has not only been generous but remarkable—from presenter at conventions, member of committees, and consultor on the Board of Governors, to his work on the code revision process and coordination of the U.S. participation in the preparation and review of the various schemata and their critiques leading to the 1983 Code of Canon Law, and his service as an Editor of the CLSA’s two commentaries on the revised Code of Canon Law. His scholarship, service and willingness to accept that extra responsibility with gracious cheerfulness

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exemplify the qualities recognized in the Society’s prestigious Role of Law Award which Msgr. Green received in 1975. In the Citation for the award, Monsignor William A. Varvaro, then-President of the CLSA, described Msgr. Green as a “true son of the conciliar age . . . a master teacher, a master canonist, a Magister Juris.” Colleagues recognize Msgr. Green as a careful interpreter of the law, clarifying its meaning as well as its applicability to diocesan and parish life, ecumenical relations and church structures. In the 1979 Report on the People of God Schema, Msgr. Green referred to the historically-contingent character of much of the revised law, stating that “we need to emphasize that if the law is really to serve the Church in a time of significant institutional change, we must develop and continually refine instruments for its ongoing rethinking and reformulation.” Almost forty years later, his message remains timely. Thank you, Tom, for your service to the Church and generations of canon lawyers, your ministry of justice and compassion, your friendship over the years, and for your example of dedication, service and love of God. Congratulations, best wishes and abundant blessings in the years ahead! Sister Sharon A. Euart, RSM Executive Director Resource Center for Religious Institutes

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Curriculum Vitae of Rev. Msgr. Thomas J. Green 1) 2) 3) 4) 5) 6) 7) 8) 9) 10) 11) 12) 13) 14) 15)

December 1963: Ordained priest for Diocese of Bridgeport. June 1964: STL-Pontifical Gregorian University. June 1968: JCD-Pontifical Gregorian University. August 1968–July 1973: Chancery and tribunal, Diocese of Bridgeport. October 1970–October 1971: Secretary, Canon Law Society of America (CLSA) Board of Governors. January 1972–August 1974: Part-time teaching, St. Louis University, School of Divinity. September 1974– : Department of Canon Law, Catholic University. October 1974–October 1977: Consultor, CLSA Board of Governors. November 1978–November 1987; November 1990–1993: Consultor, NCCB Canonical Affairs Committee. October 1985—Recipient of Canon Law Society of America Role of Law Award. August 1984–August 1987: Chairperson, Department of Canon Law, Catholic University of America. September 1992—Chosen to occupy Stephan Kuttner Distinguished Professor of Canon Law chair. October 1994–October 1996: Consultor, CLSA Board of Governors. March 1997—Member of official USCCB Polish National CatholicRoman Catholic Dialogue. August 1999—Member of international Peter and Paul Seminar on Theology-Canon Law Relationships.

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16) 17) 18) 19)

January 2000–August 2000: Acting chair, Department of Canon Law. September 2000–December 2011: Editor, The Jurist. December 2011—Member of editorial board of The Jurist. September 2005–August 2008: Member of Catholic University Academic Senate Committee on Appointments and Promotions. 20) September 2010–August 2012: Member of Catholic University Academic Senate Faculty Grievance Committee. 21) October 2011–October 2015: Member of CLSA Publications Advisory Board. 22) December 2012—Member of special task force on mixed marriages of USCCB Secretariat of Ecumenical and Interreligious Affairs. Articles in Chicago Studies, Ecumenical Trends, The Jurist, Living Light, Period­ ica, Revista Espanola de Derecho Canonico, Studia canonica, Studies in Church Law, Eastern Legal Thought. Co-editor of The Code of Canon Law: a Text and Commentary Commissioned by the Canon Law Society of America (New York/Mahwah: Paulist Press, 1985). Co-editor of A New Commentary on the Code of Canon Law (NewYork/Mahwah: Paulist Press, 2000).

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Bibliography of Rev. Msgr. Thomas J. Green The Principle and Practice of Lay Consultation in the Church (selected excerpts) Rome: Pontifical Gregorian University, 1968. “The American Procedural Norms—An Assessment.” Studia canonica 8 (1974) 317–347. “Report of a Special Committee of the Task Force of the Canon Law Society of America on the Proposed Schema De delictis et poenis.” CLSA Proceedings 36 (1975) 130–141. “The Future of Penal Law in the Church.” The Jurist 35 (1975) 212–275. “Sacramental Law: Reflections on the Proposed Schema.” CLSA Proceedings 37 (1976) 70–83. “Report of a Special Committee of the Task Force of the Canon Law Society of America on the Marriage Canons of the Proposed Schema Documenti Pontificii quo Disciplina Canonica de Sacramentis Recognoscitur.” CLSA Proceedings 37 (1976) 205–217. “Reflections on the Other Parts of the Proposed Draft De Sacramentis.” CLSA Pro­ ceedings 37 (1976) 194–205. “The Revision of Marriage Law: An Exposition and Critique.” Studia canonica 10 (1976) 363–410. “The Revision of the Code: The First Decade.” The Jurist 38 (1978) 353–441. “Homosexuality and the Validity of Marriage: The Developing Jurisprudence.” Linacre Quarterly 43 (1976) 196–207. “Canonical-Pastoral Reflections on Divorce and Remarriage.” Living Light 13 (1976) 560–576. Reprinted in Ministering to the Divorced Catholic, ed. James Young, C.S.P. (New York: Paulist Press, 1979) 138–156.

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“The Revision of Sacramental Law: Perspectives on the Sacraments other than Marriage.” Studia canonica 11 (1977) 261–328. “Reflections on De Processibus.” CLSA Proceedings 39 (1977) 63–81. “A Living Jurisprudence.” Concilium 107 (1977) 47–58 (U.S. edition). “The Revision of Canon Law: Progress and Problems.” The Priest 33 (October 1977) 34–41. “Marriage Nullity Procedures in the Schema De Processibus.” The Jurist 38 (1978) 311–414. “Reflections on the People of God Schema.” CLSA Proceedings 40 (1978) 13–33. “Psychological Grounds for Church Annulments—Changing Canonical Practice.” Social Thought 4 (1978) 47–59. Reprinted in Catholic Mind 77 (February 1979) 35–50. “The Revision of Canon Law: Theological Implications.” Theological Studies 40 (1979) 593–679. “Ministering to Marital Failure.” Chicago Studies 18 (1979) 327–344. “Educating for the New Law.” CLSA Proceedings 41 (1979) 32–36. “Critical Reflections on the Schema on the People of God.” Studia canonica 14 (1980) 235–322. “The Revised Schema De Matrimonio: Text and Reflections.” The Jurist 40 (1980) 57–127. “The Revision of the Procedural Law Schema: Implications for Tribunal Practice.” The Jurist 40 (1980) 349–383. “Reflections on Penal Law Reform.” CLSA Proceedings 42 (1980) 179–187. “Penal Law Revisited: The Revision of the Penal Law Schema.” Studia canonica 15 (1981) 135–198. “The Revision of Canon Law: A Progress Report.” Chicago Studies 20 (1981) 207–232. “The Use of Vatican II Texts in the Draft De Populo Dei.” Concilium 147 (1981) 45–53 (English language edition). “The Bishop in the Revised Code: Some Introductory Reflections.” The Jurist 42 (1982) 320–347. A Manual for Bishops: Rights and Responsibilities of Diocesan Bishops in the Revised Code of Canon Law (Washington: United States Catholic Conference, 1983). “Sacramental Law Revisited: Reflections on the Revision of the Sacramental Law Schema.” Studia canonica 17 (1983) 277–330. “Rights and Duties of Diocesan Bishops.” CLSA Proceedings 45 (1983) 18–36.

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“The Church’s Sanctifying Office: Reflections on Selected Canons in the Revised Code.” The Jurist 44 (1984) 357–411. The Code of Canon Law: A Text and Commentary (New York/Mahwah: Paulist Press, 1985) (co-editor with James A. Coriden and Donald E. Heintschel and author of “Particular Churches”, “Bishops”, and “The Impeded and Vacant See”: 311–349; “Sanctions in the Church”: 891–942; “Penal Procedure”: 1023–1028; “Recourse Against Administrative Decrees”: 1031–1034). “Persons and Structures in the Church: Reflections on Selected Issues in Book II.” The Jurist 45 (1985) 24–94. “The Revised Code of Canon Law: Some Theological Issues.” Theological Studies 47 (1986) 617–652. “Annulments (Procedures).” The New Catholic Encyclopedia, vol. 18. “Censures.” The New Catholic Encyclopedia, vol. 18. “Excommunication.” The New Catholic Encyclopedia, vol. 18. “Subsidiarity during the Code Revision Process: Some Initial Reflections.” The Jurist 48 (1988) 771–799. “Report of the Canon Law Society of America Committee on Women in the Church on Partners in the Mystery of Redemption.” CLSA Proceedings 50 (1988) 327–346 (co-author). “The Normative Role of the Episcopal Conferences in the 1983 Code.” In Episco­ pal Conferences: Historical, Canonical, and Theological Studies, ed. Thomas Reese (Washington: Georgetown University Press, 1989) 137–176. “The Pastoral Governance Role of the Diocesan Bishop: Foundation, Scope and Limitations.” The Jurist 49 (1989) 472–506. “Episcopal Conferences: Some Normative and Doctrinal Considerations.” CLSA Proceedings 51 (1989) 123–136. “The Code Revision Process: The Involvement of the Canon Law Society of America.” Revista Española de Derecho Canonico 47 (1990) 517–541. “The Church’s Sanctifying Mission: Some Aspects of the Role of Episcopal Conferences.” In Studies in Canon Law Presented to P.J.M. Huizing, ed. J. Provost and K. Walf (Leuven: Peeters, 1991) 57–88. “Penal Law Revision: A Review of Selected Themes.” The Jurist 50 (1990) 221–256. “Report of the Canon Law Society of America Committee on Women in the Church on One in Christ Jesus: A Pastoral Response to the Concerns of Women for Church and Society.” CLSA Proceedings 52 (1990) 293–308 (co-author).

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“The Church’s Sanctifying Mission: Some Aspects of the Normative Role of the Diocesan Bishop.” Studia canonica 25 (1991) 245–276. “Reflections on the Eastern Code Revision Process.” The Jurist 51 (1991) 18–37. “The Church’s Teaching Mission: Some Aspects of the Normative Role of the Episcopal Conferences.” Studia canonica 27 (1993) 23–58. “The Canon Law Society of America and the Revision of the Code: Historical Reflections and Continuing Concerns.” The Jurist 53 (1993) 1–21. “Deliberative Vote for Retired Bishops in Teaching Matters.” The Jurist 54 (1994) 1–21. “Penal law in the Latin Code and in the Code of Canons of the Eastern Churches; Some Comparative Reflections.” Studia canonica 28 (1994) 407–451. “The Teaching Function of the Church: A Comparison of Selected Canons on the Latin and Eastern Codes.” The Jurist 55 (1995) 93–140. “Changing Ecumenical Horizons: Their Impact on the 1983 Code.” The Jurist 56 (1996) 427–455. “Shepherding the Patrimony of the Poor: Diocesan and Parish Structures of Financial Administration.” The Jurist 56 (1996) 706–734. “The Fostering of Ecumenism: Comparative Reflections on the Latin and Eastern Codes.” Periodica 85 (1996) 397–444. “The 1993 Ecumenical Directory: Some Initial Responses.” Ecumenical Trends 27/1 ( January 1997) 1–11. “Diocesan and Parish Structures: A Comparison of Selected Canons in the Codex Iuris Canonici and the Codex Canonum Ecclesiarum Orientalium.” Studia cano­ nica 33 (1999) 349–398. “The Latin and Eastern Code: Guiding Principles.” The Jurist 62 (2002) 235–279. “Procedural Law: Some Comparative Reflections on the Latin and Eastern Codes.” In Art of the Good and Equitable A Festschrift in Honor of Lawrence G. Wrenn, ed. Frederick C. Easton 103–124, Washington: CLSA, 2002. “Clerical Sexual Abuse of Minors. Some Canonical Reflections.” The Jurist 63 (2003) 366–425. “The Legislative Competency of the Episcopal Conference: Present Situation and Future Possibilities.” In Canon Law. Consultation, and Consolation Monsignor W. Onclin Chair 2003. 43–98. Louvain: Peeters, 2003. “The Legislative Competency of the Episcopal Conference: Present Situation and Future Possibilities in Light of Eastern Synodal Experience.” The Jurist 64 (2004) 284–331.

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“Lex Fundamentalis: the Law Within.” Canon Law Society of America Proceedings (2005) 21–76. “Background Checks of Diocesan/Eparchial Personnel. “ In CLSA Advisory Opin­ ions, ed. Arthur Espelage. 85–94. Alexandria, VA: CLSA, 2006. “The 2004 Directory on the Ministry of Bishops: Reflections on Episcopal Governance in a Time of Crisis.” Studia canonica 41 (2007) 117–151. “The 1982 Papal Consultation Concluding the 1917 Code Revision Process.” The Jurist 67 (2007) 364–431. “Challenges to Episcopal Governance: Reflections in Light of the 2004 Directory on the Pastoral Ministry of Bishops and other Pertinent Documents.” The Jurist 68 (2008) 418–459. “Selected Issues in Divine Worship/Sacraments in the Latin and Eastern Codes; A Comparative Study.” Studies in Church Law 4 (2008) 81–108. “The Parish: Theological and Canonical Parameters.” The Jurist 69 (2009) 213–236. “Selected Issues in Developing Structures of Diocesan Communion.” The Jurist 69 (2009) 418–441. “Apostolic Constituion Anglicanorum coetibus Providing for Personal Ordinariates for Anglicans Entering into Full Communion with The Catholic Church: Some Initial Observations.” CLSA Newsletter (December 2009) 5–7. “Lay Ministries in the Church; Comparative Reflections on the Latin and Eastern Codes,” In Essays in Honor of Sister Rose McDermott, SSJ, ed. Robert J . Kaslyn, S.J. Institutiones Iuris Ecclesiae I School of Canon Law 35–62. Washington: CUA, 2010. “Some Canonical Reflections on Ecumenical Issues.” Ecumenical Trends 39/9 (October 2010) 134–143. “Sacramentorum Sanctitatis Tutela: Reflections on the Revised May 2010 Norms on More Serious Delicts.” The Jurist 71 (2011) 120–158. “Selected Legislative Structures in Service of Ecclesial Reform.” The Jurist 71 (2011) 422–449. “The Players in the Church’s Temporal Goods World.” The Jurist 72 (2012) 63–75. “Penal Law: an Eastern Perspective (CCEO 1401–1487).” Studies in Church Law 8 (2012) 87–114. A Canonist’s Perspective on Harvesting the Fruits.” Ecumenical Trends 42/2 (February 2013) 1–11; 14.

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“CDF Circular Letter on Episcopal Conference Guidelines for Cases of Sexual Abuse of Minors: Some Initial Observations.” The Jurist 73 (2013) 151–180. “Initial Reflections on the Schema Recognitionis Libri VI Codicis Iuris Canonici,” Stu­ dia canonica 50 (2016) 5–29. “Mitis et Misericors Iesus: Some Initial Reflections.” Eastern Legal Thought 12 (2016) 107–164. “Ecclesial Conversion: Some Canonical Reflections.” In Conversion and Church: The Challenge of Renewal. Brill Studies in Catholic Theology 2. Ed. Stephan van Erp and Karim Schelkens. 226–243. Leiden and Boston: Brill, 2016. “The Processus Matrimonialis Brevior coram Episcopo: Initial Comments on Mitis et Misericors 1369–1373.” Eastern Legal Thought 13 (2017) 103–156.

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r o b e r t j . k a s ly n , s j *

Omnium in mentem: The Ad Intra Principles Underlying the Benedictine Emendations to the Code of Canon Law Prefatory Dedication

This contribution to the festschrift in honor of Msgr. Green reflects his interest in the Code of Canon Law as a unified text, revised according to certain principles and, in turn, as I argue below, guided by significant principles that determine its internal consistency. In gratitude for Msgr. Green’s multifarious contributions to the School of Canon Law and the Catholic University of America, I dedicate this article.

Introduction

On October 26, 2009, Pope Benedict XVI issued the motu proprio Omnium in mentem1 by which he emended the Code of Canon Law promulgated on January 25, 1983. The Pontiff declared these emendations to have the force of law and to be promulgated in the Acta Apostolicae Sedis; as such, the emendations became effective on April 9, 2010.2 * Associate Professor, School of Canon Law, The Catholic University of America, Washington, DC. 1.  Benedict XVI, motu proprio Omnium in mentem, October 26, 2009: AAS 102 (2010) 8–10. Unofficial translation in Canon Law Society of Great Britain and Ireland Newsletter 161 (March 2010) 16–18. 2. See Codex Iuris Canonici auctoritate Ioannis Pauli PP. II promulgatus (Vatican City: Libreria Editrice Vaticana, 1983) cc. 8 (on promulgation and effectiveness of law) and 203 (calculating

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The emendations in the law directly impacted the codal treatment of two sacraments, marriage (Title VII, de matrimonio) and orders (Title VI, de ordine). In reference to the latter, canon 1008—the first canon in Title VI— was altered in its wording and an additional paragraph was added to canon 1009. In reference to marriage, references to defection from the Church by formal act were deleted from canons 1086, 1117, and 1124.3 Both sets of emendations have important implications for canonical interpretation and application and both sets affect the theology of each sacrament as that is presented in the code. The alterations to the canons concerning marriage had a more immediate, practical consequence from the moment of their effectiveness: succinctly, the Catholic Church would consider certain marriages as either valid or invalid, depending upon whether they were celebrated prior to midnight on April 8, 2010 or from 12.01 A.M. on April 9, 2010. Two distinct approaches may be taken to the changes enacted through Omnium in mentem. The first focuses ad extra, used in this case as referring to the life of the Church that has been affected by the canons as promulgated and in consequence of such changes in the Code of Canon Law.4 The second approach, the focus of this essay, focuses ad intra, that is, on the code itself as a legal text and on the canonical principles that underlie such emendations. Of course, the code itself aims at serving the people of God and thus is directed ad extra but that aim is better fulfilled the more that the essential internal principles and presuppositions are understood. This analysis will lead to a series of principles illustrated by the Benedictine emendations but which, I argue, underlie the code taken as a whole and, further, determine the applicability and interpretation of the law as well as illustrate the relationship between theology and canon law. periods of time). English translation of the canons will be taken from Code of Canon Law, Latin-English Edition: New English Translation (Washington, DC: CLSA, 1998). 3.  The deletions were as follows: from c 1086 §1, “nec actu formali ab ea defecerit;” from c. 1117, “neque actu formali ab ea defecerit;” and from c. 1124, “ne ab ea actu formali defecerit.” 4.  See the article by Philippe Hallein, “Le motu proprio Omnium in mentem et les conséquences canoniques des modifications,” Studia canonica 45 (2011) 411–442. In his conclusion, he states on p. 440: “Le motu proprio Omnium in mentem a voulu résoudre deux problèmes: le «agere in persona Christi Capitis» modifié pour les diacres dans le texte du Catéchisme de l’Église Catholique et les problèmes sur la forme canonique de ceux qui ont quitté l’Église par un acte formel. La première modification ne soulève pas de problèmes juridiques. La deuxième modification prête plus à discussion. Il est clair que le motu proprio Omnium in mentem a opté pour le certitude du droit.”

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The emendations deriving from Omnium in mentem directly influence the canon law concerning two sacraments, marriage and orders. To approach this analysis logically and coherently, I will begin with the texts of the canons prior and consequent to Omnium in mentem. From this foundation follows an overview of ius canonicum and the binding nature of Church law and those persons so bound. I will then turn to a discussion of divine / natural law in distinction to human law and its application to the code. From this foundation, I will turn to canonical form in reference to the valid exchange of consent and various attempts by the Church to regulate those required to follow such form. In conclusion to this section, I will elaborate three principles in reference to the interpretation of the Code. Consequently, I will examine the changes in reference to the sacrament of orders; the three orders of the one sacrament are the diaconate, the presbyterate and the episcopate. Omnium in mentem directly affected the codal presentation of the theology of the diaconate in clarifying terminology used in reference to the sacrament. Such emendations were intended to offer a consistent overview of the sacrament of orders reflecting both the apostolic tradition of the diaconate and its restoration after Vatican II. As primarily theological statements, the emended canons 1008 and 1009 offer the theological context for a proper understanding of the canonical treatment of the sacrament of orders in the canons which follow. I will summarize this analysis from the perspective of the three principles already expressed and then offer concluding remarks.

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Emendations in the Code of Canon Law

The following chart presents the texts of the canons as promulgated by Pope John Paul II on January 25, 1983 and the same canons as emended by Pope Benedict XVI, which changes became effective April 9, 2010. Familiarity with the texts is necessary in order to understand not only the specific changes but the underlying theological and canonical rationale for such emendations in the Code.

1983 CIC As Promulgated

As Emended by Omnium in mentem

Latin Emended Text

A marriage between two persons, one of whom was baptized in the Catholic Church or received into it, and the other of whom is not baptized, is invalid.

Matrimonium inter duas personas, quarum altera sit baptizata in Ecclesia catholica vel in eandem recepta et altera non baptizata, invalidum est.

The form prescribed above must be observed if at least one of the parties contracting the marriage was baptized in the Catholic Church or received into it, without prejudice to the provisions of can. 1127 §2.

Statuta superius forma servanda est, si saltem alterutra pars matrimonium contrahentium in Ecclesia catholica baptizata vel in eandem recepta sit salvis praescriptis can. 1127 §2.

Canon 1086 §1. A marriage between two persons, one of whom has been baptized in the Catholic Church or received into it and has not defected from it by a formal act and the other of whom is not baptized, is invalid.

Canon 1117 The form established above must be observed if at least one of the parties contracting marriage was baptized in the Catholic Church or received into it and has not defected from it by a formal act, without prejudice to the prescripts of can. 1127 §2.

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Canon 1124 Without express permission of the competent authority, a marriage is prohibited between two baptized persons of whom one is baptized in the Catholic Church or received into it after baptism and has not defected from it by a formal act and the other of whom is enrolled in a Church or ecclesial community not in full communion with the Catholic Church.

Marriage between two baptized persons, one of whom was baptized in the Catholic Church or received into it after baptism, and the other a member of a Church or ecclesial community not in full communion with the Catholic Church, cannot be celebrated without the express permission of the competent authority.

Matrimonium inter duas personas baptizatas, quarum altera sit in Ecclesia catholica baptizata vel in eandem post baptismum recepta, altera vero Ecclesiae vel communitati ecclesiali plenam communionem cum Ecclesia catholica non habenti adscripta, sine expressa auctoritatis competentis licentia prohibitum est.

By divine institution, some of the Christian faithful are marked with an indelible character and constituted as sacred ministers by the sacrament of holy orders. They are thus consecrated and deputed so that, each according to his own grade, they may serve the People of God by a new and specific title.

Sacramento ordinis ex divina institutione inter christifideles quidam, charactere indelebili quo signantur, constituuntur sacri ministri, qui nempe consecrantur et deputantur ut, pro suo quisque gradu novo et peculiari titulo Dei populo inserviant.

Canon 1008 By divine institution, the sacrament of orders establishes some among the Christian faithful as sacred ministers through an indelible character which marks them. They are consecrated and designated, each according to his grade, to nourish the people of God, fulfilling in the person of Christ the Head the functions of teaching, sanctifying, and governing so that they may serve the People of God by a new and specific title

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Canon 1009 §1. The orders are the episcopate, the presbyterate, and the diaconate. §2. They are conferred by the imposition of hands and the consecratory prayer which the liturgical books prescribe for the individual grades. §3. Those who are constituted in the order of the episcopate or the presbyterate receive the mission and capacity to act in the person of Christ the Head, whereas deacons are empowered to serve the People of God in the ministries of the liturgy, the word, and charity

§1. The orders are the episcopate, the presbyterate, and the diaconate. §2. They are conferred by the imposition of hands and the consecratory prayer which the liturgical books prescribe for the individual grades. §3 Those who are constituted in the order of the episcopate or the presbyterate receive the mission and capacity to act in the person of Christ the Head, whereas deacons are empowered to serve the People of God in the ministries of the liturgy, the word and charity.

§1. Ordines sunt episcopatus, presbyteratus et diaconatus. §2. Conferuntur manuum impositione et precatione consecratoria, quam pro singulis gradibus libri liturgici praescribunt. §3. Qui constituti sunt in ordine episcopatus aut presbyteratus missionem et facultatem agendi in persona Christi Capitis accipiunt, diaconi vero vim populo Dei serviendi in diaconia liturgiae, verbi, et caritatis

Ius Canonicum and the Binding Nature of Church Law

Broadly understood, the term ius canonicum encompasses a variety of ordi­ nationes5 that structure the life of the Church: lex in the technical sense; 5. According to Charlton Lewis and Charles Short, A Latin Dictionary (Oxford, Clarendon Press, 1955), one definition of ordinatio, onis is “an orderly regulation of state affairs, rule;” “a regulation, ordinance, decree, edict of an emperor: cum rerum omnium ordinatio . . . observanda sit, tum, etc.” As a consequence of such usage, then, ordinatio also included “an

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decrees, instructions, and other documentation issued by those with executive power of governance; statutes of public juridic persons; proper law of institutes and societies of consecrated life; divine / natural law. Such a list of various ordinationes reflect, inter alii, the fundamental distinction between divine / natural law and legibus mere ecclesiasticis as used in the 1983 Code of Canon Law in canons 116 and 85.7 The distinction between divine / natural law and merely ecclesiastical law is integral to canonical interpretation and application;8 dispensations—relaxations of the law in a particular situation—apply, as a general rule, only to merely ecclesiastical laws and not to divine / natural laws.9 appointing to office, installation of magistrates, governors” whereby the term came to apply to the sacramental conferring of sacred orders. 6.  Canon 11: “Merely ecclesiastical laws bind those who have been baptized in the Catholic Church or received into it, possess the sufficient use of reason, and, unless the law expressly provides otherwise, have completed seven years of age.” 7.  Canon 85: “A dispensation, or the relaxation of a merely ecclesiastical law in a particular case, can be granted by those who possess executive power within the limits of their competence, as well as by those who have the power to dispense explicitly or implicitly either by the law itself or by legitimate delegation.” 8.  The distinction between divine and natural law must be maintained even if in a particular case determining whether a particular norm is or is derived from divine law or is or is derived from divine natural law is difficult if not impossible; hence, my use of the phrase divine / natural law. See, e.g., John Coughlin, Canon Law. A Comparative Study with AngloAmerican Legal Theory (New York: Oxford University Press, 2011) 32–33: “According to Gratian, divine law is the will of God reflected in revelation, especially the sacred scripture. Natural law also reflects the divine will, but in distinction to revelation, it can be discerned through the right use of human reason. Positive law is manmade law which must always be in harmony with divine and natural law.” In addition to the distinction between divine / natural law and legibus mere ecclesiasticis is the recognition that the exercise of the power of governance in the Church is distinguished as legislative, executive and judicial (see c. 135 §1). Ius canonicum includes acts requiring legislative power—that is, to enact norms binding on a community capable of receiving law—as well as acts requiring executive power—that is, to enact general or singular administrative acts that aim at implementing, enforcing and / or applying a specific legislative act. In reference to Omnium in mentem, the emendations in the Code are an exercise of legislative power. 9.  See canon 85: “. . . legis mere ecclesiasticae in casu particulari relaxatio . . .” In reference to canon 1142 and the dissolution (“dissolve potest”) by the Holy Father of a non-consummated marriage, Juan Fornés states “Canon 1142 does not treat a dispensation in the technical sense of a relaxation of a merely ecclesiastical law in a specific case (c. 85). Instead, it deals with the dispensation super rato, in which the Roman Pontiff makes the conjugal bond dissolve by his vicarious power. Therefore, it is a dispensation in the broad and extensive sense, not in the strict or technical-juridical sense.” Juan Fornés, “Commentary on Canon 1142,” in Exegetical Commentary on the Code of Canon Law, English language edition ed. Ernest Caparros et al. 5 volumes (Chicago and Montreal: Midwest Theological Forum and Wilson & Lafleur, 2004) 3/2: 1547–1548.

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“Eternal Law” derives from God as Creator and is the source of all other law in its broadest sense: natural law, implanted in the human being as created by God and positive law, positive in the sense that a legislator, divine or human, enacts a specific norm. Divine positive law is found in Scripture and Tradition; human positive law is either ecclesiastical law enacted by ecclesiastical legislators or human positive law, enacted by secular (civil) legislators. Divine / natural law by its very nature binds all people, whether baptized or not, whether believers or not. In reference to natural law, see, for example, the dogmatic constitution on the Catholic Faith, Dei Filius in reference to the human rationality: The same holy mother church holds and teaches that God, the source and end of all things can be known with certainty from the consideration of created things, by the natural power of human reason: ever since the creation of the world his invisible nature has been clearly perceived in the things that have been made. It was, however, pleasing to his wisdom and goodness to reveal himself and the eternal laws of his will to the human race by another, and that a supernatural way. This is how the Apostle puts it: In many and various ways God spoke of old to our fathers by the prophets; but in these last days he has spoken to us by a Son.10

Pope Saint John XXIII refers to the law implanted in human beings in virtue of their creation by God: But the world’s Creator has stamped the person’s inmost being with an order revealed to the person by his conscience; and his conscience insists on his preserving it. Human beings “show the work of the law written in their hearts. Their conscience bears witness to them.” [ . . . ] Many people think that the laws which govern the person’s relations with the State are the same as those which regulate the blind, elemental forces of the universe. But it is 10. Vatican I, dogmatic constitution on the Catholic Faith, Dei Filius, April 24, 1870, Chapter 2: “Eadem sancta mater ecclesia tenet et docet, Deum, rerum omnium principium et finem, naturali humanae rationis lumine e rebus creates certo cognosci posse; invisibilia enim ipsius, a creatura mundi, per ea quae facta sunt, intellect, conspiciuntur; attamen placuisse eius sapientaiae et bonitati, alia, qaque supernaturali via, se ipsum ac aeterna voluntatius suae decreta humano generi revelare, dicente Apostolo: Multifariam, multisque modis olim Deus loquens patrisbus in propetis, novissime, diebus istis locutus est nobis in Filio.” The final quotation (dicente Apostolo) is Hebrews 1, 1–2. Text and translation from Norman Tanner, ed., Decrees of the Ecumenical Council, two volumes, (Washington, D.C. and London: Sheed and Ward and Georgetown University Press, 1990) 2: 806.

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not so; the laws which govern human beings are quite different. The Father of the universe has inscribed them in the human person’s nature, and that is where we must look for them; there and nowhere else.11

The Declaration on religious freedom, Dignitatis Humanae, of Vatican II states, “This synod further declares that the right to religious freedom is firmly based on the dignity of the human person as this is known form the revealed word of God and from reason itself.”12 Natural law derives from the nature of the human being as created by God; all other law derives from the acts of a legislator, divine or human. The Church as such has a divine origin and order within itself; Javier Hervada and Pedro Lombardia describe “true divine law” as “composed only of a just social order that is imperative and binding; it arises from the legislative will of God, and in the Church, by the founding will of Christ.”13 As such, these authors consider three factors as constitutive of this social order: 1) Foundational norms, given by Christ, which are collected in the New Testament or have been transmitted by tradition and which trace basic traits of the organization of the Church and fundamental guidelines for the social life of the people of God; for example, the primacy of Peter. 2) Principles and requirements of the lex sacramentorum and in general of the lex gratiae, which emanate from the order rooted in supernatural realities. [ . . . ] 3) The principles and requirements of natural law that are also valid in the Church; they are integrated into the order of salvation but they are fully respected.14

11.  John XXIII, encyclical Pacem in Terris, April 11, 1963: AAS 55 (1963): 260—261: “Attamen in intimo homine mundi Creator ordinem impressit, quem eius conscientia et patefacit et magnopere servari iubet : Qui ostendunt opus legis scriptum in cordibus suis, testimonium red­ dente illis conscientia ipsorum. quae singulis hominibus cum sua cuiusque re publica interce­ dant, iisdem legibus, quibus virés et elementa mentis experti a universitatis, posse gubernari; cum huiusmodi leges, alius quidem generis, illinc dumtaxat petendae sint, ubi Parens rerum omnium inscripsit, hoc est in hominis natura.” The quotation in italics is from Romans 2:15. English translation with adaptations from http://www.vatican.va/holy_father/john_xxiii /encyclicals/documents/hf_j-xxiii_enc_11041963_pacem_en.html accessed August 11, 2014. 12.  Vatican II, declaration Dignitatius Humanae, 2: “Insuper declarat ius ad libertatem religiosam esse revera fundatum in ipsa dignitate personae humanae, qulis et verbo Dei revelato et ipsa rationed cognoscitur.” Tanner, 2: 1002 13.  Javier Hervada and Pedro Lombardia, “Introduction to Canon Law,” in Exegetical Commentary, 1: 16. 14.  Hervada and Lombardia, “Introduction to Canon Law,” 14–15. Divine law is considered either natural or positive (that is, enacted by the divine legislator). Therefore, the

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Human positive law, as deriving from a fallible human legislator, may be assessed as morally good or morally bad, in as much as specific enactments more truly reflect natural / divine law or in particular cases, contradict that law.15 A particular application of this principle derives from Church teaching that marriage can only exist between a man and a woman, for life, without possibility of the parties themselves dissolving the marriage bond (intrinsic indissolubility);16 the Church maintains that such teaching is natural / divine law and thus binds everyone, Catholic or not, baptized or not. Given this more universal binding force, the presence or absence of a particular natural / divine law precept in the Code of Canon Law or Code of Canons of the Eastern Churches is immaterial. The precept binds everyone, whether the precept finds expression in the Code or not; further, the precept is not affected by the promulgation or abrogation of the Code— both of which are acts of ecclesiastical law.17

circumlocution used through this essay “divine / natural law” intends to cover both natural and positive law. On the limitations imposed by divine law, see also the discussions on the text of Lumen gentium 22: the Theological Commission of the Council “rejected the Pope’s proposal [that is, Paul VI] to insert the words that the Pope is ‘answerable to the Lord alone’ in his action. This was held to be superfluous and an oversimplification of the truth (cf. the draft of 3 July 1964, p. 93), on the grounds that ‘the Roman Pontiff is also bound to revelation itself, to the fundamental structure of the Church, to the sacraments, to the definitions of earlier councils and other obligations too numerous to mention’.” See Karl Rahner, “Articles 18–27. Chapter III. The Hierarchical Structure of the Church with Special Reference to the Episcopate,” in Commentary on the Documents of Vatican II, ed. Herbert Vorgrimler, 5 vols. (New York: Herder and Herder, 1967) 1: 202. 15.  See, e.g., Joseph Martín de Agar, A Handbook on Canon Law, Collection Gratianus Series (Chicago: Midwest Theological Forum, 1999) 4: “Human law is mutable and always capable of being perfected. That which human reason judges to be just today, tomorrow may become unjust because of a change in the circumstances.” 16.  As distinguished from extrinsic indissolubility; see canons 1141 “A marriage that is ratum et consummatum can be dissolved by no human power and by no cause, except death” and 1142 “For a just cause, the Roman Pontiff can dissolve a non-consummated marriage between baptized persons or between a baptized party and a non-baptized party at the request of both parties or of one of them, even if the other party is unwilling.” The Privilege of the Faith or Petrine Privilege is another example whereby the Pope uses his vicarious authority to dissolve a natural marriage. 17.  For a clear example of this independence from the Church’s codified law, see, for example, canon 6 by which the supreme legislator abrogates the 1917 Code. The legislator did not thereby abrogate divine / natural law even if such had found expression in that text.

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Commentators both on the 1917 and 1983 codes have articulated various theories of law based on this fundamental distinction; Libero Gerosa states, it is a mistake to consider either the totality of the canonical norms of positive divine law as absolutely invariable, or the totality of the canonical norms of law mere ecclesiasticum as reformable at whim. While the former totality can be defined as a revealed law knowable through Tradition or made visible by the latter, the latter while not being an immediate concretisation of the biblical information is however strictly bound to the historical normative concretization of divine law whether positive or natural. The classical distinction between ius divinum and ius mere ecclesiasticum is to be simply understood as the attempt to adopt a first fundamental distinction between the material contents of Canon Law, in order to determine with greater precision the juridically binding force of every single norm.18

Determining the juridically binding force of each canonical norm must understand the significant transformation from the 1917 Code through the Second Vatican Council to the 1983 Code of Canon Law. This transformation relates to the binding force of human positive or, in the 1983 Code, merely, ecclesiastical law. The Binding Force of [Human Positive] Ecclesiastical Law

Canons 12 and 87 of the 1917 Code stated that valid reception of baptism meant one was subject to merely ecclesiastical laws of the Church provided several conditions were fulfilled (possessing the use of reason; completed the age of seven years; and provided the law does not make an explicit exception).19 As one consequence, therefore, through valid

18.  Libero Geroso, Canon Law. Amateca—Handbooks of Catholic Theology (New York: Continuum, 1996) 50. 19.  Codex Iuris Canonici Pii X Pontificis Maximi iussu digestus Benedicti Papae XV auctoritate promulgatus (Rome: Typis Polyglottis Vaticanis, 1917) c. 12: “Legibus mere ecclesiasticis non tenentur qui baptismum non receperunt, nec baptizati qui sufficienti rationis usu non gau­ dent, nec qui, licet ratkionis usum assecuti, septimum aetatis annum nondum expleverunt, nisi aliud iure expresse caveatur” and c. 87: “Baptismate homo constituitur in Ecelesia Christi persona cum omnibus christianorum iuribus et officiis, nisi, ad iura quod attinet, obstet obex, ecclesiasticae communionis vinculum impediens, vel lata ab Ecclesia censura.” Note that both of these canons referred to the baptized whereas canon 11 of the 1983 Code refers to those baptized into the Catholic Church or received into her after reception of valid baptism.

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baptism, a person becomes a person in the Church (1917 Code, c. 87) and, as Cicognani stated, Excommunicates, heretics and schismatics are in every respect subject to the authority of the Church, for they were made her subjects by baptism; and they must not obtain, to quote an axiom, an advantage by their own delinquency. Hence, strictly speaking, they are held to all ecclesiastical laws. This is confirmed by Canon 12.20

Nonetheless, Cicognani also noted that . . . excommunicates, heretics and schismatics are incidentally excused from the observance of certain Church laws, either because they are explicitly dispensed from the same; or because they are forbidden to perform certain acts; or because it is not the Church’s intention to oblige them in certain matters, lest sin be multiplied.21

One example in which non-Catholics were not obliged to a specific act occurred in reference to the canonical form of marriage as canon 1099 §2 of the 1917 Code stated at the time the Code was promulgated. To clarify Church teaching on the sacrament of marriage, including the specific issue of addressing difficulties arising from clandestine marriages, the Council of Trent enacted the following requirement: The holy synod now renders incapable of marriage any who may attempt to contract marriage otherwise than in the presence of the parish priest or another priest, with the permission of the parish priest or the ordinary, and two or three witnesses; and it decrees that such contracts are null and invalid, and renders them so by this decree.22

This decree requiring that which eventually known as the canonical form of marriage, was reiterated by the decree Ne Temere issued by the Sacred Congregation of the Council through a mandate granted by Pope Pius X: III. Only those marriages are valid which are contracted before the pastor or the local Ordinary, or a priest delegated by either of these, and at least two

20.  Amleto G. Cicognani, Canon Law (Philadelphia: The Dolphin Press, 1934) 566 #4. 21. Cicognani, Canon Law 568, #4. 22.  Council of Trent, Session 24, Chapter 1, Tametsi: “Qui aliter, quam praesente parocho vel alio sacerdote, de ipsius parochi seu ordinarii licentia, et duobus vel tribus testibus matrimonium contrahere attentabunt: eos sancta synodus ad sic contrahendum omnino inhabiles reddit, et huiusmodo contractus irritos et nullos esse decernit, prout eos praesenti decreto irritos facit et annullat.” Tanner, 2: 756.

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witnesses, according to the norms expressed in following articles, and with the exception of those given in nn. VII and VIII.23

Ne Temere obliged those baptized into the Catholic Church or “converted to her” (ad eam . . . conversi) when they entered into marriage.24 The competent ecclesiastical authority—pastor or local ordinary—was authorized to witness the marriages of both those domiciled within their territory as well as of non-subjects.25 Non-Catholics, provided that they marry among themselves, were not bound to the Catholic form of marriage.26 Finally, the law requiring a specific form for the exchange of consent to establish marriage may be described as human ecclesiastical law and consequently subject to dispensation or relaxation in particular cases; Ne Temere refers to imminent danger of death27 and to the absence of competent ecclesiastical authority as excusing from the form of marriage.28 The 1917 Code substantially re-iterated these norms concerning canonical form but with one significant alteration. Canon 1099, 10 required Catholics marrying fellow Catholics to follow canonical form; 20 required Catholics marrying non-Catholics (whether baptized or not) to follow 23.  S. Congregatione Concilii, decree, Ne Temere, August 2, 1907, De sponsalibus et matrimonio iussu et auctoritate SS. D. N.Pii Papae X a S. Congregatione Concilii editum. ASS 40 (1907) 528: “III. Ea tantum matrimonia valida sunt, quae contrahuntur coram parocho vel loci Ordinario vel sacerdote ab alterutro delegato, et duobus saltem testibus, iuxta tamen regulas in sequentibus articulis expressas, et salvis exceptionibus quae infra n. VII et VIII ponuntur.” The exceptions concern imminent danger of death (VII: Imminente mortis periculo) and the absence for at least one month of authority competent to witness the marriage (VIII: haberi non possit, eaque rerum conditio a mense iam perseveret). 24.  Ne Temere, “XL §i°. Statutis superius legibus tenentur omnes in catholica Ecclesia baptizati et ad eam ex haeresi aut schismate conversi (licet sive hi, sive illi ab eadem postea defecerint),quoties inter se sponsalia vel matrimonium ineant.” [530] 25.  Ne Temere, 528: “IV. Parochus et loci Ordinarius valide matrimonio adsistant,§ i§ 2°. intra limites dumtaxat sui territorii: in quo matrimoniis nedum suorum subditorum, sed etiam non subditorum valide adsistunt.” 26.  Ne Temere, “XL. §3°Acatholici sive baptizati sive non baptizati, si inter se contrahunt, nullibi ligantur ad catholicam sponsalium vel matrimonii formam servandam.” [530] “Marry among themselves” referred to marriages between non- Catholics, either or both baptized or not; if non-Catholics or non-baptized entered into marriage with a Catholic, they were bound to Catholic form. 27.  Ne Temere, 529: “Imminente mortis periculo, ubi parochus, vel loci Ordinarius, vel sacerdos ab alterutro delegatus, haberi nequeat, ad consulendum conscientiae et (si casus ferat) legitimationi prolis, matrimonium contrahi valide ac licite potest -coram quolibet sacerdote et duobus testibus.” 28.  Ne Temere, 529: “VIII. Si contingat ut in aliqua regione parochus locive Ordinarius, aut sacerdos ab eis delegatus, coram quo matrimonium celebrari queat, haberi non possit, eaque rerum condition a mense iam perseveret, matrimonium valide ac licite iniri potest emisso a sponsis formali consensu coram duobus testibus.”

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canonical form in addition to obtaining the necessary dispensations. The second paragraph 2 also stated, item ab acatholicis nati, etsi in Ecclesia catholica baptizati, qui ab infantili aetate in haeresi vel schismate aut infidelitate aut sine ulla religione adoleverunt, quoties cum parte acatholica contraxerint.

Exempted from canonical form, therefore, were those baptized in the Catholic Church whose parents were non-Catholics (or at least one parent was non-Catholic) and who had not been raised in the Catholic faith, provided that they entered into marriage with a non-Catholic party. In 1929, the Pontifical Commission for the Interpretation of the Code replied to a specific question, stating that this exemption in canon 1099 §2 applied also to those born of marriages in which one of the parties was Catholic and indeed had made the ante-nuptial promises to raise the children in the Catholic faith.29 In 1948, Pope Pius XII, in his motu proprio Abrogatur alterum comma para­ graphi secundae can. 1099, “Decretum Ne temere, decessoris,” deleted from the 1917 Code this exemption, noting that this exemption not been good for souls and in fact has created many difficulties.30 The decree, effective the first day of January, 1949, thereby required everyone baptized in the Catholic Church to observe canonical form. To summarize the law regarding the form of marriage after these changes by Pius XII, those baptized into the Catholic Church or had converted to the Catholic Church were bound to follow the form of marriage “licet sive hi sive illi ab eadem postea defecerint” (1917 Code, c. 1099). NonCatholics, baptized in a non-Catholic Church or non-baptized, were not obligated to follow the Catholic form of marriage when entering into marriage with non-Catholics. As one consequence, then, the general principle of canons 12 and 87 remained: those baptized or received into the Catholic Church were bound to follow human ecclesiastical laws such as the law 29.  See Cosmas Sartori, Enchiridion Canonicum seu Sanctae Sedis responsiones, edition viii (1917—1947) (Rome, Pontificium Athenaeum Antonianum, 1947), interpretation of canon 1099, #2, 223. 30.  Pius XII, motu proprio Decretum Ne temere, August 1, 1948: AAS 40 (1948) 305: “At experientia triginta annorum satis docuit exemptionem a servanda canonica matrimonii forma, huiusmodi in Ecclesia catholica baptizatis concessam, bono animarum haud emolumento fuisse, immo in solution casuum saepe saepius difficultates multiplicasse ; quamobrem Nobis visum est expedire ut memorata exemptio revocetur.”

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regarding the proper form of marriage, even if they had later fallen away from the Church; those persons who were baptized in a non-Catholic Church or community were specifically exempted from the necessity of marrying according to canonical form. The principle expressed in canons 12 and 87 of the 1917 Code underwent significant modification as a result of the teaching of the Second Vatican Council most especially in Lumen Gentium and Unitatis Redintegra­ tio. For example, Lumen gentium 15 states, “For several reasons the church recognises that it is joined to those who, though baptised and so honoured with the Christian name, do not profess the faith in its entirety or do not preserve the unity of communion under the successor of Peter.”31 Unitatis Redintegratio states: “For those who believe in Christ and have been truly baptised are in some kind of communion with the catholic church, even though this communion is imperfect.”32 These and similar texts provide the theological background necessary to understand a fundamental canon essential to the interpretation of Church law, canon 11 of the 1983 Code: Merely ecclesiastical laws [legibus mere ecclesiasticis] bind those who have been baptized in the Catholic Church or received into it, possess the sufficient use of reason, and, unless the law expressly provides otherwise, have completed seven years of age.

Legibus mere ecclesiasticis are those laws enacted by a human legislator albeit one acting within the Church; such laws do not give expression to divine / natural law nor are they intrinsically necessary for the observance of divine / natural law. The Code of Canons of the Eastern Churches [=CCEO] contains the same specification in canon 1490.33 Such merely 31.  Lumen gentium 15 in Tanner, 860: “Cum illis qui, baptizati, christiano nomine decorantur, integram autem fidem non profitentur vel unitatem communionis sub successore Petri non servant, ecclesia semetipsam novit plures ob rationes coniunctam.” 32.  Unitatis redintegratio 3 in Tanner, 910: “Hi enim qui in Christum credunt et baptismum rite receperunt, in quadam cum ecclesia catholica communion, etsi non perfecta, constituuntur.” The decree had immediately prior to this statement noted, “Those who are now born into these communities [i.e., those lacking unity with the Catholic Church] and who are brought up in the faith of Christ cannot be accused of the sin involved in the separation.” 33.  Codex Canonum Ecclesiarum Orientalium auctoritate Ioannis Pauli PP. II promulgatus (Vatican City: Libreria Editrice Vaticana, 1990) c. 1490 “Legibus mere ecclesiasticis tenentur baptizati in Ecclesia catholica vel in eandem recepti, quique sufficientem usum rationis habent et, nisi aliter iure expresse cavetur, septimum aetatis annum expleverunt.”

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ecclesiastical laws in the Code of Canon Law oblige those persons ascribed to the Latin Church (canon 2) and in CCEO pertain “all and only the Eastern Catholic Churches” (c. 1: “omnes et solas Ecclesias orientales catholicas”). Merely ecclesiastical laws therefore do not bind baptized non-Catholics unless by exception. In summary form, therefore, merely ecclesiastical laws bind Catholics and do not bind baptized non-Catholics who nonetheless enjoy some degree of communion with the Catholic Church and whose status is more than that of a catechumen: baptized non-Catholics can have rights in virtue of baptism; catechumens as not yet baptized do not enjoy rights in the Church but rather enjoy privileges given to them in virtue of their intention to receive baptism in the Catholic Church. The question that arises consequently is the extent to which the CIC and CCEO or other norms issued by legitimate authority bind Catholics who no longer practice their faith; by deliberate choice no longer consider themselves Catholic; committed heresy; abandoned the faith completely through apostasy or broke communion with the bishop of Rome and the bishops in communion with him.34 The simple, straight forward answer is yes, merely ecclesiastical laws do bind all those who have been baptized or received into the Catholic Church, possess the use of reason, and unless exceptions have been enacted, have completed seven years of age (see c. 11). A person cannot completely sever his or her ties with the Catholic Church: even if someone were to completely abandon the faith, publicly and scandalously commit the delict of apostasy or of schism, the individual could, at any time, approach a Catholic priest, request the sacrament of penance and seek reconciliation with the Catholic Church.35 As a Catholic, that person could request the sacrament of penance without fulfilling any of the requirements of canon 844. The traditional phrase describing the permanence of the bond between the person and the Catholic Church is “semel catholicus, semper catholicus.” 34.  The question would apply regardless of whether or not the person committed the delict of apostasy or schism; if these delicts were not committed, the question would still pertain to the person who considered him- or herself no longer a Catholic. 35.  See, e.g., c. 1355 §2 on the authority of any bishop to remit, in the internal forum, a non- reserved latae sententiae penalty and c. 1357, on the authority of a confessor to remit a non-reserved and non-declared censure of excommunication or interdict.

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The binding nature of merely ecclesiastical law, therefore, has two perspectives: from that of the individual and from that of the Church herself (or theology, or Church teaching). The sacraments require a positive response from the recipient for fruitfulness if not necessarily and in every case for validity. Baptism constitutes the basis by which an individual is constituted a person in the Church, with obligations and rights (see cc. 96 and 204). For those baptized as infants, as they mature into adulthood, they must make a positive choice to respond to baptismal grace and accept the obligations and rights that Catholicity requires.36 An adult who requests baptism, must manifest his intention to receive baptism, is urged to have sorrow for personal sins, receive instruction in the faith and undergone the catechumenate (see c. 865 §1). The individual freely and with God’s grace chooses to become an active member of the Church, for example, by promoting the sanctification of themselves and of the Church (c. 210), engaging in apostolic action (c. 216), exercising the right to a Christian education (c. 217), etc. In summary form, then, the obligation to maintain communion with the Church (c. 209) is dynamic, not static, requiring active participation by all of the faithful in the mission and life of the Church. From the other perspective—Church teaching—the individual remains a Catholic and therefore with the capacity to exercise and fulfill rights and obligations (note c. 96: nisi obstet lata legitime sanctio) and is considered subject to merely ecclesiastical laws (noting that all people are bound to follow divine / natural law). While the Church could impose penal sanctions for delicts in such cases, e.g., for committing schism or heresy, for the most part, the Church does not do so unless such are necessary to clarify Church teaching or prevent further scandal among the faithful. That is, the individual has harmed Church communio (c. 209) or neglected the common good (c. 223) and therefore competent ecclesiastical authority must act. Nonetheless, and more positively expressed, “semel catholicus, semper catholicus” indicates or refers to the fidelity of God: that is, God’s willingness through the Church’s ministers to respond positively to any effort made in good faith to return to the practice of the Catholic faith.

36. See Lumen gentium 14: “Non salvatur tamen, licet ecclesiae incorporetur, qui in caritate non perseverans, in ecclesiae sinu ‘corpore’ quidem, sed non ‘corde’ remanet.” Persevering in charity—responding to the theological virtues given to us by God—is necessary for salvation.

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A Catholic—that is someone baptized or received into the Catholic Church, has the use of reason, and, unless by exception, has completed seven years of age—is bound not only to following divine / natural laws (which bind all persons, baptized or not) but also merely ecclesiastical laws. Such an obligation pertains to the required form of marriage as expressed in canon 1108 §1: Only those marriages are valid which are contracted before the local ordinary, pastor, or a priest or deacon delegated by either of them, who assist, and before two witnesses according to the rules expressed in the following canons and without prejudice to the exceptions mentioned in cann. 144, 1112 §1, 1116, and 1127 §§1–2.

As one consequence, if a Catholic chose not to live actively his or her religious commitment, decided to enter into marriage and did so before a civil official or a minister from another ecclesial community without any permission or dispensation, the Church would consider the marriage invalid, due to the requirement of canon 1108 §1. In addition, if such a Catholic married a non-baptized person, the diriment impediment of disparity of cult would also invalidate the marriage (see c. 1086 §1). Such invalidity is the logical and necessary consequence from the principles just enunciated concerning the binding force of merely ecclesiastical laws. During the process of revising the 1917 Code, therefore, three particular exceptions from canon 11 were added to canons 1086, 1117 and 1124 in reference to the obligation of observing canonical form (c. 1108). As “particular exceptions,” these apply only to the situations indicated in these three canons and thus these persons were bound to other provisions of merely ecclesiastical law. In Omnium in mentem, Benedict succinctly ascribed the inclusion of these exceptions to the desire to avoid multiplication of invalid marriages due to absence of form and/or lack of dispensation from the impediment of disparity of cult.37 Therefore, as promulgated, canons 1086 §1, 1117 and 1124 established exceptions for Catholics who had by a formal act defected from the 37.  Benedict XVI, Omnium in mentem, “.. ut matrimoniorum ab iis fidelibus contractorum nullitas vitaretur ob defectum formae canonicae vel ob impedimentum disparitatis cultus.” As noted in the introduction to this essay, I am analyzing the emendations by Benedict XVI in Omnium in mentem ad intra, in reference to the Code itself as a legal text. The analysis of the emendations ad extra, in reference to application, interpretation and praxis of “formal defection” is beyond the scope of this study.

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Catholic Church: canon 1086 §1 excepted such persons from the impediment of disparity of cult; canon 1117, excepted such from the requirement to follow the form of marriage and canon 1124 excepted such from the necessity of obtaining permission to enter into marriage with another baptized non-Catholic. These exceptions were not dispensations in the technical sense inasmuch as the specific norm itself contained the exception.38 That the law contains an exception to the requirement of the canonical form of marriage indicates that this norm is a merely ecclesiastical norm in the sense of canon 11.39 In his apostolic letter Omnium in mentem, Benedict explained the deletion of the three references to defection by a formal act: However, the experience of these years shows that, on the contrary, this new law has given rise to not a few pastoral problems. First of all, in individual cases the determination and practical configuration of this formal act of defection from the Church has proved difficult, whether with regard to its theological substance or its canonical aspect. Moreover many difficulties have arisen both in pastoral action tribunal practice. Indeed, from the new law seems to have arisen, at least tangentially, a convenience and almost aid to apostasy in those places where the Catholic faithful are few in number, or where unjust marriage laws prevail discriminating between citizens on the basis of religion; moreover, the return of these baptised, who hoped to contract a new canonical marriage after the failure of an earlier one, had become difficult; finally, to say no more, very many of these marriages became de facto so called clandestine marriages for the Church.40 38.  Benedict XVI, Omnium in mentem, “ . . . abrogandi hanc exceptionem a norma generali canonis 11 . . . ”. 39. Gerosa, Canon Law, 203 notes: “In point of fact, it is legitimate to wonder if canonical form is simply a juridical superstructure, or, if you will, an ‘invalidating law, with which one regulates and thus one limits the exercise of a fundamental right,’ [footnote cites V. De Paolis for this quotation] or an intrinsic element of the liturgical form of a sacrament and, as such, a constitutive element of the mediating and instrumental will of the Church, in conformity with the conciliar principle that all of the sacraments are ‘actions of Christ and of the Church’ (can. 840).” Gerosa had earlier noted that the form of marriage is separable from the liturgical from, required for liceity by c. 1119. 40. Benedict, Omnium in mentem: “Horum autem annorum experientia ostendit, e contra, novam hanc legem pastoralia problemata haud pauca genuisse. Imprimis difficilis apparuit determinatio et practica configuratio, singulis in casibus, huius actus formalis defectionis ab Ecclesia, sive quoad eius substantiam theologicam sive quoad ipsius aspectum canonicum. Multae praeterea exsurrexerunt difficultates cum in actione pastorali tum in tribunalium praxi. Etenim e nova lege oriri videbantur, saltem oblique, commoditas ac veluti adiumentum

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Both the 1917 Code in canon 1099 20 and the 1983 Code as promulgated included provisions that aimed at eliminating invalidity of certain marriages—either of those baptized Catholic but not raised (adoleverunt) in the faith (1917 Code) or those Catholics who had formally defected from the Catholic Church (1983 Code). Both concepts—not raised in the faith and formal defection—gave rise to difficulties in interpretation and application in two distinct eras of Church history and, consequently, the norms were emended to remove such exceptions.

Constitutive Principles Underlying Church Law

The analysis of the exemption from following the canonical form of marriage for certain persons as found in the promulgated texts of the 1917 and 1983 Codes provides insight to certain constitutive principles underlying the Church’s legal system. First, the Church’s legal system accepts as given the fact of divine / natural law as foundational to the Church itself inasmuch as the Church has been established by Jesus Christ; consequently, the concepts of divine / natural law necessarily enter into the interpretation and application of canonical norms in the Church. Ecclesiastical norms to the extent that they reflect or reiterate divine / natural law establish limits to the dispensing power of competent ecclesiastical authority; divine / natural law obliges both Catholics and non-Catholics, whether the latter are baptized or not; and the obligatory nature of divine / natural law exists independently of their inclusion or omission from a code of law. Second, canon 1099 20 of the 1917 Code and the phrase summarized as formal defection from the faith in three canons of the 1983 Code reflect both the pastoral nature of the law, at least in intent, as well as the dependence of the law on theology and on Church teaching.41 The adjective apostasiae illis in locis ubi fideles catholici exigui sunt numero, vel ubi iniquae vigent leges matrimoniales discrimina statuentes inter cives ratione religionis; difficilis praeterea fiebat reditus horum baptizatorum qui novum contrahere exoptarent matrimonium canonicum, post prioris ruinam; denique, ut alia omittamus, horum matrimoniorum permulta devenerant de facto pro Ecclesia matrimonia sic dicta clandestina.” Translation from the Canon Law Society of GBI Newsletter, 17. 41.  See Benedict XVI, Omnium in mentem: “In these norms ought always to shine out, on the one hand, the unity of theological doctrine and canonical legislation, and, on the other,

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pastoral in reference to “the pastoral nature of the law” or “pastoral

usefulness” possesses a very specific meaning: the practice of the faith cannot be separated from Church teaching. “Orthodoxy and orthopraxis combine to influence one another in a basic inexpressible unity which can only come to light in practice, because knowledge is only sound when it has surpassed itself and become love—which is its way of surviving as contemplation.”42 In other words, all theology must be pastoral theology—orthodoxy and orthopraxis united together—and as one consequence, any concept of “pastoral action” that disregards either theology (or the law which safeguards theology) is a contradiction in terms (see also footnote 45). “Merely ecclesiastical laws,” as deriving from a human legislator, should and to a greater or lesser degree, do, reflect divine / natural law. To the extent that merely ecclesiastical laws must aim at fostering the life of faith, grace and charisms43 to that extent laws are subject to change and emendation to fulfill their purpose. In other words, if merely ecclesiastical laws do not fulfill the purpose of law in the Church, then the legislator possesses the obligation to change them so that they do. In promulgating the 1983 Code, Pope Saint John Paul II stated: As a matter of fact the Code of Canon Law is extremely necessary for the Church. Since the Church is organized as a social and visible structure, it must also have norms: in order that its hierarchical and organic structure be visible; in order that the exercise of the functions divinely entrusted to her, especially that of sacred power and of the administration of the sacraments, may be adequately organized; in order that the mutual relations of the faithful may be regulated according to justice based upon charity, with the rights of individuals guaranteed and well-defined; in order, finally, that common the pastoral usefulness of its prescripts whereby ecclesiastical institutes are ordered for the good of souls.” Translation from the Canon Law Society of Great Britain and Ireland Newsletter, 16. 42.  Karl Rahner, “Theology,” in Sacramentum Mundi. An Encyclopedia of Theology, 6 volumes (New York, Herder and Herder, 1970) 6: 235. 43. John Paul II, apostolic constitution, Sacrae disciplinae leges, January 25, 1983: AAS 75 II (1983) xi: “Quae cum ita sint, satis apparet finem Codicis minime illum esse, ut in vita Ecclesiae christifidelium fides, gratia, charismata ac praesertim caritas substituantur. Ex contrario, Codex eo potius spectat, ut talem gignat ordinem in ecclesiali societate, qui, praecipuas tribuens partes amori, gratiae atque charismati, eodem tempore faciliorem reddat ordinatam eorum progressionem in vita sive ecclesialis societatis, sive etiam singulorum hominum, qui ad illam pertinent.”

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initiatives, undertaken to live a Christian life ever more perfectly may be sustained, strengthened and fostered by canonical norms.44

On analogy with the Incarnation, the Church is both a visible society and a spiritual reality; both a structured society and the Mystical Body of Christ (see LG 8). Similarly, Paul VI, in his address to the Pontifical Commission for the Revision of the Code of Canon Law on November 20, 1965, rejected any distinction between a Church of law and a Church of charity, as though either could exist without the other.45 Thirdly, this analysis has demonstrated once again the necessity of personal responsibility in fulfilling one’s obligations as a Catholic: Obviously a Christian is a Christian in the innermost depths of his divinized essence. Nor would he ever be or ever become a Christian if he were not to live from out of the innermost center of his essence as divinized by grace. But the very thing which he is in his innermost depths and in the origins of his most individual existence, and is by the grace of God whose domain he cannot leave, this very thing comes from the concrete history of salvation to meet him in the concrete as his very own: it comes in the profession of faith of Christians, in the cult of Christians, in the community life of Christians, in a word, it comes in the church. An absolutely individual Christianity in the most personal experience of grace and ecclesial Christianity are no more radically opposed than are body and soul, than are man’s transcendental essence and his historical constitution, or than are individuality and intercommunication. The two condition each other mutually. The very thing 44.  John Paul II, Sacrae Disciplinae Leges, AAS 75 II (1983) xii—xiii: ‘Ac revera Codex Iuris Canonici Ecclesiae omnino necessarius est. Cum ad modum etiam socialis visibilisque compaginis sit constituta, ipsa normis indiget, ut eius hierarchica et organica structura adspectabilis fiat, ut exercitium munerum ipsi divinitus creditorum, sacrae praesertim potestatis et administrationis sacramentorum rite ordinetur, ut secundum iustitiam in caritate innixam mutuae christifidelium necessitudines componantur, singulorum iuribus in tuto positis atque definitis, ut denique communia incepta, quae ad christianam vitam perfectius usque vivendam suscipiuntur, per leges canonicas fulciantur, muniantur ac promoveantur.” English translation from the Code, xxxi. 45.  Paul VI, allocution to the Pontifical Commission for the Revision of the Code of Canon Law, November 20, 1965: AAS 57 (1965) 986: “Sunt deinde qui distinguant inter Ecclesiam, quam «iuridicam» vel «a muneribus» appellant, et Ecclesiam, cui nomen «caritatis» adiciunt, asseverantes caritatis praeceptum omnium summum esse primasque partes ei tribui oportere, mala autem, quibus Ecclesia vexetur, ex «iuridismo» illo, uti vocant, esse exorta. Attamen, quemadmodum anima a corpore seiungi nequit, quin mors subsequatur, Ecclesia, quam a «caritate» nuncupant, sine Ecclesia «iuridica» exsistere nequit.” This reiterates the point made in footnote 40: orthodoxy and orthopraxy must co-exist together.

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which we are from God is mediated in the concreteness of history by what we call church. And it is only in and through this mediation that it becomes our own reality and our salvation in full measure. For this reason church exists and has to exist.46

This necessity, even constitutive, theological understanding of the person’s relationship with the Church is the foundation for understanding and applying canons 209 and 223: Canon 209 §1. The Christian faithful, even in their own manner of acting, are always obliged to maintain communion with the Church. §2. With great diligence they are to fulfill the duties which they owe to the universal Church and the particular church to which they belong according to the prescripts of the law.

And canon 223: §1. In exercising their rights, the Christian faithful, both as individuals and gathered together in associations, must take into account the common good of the Church, the rights of others, and their own duties toward others. §2. In view of the common good, ecclesiastical authority can direct the exercise of rights which are proper to the Christian faithful.

The canonical obligations expressed in canons 209 and 223—to maintain communion and fulfill one’s obligations cognizant that one belongs to the community of faith and thereby participates in a shared divine mission—requires a theological origin in the individual’s active, on-going relationship with God and with the Church; otherwise, fulfilling such obligations is mere juridicism. The Pontifical Council for Legal Texts expressed a similar principle when it addressed the specific issue of the personal responsibility of priests (presbyters) to fulfill their obligations and exercise their rights both personally and in the exercise of their ministry.47 That is, all of the Christian faithful, whatever their state in life and juridic condition, possess the responsibility to fulfill their obligations and exercise their rights (therefore, are responsible for knowing these obligations and rights) within the Church as 46.  Karl Rahner, Foundations of Christian Faith (New York: Seabury Press, 1978) 389. 47.  See Pontifical Council for Legislative Texts, “Explanatory Note: Elements to Establish the Area of Canonical Responsibility of the Diocesan Bishop on Clerics Incardinated within the Diocese and Who Exercise their Ministry within it,” Studies in Church Law 3 (2007) 35.

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a community of faith. Such personal responsibility is inherent in the right to a Catholic education expressed in canon 217—education directed both to human maturity and living the mystery of salvation. The ius canonicum fosters the life of faith, grace and charisms but concomitantly the faithful are obliged to know and fulfill their own obligations. In this way, orthodoxy and orthopraxis are united in the lived experience of the Church. Having examined the inclusion and then removal of the process of formal defection from the Church, I now turn to second set of emendations to the code.

The Sacrament of Orders and the Benedictine Emendations

In Omnium in mentem, Pope Benedict explained the reasoning underlying the emendations to canons 1008 and 1009 in reference to the sacrament of Orders, reasoning which necessitates a review of the restoration of the permanent diaconate as a proper and permanent state in the Latin Church. Lumen gentium 28 asserts, “ . . . , the divinely instituted ecclesiastical ministry is exercised in different orders by those who right from ancient times are called bishops, priests and deacons.”48 In reference to the diaconate, the constitution on the Church states: At a lower degree of hierarchy stand the deacons, on whom hands are imposed “not for the priesthood, but for the ministry.” For strengthened by sacramental grace, they are at the service of the people of God in the ministry of the liturgy, the word and charity, in communion with the bishop and his presbyterium. To the extent that he has been authorised by competent authority, he is to administer baptism solemnly, to reserve and distribute the eucharist, to assist at and bless marriages in the name of the church, to take viaticum to the dying, to read sacred scripture to the faithful, to instruct and exhort the people, to preside at the worship and payer of the faithful, to administer sacramentals, and to preside at funeral services and burials. 48.  Lumen gentium 28 in Tanner, 872: “Sic ministerium ecclesiasticum divinitus institutum diversis ordinibus exercetur ab illis qui iam ab antique episcopi, presbyteri, diaconi vocantur.” The constitution cites the Council of Trent in this context, chapter 2 and canon 6 of “Vera et catholic doctrina de sacramento ordinis ad condemnandos errors nostri temporis.” Canon 6 states, “Si quis dixerit, in ecclesia catholica non esse hierarchiam, divina ordinatione institutam, quae constat ea episcopis, presbyeris et ministris: a.s.” Tanner, 2: 744. No substantive difference exists between the terms minister and diaconatus.

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Dedicated to duties of charity and administration, deacons should bear in mind the admonition given by blessed Polycarp: “Merciful, sedulous and walking in accordance with the truth of the Lord, who became the servant of all.”49

The constitution then encouraged the restoration of the diaconate in the Latin Church: Since these tasks, which are supremely necessary for the life of the church, can only with difficulty be carried out in many regions, according to the current discipline of the Latin church, the diaconate can for the future be restored as a proper and permanent grade of the hierarchy. [ . . . ] With the consent of the Roman pontiff it will be possible to confer this diaconate on men of more mature age, even upon those living in the married state, and also on suitable young men for whom, however, the law of celibacy must remain in force.50

On June 18, 1967, Pope Paul VI issued the apostolic letter motu proprio Sacrum Diaconatus Ordinem, enacting norms for the establishment of the permanent diaconate in the Latin Church. Paul stated, the diaconate “is not to be considered as a mere step towards the priesthood, but it is so adorned with its own indelible character and its own special grace so that those who are called to it ‘can permanently serve the mysteries of Christ and the Church’.”51 This positive assessment of the diaconate is reiterated 49.  Lumen gentium 29, in Tanner, 874: “In gradu inferiori hierarchiae sistunt Diaconi, quibus “non ad sacerdotium, sed ad ministerium” manus imponuntur. Gratia etenim sacramentali roborati, in diaconia liturgiae, verbi et caritatis Populo Dei, in communione cum Episcopo eiusque presbyterio, inserviunt. Diaconi est, prout ei a competenti auctoritate assignatum fuerit, solemniter baptismum administrare, Eucharistiam servare et distribuere, matrimonio Ecclesiae nomine adsistere et benedicere, Viaticum moribundis deferre, fidelibus sacram legere Scripturam, populum instruere et exhortari, fidelium cultui et orationi praesidere, sacramentalia ministrare, ritui funeris ac sepulturae praeesse. Caritatis et administrationis officiis dediti, meminerint Diaconi moniti Beati Polycarpi: “Misericordes, seduli, incedentes iuxta veritatem Domini, qui omnium minister factus est.” 50.  Lumen gentium 29 in Tanner, 874: “Cum vero haec munera, ad vitam Ecclesiae summopere necessaria, in disciplina Ecclesiae latinae hodie vigenti in pluribus regionibus adimpleri difficulter possint, Diaconatus in futurum tamquam proprius ac permanens gradus hierarchiae restitui poterit. [ . . . ] De consensu Romani Pontificis hic diaconatus viris maturioris aetatis etiam in matrimonio viventibus conferri poterit, necnon iuvenibus idoneis, pro quibus tamen lex coelibatus firma remanere debet.” The omitted sentence referred to the responsibility of conferences of bishops working with the Roman pontiff to determine the opportuneness to appoint deacons to the care of souls. 51.  Paul VI, apostolic letter motu proprio Sacrum Diaconatus Ordinem, June 18, 1967: AAS 59 (1967) 698: “ . . . qui non tamquam merus ad sacerdotium gradus est existimandus, sed

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in the motu proprio of Paul VI, Ad Pascendum enacting norms governing the diaconate, which opens with apostolic and patristic references in praise of the diaconate. Paul VI then states When, moreover, the writers of the first centuries give instruction on the importance of the diaconal ministry, they offer many examples of the manifold important duties entrusted to deacons and clearly show how much authority they possessed in the Christian communities and how great their contribution was to the apostolate. The deacon is described as “the ear, mouth, heart and soul of the bishop.” The deacon is at the service of the bishop in order that the bishop may serve the whole people of God and take care of the sick and the poor; he is correctly and rightly called “one who shows love for orphans, for the devout and for the widowed, one who is fervent in spirit, one who shows love for what is good.” Furthermore, he is entrusted with the duty of taking the eucharist to the sick, confined to their homes, of conferring baptism, and of attending to preaching the Word of God in accordance with the will and intention of the bishop. Accordingly, the diaconate flourished in a wonderful way in the Church and at the same time gave an outstanding witness of love for Christ and for neighbor through the performance of works of charity, the celebration of sacred rites, and in pastoral service.52

This positive assessment of the diaconate in the life of the Church helps contextualize the teaching of Lumen gentium on the diaconate. The

indelebili suo charactere ac praecipua sua gratia insignis ita locupletatur, ut qui ad ipsum vocentur, ii mysteriis Christi et Ecclesiae stabiliter inservire possint.” See also footnote 51. 52.  Paul VI, motu proprio Ad Pascendum August 15, 1972: AAS 64 (1972) 535—536: “Praeterea priorum saeculorum auctores, dum ministerii Diaconorum momentum animis inculcant, copiose etiam explicant multiplicia et gravia munera iis concredita, atque aperte declarant, quantum aucto: ritatis apud christianas communitates consecuti sint et quantopere ad apostolatum contulerint. Definitur Diaconus ut Episcopi auris et os et cor et anima; Episcopo Diaconus praesto est, ut omni deserviat populo Dei curamque gerat infirmorum atque inopum; recte igitur ac merito eum appellant amatorem orphanorum, amatorem colentium pietatem, amatorem viduarum, ferventem spiritu, amatorem bonarum rerum. Officium insuper ei mandatur, ut aegris domi decumbentibus sacram Eucharistiam deferat, baptismum conferat, verbo Dei praedicando det operam ad voluntatem nutumque Episcopi. Itaque Diaconatus in Ecclesia mirabiliter effloruit simulque insigne praebuit testimonium amoris erga Christum ac fratres iri caritatis operibus exsequendis, in ritibus sacris celebrandis atque in pastoralibus perfungendis muneribus.” English translation from Documents on the Liturgy. 1963—1979, (Collegeville, The Liturgical Press, 1982) 798—799, #319. Among the texts cited by Paul VI are Didascalia Apostolo­ rum; Traditio Apostolica, Testamentum D. N. Iesu Christi, Justin, Apologia and Apologia duae; and Tertullian, De Baptismo, Corpus Christianorum and Opera.

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phrase “in gradu inferiori hierarchiae” must be interpreted correctly: the image of an ascending ladder must be avoided; rather the terminology used within the tradition and in the context of Lumen gentium 29 “concentrates on the special nature of the charge, which in this form appertains to the deacon and to no one else.”53 The fullness of the sacrament of orders resides in the bishop alone; consequently, both presbyters and deacons participate in the one sacrament of orders but in a restricted way. The deacon cannot celebrate the Eucharist nor ordain those competent to celebrate the Eucharist and therefore his ministry is restricted or “in gradu inferiori hierarchiae.”54 Vorgrimler emphasizes the specific and special responsibility of the deacon: The formula that deacons receive the laying on of hands not for the priesthood but for the performance of service is ambiguous in spite of its venerable age. [ . . . ] Insofar as the priesthood (sacerdotium) is identical with the state of the sacramentally ordained, with the higher clergy, with the Ordo (meaning the ranks of those sacramentally ordained) and hence forms a contrast to the general priesthood of all believers, the deacon belongs to the sacerdotium. Insofar as service (ministerium) characterizes the office in the Church as a ministry, it is fundamental to the whole office and all its degrees, as the Constitution on the Church constantly repeats, and not merely to the diaconate.55 53. Herbert Vorgrimler, “Article 29 Chapter III. The Hierarchical Structure of the Church, with Special Reference to the Episcopate,” in Commentary on the Documents of Vatican II, 1.228. Vorgrimler notes further explains such a theological understanding of the diaconate reflects early synodal decrees reiterated at Trent whereby, for example, the proper function of the deacon at the Eucharist should not be exercised by a priest. [228] See also Karl Rahner, “The Teaching of the Second Vatican Council on the Diaconate,” in Theological Investigations, volume 10 (London: Darton, Longman and Todd, 1973) 230—231: “Moreover, a point which we should particularly notice is that the Constitution Lumen gentium carefully avoids saying that the episcopate (munus episcopali) is a ‘higher’ degree, above that of the priesthood. On the contrary, it regards the episcopate as constituting, of its essence, the plenitude of an order that is, through hierarchically structured, integrally one, and that exists in the Church in virtue of a divine institution. Now if we make this way of regarding the matter our own, then we can consider the diaconate too as constituting in its own right an authentic and special mode of participation in this one integral order in the Church.” 54.  Vorgrimler, “Article 29,” Commentary on the Documents of Vatican II, 227. 55. Vorgrimler, “Article 29,” Commentary on the Documents of Vatican II, 228. “Higher clergy” is a circumlocution here for clerics who have received the sacrament of orders, in distinction to those invested with the minor orders. Vorgrimler also notes a cogent reason for the restoration of the diaconate omitted from Lumen gentium: “ . . . that offices of a diaconal nature do exist in the present-day Church and are actually exercised, and that those who carry

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Properly understood, Lumen gentium and the early ecclesial texts recognize the importance of the diaconate in the life of the Church. This very positive assessment of diaconal ministry and the decision of the Vatican Council to re-instate the diaconate as a permanent state in the Latin Church establish the context for understanding references to the diaconate in the 1983 Code and the emendations by Pope Benedict XVI. In Omnium in mentem, Benedict focusses on specific constitutive theological teachings on the sacrament of Order, first, the essential distinction between the common priesthood of the faithful and the ministerial priesthood; second, the unity of the one sacrament of orders which nonetheless allows for a distinctive order of deacons, of presbyters, and of bishops. As indicated by Herbert Vorgrimler’s commentary on Lumen gentium 29, the conciliar text manifests clear consistency with theological teaching on these two constitutive points. Such consistency was not as manifest in either the Code or in the Catechism of the Catholic Church as indicated in Omnium in mentem: Saint John Paul II had emended the Catechism to convey more clearly the teaching found in Lumen gentium 29. The President of the Pontifical Council for Legislative Texts, Cardinal Coccopalmerio, offered an explanation for the emendation to the Cat­ echism (and, consequently, to the Code):56 the first edition of the Catechism stated through ordination, one is capable of acting as representative of Christ, Head of the Church. The Congregation for the Doctrine of the Faith maintained that this phrase needed modification to avoid understanding that the deacon acts in the person of Christ the Head (agere in persona Christi Capitis) which is reserved to bishops and to presbyters (che è riservata soltanto ai Vescovi ed ai Presbiteri). Consequently, the text of the Catechism in n. 875 was modified to state: “Ab eo (Christo) Episcopi et pres­ biteri missionem et facultatem agenda in persona Christi Capitis accipiunt, dia­ coni vero vim populo Dei serviendi in ‘diaconia’ liturgiae, verbi et caritatis.”

them out should not be denied ordination (if sacramental grace is taken seriously); but this reason only comes to the fore in the Decree on the Church’s Missionary Activity, Article 16.” [ 230] 56. Francisco Cardinal Coccopalmerio, “Articulus, explanans Motum proprium «Omnium in mentem» a Summo Pontifice die 16 mensis decembris 2009 datum, ab Exc.mo D. Francisco Coccopalmerio, Praesidente Pontficii Consilii de Legum Textibus, conscriptus,” Communicationes 41 (2009) 334 337. The Cardinal also stated that Pope John Paul II had intended the emendation of the Code for consistency in expressing Church teaching on the diaconate.

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Pope Benedict XVI in Omnium in mentem therefore fulfilled the intention of his predecessor in emending the introductory canons on the sacrament of orders to provide theological consistency among the Tradition, Lumen gentium, the Catechism of the Catholic Church and the Code of Canon Law. Canons 1008 and 1009 introduce Title IV of Book IV of the Code: the Sacrament of Orders; as such, the canons present a succinct theological summary of the sacrament as context for the canons which follow. The importance of the theology underlying the canons—most explicitly 1008 and 1009—is essential to their interpretation and application. In specific reference to the diaconate, one author noted: The significance of the 1983 Code of Canon Law for the continuing renewal of the diaconate will in large measure be determined by the perception of what deacons can and should be. The juridic history provides a critical point of view from which to assess the implications of the new code for the diaconate at the close of the twentieth century in the Latin Church.57

This author positively assesses the Code in reference to the diaconate, primarily in reference to the codal treatment of the relationship between presbyters and deacons and suggests the Code “offers a renewed vision and a new possibility for diaconal ministry as a full and permanent order in the Church.”58 The emendations in the Code through Omnium in mentem intend to clarify Church teaching on the diaconate and encourage diaconal ministry in the Church.

Constitutive Principles Underlying Church Law, Part II

The principles discussed above in reference to the emendations to canons 1086, 1117 and 1124 are applicable to the emendations in canons 1008 and 1009, although involving one significant difference. First, divine / natural law is foundational to the Church and to the Church’s fullest expression of itself in the seven sacraments, here, specifically, the sacrament of Orders. While the Code recognizes differences 57.  Joseph W. Pokusa, “The Diaconate: A History of Law following Practice,” The Jurist 45 (1985) 97. 58.  Pokusa, “The Diaconate,” 117.

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among levels of Church teaching (traditionally treated as “theological notes;” see cc. 750 and 752—754) the code necessarily also reflects the Church’s recognition of divine law, more specifically, its lack of authority to change that which pertains to the substance of the sacraments.59 Pope Benedict XVI emended the Code so that it better reflected constitutive Church teaching on two points concerning the sacrament of Orders: first, the distinction between the common priesthood of the faithful and the ministerial priesthood and, second, that three distinct grades constitute the one sacrament of order. Secondly, the emendations to canons 1008 and 1009 also manifest the pastoral nature of the law as well as the dependence of the law on theology and on Church teaching. Again as noted in footnote 40, orthodoxy and orthopraxis constitute a unity; therefore, the code, as the instrument fostering the life of faith, grace and charisms in the Church (orthopraxis) must reflect constitutive church teaching in its norms (orthodoxy). A proper understanding of the sacrament of orders is essential to appreciate the nature of the sacrament, its constitutive role in the Church and, specifically, the nature of the diaconate as of value in the contemporary church. The developing understanding of the munus of the deacon occurs within the context of Church teaching on that order. Thirdly, personal responsibility is a necessary dimension to the reception of the sacrament of orders. The bishop who ordains one to the diaconate must have moral certitude that the candidate is “useful for the ministry of the Church.”60 Concomitantly, as the Pontifical Council for Leg59.  In reference to the Sacrament of Orders, see, for example, Pius XII, apostolic constitution Sacramentum ordinis, November 30, 1947: AAS 40 (1948) 5: “septem Novae Legis Sacramenta sint omnia a Iesu Christo Domino Nostro instituta et Ecclesiae nulla competat potestas in «substantiam Sacramentorum », id est in ea quae, testibus divinae revelationis fontibus, ipse Christus Dominus in signo sacramentali servanda statuit.” See also Saint John Paul II, apostolic letter Ordinatio sacerdotalis, May 22, 1994: AAS 86 (1994) 545–548. 60.  See, e.g., the Congregation for Divine Worship and the Discipline of the Sacraments, “Circular letter to the Most Reverend Diocesan Bishops and Other Ordinaries with Canonical Faculties to Admit to Sacred Orders concerning Scrutinies regarding the Suitability of Candidates for Orders,” Notitiae 33 (1997) 495; text from William Woestman, The Sacrament of Orders and the Clerical State (Ottawa: Faculty of Canon Law, Saint Paul University, 2006) 372–373: “2. The fundamental principle in this matter consists in the fact that the competent authority must issue the official call in the name of the Church on the basis of a moral certitude that is founded upon positive reasons regarding the suitability of the candidate (see c. 1052 §1 with c. 1025 §§1—2 and c. 1029). [ . . . ] Although the call is a canonical act which pertains to a personal authority it is clear that such an authority ought not proceed merely on the basis of his

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islative Texts stated in reference to presbyters (see footnote 45) and which holds true for those ordained to the diaconate and to the episcopate as well as to all members of the Christian faithful fulfilling their vocation in the Church, the individual who receives the sacrament of orders and is ordained a deacon has personal responsibility to know the constitutive elements of that order in the Church, its obligations and responsibilities and, further, has the personal obligation, through requesting ordination, to fulfill these to the best of his ability and with the assistance of God’s grace.

Conclusion

Codified written law in se argues for stability and lack of change; consequently, proposed emendations in the written law require careful consideration of all aspects of such changes: reasons arguing for as well as reasons arguing against change; consideration of the proposed terminology and, at this point at least its theoretical application, interpretation and appropriation by the community for whom the law was established and for whom possible changes in the law are under consideration. The emendations enacted by Pope Benedict XVI to the code of canon law derived from canonical and theological principles; the nature of law (ius) as divine / natural and positive law; the necessity of the Code to pre­ sent coherently and consistently Church teaching; and, ultimately, to assist the people of God in their interpretation and application of the ius canoni­ cum in the life of the Church. These reasons taken as a whole justify and explain the changes to the code of canon law. Although the changes to the canons concerned with the canonical form of marriage and those obligated to follow that form have had more immediate and practical effect, nonetheless, the theology of the sacrament of marriage necessarily underlies such changes. The Church requirement of following canonical form aims at safeguarding the sacrament of marriage and loses any cogency to the degree that canonical form is understood or interpreted independently from the theology of the sacrament of marriage. Similarly, the Benedictine emendations to canons 1008 and 1009 convictions or intuitions, but he should give a hearing to the opinion of persons and councils and not depart from these except on the strength of well-founded reasons (c. 127 §2, 2°).”

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indicate much more directly the importance of sacramental theology to the interpretation and application of the canons of the Code. Canon law must reflect church teaching; the ius canonicum assists the Christian faithful in fulfilling their mission given through baptism and thus honor not only the obligations incumbent upon them and rights which they enjoy but also the obligations and rights of others, that is, of the Church as communion in light of the common good. Such participation of the faithful ultimately serves the mission entrusted to the Church by Jesus Christ: the salvation of men and women.

T H E C AT H O L I C U N I V E R S I T Y O F A M E R I C A

nancy bauer, osb*

The 1983 Codex Iuris Canonici: A Holiness Code? The biblical Book of Leviticus, the third book of the Pentateuch, is described as “almost entirely legislative in character,” containing as it does detailed norms for such things as sacrificial offerings (Lv 1–7), ordination rites (Lv 8–10), and ritual purity (Lv 11–16).1 These carefully regulated external acts of the Israelite community and its priests are meant to be signs of an internal reality: “intimate union with the Lord.”2 “Accordingly, the central idea of Leviticus is contained in its oft-repeated injunction: ‘You shall be holy, because I, the Lord, am holy.’”3 The theme of holiness is especially evident in Leviticus 17–26, which biblical scholars refer to as the “Holiness Code.”4 At least one edition of the Bible applies subtitles

* Assistant Professor, School of Canon Law, The Catholic University of America, Washington DC. 1.  The Catholic Study Bible, ed. Donald Senior et al. (New York: Oxford University Press, 1990) 107. 2. Ibid. 3. Ibid. 4.  Leviticus 17–26 was first designated the “Holiness Code” (Heiligkeitsgesetz) in 1877 by A. Klostermann “and this fitting appellation has stuck ever since.” See, Jan Joosten, People and Land in the Holiness Code: An Exegetical Study of the Ideational Framework of the Law in Leviticus 17–26 (Leiden, The Netherlands: E.J. Brill,1996) 5. According to Joosten, “the Israelites are hallowed by the holy presence of YHWH among them and by observing the commandments. What is striking is that the commandments allowing the Israelites to attain holiness are not exclusively of a ritual nature, nor even limited to the religious domain. All the different areas of life, religion and ethics, but also economics, politics and social affairs are brought into subjection to the divine will. This seems to be the innovation of the Holiness Code: holiness is made into the rationale of the entire behavior of the Israelites.” Joosten, People and Land in the Holiness Code, 197.

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within these chapters that include the following: “Sacredness of Blood”; “The Sanctity of Sex”; “Sanctity of the Priesthood”; and “Holy Days.”5 Clearly, the ancient Israelites discerned an inherent connection between law and holiness. The Code of Canon Law is also “almost entirely legislative in character,” as one would expect. And yet, the theme of holiness is sprinkled rather liberally among its 1,752 canons. The noun “sanctitas” appears fourteen times in the code, in twelve different canons:6 • The consecrated state in the Church belongs to its life and holiness (cc. 207 §2; 574 §1); • Clerics are bound to pursue holiness (c. 276 §1); • Secular clerics are to esteem associations which foster their holiness (c. 278 §2); • Diocesan bishop is obliged to show an example of holiness (c. 387); • Diocesan bishop is to strive to promote in every way the holiness of the Christian faithful (c. 387); • The rector of a church is to see that nothing occurs in any way unfitting to the church’s holiness (c. 562); • Contemplative institutes of consecrated life illuminate the people of God with the richest fruits of holiness (c. 674); • Personal preparation of couples for marriage is to dispose them to the holiness and duties of their new state (c. 1063, 2º); • The obligation to observe the secrecy of a marriage ceases on the part of the local ordinary if grave harm to the holiness of marriage is imminent (c. 1132); • Anything not consonant with the holiness of a sacred place is forbidden (c. 1210); • The ordinary can permit other uses which are not contrary to the holiness of the place (c. 1210); • Sacred places are violated by actions contrary to their holiness (c. 1211); 5. See The Catholic Study Bible, which refers to Leviticus 17–26 as the “Code of Legal Holiness.” 6.  Xaverius Ochoa, Index Verborum ac Locutionem Codicis Iuris Canonici, 2nd ed. (Vatican City Libreria Editrice Lateranense, 1984) 429. The list in English is compiled primarily from the index in Code of Canon Law, Latin-English Edition: New English Translation (Washington, DC: CLSA, 2001) 589. All translations of canons of the 1983 code are taken from this source.

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• Whatever is inappropriate to the holiness of the place is excluded (c. 1220). These twelve canons can be categorized as follows: 1) clerics and holiness; 2) diocesan bishops and holiness; 3) holiness and the state of consecrated life; 4) holiness and the state of marriage; and 5) holiness and sacred places. This paper will examine what these canons say about holiness in relation to each of these categories. This will not be an exhaustive study of the theme of holiness in the code or in relation to any one of these five categories.7 Rather, this is meant to be an introduction to an exploration of the Church’s Code of Canon Law as something of a “Holiness Code.”8

Clerics and Holiness

Two canons referenced above—canons 276 §1 and 278 §2—refer to clerics and holiness. Both canons appear in the section of Book II, Part I on the obligations and rights of clerics (cc. 273–289). The first of these, canon 276 §1, states an obligation: In leading their lives, clerics are bound in a special way to pursue holiness since, having been consecrated to God by a new title in the reception of orders, they are dispensers of the mysteries of God in the service of His people.9

7.  While this paper examines only the uses of the noun, “sanctitas,” there are numerous uses of the adjective “sanctus, a, um” in the code, including more than 40 references to “Sancta Sedes,” and 36 references to “Sanctissima Eucharistia.” See Ochoa, Index Verborum, 428–429. Related to holiness, of course, is the whole of Book IV, “De Ecclesiae Munere Sanctificandi.” More closely related to the theme of holiness as explored in this paper is the use of the adjective “holy” in canon 210, which obliges all the Christian faithful to “direct their efforts to lead a holy life.” 8.  The Code of Canon Law does not define “holiness.” In some instances, such as canon 276 §2, it equates holiness with “perfection.” Lawrence S. Cunningham defines holiness as “the state of being set apart for religious purposes or being consecrated to God.” See The New Dictionary of Catholic Spirituality, ed. Michael Downey (Collegeville, MN: The Liturgical Press, 1993) 479. According to Cunningham, Thomas Aquinas defined holiness as “the virtue by which people apply themselves and their actions to God.” See New Dictionary, 480. 9.  Codex Iuris Canonici auctoritate Ioannis Pauli PP. II promulgatus (Vatican City: Libreria Editrice Vaticana, 1983) c. 276 §1: “In vita sua ducenda ad sanctitatem persequendam peculiari ratione tenentur clerici, quippe qui, Deo in ordinis receptione novo titulo consecrati, dispensatores sint mysteriorum Dei in servitium Eius populi.”

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The expectation that clerics pursue holiness is not new to the 1983 code. One of the sources for this first paragraph of canon 276 is canon 124 of the 1917 Code of Canon Law which read as follows: Clerics must lead an interior and exterior life holier than that of laity and should excel in rendering them an example of virtue and good deeds.10

There are two stark differences between the earlier and later canon. First, the 1917 canon presumed there are varying degrees of holiness and that clerics were to achieve a higher degree than lay persons. The 1983 canon, on the other hand, says clerics are bound “in a special way” to pursue holiness, but the notion that they must be “holier” than the laity has disappeared. Second, the earlier canon related the holiness of clerics to their ability to provide a good example to the laity. The later canon asserts that the obligation of clerics to pursue holiness is directly linked to their ministry as dispensers of the mysteries of God, that is, their function of sanctifying (making holy), which is exercised in service to the people. The differences in the canon must be attributed to the Second Vatican Council, especially its emphasis on the universal call to holiness as expressed in chapter 5 of the Dogmatic Constitution on the Church Lumen gentium: Therefore in the Church, everyone whether belonging to the hierarchy, or being cared for by it, is called to holiness, according to the saying of the Apostle: ‘For this is the will of God, your sanctification.’11

According to Lumen gentium, holiness itself is “one,” but the paths to holiness are many.12 Lumen gentium 41, a source of canon 276 §1, notes that priests increase their holiness both through their public ministry and their personal prayer, even as both are offered for the whole Church:

10.  Codex Iuris Canonici Pii X Pontificis Maximi iussu digestus Benedicti Papae XV auctoritate promulgatus (Rome: Typis Polyglottis Vaticanis, 1917) c. 124: “Clerici debent sanctiorem prae laicis vitam interiorem et exteriorem ducere eisque virtute et recte factis in exemplum excellere.” English translation of canons of the 1917 code are taken from Edward Peters, The 1917 Pio-Benedictine Code of Canon Law in English Translation with Extensive Scholarly Apparatus (San Francisco: Ignatius Press, 2001). 11.  Vatican II, Lumen gentium 39, November 21, 1964: AAS 57 (1965) 44. English translation from Vatican Council II: The Conciliar and Post Conciliar Documents, ed. Austin Flannery, 2nd ed. (Northport, NY: Costello Publishing, 1996) 39. All subsequent translations of Vatican II documents are from this source. 12.  LG 41. Flannery 398.

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By their very office of praying and offering sacrifice for their own people and the entire people of God, they should rise to greater holiness. . . . these priests, in their apostolic labors, rather than being ensnared by perils and hardships, should rather rise to greater holiness through these perils and hardships. They should ever nourish and strengthen their action from an abundance of contemplation, doing all this for the comfort of the entire Church of God.13

The reciprocal relationship between ministry and holiness is also addressed in Presbyterorum ordinis, another source of canon 276 §1: For it is through the sacred actions they perform every day, as through their whole ministry . . . that they are set on the right course to perfection of life. The very holiness of priests is of the greatest benefit for the fruitful fulfillment of their ministry . . . Priests will acquire holiness in their own distinctive way by exercising their functions sincerely and tirelessly in the Spirit of Christ.14

This link between ministry and holiness is reaffirmed in the second paragraph of canon 276, which lists specific ways by which clerics are to pursue perfection, the first of which is “to fulfill faithfully and tirelessly the duties of the pastoral ministry.” Only then does the canon list the more devotional paths to holiness: reflection on sacred scripture, daily Eucharist, liturgy of the hours, spiritual retreats, mental prayer, and devotion to the Blessed Virgin Mary (c. 276 §2, 2°–5°). In summary, canon 276 indicates that clerics must pursue holiness, not only for their own sake, but for the sake of the people they serve and, in turn, their service to these very same people is their main means of pursuing holiness. For clerics, carrying out the ministry assigned to them is their primary path to holiness, and not just carrying out that ministry, but exercising it “fideliter et indefesse”—faithfully and tirelessly. This would seem to indicate that the other spiritual practices listed in canon 276 §2, whether recommended or mandated, must, at times, yield to the needs of the people. Furthermore, having to forego spiritual exercises to respond to those needs does not diminish, but rather facilitates, the cleric’s pursuit of holiness. The second canon of the code that refers explicitly to clerics and holiness is canon 278 §2: 13. Ibid. 14.  Vatican II, Presbyterorum ordinis 12–13, December 7, 1965: AAS 58 (1966) 1010–1011. Flannery, 886–887.

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Secular clerics are to hold in esteem especially those associations which, having statutes recognized by competent authority, foster their holiness in the exercise of the ministry through a suitable and properly approved rule of life and through fraternal assistance and which promote the unity of clerics among themselves and with their own bishop.15

The canon addresses only secular clerics because religious, including religious clerics, have their own norms regarding membership in associations of the faithful (c. 307 §3). The first paragraph of canon 278 affirms the right of secular clerics to form associations “to pursue purposes in keeping with the clerical state.” The second paragraph recommends associations whose purposes are especially appropriate for secular clerics, that is, those which foster their holiness (sanctitas) and promote unity among themselves. Again, the canon links holiness and ministry, but is quoted almost verbatim from Presbyterorum ordinis 8, which focuses exclusively on unity among priests. The conciliar Decree on the Ministry and Life of Priests recommends common life, meetings, or associations of the faithful as ways for priests to “find mutual help in cultivating the intellectual and spiritual life, to promote better cooperation amongst them in the ministry, to safeguard them from possible dangers arising from loneliness.”16 Canon 278 §2 and its primary source recognize that loneliness and isolation, which are not uncommon among secular clerics, have the potential to dissipate their pursuit of holiness and consequently drain their vocation and ministry of spiritual vibrancy. Thus, while canon 276 §1 obliges clerics to pursue holiness, for their own sake and the sake of the people they serve, canon 278 §2 reminds them that they need not be alone in that pursuit.

Diocesan Bishops and Holiness

A diocesan bishop is, of course, a cleric, and therefore, by reason of his state in life, is a subject of the canons already discussed on the holiness 15.  C. 278 §2: “Magni habeant clerici saeculares praesertim illas consociationes quae, statutis a competenti auctoritate recognitis, per aptam et convenienter approbatam vitae ordinationem et fraternum iuvamen, sanctitatem suam in ministerii exercitio fovent, quaeque clericorum inter se et cum proprio Episcopo unioni favent.” 16.  PO 8. Flannery 879. Presbyterorum ordinis 8 is also a source of canon 275 §1 which exhorts clerics “to be united among themselves by a bond of brotherhood and prayer” since they all work for the same purpose, “the building up of the Body of Christ.”

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of clerics. Nevertheless, by canon 387, he also has an obligation of holiness by reason of office. The obligation is twofold: 1) he is “to show an example of holiness in charity, humility and simplicity of life”; and 2) he is “to strive to promote in every way the holiness of the Christian faithful according to the vocation of each.”17 In fact, the canon recognizes a cause and effect relationship between the holiness of a diocesan bishop and that of the people he serves. It is primarily by his own example of holiness that he fosters the holiness of others. Furthermore, his holiness is evidenced by the personal virtues of charity and humility and by a personal lifestyle of simplicity. In the broader context of the whole canon, the bishop’s example of holiness is part of his exercise of his sanctifying function, that is, as “the principal dispenser of the mysteries of God.” While the canon is sourced wholly in conciliar and postconciliar documents, the first part of the text did not appear in the first two schemata of canons De Populi Dei. Rather, canon 240 of the 1977 schema and canon 354 of the 1980 schema began with what is the second clause of canon 387 in the promulgated code: “The diocesan bishop is to strive to promote in every way the holiness of the Christian faithful according to the vocation of each.”18 That the diocesan bishop is to exemplify holiness by charity, humility and simplicity of life first appears in the 1982 schema, but even then the term “obligation” does not appear.19 It is only in the promulgated text of 1983 that the diocesan bishop’s example of holiness is termed an “obligatio,” indicating the importance of episcopal sanctity to the legislator, Pope John Paul II,20 and more closely replicating the direct source of this passage, Christ dominus 15. The conciliar sources of canon 387 are Lumen gentium and the Decree on the Pastoral Office of the Bishops in the Church Christus dominus. As already noted, Chapter 5 of Lumen gentium on “The Universal Call to 17.  Canon 387: “Episcopus dioecesanus, cum memor sit se obligatione teneri exemplum sanctitatis praebendi in caritate, humilitate et vitae simplicitate, omni ope promovere studeat sanctitatem christifidelium secundum uniuscuiusque propriam vocationem atque.” 18.  Edward N. Peters, Incrementa in Progressu 1983 Codicis Iuris Canonici (Montreal: Wilson & Lafleur Ltée, 2005) 348: “Episcopus dioecesanus omni ope promovere studeat sanctitatem christifidelium, secundum uniuscuiusque propriam vocationem atque.” 19.  Ibid. “Episcopus dioecesanus, memor se teneri ad exemplum sanctitas praebendum in caritate, humilitate et vitae simplicitate.” 20. It is well known that Pope John Paul II personally made changes in the text of various canons before promulgation. See, for example, Peters, Incrementum in Progressu, vi: “Finally, in order that the text be completely his own as the Supreme Pastor of the Church, he personally read the final draft of the 1983 Code, canon by canon, with the help of a select group of experts.”

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Holiness,” addresses the path to holiness of priests and deacons. It also addresses episcopal holiness: In the first place, the shepherds of Christ’s flock, in the image of the high and eternal priest, shepherd and bishop of our souls, should carry out their ministry with holiness and eagerness, with humility and fortitude; thus fulfilled, this ministry will also be for them an outstanding means of sanctification . . . They should not be afraid to lay down their life for their sheep and, being a model to their flock (cf. 1 Pet. 5:3), they must foster a growing holiness in the Church, also by their own example.21

This passage reflects the conciliar affirmation that bishops are vicars of Christ and, as such, should reflect Christ’s holiness. Note also the nowfamiliar connection between the bishop’s sanctity and his ministry, and between the bishop’s sanctity and that of the Christian faithful he serves. As for all clerics, holiness and ministry have a reciprocal relationship for those who hold the office of diocesan bishop. And, as for all clerics, the holiness of the bishop is not only for his own benefit, but for the good of the whole Church. The direct source of the first clause of canon 387 is Christus dominus 15: As spiritual guides of their flocks, bishops should be zealous in promoting the sanctity of their clergy, their religious and their laity according to the vocation of each individual, remembering that they are under an obligation to give an example of sanctity in charity, humility and simplicity of life.22

Charity and humility are well-studied virtues, but what is meant by simplicity of life when it comes to diocesan bishops? By canon 282 §1, all clerics, not just diocesan bishops, are “to foster simplicity of life.” However secular priests do not make a profession of the evangelical counsel of poverty, and the vow of poverty is mitigated for religious priests who are called to the episcopacy (c. 706). A post-conciliar source of canon 387, the 1973 Directory on the Pastoral Ministry of Bishops, issued by the Sacred Congregation for Bishops, helps us understand what simplicity means in the life of a diocesan bishop. According to the directory, among the virtues “which should grace the life of a bishop,” are pastoral charity, faith, hope, obedience to God, perfect continence, and “Poverty of spirit and

21.  LG 41. Flannery, 398. 22.  Vatican II, Christus Dominus 15, October 28, 1965: AAS 58 (1966) 680. Flannery, 572.

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life.”23 Like the evangelical counsel of poverty professed by public vow and observed by religious, the “poverty of spirit and life” of a bishop is based on the example of Jesus Christ, “the eternal Shepherd who though rich became poor for our sake.”24 Therefore, poor both in spirit and in fact, the bishop observes a modest lifestyle especially consonant with the social and economic conditions of the majority of his spiritual children. Never giving in to the “accepting of persons” by reason of wealth or social status, the bishop associates with everybody in a familiar, human and simple way. Likewise he has a home that is modest in furnishing, style and staff. He is modest in dress and conduct and has modest income and expenses. He will avoid every appearance of lordship or of secular business. Indeed, he will show himself a father to everybody, but especially to the weak and the poor, realizing that it was primarily to preach the Gospel to them that he was anointed by the Holy Spirit and sent, in imitation of Jesus Christ (cf. Lk 4:18). With simplicity he uses the insignia lawfully assigned to his rank and he does not lay them aside without a just cause. When possible he renounces honorary titles. At the opportune time he makes a will so that if anything is left over that has come to him from the altar it may be wholly returned to the altar. Finally, he practices such restraint in functions and administration and in attending purely civil ceremonies that it is clear to all that he subordinates everything else to his spiritual duties.25 23. Sacred Congregation for Bishops, Directorium de pastorali ministerio Episcoporum (DPME) 23–28, February 22, 1973. The English translation is taken from Directory on the Pastoral Ministry of Bishops (Ottawa: Canadian Catholic Conference, 1974) 17–20. 24.  DPME 28. Directory on the Pastoral Ministry of Bishops, 19–20. 25.  DPME 28. Directory on the Pastoral Ministry of Bishops, 20. The 1973 DPME was updated in 2003 in response to the 2001 Synod of Bishops on “The Bishop, Servant of the Gospel of Jesus Christ for the Hope of the World.” The revised DPME, Apostoloroum successores, addresses the “Affective and Effective Poverty” of bishops in article 45: “A bishop should be visibly poor, he should be tireless in giving alms and he should lead a modest life which, without detracting from the dignity of his office, nevertheless takes account of the socio-economic conditions of his flock. As the Council says, he should seek to avoid anything that might in any way alienate the poor, and even more than the other disciples of the Lord, he should seek to eliminate from his possessions every hint of vanity. He should furnish his home in such a way that it never appears unapproachable, so that no one, even the humblest, is ever afraid to visit it. Simple in his bearing, he should seek to be affable towards everyone, and should never indulge in favouritism on the basis of wealth or social standing. He should behave like a father towards everyone, especially towards those of lowly condition: he knows that he was anointed by the Holy Spirit, like Jesus (cf. Lk 4:18), and that he was sent first of all to proclaim the Gospel to the poor. ‘In this perspective of sharing and of simplicity of life, the Bishop will administer the goods of the Church like the “good head of a household,” and be careful to

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The language of DPME 28 is strikingly similar to that of canon 600 on the evangelical counsel of poverty as it applies to members of institutes of consecrated life: The evangelical counsel of poverty in imitation of Christ who, although he was rich, was made poor for us, entails, besides a life which is poor in fact and in spirit and is to be led productively in moderation and foreign to earthly riches, a dependence and limitation in the use and disposition of goods according to the norm of the proper law of each institute.

On the corporate level, religious institutes, provinces and houses “are to avoid any appearance of excess, immoderate wealth, and accumulation of goods (c. 634 §2).” One of the recommendations that arose during the 2001 Synod of Bishops on bishops was “a clearer specification of the properly ‘episcopal’ character of the Bishop’s path to holiness.”26 In response, Pope John Paul II devoted one of the seven chapters of his Post-Synodal Exhortation Pas­ tores gregis to “The Spiritual Life of the Bishop.” The pope reiterated that “it is above all in exercising his own ministry, inspired by imitation of the charity of the Good Shepherd, that the Bishop is called to be sanctified and to sanctify.”27 Furthermore, bishops pursue personal holiness through the sacraments and prayer, including the Liturgy of the Hours, and by way of the evangelical counsels of obedience, chastity and poverty. “The life of the Bishop must radiate the life of Christ and consequently Christ’s own obedience to the Father, even unto death, death on a Cross (cf. Phil 2:8), his chaste and virginal love, and his poverty which is absolute detachment from all earthly goods.”28 Addressing each of the counsels individually, Pope John Paul II wrote the following about poverty: ensure that they are used for the Church’s own specific ends: the worship of God, the support of her ministers, the works of the apostolate and initiatives of charity towards the poor.’ In due time he should draw up his last will and testament, ensuring that, if any goods have come to him from the service of the altar, they return entirely to the altar.” Accessed on December 4, 2012 at http://www.vatican.va/roman_curia/congregations/cbishops/documents /rc_con_cbishops_doc_20040222_apostolorum-successores_en 26.  John Paul II, post-synodal apostolic exhortation Pastores gregis 12, October 16, 2003: AAS 96 (2004) 842. English translation accessed on December 4, 2015 at http://w2.vatican.va /content/john-paul-ii/en/apost_exhortations/documents/hf_jp-ii_exh_20031016_pastores -gregis.html. 27.  Pastores gregis 11. 28. Pastores gregis 18.

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Consequently, the Bishop who wishes to be an authentic witness and minister of the Gospel of hope must be a vir pauper. This is demanded by the witness he is called to bear to Christ, who was himself poor. It is also demanded by the Church’s concern for the poor, who must be the object of a preferential option. The Bishop’s decision to carry out his ministry in poverty contributes decisively to making the Church the ‘‘home of the poor’’. . . He will carry out this service effectively if his own life is simple, sober and at the same time active and generous, and if it places those considered least important in our society not on the fringes but rather at the centre of the Christian community . . . Encouraged by the example of their pastors, the Church and the Churches must practise that ‘‘preferential option for the poor’’ which I have indicated as programmatic for the third millennium.29

To summarize, diocesan bishops, like all clerics are obliged to pursue holiness through the traditional means, such as celebration and reception of the sacraments, Liturgy of the Hours, mental prayer, and Marian devotion. Diocesan bishops, like all clerics, sanctify and become sanctified through their ministry. But while all clerics are called to foster simplicity of life, for diocesan bishops, this obligation is explicitly connected to their personal holiness and one of the ways by which they promote the holiness of the Christian faithful entrusted to their care. The 1973 Directory on the Pastoral Ministry of Bishops more concretely defines the modest lifestyle expected of diocesan bishops, using language that is similar to conciliar and canonical language regarding the evangelical counsel of poverty observed by institutes of consecrated life and their members. In Pastores gregis, Pope John Paul II recommends the evangelical counsels as a characteristically episcopal path to holiness. He recommends the evangelical counsel of poverty not only for the personal sanctification of bishops, but also as a sign of the Church’s preferential option for the poor.

Holiness and the State of Consecrated Life

Lumen gentium insists that all in the Church are called to holiness, but the fruits of holiness are expressed in different ways depending on an individual’s state in life. The conciliar document then singles out the practice of the 29. Ibid.

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evangelical counsels as “a striking witness and example of that holiness.”30 Therefore, it is especially appropriate that the term “sanctitas” appears in three canons related to the state of consecrated life which, by definition, is a state of life within the Church in which persons profess the evangelical counsels (c. 573 §1). Canons 207 §2 and 574 §1 both quote the same phrase from Lumen gentium 44: the state of consecrated life “belongs to the life and holiness of the Church.”31 Canon 674 describes religious institutes that are entirely ordered to contemplation. Canon 207 is the final of the four introductory canons of Book II, Part I on “The Christian Faithful.” The first of these canons (c. 204) answers the question: “Who are the Christian faithful?” The second (c. 205) answers the question: “Who, more specifically, are the Christian faithful who are in full communion of the Catholic Church?” The third (c. 206) addresses the canonical condition of catechumens. Finally, canon 207 addresses the categories of the Christian faithful within the Catholic Church. The first paragraph asserts that, by divine institution, there are two categories of the faithful—sacred ministers (clerics) and lay persons. The second paragraph describes the place within the Church of the state of consecrated life, that is, the state of those clerics and lay persons who profess the evangelical counsels by means of vows or other sacred bonds: “Although their state does not belong to the hierarchical structure of the Church, it nevertheless belongs to its life and holiness.”32 The meaning of this statement can become clear only by examining the process by which it was formulated during the Second Vatican Council.33 In discussing the various drafts of the Dogmatic Constitution on the Church, the council fathers affirmed early on that it is by divine law that the Church is hierarchically constituted and, furthermore, it is by divine law that the hierarchical constitution of the Church consists of two categories of Christifideles—clergy and laity. This twofold affirmation prompted a significant number of council fathers, especially those who were members 30.  LG 39. Flannery, 396. 31.  LG 44. Flannery, 405. 32.  Canon 207 §2: “Ex utraque hac parte habentur christifideles, qui professione consiliorum evanglicorum per vota aut alia sacra ligamina . . . quorum status, licet ad hierarchicam Ecclesiae structuram non spectet, ad eius tamen vitam et sanctitatem pertinet.” 33.  The following summary of the development and meaning of this phrase is derived primarily from Nancy A. Bauer, “The State of Consecrated Life: Vita et Sanctitas Ecclesiae,” The Jurist 75 (2015) 71–107.

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of religious institutes, to raise the question of the place of religious within the constitution of the Church. While a few argued that religious constitute a third category in the Church’s divinely established hierarchical ordering, others conceded that religious life is not part of the hierarchical constitution but that there is more to the Church than its hierarchical constitution. There is also, by divine institution, a pneumatic constitution of the Church, or an eschatological, or charismatic constitution, and religious life belongs to this more transcendent dimension of the Church. The precise phrase, that the state of religious life “belongs to the life and holiness of the Church,” appeared for the first time in the final draft of the dogmatic constitution which became the approved text of Lumen gentium. The Doctrinal Commission’s relatio explained that this passage was not in the earlier schemata, but was added because it corresponds to the desire of many of the fathers, and serves as a conclusion to the nature and importance of the religious state, for this state belongs to the very “vitam ‘pneu­ maticam’ et sanctitatem Ecclesiae.”34

When the conciliar and canonical phrase says the state of consecrated life belongs to the holiness of the Church, it refers to all aspects of this state of life which is characterized, first of all, by observance of the evangelical counsels in imitation of the earthly Jesus who was poor, chaste and obedient.35 These counsels, which entail renunciation of certain human pleasures—possessions, sexual activity and generativity, and the priority of one’s own will—point to a reality beyond the material world, to a future life of heavenly glory. This eschatalogical witness, based on the following of Christ, and other aspects of the holiness of consecrated life are

34.  Bauer, “The State of Consecrated Life,” 89. Note that, while the conciliar fathers spoke of “religious life,” the Code of Canon Law speaks more broadly of “consecrated life,” which includes religious institutes, secular institutes, hermits as defined in canon 603, and consecrated virgins as described in canon 604. Societies of apostolic life do not constitute consecrated life in the strict canonical sense because the members do not necessarily profess the evangelical counsels, but these societies are described in canon 731 §1 as resembling institutes of consecrated life. 35.  LG 43: “The teaching and example of Christ provide the foundation for the evangelical counsels of chaste self-dedication to God, of poverty and of obedience.” Flannery, 402. See also canon 575: The evangelical counsels are based on the teaching and examples of Christ the Teacher.

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identified in canon 573 §1: it is a life of total dedication to God “who is loved most of all,” to the building up of the Church, and to the salvation of the world. The state of consecrated life is also characterized by a commitment to seek God through various spiritual practices. According to canon 663 §1, “the first and foremost duty of all religious is to be the contemplation of divine things and assiduous union with God in prayer.” The canon recommends specific spiritual exercises, such as daily Eucharist (c. 663 §2); reading of sacred scripture, mental prayer, and liturgy of the hours (c. 663 §3); devotion to the Virgin Mother of God (c. 663 §4); and an annual sacred retreat (c. 663 §5). Canon 664 adds “conversion of the soul toward God” through the sacrament of penance. Hermits who make profession in the hands of the diocesan bishop “devote their life to the praise of God and the salvation of the world through a stricter withdrawal from the world, the silence of solitude, and assiduous prayer and penance (c. 603 §1).” Members of secular institutes are “to devote themselves diligently to prayer,” read sacred scripture, participate in an annual retreat, and perform other spiritual exercises (c. 719 §1); participate in daily Eucharist if possible (c. 719 §2); and receive the sacrament of penance frequently (c. 719 §3). That consecrated life belongs to the life and holiness of the Church refers to the totality of the life, including its imitation of Jesus by observance of the evangelical counsels, its eschatological witness, and the prominence it gives to prayer and contemplation. The affirmation that the state of consecrated life “belongs to the life and holiness of the Church” has essentially the same meaning in canon 574 §1 as it does in canon 207 §2, but serves a different purpose in the different context. Canon 574 §1 is among the norms common to all institutes of consecrated life (cc. 573–606). As such, it applies to religious institutes and secular institutes. It reads as follows: The state of those who profess the evangelical counsels in institutes of this type belongs to the life and holiness of the Church and must be fostered and promoted by all in the Church.36

36.  C. 574 §1: “Status eorum, qui in huiusmodi institutis consilia evangelica profitentur, ad vitam et sanctitatem Ecclesiae pertinet, et ideo ab omnibus in Ecclesia fovendus et promo­ vendus est.”

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In the context of canon 207 §2, the conciliar statement describes the place of consecrated life within the constitution of the Church, that is, it belongs to the life and holiness of the Church. In canon 574 §1 the statement serves as the basis for the veneration accorded the state of consecrated life, that is, because it belongs to the life and holiness of the Church, it is to be fostered and promoted by all. The third and final appearance of the term sanctitas in relation to consecrated life occurs in canon 674, which describes religious institutes that are referred to as “contemplative”: Institutes which are entirely ordered to contemplation always hold a distinguished place in the mystical Body of Christ: for they offer an extraordinary sacrifice of praise to God, illumine the people of God with the richest fruits of holiness, move it by their example, and extend it with hidden apostolic fruitfulness. For this reason members of these institutes cannot be summoned to furnish assistance in the various pastoral ministries however much the need of the active apostolate urges it.37

The canon is one of eleven on the apostolate of religious institutes (cc. 673–683). In this context, canon 674 asserts that contemplation itself is the apostolate of institutes entirely ordered to such. The fruits of this contemplation include holiness which, despite its hiddenness, illumines the whole people of God. The fruits of contemplation that shine forth from these institutes is so important to the Church, that the members cannot be summoned for other works of the apostolate. The particular spirituality of contemplative institutes is briefly described in Perfectae caritatis 7 which says the members “give themselves over to God alone in solitude and silence, in constant prayer and willing penance.”38 At first glance, it appears that canon 674 stands in contrast to the following canon which describes religious institutes that are referred to as “apostolic”—those dedicated to apostolic action and imbued with an apostolic spirit (c. 675 §1). However, the apostolic action of these institutes “is 37.  C. 674: “Instituta, quae integre ad contemplationem ordinantur in Corpore Christi mystico praeclaram semper partem obtinent: Deo enim eximium laudis sacrificium offerunt, populum Dei uberrimis sanctitatis fructibus collustrant eumque exemplo movent necnon arcana fecunditate apostolica dilatant. Qua de causa, quantumvis actuosi apostolatus urgeat necessitas, sodales horum institutorum advocari nequeunt ut in variis ministeriis pastoralibus operam adiutricem praestent.” 38.  PC 7. Flannery, 615.

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to proceed always from an intimate union with God (c. 675 §2).” In other words, all religious institutes, whether defined as “contemplative” or as “apostolic,” have a contemplative dimension that must be safeguarded, as already stipulated in canon 663. According to Perfectae caritatis, all religious “ought to seek God before all else,” and “they should join contemplation, by which they cleave to God by mind and heart, to apostolic love.”39 In summary, the pursuit of holiness is constitutive of consecrated life, whether it is a form of consecrated life dedicated entirely to contemplation or a form dedicated primarily to the apostolate. The pursuit of holiness on the part of individuals within the various forms of consecrated life is for the spiritual benefit of the individuals and for the good of the whole Church and world. Thus, the state of consecrated life, even though it does not belong to the divinely instituted hierarchical structure of the Church, is said to belong to the life and holiness of the Church, that is, to the divinely instituted pneumatic, charismatic, and eschatological dimensions of the Church.

Holiness and the State of Marriage

Two canons refer to the holiness of marriage. Canon 1063 is the first of ten canons on “Pastoral Care and Those Things Which Must Precede the Celebration of Marriage.” The canon obliges pastors of souls to see that ecclesiastical communities provide assistance to the Christian faithful regarding the state of matrimony. Among the four categories of assistance to be offered is “personal preparation to enter marriage, which disposes the spouses to the holiness and duties of their new state.”40 The second reference to the holiness of marriage in the canons of the 1983 code appears in one of the four canons on “Marriage Celebrated Secretly (cc. 1130–1133).” Canon 1132 reads as follows:

39.  PC 5. Flannery, 614. 40. C. 1063: Pastores animarum obligatione tenentur curandi ut propria ecclesiastica communitas, christifidelibus assistentiam praebeat, qua status matrimonialis in spiritu christiano servetur et in perfectione progrediatur. Haec assistentia imprimis praebenda est . . . 2° praeparatione personali ad matrimonium ineundum, qua sponsi ad novi sui status sanctitatem et officia disponantur.”

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The obligation of observing the secrecy . . . ceases on the part of the local ordinary if grave scandal or grave harm to the holiness of marriage is imminent due to the observance of the secret; this is to be made known to the parties before the celebration of the sacrament.41

Unlike most of the canons considered thus far, the two canons that refer to the holiness of marriage have sources in the 1917 code. Two canons from the 1917 code are listed as sources of canon 1063, 2°: canon 1018 obliged pastors to educate people “about the sacrament of marriage and its impediments,” while canon 1033 required pastors to instruct spouses on “the sanctity of the sacrament of marriage.” Note that the first of these canons did not refer to the holiness of marriage, but only to marriage as a sacrament, while the second canon associated the sanctity of marriage with the sacrament. Canon 1132 of the 1983 code has as its only source canon 1106 of the 1917 code which also provided for discontinuing the secrecy of a “matrimo­ nium conscientiae” if there was imminent grave sandal or grave harm to the holiness, or sanctity, of marriage. None of these canons even minimally explains what is meant by the holiness of marriage, but some of their sources are helpful, especially two papal encyclicals: Pope Leo XIII’s 1880 encyclical Arcanum divinae sapien­ tiae, a source of the 1917 code’s canon 1018; and Pope Pius XI’s 1930 encyclical Casti connubii, a source of canon 1063, 2°of the 1983 code. In Arcanum, Pope Leo XIII reflects on how Jesus Christ “ennobled” marriage, first of all, by his presence at the marriage in Cana, so that “from that day forward, it seemed as if the beginning of a new holiness had been conferred on human marriages.”42 Secondly, Christ “raised marriage to the dignity of a sacrament . . . making marriage an example of the mystical union between Himself and His Church.”43 The grace given to the spouses through the sacrament empowers them “to attain holiness in the married state.”44 But marriage had “in it something holy and religious” 41.  C. 1132: “Obligatio secretum servandi . . . ex parte Ordinarii loci cessat si grave scandalum aut gravis erga matrimonii sanctitatem iniuria ex secreti observantia immineat, idque notum fiat partibus ante matrimonii celebrationem.” 42.  Leo XIII, Encyclical Arcanum divinae sapientiae 8, February 10, 1880. Accessed December 4, 2015 at http://w2.vatican.va/content/leo-xiii/en/encyclicals/documents/hf_l-xiii _enc_10021880_arcanum.html. 43.  Arcanum 9. 44. Ibid.

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from the very beginning, because it has God for its author and was a “kind of foreshadowing of the Incarnation of His Son.”45 Consequently, “marriage is holy by its own power, in its own nature, and of itself.”46 Some canonists who commented on the 1917 code drew on Arcanum to argue that marriage is “by nature a sacred contract.” God established marriage as the natural means of propagation for His choicest earthly creatures. It is sacred for that reason. It is moreover sacred because it is a means of mutual help for husband and wife—help, not merely to material or temporal progress, but to their only true destiny, which is God. It is sacred, finally, because it mystically represents the union of the divine and human natures in the Incarnation of the Son of God.47

Fifty years after Arcanum, Pope Pius XI issued Casti connubii, in which he described marriage as a “union of souls by God’s decree,” from which “a sacred and inviolable bond arises.”48 The mutual love between the spouses should lead them to holiness. For matrimonial faith demands that husband and wife be joined in an especially holy and pure love, not as adulterers love each other, but as Christ loved the Church . . . This outward expression of love . . . must have as its primary purpose that man and wife help each other day by day in forming and perfecting themselves in the interior life, so that through their partnership in life they may advance ever more and more in virtue, and above all that they may grow in true love toward God and their neighbor.49

Vatican II reaffirms the traditional theology of marriage as a sign of the union of Christ and his Church, as expressed in Arcanum and Casti connubii, and as a means of spouses bringing each other to holiness, as expressed in Casti connubii. Lumen gentium 11 addresses each of the sacraments, concluding with marriage.

45.  Arcanum 19. 46.  Ibid. Pope Leo XIII was eager to demonstrate the holiness of marriage to prove that its regulation should be an ecclesiastical rather than a civil matter. 47.  T. Lincoln Bouscaren and Adam C. Ellis, Canon Law: A Text and Commentary, 3rd rev. ed. (Milwaukee: The Bruce Publishing Company, 1957) 445–446. 48.  Pius XI, Encyclical Casti connubii 7, December 31, 1930: AAS 22 (1930) 547–548. English translation accessed December 4, 2015 at http://w2.vatican.va/content/pius–xi/en/encyclicals /documents/hf_p-xi_enc_31121930_casti-connubii.html 49.  Casti connubii 23.

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Finally, in virtue of the sacrament of Matrimony by which they signify and share (cf. Eph. 5:32) the mystery of the unity and faithful love between Christ and the Church, Christian married couples help one another to attain holiness in their married life and in the rearing of their children.50

Gaudium et spes also affirms that marriage is “modeled on Christ’s own union with the Church” and that, by the sacrament of marriage, spouses “are penetrated with the spirit of Christ” and “they increasingly further their own perfection and their mutual sanctification.”51 As parents, the spouses provide an example of holiness to their children, and children, in turn, “contribute in their own way to the sanctification of their parents.”52 The pre-Vatican II encyclicals and the Vatican II documents associate the holiness of marriage with the sacramentality of marriage which signifies “the mystery of the unity and fruitful love between Christ and the Church (c. 1063, 3°).” The sacrament endows spouses with the grace to bring each other to holiness and to bring holiness to their households.

The Holiness of Sacred Places

It may seem redundant to speak of the “holiness” of “sacred” places. Is a place that is holy not also sacred and vice versa? Theologically speaking, the terms may be interchangeable, but canonically there is a difference. According to canon 1205, two things are necessary for a place to be considered sacred (sacer): 1) it must be designated either for divine worship or for burial of the faithful; and 2) it must either be dedicated or blessed according to the prescribed rites. The code does not define holiness, but certain conditions or activities can diminish or even violate the sanctitas of a place even as it remains sacer from a canonical perspective. Indeed, the four canons that explicitly mention the sanctitas of sacred places focus on avoiding whatever might threaten that holiness. Two of these canons—1210 and 1211—are among the introductory canons of the title on sacred places (cc. 1205–1213) and thus refer to sacred places in general. 50.  LG 11. Flannery, 362. See also Ordo Celebrandi Matrimonium, praenotandi 1, March 19, 1969. 51.  Vatican II, Gaudium et Spes 48, December 7, 1966: AAS 58 (1966) 1068–1069. Flannery, 950–951. 52.  GS 48. Flannery, 951.

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C. 1210. Only those things which serve the exercise of worship, piety, or religion are permitted in a sacred place; anything not consonant with the holiness of the place is forbidden. In an individual case, however, the ordinary can permit other uses which are not contrary to the holiness of the place.53 C. 1211. Sacred places are violated by gravely injurious actions done in them with scandal to the faithful, actions which, in the judgement of the local ordinary, are so grave and contrary to the holiness of the place that it is not permitted to carry on worship in them until the damage is repaired by a penitential rite according to the norm of the liturgical books.54

A third canon—1220 §1—refers specifically to churches: All those responsible are to take care that in churches such cleanliness and beauty are preserved as befit a house of God and that whatever is inappropriate to the holiness of the place is excluded.55

The fourth canon that mentions holiness in relation to sacred places appears in Book II of the code, in the article on rectors of churches (cc. 556–563). Among the responsibilities of rectors is to see that nothing occurs in the churches under their care that is “unfitting to the holiness of the place and the reverence due to a house of God.”56 All four of these canons have sources in the 1917 Code of Canon Law, and two of them, canons 1210 and 1220, have additional sources that date from the decades between 1917 and the Second Vatican Council, as well as conciliar and post-conciliar documents. The extra-codal sources of canon 1210 primarily address sacred art and sacred music, while those cited for canon 1220 address the proper physical condition of churches. Rather than present a commentary on each of these canons individually, relevant 53.  C. 1210: “In loco sacro ea tantum admittantur quae cultui, pietati, religioni exercendis vel promovendis inserviunt, ac vetatur quidquid a loci sanctitate absonum sit. Ordinarius vero per modum actus alios usus, sanctitati tamen loci non contrarios, permittere potest.” 54.  C. 1211: “Loca sacra violantur per actiones graviter iniuriosas cum scandalo fidelium ibi positas, quae, de iudicio Ordinarii loci, ita graves et sanctitati loci contrariae sunt ut non liceat in eis cultum exercere, donec ritu paenitentiali ad normam librorum liturgicorum iniuria reparetur.” 55.  C. 1220 §1: “Curent omnes ad quos res pertinet, ut in ecclesiis illa munditia ac decor serventur, quae domum Dei addeceant, et ab iisdem arceatur quidquid a sanctitate loci absonum sit.” 56.  C. 562: “. . . neve quidpiam fiat quod sanctitati loci ac reverentiae domui Dei debitae quoquo modo non congruat.”

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canons from the 1917 code and select statements from some of the preconciliar, conciliar and post-conciliar texts will be reviewed in order to gain an understanding of what is meant by the holiness of sacred places. Canons 1210 and 1220 both have canon 1178 of the older code as a source. Canon 1178 called for cleanliness befitting the “house of God,” and avoidance of business, transactions, and “anything that ill befits the holiness of the place.” Six canons of the 1917 code—1172–1177—are listed as sources of canon 1211 of the 1983 code. All of these addressed the violation of sacred places. According to canon 1211, already quoted above, sacred places are violated by “gravely injurious actions” that scandalize the faithful and are so contrary to the holiness of the place that the damage must be repaired by a penitential rite. Unlike its direct source in the 1917 code, this newer canon does not identify specific actions that violate a sacred place, while canon 1172 of the older code provided a taxative list: homicide; violence that resulted in the spilling of blood; impious and sordid use of the place; and burial of an infidel or an excommunicate after a declaratory or condemnatory sentence. In summary, the 1917 canons indicated that the holiness of a sacred place was enhanced by cleanliness, harmed by certain profane activities, and violated all together by actions that are considered criminal in the Church and/or in Church and society. The decades following promulgation of the 1917 code were characterized by a growing liturgical movement that called for a renewed understanding of liturgy and greater participation of the lay faithful in the public worship of the Church. The scope of the liturgical movement included liturgical theology, sacred art, music, and architecture. The papal encyclical Mediator Dei and instructions from Vatican congregations initiated changes in liturgical law that expanded with Vatican II and a flurry of postconciliar documents. In his 1947 encyclical, Mediator Dei, Pope Pius XII emphasized the relationship between the physical appearance of churches and the ability of the faithful to be “moved by the inspired word.”57 Churches, altars, and 57.  Pius XII, Encyclical, Mediator Dei 189, November 20, 1947: AAS 39 (1947) 588. English translation accessed December 4, 2015 at http://w2.vatican.va/content/pius-xii/en/encyclicals /documents/hf_p-xii_enc_20111947_mediator-dei.html

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vestments must be “perfectly clean and appropriate, since all is consecrated to the Divine Majesty.”58 Sacred images and statues ought not be banished from churches, but neither should they be excessive.59 Sacred music and the fine arts, including architecture, sculpture and painting should serve the needs of the Christian community, and whatever shocks Christian taste, modesty, and devotion must be excluded, like “anything else that is not in keeping with the sanctity of the place.”60 Similarly, a 1952 instruction noted that the purpose of sacred art is to foster the faith and devotion of those gathered and warned against anything preposterous, hastily adapted, profane, or indecorous, “seeing that holiness becomes the house of God.”61 Conciliar and post-conciliar documents that are listed as sources for canons 1210 and 1220 include the Vatican II Constitution on the Sacred Liturgy Sacrosanctum concilium, especially chapter 7 on “Sacred Art and Sacred Furnishings”; the 1967 instruction Eucharisticum Mysterium; the 1970 instruction Liturgiam instaurationes; the 1970 General Instruction of the Roman Missal; The Vatican II Decree on the Ministry and Life of Priests Presbyterorum ordinis; and the Order of Dedication of a Church. Sacrosanctum concilium enumerates the purposes of works of sacred art: they express the infinite beauty of God; increase the devotion of the faithful; are signs or symbols of things supernatural; and serve the dignity of worship.62 All artists who, prompted by their talents, desire to serve God’s glory in holy Church should ever remember that they are engaged in a kind of holy imitation of God the Creator: that they are concerned with works destined to be used in Catholic worship, for the edification of the faithful and to foster their piety and religious formation.63

The other conciliar and post-conciliar documents repeat the necessity of maintaining the dignity of sacred places through cleanliness and worthy 58. Ibid. 59. Ibid. 60.  MD 195. 61.  Sacred Congregation of the Holy Office, Instruction Sacrae artis, June 30, 1952: AAS 44 (1952) 542–543. 62.  Vatican II, Sancrosanctum Concilium 122, December 4, 1963: AAS 56 (1964) 130–131. Flannery 34. 63.  SC 127. Flannery, 36.

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art and architecture. They also guide ordinaries and pastors through the post-conciliar period of adaptation of church buildings, furnishings, and art to the renewed liturgical norms. The introduction to the rite of Dedication of a Church can be said to provide theological reasons that a church building is holy: it is where the Church, the holy people, the temple of God built of living stones, “gathers to hear the word of God, to pray together, to receive the sacraments, and to celebrate the Eucharist.”64 A church is a visible building that “stands as a special sign of the pilgrim Church on earth and reflects the Church dwelling in heaven.”65 It stands “as a sign and symbol of heavenly realities.”66 According to one of the suggested antiphons for the rite of dedication, the church is “the place where God dwells among his people.”67 Places used for divine worship and burial of the faithful are sacred in the canonical sense and are meant to be holy in a theological or spiritual sense. They are holy because of the very purposes they serve and because the people who use them are holy. A sacred place used for divine worship is holy because it is the dwelling place of God, a meeting place of God and the people of God, a sign and symbol of heavenly realities. It is a place of holiness, where holiness is expressed, and where holiness is fostered, not only by the worthy celebration of liturgy, but by visual effects, including architecture, furnishings, vestments, statues and other sacred art. When it comes to sacred places, beauty begets beatitude.

Conclusion

Like the biblical Book of Leviticus, the 1983 Code of Canon Law is a legislative text. It contains norms by which the Church carries out its priestly, prophetic and governing functions. It is concerned primarily with external acts. But laws, especially the laws of a community brought into being by God, are not to be dry bones. They are brought to life and have their

64.  Ordo Dedicationis Ecclesiae et Altaris 1, May 29, 1977. English translation from The Rites of the Catholic Church as Revised by the Second Vatican Council (Collegeville, MN: The Liturgical Press, 1991) 2: 358. 65.  ODE 2. The Rites, 358 66.  ODE 3. The Rites, 358 67.  ODE 64. The Rites, 380.

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intended effect when those who interpret them, apply them, and observe them fill their own lungs with the breath of the Holy Spirit. The laws of the Church presume the holiness of the people of God for whom they are made and foster the holiness of these same people. These people strive for holiness through ministry (clerics), through the example of charity, humility and simplicity of life (bishops), through contemplation and the evangelical counsels (religious), and through spousal relationships that are sacramental in nature (marriage). The holiness of these people mingles with the holiness of God, the Source of all holiness, when they gather together for worship in sacred places. The Code of Canon Law is as much a “Holiness Code” as Leviticus 17–26.

T H E C AT H O L I C U N I V E R S I T Y O F A M E R I C A

kurt martens*

Pastoral Solicitude and New National Interests after Post-War Territorial Changes: The Annexation of EupenMalmedy by Belgium after World War I Introduction

After a war, often territorial changes occur to reward the victorious parties and to punish those who lost—and often started—the war, usually under the pretext of wanting to prevent another war or to reinforce natural boundaries and defense lines. Such was no different after the end of World War I. The map of Europe completely changed as a result of the First World War: Germany was defeated and lost territory, while the Donau-monarchy Austria-Hungary fell apart, leading to the creation of many smaller states. The Bolshevist Party had conquered power in Russia, and that revolution was appealing in other parts of Europe. Within this context of instability, a sense of urgency existed to come to peace agreements with those countries that had lost the war, resulting in five peace treaties: the Treaty of Versailles (with Germany, 1919), the Treaty of SaintGermain-en-Laye (with Austria, 1919), the Treaty of Neuilly-sur-Seine (with Bulgaria, 1919), the Treaty of Trianon (with Hungary, 1920), and the Treaty of Sèvres, subsequently revised by the Treaty of Lausanne (with the Ottoman Empire, 1920, resp. Turkey, 1923). The countries that had

* Ordinary Professor, School of Canon Law, The Catholic University of America, Washington, DC.

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lost the war lost some or substantial territory,1 or, in the case of AustriaHungary, were totally dismantled. Of course, such territorial changes undoubtedly had ecclesiastical consequences. The 1983 Code of Canon Law stipulates that “it is only for the supreme authority to erect particular churches.”2 While in essence the same, the 1917 code, applicable at that time, was a bit more explicit: “It is for the supreme power of the Church alone to erect or otherwise circumscribe, divide, unite [or] suppress ecclesiastical provinces, dioceses, abbeys and prelatures of no one, apostolic vicariates, [or] apostolic prefectures.”3 The reality is sometimes quite different: because of changing circumstances, usually of political nature, the Holy See has to intervene and adjust the ecclesiastical situation and hierarchy to a totally new situation, or make at least interim provisions until a final solution is sought and found. It is not by accident that the Second Vatican Council, in particular in the decree concerning the pastoral office of bishops in the Church, Chris­ tus Dominus, focuses also on diocesan boundaries. The decree stipulates: Therefore, in what concerns the drawing up of diocesan boundaries, this synod decrees that, so far as the good of souls requires it, a prudent effort for appropriate reconstruction should be a top priority. This can be done by dividing dioceses, by cutting up some dioceses or uniting others, or by changing their boundary lines or finding a more suitable location for episcopal sees, or finally—and particularly where it is a question of dioceses

1. “The New Boundaries of Germany according to the Peace Treaty,” Geographi­ cal Review 7 (1919) 281–290; Charles G. Fenwick, “Notes on International Affairs: The Peace Treaty with Germany,” The American Political Science Review 13 (1919) 468–483; Nikolaus Wolf, Max-Stephan Schulze and Hans-Christian, “On the Economic Consequences of the Peace: Trade and Borders After Versailles,” The Journal of Economic History 71 (2011) 915–949. 2.  Codex Iuris Canonici auctoritate Ioannis Pauli PP. II promulgatus (Vatican City: Libreria Editrice Vaticana, 1983) c. 373: “Unius supremae auctoritatis est Ecclesias particulares erigere; . . . ” English translation from Code of Canon Law, Latin-English Edition: New English Translation (Washington, DC: CLSA, 1998). All subsequent English translations of canons from this code will be taken from this source unless otherwise indicated. 3.  Codex Iuris Canonici Pii X Pontificis Maximi iussu digestus Benedicti Papae XV auctoritate promulgatus (Rome: Typis Polyglottis Vaticanis, 1917) c. 215 §1: “Unius supremae ecclesiasticae potestatis est provincias ecclesiasticas dioeceses, abbatias vel praelaturas nullius, vicariatus apostolicos, praefecturas apostolicas erigere, aliter circumscribere dividere, unire, supprimere.” English translation from Edward N. Peters, curator, The 1917 or Pio-Benedictine Code of Canon Law in English Translation with Extensive Scholarly Apparatus (San Francisco: Ignatius Press, 2001). All subsequent English translations of canons from this code will be taken from this source unless otherwise indicated.

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containing a large proportion of big towns—by making a completely fresh internal rearrangement of them.4

In revising these diocesan boundaries, the fathers of the council also clearly put an emphasis on civil boundaries and suggested to take them into account as much as possible: At the same time, attention should be given to the demographic groupings of this people together with the civil departments and social organisations which create their organic structure. Their unity must as far as possible be preserved. For this reason the geographical territory of each diocese ought to be continuous. Where necessary, attention should also be given to the civil boundaries and the special characteristics of the people or the localities, such as psychological, economic, geographical and historical.5

At the end of World War I, there were, of course, also consequences for the Church, even though the choices that were made were political in nature. As a result of the various peace treaties, dioceses all of a sudden not only found themselves simultaneously in two or more different countries, the Church-State regimes were often very different, thus leading to very difficult pastoral situations. Moreover, the territorial changes were not always clear or univocal, and often debated, by political powers, by the population, or even by bishops. In these difficult circumstances, the Holy See wanted to maintain an absolute and strict neutrality and impartiality. What ultimately was important, was the pastoral care for the people. However, often political pressure was exercised on the Holy See to recognize much faster the new situation. We will first briefly look at two other 4.  Vatican II, decree Christus Dominus 22, October 28, 1965: AAS 58 (1966) 683–684; “Itaque, ad dioecesium circumscriptiones quod attinet, decernit Sacrosancta Synodus ut, quatenus animarum bonum id exigat, quamprimum ad congruam recognitionem prudenter deveniatur, eas dividendo vel dismembrando vel uniendo, aut ipsarum fines mutando vel episcopalium sedium aptiorem locum determinando, aut denique, praesertim si de dioecesibus agatur quae ex maioribus urbibus constant, eas nova interna ordinatione disponendo.” English translation in Decrees of the Ecumenical Councils, ed. Norman P. Tanner, 2 vols. (London and Washington: Sheed & Ward and Georgetown University Press, 1990) [hereafter Tanner] 2: 929. 5.  Christus Dominus 23: “simulque curetur ut huius populi conglobationes demographicae, cum civilibus officiis institutisque socialibus quae structuram ipsius organicam efficiunt, in unum, quantum fieri poterit, serventur. Qua de causa uniuscuiusque dioecesis territorium nonnisi continuum pateat. Attendatur etiam, si casus ferat, ad fines circumscriptionum civi­ lium, atque ad peculiaria personarum locorumve adiuncta, v. g. psychologica, oeconomica, geographica, historica.” AAS 58 (1966) 684; Tanner, 2: 929.

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examples, Alsace-Lorraine and Hungary, before we study in detail the subject of this study, which is the transfer of Eupen and Malmedy from Germany to Belgium and its ecclesial repercussions.

I. The Return of Alsace-Lorraine to France

The situation in France was seemingly least complicated: after the German unconditional surrender, France reclaimed the territory it lost in 1871 after the Franco-Prussian War of 1870.6 Article 51 of the Treaty of Versailles was very clear: The territories which were ceded to Germany in accordance with the Preliminaries of Peace signed at Versailles on 26 February 1871, and the Treaty of Frankfort of 10 May 1871, are restored to French sovereignty as from the date of the Armistice of 11 November 1918. The provisions of the Treaties establishing the delimitation of the frontiers before 1871 shall be restored.

The Versailles Peace Treaty was signed on June 28, 1919, but would not enter into force until January 10, 1920, just a few months later. France seemed to be in a hurry to reclaim its lost territory, and that also had ecclesiastical consequences, even if everything seemed to be based upon rumors: Even before the signing of the Versailles Treaty, reports appeared in the press stating that the German-born bishops of Metz and Strasbourg, the leading cities of Alsace-Lorraine, had resigned and were being replaced by French prelates. Berlin had not been officially informed of this and feared that the Papacy was departing from its impartiality by hastily acting to “deGermanize” the province. The report caused even more bitterness in light of the German policy, after the absorption of Alsace-Lorraine into the Reich in 1871, of not insisting that the ordinaries be ethnic Germans. In June 1919 inquiries from German representatives to the Holy See clarified the matter. Some action had been taken, but not as stated in the newspapers. The Vatican, intent on resuming an influential position in world affairs and furthering its contacts with all the major Powers, actively sought the resumption of Vatican-French relations interrupted since 1904. Thus, anxious to strengthen its ties with France, it had begun negotiations to replace the

6.  G.J. Meyer, A World Undone: The Story of the Great War, 1914–1918 (New York: Bantam, 2015) 710.

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German-speaking bishops with Frenchmen, but with the proviso that such steps could be possible only when territories in which these prelates resided had been internationally recognized as having been ceded to France.7

Adolf Fritzen, the Bishop of Strasbourg and a German citizen, presented his resignation to the pope the day after the armistice, but this resignation was not accepted until July 31, 1919, thus until after the Peace Treaty was at least signed.8 The Bishop of Metz, Willibrord Benzler, OSB, likewise a German citizen, resigned the same day. Their successors, French nationals, were confirmed the next day, although their selection had taken place a few months earlier. The whole situation, although unavoidable, could have been handled much better, and the German government could have been kept informed about what was going on. The Holy See, however, faced enormous pressure from French clerical and political forces to recognize the transfer, and since the Curia regarded the political cession to be a foregone conclusion and did not wish to offend France at a time when it sought to renew diplomatic relations, it actually had begun discussions before the conclusion of the treaty. This situation which proved embarrassing to Rome never would have occurred had the Curia waited several months. With the signing of the treaty neither the Vatican nor Germany could raise objections to Paris’ demand for the appointment of French bishops within its borders.9

It is interesting to point out that, when Alsace-Lorraine became German in 1871, the German government let the bishops remain in office, even though they were French citizens. Almost half a century later, the situation and reality were totally different.

II. A Reduced Hungary: The Treaty of Trianon

The Treaty of Trianon, signed on June 4, 1920, and effective July 31, 1920, saw the former Kingdom of Hungary reduced to less than one third of 7.  Stewart A. Stehlin, Weimar and the Vatican, 1919–1933. German-Vatican Diplomatic Rela­ tions in the Interwar Years (Princeton, NJ: Princeton University Press, 1983) 162. 8.  Just before the armistice of November 11, 1918, Bishop Fritzen wrote to Benedict XV and asked him to use his influence to maintain the concordatarian regime in Alsace-Lorraine once the territory would become French again. See C. Muller, “Les démarches de Mgr. Adolphe Fritzen auprès du Saint-Siège concernant le maintien du statu quo du diocèse lors du retour de l’Alsace à la France (1918–1919),” Archives de l’Église d’Alsace 41 (1982) 315–317. 9.  Stehlin, 163.

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its territory.10 The Archdiocese of Esztergom, erected in the 10th century, underwent the same fate: after the territorial cessions to the newly erected Czechoslovakia, the city of Esztergom was all of a sudden situated at the border of the archdiocese and the country, and was no longer more or less centrally located in the diocese. On May 29, 1922, almost two years after the Treaty of Trianon became effective, the territory of the Archdiocese of Esztergom that was now located in Czechoslovakia (current-day Slovakia) was erected as the Apostolic Administration of Trnava, but merely as a provisional act. No diocesan bishop was appointed, but only an apostolic administrator, who would govern the territory in the name of the Holy See until a final solution was found. Meanwhile, János Cardinal Csernoch remained Archbishop of Esztergom (1912–1927), as did his two immediate successors, Jusztinián Györg Cardinal Serédi, OSB (1927–1945) and József Cardinal Mindszenty (1945–1973). While the Archdiocese of Esztergom had been declared vacant by Paul VI on December 19, 1973, László Lékai was appointed apostolic administrator on February 5, 1974 and only became Archbishop of Esztergom on February 12, 1976, after József Cardinal Mindszenty, his predecessor, had passed away on May 6, 1975. The Apostolic Administration of Trnava was separated from the Archdiocese of Esztergom11 and elevated to archdiocese only on December 30, 1977, almost 60 years after the end of the war.12 In other words, not only six decades after the war, but also after the passing of one of the major figures of Hungarian ecclesiastical history, 10.  Count László Széchényi, “Hungary since the Armistice,” The North American Review 218/812 (1923) 23–36, in particular 36; Harold Temperley, “How the Hungarian Frontiers Were Drawn,” Foreign Affairs 6 (1928) 432–447; István Deák, “Hungary,” The American Historical Review 97 (1992) 1050; Wesley J. Reisser, “Self-Determination and the Difficulty of Creating Nation-States: The Transylvania Case,” Geographical Review 99/2 (2009) 231–247. In addition to the loss of two thirds of its pre-war territory, Hungary also lost nearly 60 percent of its pre-war population, more than 3 million of whom were ethnic Hungarians. Miklós Molnár, A Concise History of Hungary. Cambridge Concise Histories (Cambridge: Cambridge University Press, 2014) 262. See also Margaret MacMillan, Paris 1919. Six Months that Changed the World (New York: Random House, 2003) 269. At the peace conference in Versailles, the leader of the Hungarian delegation, Count Albert Apponyi, pointed out that Hungary was being punished more severely than any other of the defeated nations. Further on the end of the Habsburg Empire, Pieter M. Judson, The Habsburg Empire. A New History (Cambridge, MA and London, England: The Belknap Press of Harvard University Press, 2016). 11.  Paul VI, apostolic constitution Praescriptionum sacrosancti Concilii, December 30, 1977: AAS 70 (1978) 273–274. 12.  Paul VI, apostolic constitution Qui divino consilio, December 30, 1977: AAS 70 (1978) 275–276.

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the Holy See finally recognized the new boundaries of the countries as final and made the ecclesiastical circumscriptions final. On March 31, 1995, the name of the Archdiocese of Trnava changed to Archdiocese of Bratislava-Trnava.13 The Archdiocese of Bratislava-Trnava lost territory to the Diocese of Nitra and was split into the Archdiocese of Bratislava and the Archdiocese of Trnava on February 14, 2008, 90 years after the end of World War I.14 On the Hungarian side of the border, on May 31, 1993, the name of the Archdiocese of Esztergom was changed into Esztergom-Budapest.15 It took thus almost a century to more or less completely adjust to the new political situation. Such is, of course, an example of the vision of the Holy See to be extremely cautious and not to take sides, but to maintain an absolute and strict neutrality and impartiality. After all, the main concern is the salvation of souls and the pastoral solicitude for the flock entrusted to the Church.

III. Eupen-Malmedy Assigned to Belgium

The transfer of Eupen and Malmedy from Germany to Belgium was somewhat more complicated, if only because of the different language used in the Versailles Treaty compared to other territorial cessions: the population was to be consulted before the transfer would be recognized by the League of Nations as final. The Belgian government appointed a Belgian military officer, Herman Baltia (1863–1938) as Royal High Commissioner (Haut-Commissaire Royal), only accountable to the Prime Minister, to govern the territories from January 10, 1920, until June 1, 1925.16 a. Eupen-Malmedy: German or Belgian Territory?

At the Peace Conference in Versailles, the territorial claims of Belgium were clear: a revision of the three treaties of 1839 and the territorial limits of Belgium was demanded. In fact, although not explicitly made, these 13. Congregation for Bishops, decree Cum intra fines, March 31, 1995: AAS 87 (1995) 1164–1165. 14.  Benedict XVI, apostolic constitution Slovachiae sacrorum Antistites, February 14, 2008: AAS 100 (2008) 125–128. 15.  John Paul II, decree Hungarorum gens, May 31, 1993: AAS 85 (1993) 871–876. 16.  The Royal High Commissioner was given extraordinary powers by the law of September 15, 1919.

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claims amounted to the transfer of sovereignty over Zeeland and other parts of the Netherlands, and claims on the Grand Duchy of Luxembourg.17 However, these territorial claims failed. Belgium got much less than it had demanded. The Treaty of Versailles gave full sovereignty over the contested territory of Moresnet18 and Prussian Moresnet19 to Belgium, and likewise transferred all rights and title over the territory of Eupen and Malmedy to Belgium.20 Yet, in the latter case, within six months after the treaty came into force, a referendum about this change of sovereignty had to be held among the population; the results of the referendum were to be communicated to the League of Nations, and the League of Nations was to make a final decision about the sovereignty over this territory of Eupen and Malmedy. The use of the term “referendum,” especially when understood in its present-day meaning, is actually incorrect: the Treaty of Versailles called for a public expression of opinion by having a preference registered in registers held in Eupen and Malmedy. While the transfer of this small territory seemed to be of little importance, the economic, ethnic, historical and above all military arguments all pointed in favor of a transfer of the area to Belgium: The military consideration was also powerful. In the Kreis of Malmedy lay the great German mobilization camp of Elsenborn. Established as a summer training camp in 1896, it later constituted a centre for the network of double track railroads with multiple sidings which, in February of 1914, were connected with the Belgian railroad system by the international line ­Malmedy-Stavelo. Belgium had assisted in the construction of these last 17.  Theo Luykx and Marc Platel, Politieke Geschiedenis van België. 1. Van 1789 tot 1944 (Antwerp: Kluwer Rechtswetenschappen, 1985) 1: 276–277; Rik Coolsaet, België en zijn buitenlandse politiek 1830–1990 (Leuven: Van Halewyck, 1998) 223 and 227. 18.  Article 32 of the Treaty of Versailles: “Germany recognises the full sovereignty of Belgium over the whole of the contested territory of Moresnet (called Moresnet neutre).” 19.  Article 33 of the Treaty of Versailles: “Germany renounces in favour of Belgium all rights and title over the territory of Prussian Moresnet situated on the west of the road from Liège to Aix-la-Chapelle; the road will belong to Belgium where it bounds this territory.” 20.  Article 34 of the Treaty of Versailles: “Germany renounces in favour of Belgium all rights and title over the territory comprising the whole of the Kreise of Eupen and of Malmédy. During the six months after the coming into force of this Treaty, registers will be opened by the Belgian authority at Eupen and Malmédy in which the inhabitants of the above territory will be entitled to record in writing a desire to see the whole or part of it remain under German sovereignty. The results of this public expression of opinion will be communicated by the Belgian Government to the League of Nations, and Belgium undertakes to accept the decision of the League.”

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few miles of “light rail way” which, despite its classification, was of standard gauge allowing a speed of 40 miles per hour. In August, 1914, General Von Emmich gathered his troops for the march on Liège in the region of Aachen, Eupen and Malmedy. To deprive Germany of these mobilization points was to render Belgium more secure.21

For the Holy See, it was clear from the beginning that article 34 of the Peace Treaty of Versailles provided for the territories of Eupen and Mal­ medy to be annexed by Belgium, but that there were two opposing positions: the Belgian government wanted the territories to be added to the ecclesiastical jurisdictions of the dioceses of Liège and Namur, while the Archbishop of Cologne and his metropolitan chapter wanted these same territories to remain within the archdiocese. The Holy See chose to wait for a decision of the League of Nations, and in the meantime, as we will see, appointed the apostolic nuncio in Belgium as apostolic administrator of the two territories.22 Versailles stipulated that the tiny area should be ceded to Belgium, but provided for the local inhabitants to express their opinion, by a vote, about remaining within the German Reich. The League of Nations would thereupon take into consideration the wishes of the population and then render a final decision about the future of the counties. It was not properly a plebiscite, although popularly known as such, but rather a “consultation,” an opportunity for the populace to protest against the cession already made, but one which had no binding legal power. Cologne, to which this territory belonged, naturally desired the perpetuation of its ecclesiastical jurisdiction. Likewise, it was also politically important for Germany that Cologne retain control, regardless of the League’s decision.23

The Archbishop of Cologne, Felix Cardinal von Hartmann,24 certainly preferred that, and, as we will see, did not hide his desire, but even actively

21.  Robert H. George, “Eupen and Malmedy,” Foreign Affairs 5 (1927) 332. 22.  Segreteria di Stato, Sezione per i Rapporti con gli Stati (S.RR.SS.), Archivio Storico, Fondo della Congregazione degli Affari Ecclesiastici Straordinari (AA.EE.SS.), Belgio, Anno 1919–1920, Pos. 336, Fasc. 167, f. 1r; Segreteria di Stato, S.RR.SS., Archivio Storico, AA.EE.SS., Belgio, Anno 1919–1920, Pos. 335–336, Fasc. 166, f. 18r. 23.  Stehlin, 163–164. 24.  Felix Cardinal von Hartmann (1851–1919) was first bishop of Münster (1911–1912), and then became archbishop of Cologne and would remain so until his death (1912–1919). He was created a cardinal in 1914, just before the beginning of the war.

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campaigned for it. His successor, Archbishop and then Cardinal Schulte,25 would take the same attitude. There was much at stake, and even the German government tried to stop the ecclesiastical transfer from Cologne to a Belgian see, yet for geopolitical reasons: German ecclesiastical control here, even if the area was officially transferred to Belgium, was extremely important, since through its influence the ties to the Reich would be maintained which, should a change in the international situation permit, would allow the area to be more easily reunited with the Reich. If the Vatican separated Eupen-Malmedy from Cologne and attached it to a Belgian see, this would mean diplomatically that the Vatican accepted the finality of the Versailles provision or, even worse, favored the Belgians. Such a Vatican decision would diminish German hopes of gaining support for its position and decrease its diplomatic maneuverability with the Allies. The battle for Eupen-Malmedy, therefore, began on the Vatican front almost at once.26

That the battle for this small piece of territory began almost at once, is proven by the intense diplomatic activity of the Belgian legation to the Holy See. The activity started at least as early as May of 1919, thus before the Treaty of Versailles was signed. From the very beginning, it was clear that the Belgian government wanted the transfer of the territory of Eupen and Malmedy from the Archdiocese of Cologne to the Diocese of Liège to be materialized as soon as possible, and gave instructions to the Belgian ambassador to the Holy See to obtain at the earliest an agreement in principle from the Holy See to achieve this transfer.27 The ambassador informed 25.  Karl Joseph Cardinal Schulte (1871–1941) was first bishop of Paderborn (1910–1920) and then became archbishop of Cologne (1920–1941), an office he would hold until his death. He was created a cardinal in 1921. 26.  Stehlin, 164. 27.  Archives du Ministère belge des Affaires étrangères (AMBAE)—série politique—dossier no11.246/B/I, Lettre du 17 mai 1919 du Baron Moncheur du Ministère des Affaires Étrangères à Monsieur le Comte d’Ursel, Ministre de la Belgique près le Saint Siège: “Le traité de paix va consacrer bientôt à la Belgique des cercles (Kreise) de Malmedy et d’Eupen. Ces territoires font partie au point de vue ecclésiastique du diocèse de Cologne et le clergé y a été, notamment dans la partie wallonne, un instrument puissant de pénétration germanique. Il est désirable qu’aussitôt que le traité sera entré en vigueur Eupen et Malmedy soient englobés dans le diocèse de Liège. “J’ai l’honneur de vous prier de vouloir bien faire envisager par le Saint Siège cette éventualité prochaine et d’obtenir de sa part dès maintenant un accord de principe sur le transfert demandé, afin que celui-ci puisse suivre immédiatement quand le moment sera venu, le transfert de la souveraineté.”

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Brussels that Cardinal Gasparri, the Cardinal Secretary of State, had given his agreement, but the text of the response given by Gasparri merely mentioned that the Holy See would consider the request,28 a point observed by the superiors in Brussels and leading to more instructions for the ambassador.29 Ambassador Count d’Ursel subsequently informed Brussels of his new meeting with Gasparri.30 The cardinal had been unaware of the ref28.  AMBAE—série politique—dossier no11.246/B/I, Lettre du 17 juillet 1919 du Comte d’Ursel à Monsieur Hymans, Ministre des Affaires Étrangères, No 140/69, avec la réponse du Cardinal Gasparri du 16 juillet: “Le Cardinal Secrétaire d’État de Sa Sainteté a l’honneur d’accuser réception à Votre Excellence de la note du 7 juillet courant concernant l’Union éventuelle aux diocèses de Liège et de Namur des cercles d’Eupen et de Malmédy faisant actuellement partie du diocèse de Cologne et devant, en vertu du traité de paix de Versailles, être englobés dans le territoire du Royaume. “Le Cardinal Secrétaire d’État soussigné s’empresse d’informer votre Excellence qu’ayant pris cette question en sérieuse considération et l’ayant soumise à l’étude compétente de la sacrée congrégation consistoriale, il ne manquera pas de vous donner communication de la réponse qui lui sera donnée à ce sujet et il saisit en attendant l’occasion de vous prier, Monsieur le Ministre, d’agréer l’assurance de sa plus haute considération.” 29.  AMBAE—série politique—dossier no11.246/B/I, Lettre du 9 août 1919 de Moncheur au Comte d’Ursel: “Il serait à souhaiter que la Sacrée Congrégation Consistoriale prenne une décision au plus tôt en cette matière ; cette décision ne fut-elle que provisoire ; il est à redouter en effet que le Cardinal Hartmann archevêque de Cologne ne fasse auprès du Vatican des démarches pressantes pour que la décision de la sacrée congrégation soit retardée jusqu’après la décision de la Société des Nations qui sera prise à la suite du résultat de la consultation populaire prévue à l’article34 du traité de paix. Il serait fâcheux que les cantons d’Eupen et de Malmédy fussent encore sous la juridiction du Cardinal Hartmann quand on procédera au referendum. Vous pourriez éventuellement attirer l’attention du Cardinal Secrétaire, sur les conséquences regrettables au point de vue religieux qui résulteraient d’un retard apporté dans la décision du S. Siège ainsi par exemple le règlement des traitements dus au clergé des cercles d’Eupen et de Malmédy risque d’être suspendu aussi longtemps qu’on ne pourra déterminer avec certitude a quelle circonscription diocésaine ces territoires seront rattachés. Une période d’instabilité, si courte soit-elle pourrait considérablement aux intérêts religieux de ce pays. Je vous vous envoie sous ce pli pour votre documentation personnelle et à toutes fins utiles, la copie d’une dépêche de mon collègue de la Guerre, qui me signale la propagande clandestine du Cardinal Hartmann dans les cercles d’Eupen et de Malmédy, une agitation anti-belge. Je vous signale en particulier, le passage de la protestation du Cardinal Hartmann relative au service militaire forcé par les Malmédiens et Eupenois auront d’après lui à rester au Congo, alors que cette assertion est en contradiction flagrante avec l’article du §3 nom Constitution.” 30.  AMBAE—série politique—dossier no11.246/B/I, Lettre du 16 août 1919 du Comte d’Ursel à Monsieur Hymans Ministre des Affaires Étrangères, No 157/81 (Ambassador replies to letter of August 9, 1919): “Revoyant le Cardinal ce matin, à l’audience hebdomadaire du corps diplomatique, je lui ai répété le désir du Gouvernement de voir le St. Siège prendre aussi promptement que possible une décision en principe de façon à faire coïncider le transfert ecclésiastique avec la prise de possession par les autorités belges. ‘Laissez-nous le temps de préparer la bulle, m’a répondu

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erendum, and had made it clear that this element changed everything: the Holy See would make no decisions at all until after the referendum; otherwise, it would not be impossible that the territories were first taken away from Cologne to be returned after the referendum. A few days later, the ambassador reported again that Cardinal Gasparri thought an immediate transfer of Eupen and Malmedy was impossible, since the territory did not belong yet to Belgium. Gasparri further explained that the constant attitude of the Holy See in such circumstances is to maintain absolute neutrality and total impartiality. Nevertheless, he understood the concern of the Belgian government about German propaganda on the part of the clergy, in particular from the Cardinal of Cologne, and asked the Belgian government to suggest a solution that would reach that goal and that would also safeguard the absolute impartiality of the Holy See.31 Such a solution would be the appointment of an apostolic administrator who would govern these territories until clarity about their fate was reached. The Belgian government tried to have an administrator appointed for these territories, and insisted, most likely at the suggestion of Cardinal Mercier, that this administrator would be a Belgian citizen.32 le Cardinal. La règle suivie par le ST SIEGE en pareille matière est d’attendre que le transfert de souveraineté soit un fait accompli et de procéder ensuite à l’exécution des mesures d’ordre ecclésiastique.’ “Comme je faisais remarquer qu’une des raisons qui nous faisaient désirer une prompte solution, était de soustraire les cantons d’Eupen et Malmédy à la propagande allemande qui ne manquerait pas de s’exercer d’ici au referendum—‘Quel referendum, m’a demandé le cardinal.- Celui prévu à l’article 34 du traité de Paix, ai-je répondu et qui aura lieu dans les six mois à dater de la mise en vigueur de cet acte. Mais j’ignorais qu’il dut y avoir referendum, a repris Son Éminence, ceci change la question. Nous ne pouvons pas détacher par un acte solennel ces deux territoires à la juridiction allemande au risque de devoir les lui rendre ensuite. Nous nommerons un administrateur provisoire dépendant directement du ST Siège et qui gérera au point de vue ecclésiastique les territoires en question jusqu’à ce que leur attribution à la Belgique soit définitive.’ “J’ai fait remarquer que cette solution ne serait acceptable pour nous que si elle écartait toute possibilité de propagande allemande par le clergé. Le Cardinal m’a dit que pendant cette période transitoire Eupen et Malmédy seraient entièrement soustraits à la juridiction de l’Archevêché de Cologne. J’ai suggéré que la meilleure garantie à cet égard serait de prendre l’administrateur parmi les membres du clergé belge des diocèses auxquels seront rattachés Malmédy et Eupen. Le Cardinal m’a paru de rallier à cette idée.” 31.  AMBAE—série politique—dossier no11.246/B/I, Lettre du 19 août du Comte d’Ursel à Monsieur Hymans, Ministre des Affaires Étrangères, No 163/85 avec la réponse du Cardinal Gasparri du 18 août 1919. 32.  AMBAE—série politique—dossier no11.246/B/I, Ministère des Affaires Étrangères, Direction P., Note pour Monsieur le Ministre, 28 août 1919:

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The Archdiocese of Cologne attempted through various means to prevent a Belgian priest to be appointed as delegate for Eupen and Malmedy before the referendum took place.33 Cardinal Gasparri rejected the suggestion made by the Belgian government and Cardinal Mercier, arguing that the appointment of a Belgian national as apostolic administrator would be unacceptable, because that would jeopardize the absolute and total impartiality of the Holy See. Gasparri added, however, that the Holy See was willing to appoint one of its own diplomats in Brussels as apostolic administrator.34 But this solution was not much welcomed and the Belgian ambassador to the Holy See protested on behalf of the Belgian government.35 In reply, Gasparri indicated that the Holy See was even willing to appoint the apostolic nuncio himself as apostolic administrator,36 a solution the Holy See ultimately adopted on January 26, 1920. In internal correspondence, the Belgian authorities made reference to a similar situation in Poland, where the Prince-Bishop of Breslau tried to continue to exercise his influence in territories ceded to Poland, a situation that ended with the appointment of the apostolic nuncio in Warsaw as papal commissioner for these territories.37 While the apostolic nuncio in Brussels would be the “Mgr Mercier a émis l’avis que la suggestion à faire au cardinal Gasparri, par note représentant près le St. Siège devrait consister à demander la nomination d’un administrateur provisoire pour le cercle d’Eupen et un autre pour le cercle de Malmédy et à insister pour que ces administrateurs soient absolument de nationalité belge. On ne pourrait admettre un administrateur d’une autre nationalité, car la Belgique exercera incontestablement les droits souverains sur les territoires en questions dès la mise en vigueur du traité.” 33.  Segreteria di Stato, S.RR.SS., Archivio Storico, AA.EE.SS., Belgio, Anno 1919–1920, Pos. 336, Fasc. 167, ff. 2ff. 34.  AMBAE—série politique—dossier no11.246/B/I, Lettre du 5 octobre 1919 du Comte Léo d’Ursel à Monsieur Hymans, Ministre des Affaires Étrangères, communicant la réponse du Cardinal Gasparri du 2 octobre 1919. “Ne pouvant, pour les raisons exposées ci-dessus, se rendre au désir exprimé par le Gouvernement belge et voulant cependant lui donner une preuve ultérieure de sa particulière bienveillance, le Saint Siège est disposé à nommer Administrateur Apostolique dans ces deux territoires Monseigneur Giovanni Ogno Serra, auditeur de la Nonciature Apostolique à Bruxelles. Celui-ci donne pleine garantie d’absolue impartialité, d’autant plus que le Saint Siège ne manquerait pas de lui en faire un strict devoir dans les instructions qui lui seraient remises.” 35.  AMBAE—série politique—dossier no11.246/B/I, Lettre du 16 octobre 1919 du Comte Léo d’Ursel à Son Éminence le Cardinal Gasparri, Secrétaire d’État de Sa Sainteté. 36. AMBAE—série politique—dossier no11.246/B/I, Lettre du Cardinal Gasparri au Comte Léo d’Ursel, 25 octobre 1919. 37. AMBAE—série politique—dossier no11.246/B/I, Lettre du 4 septembre 1919 du Comte Léo d’Ursel à Monsieur Hymans, Ministre des Affaires Étrangères, Nos. 177/93:

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apostolic administrator for Eupen and Malmedy until the referendum, he stayed on afterwards.38 Almost immediately after becoming the apostolic administrator, the nuncio started sending reports to Cardinal Gasparri about the situation in the territory of Eupen and Malmedy. In a letter of March 28, 1920, he pointed out how hostile the local (German) clergy was towards Belgium and Belgian priests.39 About a month later, in a letter of April 23, 1920, he wrote again to Gasparri to inform him this time that he had visited the city of Malmedy, where he had had contacts with the local population. When speaking with the people, they responded in French with a good “Le Gouvernement polonais traite avec le St. Siège d’une affaire qui présente certaines analogies avec celles d’Eupen et de Malmédy. “Comme vous le savez, le traité de Paix a attribué au nouvel État certains districts de la Haute Silésie et de la Prusse Orientale. Dès que le traité aura été ratifié par trois Puissances, ces territoires seront occupés par les Alliés. Un referendum par commune aura lieu dans les six mois à dater de la ratification. De cette consultation dont le résultat ne semble pas douteux m’a dit e Ministre de Pologne, dépendra l’attribution définitive à l’État polonais des régions dont il s’agit. “Celles-ci relèvent au point de vue ecclésiastique des diocèses de Breslau pour la Haute Silésie et a Kulm pour la Prusse Orientale. Le St. Siège compte y nommer des délégués dépendant directement de lui et qui administreront en son nom jusqu’après le referendum. M. Kowalsky cherche à obtenir que ces administrateurs soient nommés aussitôt que possible et pris parmi les membres du clergé local. Dans la Haute Silésie, le Gouvernement de Varsovie a proposé le curé de Kattowitz d’origine polonaise, mais dont le caractère et les opinions modérés offriraient les garanties d’impartialité recherchées par le St. Siège. Mon Collègue croit savoir que l’Evêque de Breslau a été consulté au sujet de cette nomination. “M. Kowalsky m’a demandé à quoi en étaient nos négociations au sujet d’Eupen et de Malmédy. Je lui ai expliqué que notre situation était différente, le Traité de Paix stipulant que l’exercice des droits souverains de la Belgique sur les régions coïnciderait avec la mise en vigueur de cet acte. La consultation prévue à l’art. 34 était d’une nature spéciale et se ferait par les soins de l’autorité belge. Mon Collègue s’est rendu compte que la situation se présentait dans des conditions plus favorables pour nous que pour la Pologne.” AMBAE—série politique—dossier no11.246/B/I, Lettre du 11 avril 1920 de M van Ypersele de Strihou, Ambassadeur de la Belgique en Pologne, à Monsieur Hymans: “Le Nonce Apostolique à Varsovie vient d’être nommé Commissaire du Pape pour la Haute Silésie. On se souvient que le Gouvernement Polonais et les Commissaires Alliés avaient lieu de se plaindre du Prince Évêque de Breslau qui mettait en Haute Silésie toute son influence au service des Allemands. Le Vatican a résolu de mettre un terme à une situation aussi délicate vis-à-vis des Catholique Polonais et de l’Entente que difficile pour l’Église. Par les pouvoirs extraordinaires qu’il a confiés à Monseigneur Achille Ratti il a subordonné l’activité du Prince Évêque de Breslau dans tout le pays du Haute Silésie au contrôle de son représentant en Pologne.” 38.  AMBAE—série politique—dossier no11.246/B/I, Lettre du 26 octobre 1920 de l’Ambassadeur belge près le Saint Siège à Monsieur Delacroix, Ministre des Affaires Étrangères. 39.  Segreteria di Stato, S.RR.SS., Archivio Storico, AA.EE.SS., Belgio, Anno 1919–1920, Pos. 336, Fasc. 167, ff. 11–12.

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pronunciation. The nuncio concluded that this is proof that the “germanizzazione,” imposed by the German government, was not successful in eradicating their native language. This was totally different in Eupen, a city with the most inhabitants of the occupied territories and entirely German. At least, that was what the nuncio thought. He announced that he would visit Eupen to verify if the local clergy ministered to the people. He had received reports that some of the clergy was involved in politics rather than carrying out their ministry. The nuncio further wrote that the information about the situation in the occupied territories did not correspond with the reality: very few wanted a return to Germany, and the communication with Cologne was not forbidden. The attachment of the clergy to the Archdiocese of Cologne was explained by the fact that they received their education and priestly formation there.40 But when the nuncio visited Eupen about a week later, his report sounded entirely different from what he had anticipated a week earlier: he wrote to Gasparri on April 29, 1920 that he indeed visited Eupen, and that, contrary to the warnings he received, he was warmly welcomed by the population.41 He had expressly asked the clergy not to get involved in politics.42 Since a lot of confusion and outright propaganda existed about this so-called referendum called for by the Treaty of Versailles, the nuncio pointed out in a letter of May 10, 1920 to Cardinal Gasparri that the Treaty of Versailles did not call for a referendum, and that the population of Eupen and Malmedy did not have to cast their vote. Rather, they could have themselves registered in a register and declare that they want the entire territory or part of it to remain under German sovereignty.43 b. Towards an Ecclesiastical Structure for the New Territory

As it became increasingly clear that the public consultation of the population would confirm the definitive transfer of Eupen and Malmedy to Belgium, a new discussion emerged: what would be the ecclesiastical status 40.  Segreteria di Stato, S.RR.SS., Archivio Storico, Pos. 336, Fasc. 167, ff. 31–32. 41.  Segreteria di Stato, S.RR.SS., Archivio Storico, Pos. 336, Fasc. 167, f. 34 42.  Segreteria di Stato, S.RR.SS., Archivio Storico, Pos. 336, Fasc. 167, f. 35 43.  Segreteria di Stato, S.RR.SS., Archivio Storico, Pos. 336, Fasc. 167, f. 61.

AA.EE.SS., Belgio, Anno 1919–1920, AA.EE.SS., Belgio, Anno 1919–1920, AA.EE.SS., Belgio, Anno 1919–1920, AA.EE.SS., Belgio, Anno 1919–1920,

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of these territories? Now the quest for a definitive ecclesiastical structure would begin. The Belgian government wanted to incorporate the territories in existing Belgian dioceses. Yet, the Archbishop of Cologne clearly had another idea. In a letter of June 25, 1920, Archbishop Pacelli, Apostolic Nuncio in Bavaria, wrote to Cardinal Gasparri to inform him that Archbishop Schulte was planning to ask the Holy Father not to incorporate the territories of Eupen and Malmedy in an existing Belgian diocese, but to erect them as a separate entity.44 Such a request was indeed sent on June 28, 1920.45 Schulte suggested to erect the territory as a prelature nullius.46 In a letter of November 14, 1920, the nuncio reported to Cardinal Gasparri that the Belgian government would like to see Eupen and Malmedy attached to the Diocese of Liège and St. Vith to the Diocese of Namur. The nuncio added that he told Minister Delacroix that the Holy See has many options to choose from, and that the Holy See did not want its judgment influenced.47 In the meantime, the provisions of the Treaty of Versailles were further executed. In its ninth session, held on September 20, 1920, the Council of the League of Nations recognized the definitive transfer of the districts of Eupen and Malmedy under the sovereignty of Belgium.48 The council 44.  Segreteria di Stato, S.RR.SS., Archivio Storico, AA.EE.SS., Belgio, Anno 1919–1920, Pos. 336, Fasc. 168, f. 18. 45.  Segreteria di Stato, S.RR.SS., Archivio Storico, AA.EE.SS., Belgio, Anno 1919–1920, Pos. 336, Fasc. 168, ff. 19–20r. 46.  Segreteria di Stato, S.RR.SS., Archivio Storico, AA.EE.SS., Belgio, Anno 1919–1920, Pos. 336, Fasc. 169, fol 2. 47.  Segreteria di Stato, S.RR.SS., Archivio Storico, AA.EE.SS., Belgio, Anno 1919–1920, Pos. 336, Fasc. 169, ff. 8–9 48.  League of Nations Official Journal 1(1920) 404–409, here at 408–409: “The Council of the League of Nations, “Considering: “That, inasmuch as full effective sovereignty over the districts of Eupen and Malmedy was exercised by Belgium, the establishment of the conditions for the public expression of opinion provided for on Article 34, appertained to the Belgian Government; “That the conditions established by the Belgian authorities are in harmony with the letter and the spirit of the Treaty; “That the results of the public expression of opinion were brought to the knowledge of the League of Nationson 19th August, 1920, by the Belgian Government, together with the Registers on which the protest were recorded; “That these protests are 271 in number out of a total population of more than 63,000 inhabitants; “That these results show that among the inhabitants of Eupen and Malmedy the opposition to the cession of these districts is not sufficiently strong to outweigh, in the opinion of the League, all the considerations which form the basis of the provisions of the Treaty;

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pointed out that the terms of article 34 of the Treaty of Versailles left the establishment of the conditions for the public expression of opinion to the Belgian government, and recognized that the conditions established by the Belgian authorities were in harmony with the letter and the spirit of the treaty. Two days later, on September 22, 1920, the apostolic nuncio in Brussels informed Cardinal Gasparri that on September 21, 1920, the annexation of Eupen and Malmedy was celebrated in the whole of Belgium.49 Even after this final decision by the League of Nations, persistent rumors continued about the Archbishop of Cologne considering himself still the archbishop while the nuncio was only in name the apostolic administrator. The nuncio reassured the Belgian Minister of Foreign Affairs that the transfer was final and that he had all powers,50 while almost at the same time, “That under these conditions the cession of the districts to Belgium is, according to the terms of the Treaty of Versailles, to remain effective and valid; “That no other decision can be taken unless it was demonstrated by definite and concordant proofs that the result of the public expression of opinion had been determined by means of intimidation and pressure, by abuse of authority and threat of reprisals which had prevented the free expression of the will of the inhabitants; “That the documents brought forward with a view of proving such abuses or manoeuvres are not pertinent nor definite; “That, finally, the circular which forms the subject of a charge against a Belgian official, and which threatened reprisals against persons of three communes of the district of Mal­ medy, who protested, was immediately disclaimed by the High Commissioner of the Belgian Government and was not applied; “Recognises: “The definitive transfer of the districts of Eupen and Malmedy under the sovereignty of Belgium.” 49.  Segreteria di Stato, S.RR.SS., Archivio Storico, AA.EE.SS., Belgio, Anno 1919–1920, Pos. 336, Fasc. 168, f. 68: “Ieri—21 corrente mese—venne celebrata in tutto il Belgio l’annessione dei distretti di Eupen e Malmedy, decretata il giorno innanzi dal Consiglio della Società delle Nazioni.” 50.  AMBAE—série politique—dossier no11.246/B/I, Lettre du 1 décembre 1920 du Nonce Apostolique Mgr Nicotra à Monsieur Henri Jaspar, Ministre des Affaires Étrangères: “Il est par conséquent de mon devoir de porter à la connaissance de Votre Excellence que, dès mon retour de mon voyage en Italie, j’ai notifié de vive voix à Votre Prédécesseur, Monsieur le Ministre Delacroix, que j’avais pris sur moi la charge d’Administrateur Apostolique d’Eupen et Malmedy avec tous les droits et devoirs que cette charge comporte. La même chose j’ai déclaré à Votre Excellence (comm’Elle Pourra bien s’en souvenir) lors de ma première visite officielle au Ministère des Affaires Étrangères, en Lui faisant remarquer que pour le moment Eupen et Malmedy restent comme auparavant attachés au Diocèse de Cologne, mais qu’ils en seront détachés, selon mon avis, aussitôt que la Société des Nations aura décidé de rejeter l’exception présenté par l’Allemagne. “En outre je me suis empressé de notifier par écrit tout cela au Gouverneur d’Eupen et Malmedy, Mr. Le Lieutenant Général Baron Baltia, en lui faisant savoir en même temps que l’Archevêque de Cologne avait accepté et reconnue déjà ma jurisdiction ecclésiastique sur les deux susdits districts.”

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he wrote in beautiful diplomatic language of understatement to Archbishop Schulte that he could not believe the rumors that the latter denied the transfer of powers.51 This definitive character of the transfer was confirmed in further correspondence between the Belgian ambassador to the Holy See and the Minister of Foreign Affairs.52 c. The Diocese of Eupen-Malmedy

Cardinal Mercier, the Archbishop of Mechelen, seemed to have suggested or at least been the interlocutor to have the erection of a new diocese accepted in particular by the Belgian authorities. In a letter of January 27, 1921, he wrote to Cardinal Gasparri that he was received in audience by the King and that he had presented Gasparri’s suggestion to erect the territory into a distinct diocese, but that the Prime Minister seemed not too 51.  Segreteria di Stato, S.RR.SS., Archivio Storico, AA.EE.SS., Belgio, Anno 1920–1922, Pos. 351, Fasc. 177, fol. 17, Letter of December 21, 1920, by Archbishop Nicotra, Apostolic Nuncio and Administrator of Eupen and Malmedy, to Archbishop Schulte of Cologne, in which the Nuncio writes that he thinks Governor Balta exaggerates when the latter states that the Archbishop has said that he still has all powers in the territory of Eupen and Malmedy and that the Nuncio is only administrator in name: “Le Gouverneur Royal d’Eupen et Malmedy, Monsieur le Lieutenant Général Baron Baltia, à plusieurs reprises s’est plaint à moi que l’Ordinaire de Cologne exerce sur les territoires de Eupen et Malmedy, devenus définitivement belges, la même jurisdiction épiscopale, qu’il y exerçait auparavant. Le Gouverneur appui ces affirmations par le témoignage de plusieurs curés et d’un doyen, qui sont venus à Cologne pour présenter leurs hommages à Votre Excellence, qui, au dire du Gouverneur, aurait dit à ces prêtres, que je n’avais aucune jurisdiction sur Eupen et Malmedy, que je n’étais Administrateur que seulement de nom. Je ne puis pas croire que Votre Grandeur ait eu un langage pareil avec les prêtres d’Eupen et Malmedy, qui sont venus visiter Votre Excellence. Je suis au contraire persuadé que le Gouverneur Baltia exagère les choses afin de mettre un désaccord entre moi et Votre Excellence.” The nuncio further referred to a secret agreement between him and the Archbishop of Cologne, made in the antechamber of the Secretary of State: every contact between the priests and Archbishop Schulte would have to go through the nuncio, while the nuncio would make appointments to offices only after having heard Schulte. 52. AMBAE—série politique—dossier no11.246/B/I, Lettre du 9 décembre 1920 du Comte d’Ursel à Monsieur Jaspar, no 260/130: “Mgr Cerretti m’a répondu négativement et autorisé à vous déclarer que le Gouvernement pontifical consentait à détacher définitivement de la juridiction ecclésiastique de Cologne les territoires d’Eupen et de Malmédy. Il a ajouté que le Saint-Siège s’était mis d’accord avec Mgr Rutten pour faire administrer ces régions par le Grand-Vicaire de l’Évêché de Liège.” AMBAE—série politique—dossier no11.246/B/I, Télégramme du 3 janvier 1921 du Comte d’Ursel: “Se basant sur décision du 13 décembre de la Société des Nations que je lui avais communiquée et en admettant qu’elle soit définitive Saint Siège d’accord pour détacher définitivement Eupen Malmédy de Cologne. Ne fait aucune objection à la publication officielle de sa décision. Nonce apostolique restera administrateur temporaire jusque publication texte qui règlera le statut du nouveau territoire. Après détachement cantons seront soit rattachés à Liège soit érigés en Évêché belge distinct.”

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enthusiastic, because the latter feared the isolation of the territory from the rest of Belgium.53 At that point, the Belgian ambassador seemed to have thought that the idea for a separate diocese may have come from Mercier himself.54 In any case, the various suggestions seemed irreconcilable: while the government wanted Eupen-Malmedy to be attached to Liège, the Holy See wanted not only a separate diocese, in a personal union with Liège, but also a reorganization of the entire diocesan organization in Belgium, arguing that it was not clear how to attach Eupen-Malmedy to a diocese that was already fairly large and overpopulated.55 However, Cardinal Gasparri was determined: the territory would be detached from Cologne, erected as a new diocese, and united in a personal union with the Diocese of Liège.56 In the meantime, Cardinal Mercier explained to the Belgian government the exact meaning of the decision of the Secretariat of State: (1) the two districts were now definitively withdrawn from the jurisdiction of the Archbishop of Cologne, and (2) the faithful were 53.  Segreteria di Stato, S.RR.SS., Archivio Storico, AA.EE.SS., Belgio, Anno 1920–1922, Pos. 351, Fasc. 177, fol 37–38. 54.  AMBAE—série politique—dossier no11.246/B/I, Lettre du 18 janvier 1921 du Comte d’Ursel à Monsieur Jaspar: “Le Cardinal Mercier s’est entretenu avec le Pape et le Cardinal Gasparri de la question d’Eupen et de Malmédy. Comme vous en informait mon rapport du 3 de ce mois, no 2/1, Son Éminence inclinait vers la solution consistant à ériger les cantons d’Eupen et de Malmédy en un diocèse belge distinct auquel auraient pu être adjoints quelques territoires détachés de l’Évêché de Liège. C’est aussi dans ce sens que m’a parlé le Cardinal, qui m’a paru convaincu de la nécessité de scinder certains diocèses belges—celui de Liège, notamment déjà trop peuplés dans leurs limites actuelles.” 55.  AMBAE—série politique—dossier no11.246/B/I, Lettre du 31 janvier 1921 du Comte d’Ursel à Monsieur Jaspar no 23/12: “Devant mon insistance, Mgr. Cerretti m’a dit qu’il soumettrait encore la chose au Pope. De mon côté, j’ai sollicité une audience de Sa Sainteté pour Lui exposer la très mauvaise impression que causerait en Belgique une décision autre que celle désirée par le Gouvernement du Roi.” 56.  AMBAE—série politique—dossier no11.246/B/I, Lettre du Cardinal Gasparri, Secrétaire d’Etat, 29 janvier 1921: “En réponse à la susdite Note [du 15 janvier], le Cardinal Secrétaire d’État s’empresse avant tout de confirmer ce qu’il a déjà eu l’honneur de communiquer à Votre Excellence précédemment, c’est-à-dire que le Saint-Siège, ayant pris en sérieuse considération la demande du Gouvernement belge, désireux de voir l’état ecclésiastique de ces territoires mis en harmonie avec leur nouvelle situation politique, est en train de préparer les Actes qui doivent effectuer leur complet détachement de la juridiction épiscopale de l’Archevêque de Cologne dont ils relevaient dans les siècles passés aussi bien que sur la base de la bulle concordataire “de salute animarum.” “En vertu de ces Actes, les deux districts seront érigés en un nouveau diocèse lequel sera uni ensuite au Diocèse de Liège, conformément à ce qui a été souvent et tout récemment encore pratiqué pour d’autres territoires. Lorsque, dans la suite, le moment sera venu de procéder à une nouvelle circonscription diocésaine en Belgique, circonscription requise par l’Épiscopat en vue de croissantes et nouvelles exigences de ces diocèses si peuplés, le siège susmentionné d’Eupen et de Malmédy sera aussi réglé.”

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now under the only jurisdiction of the Bishop of Liege.57 Mercier further argued that a separate diocese would give some recognition and esteem to the population of the new Belgian territories.58 The Belgian ambassador to the Holy See at that point questioned that it would be possible to obtain a better deal,59 especially since the Holy Father himself insisted in an audience with the same ambassador that this was the best solution and that the Belgian government would not get anything better.60 Although it was suggested initially for the King to try to obtain a better solution during his visit with the Holy Father,61 King Albert I agreed with the proposal to create a new diocese and promised to bring up the matter during his audience with the Holy Father.62 In the meantime, before any decision was made and before any official announcement, the idea of a new diocese was rumored in German newpapers, a fact brought to the attention of the Minister of Foreign Affairs by Governor Baltia, who also expressed his fear that it would make it more difficult for him to integrate the population of Eupen and Malmedy into the Belgian nation.63 It is most likely that Archbishop Schulte was at the origins of these rumors, since he confirmed in a letter of February 15, 1921 to Cardinal Gasparri that he had the “Kölnische Volkszeitung” publish that the latest decision of the Holy See was made only for the interests of the Church.64 On February 19, 1921, the nuncio in Brussels informed Gasparri that the government was not happy with the decision to create a new diocese, since, first, it coincided with the territory taken from Germany, and, second, since this decision was published first in a German newspaper 57.  Segreteria di Stato, S.RR.SS., Archivio Storico, AA.EE.SS., Belgio, Anno 1920–1922, Pos. 351, Fasc. 177, fol. 55–56, letter of Cardinal Mercier to Cardinal Gasparri, February 11, 1921. 58.  AMBAE—série politique—dossier no11.246/B/I, mémorandum du 10 février 1921, Le rattachement des cantons d’Eupen et de Malmédy au diocèse de Liège. 59.  AMBAE—série politique—dossier no11.246/B/I, télégramme no 4 du 4 février 1921, Comte d’Ursel à Bruxelles: “Je doute que nous obtenions mieux.” 60.  AMBAE—série politique—dossier no11.246/B/I, Lettre du 4 février 1921 du Comte d’Ursel à Monsieur Jaspar, Ministre des Affaires Étrangères. 61.  AMBAE—série politique—dossier no11.246/B/I, lettre du 9 février 1921 de monsieur Jaspar, Ministre des Affaires Étrangères, à Monsieur le Comte d’Arschot Schoonhoven, Chef du Cabinet du Roi. 62. AMBAE—série politique—dossier no11.246/B/I, lettre 11 février 1921 du Comte d’Arschot Schoonhoven, Chef du Cabinet du Roi, à Monsieur Jaspar, Ministre des Affaires Étrangères. 63.  AMBAE—série politique—dossier no11.246/B/I, lettre du 18 février 1921 du Gouverneur Baltia à Monsieur Jaspar, Ministre des Affaires Étrangères. 64.  Segreteria di Stato, S.RR.SS., Archivio Storico, AA.EE.SS., Belgio, Anno 1920–1922, Pos. 351, Fasc. 177, 58–59.

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before the Belgian ambassador to the Holy See was even informed.65 The Belgian ambassador to the Holy See sent a similar letter to Gasparri on March 18, 1921, protesting the course of events.66 The Apostolic nuncio in Brussels made it once more clear to the government that the decision of the Holy See was final and that the territory was recognized by Belgium, adding that the canonical solution was aimed at the salvation of souls in Eupen and Malmedy for which a particular solution was needed, and at the preparation to split the Belgian dioceses that had become too large.67 In April of 1921, the government was asked by the nuncio to confirm officially its agreement with the erection of a new diocese and its attachment to the Diocese of Liège;68 the confirmation followed a few days later.69 In spite of these developments, in particular the unequivocal transfer of Eupen and Malmedy from Germany to Belgium, the Archbishop of 65.  Segreteria di Stato, S.RR.SS., Archivio Storico, AA.EE.SS., Belgio, Anno 1920–1922, Pos. 351, Fasc. 177, fol. 60–61. 66.  Segreteria di Stato, S.RR.SS., Archivio Storico, AA.EE.SS., Belgio, Anno 1920–1922, Pos. 351, Fasc. 177, fol. 72. 67. AMBAE—série politique—dossier no11.246/B/I, Note du 30 mars 1921, Visite du Nonce Apostolique: “Elle a pour objet de me faire savoir que la Bulle relative à Eupen et Malmédy a été arrêtée par les Cardinaux et sera incessamment publiée. Elle déclarera que le rattachement d’Eupen et de Malmédy aux diocèses belges est complet et définitif ; elle désignera l’Évêque de Liège pour être également Évêque d’Eupen et de Malmédy, ces deux dernières formant un diocèse séparé mais rattaché à l’Évêché de Liège à titre définitif. “Le Nonce a beaucoup insisté pour qu’on explique clairement à l’opinion publique que le rattachement à la Belgique était définitif. “Le Saint Siège a été inspiré par cette double considération: 1) Le salut des âmes allemandes d’Eupen et de Malmédy pour lesquelles il est nécessaire de songer à un régime particulier; 2) Préparer la division des diocèses qui sont trop étendus en Belgique. “Le Nonce m’a assuré de la manière la plus formelle que le Saint Siège n’avait aucune arrière pensée et que le rattachement était bien un fait accompli.” 68.  AMBAE—série politique—dossier no11.246/B/I, lettre du 22 avril 1921 de Mgr Nicotra, Nonce Apostolique, sur papier de l’Internonciature Apostolique à La Haye, à Monsieur Jaspar, Ministre des Affaires Étrangères: “Son Éminence le Cardinal Mercier a écrit une lettre au Cardinal Gasparri, Secrétaire d’État, lui signifiant que après une longue conversation avec Votre Excellence, a reçu l’affirmation que le Gouvernement Belge consent à l’érection du nouveau diocèse Eupen-Malmedy uni de droit et de fait à Liège, en désistant de toute opposition. “Étant ceci certain, comme j’en ai eu la confirmation par Son Excellence le Premier Ministre Carton de Wiart, Son Éminence le Cardinal Gasparri me donne l’honorable mandat de porter à Votre connaissance, que le Saint-Siège se retient libre à procéder à la publication de la Bulle, qui va paraître incessamment aussitôt que Votre Excellence aura donné Son assentiment officiel. “Par conséquent je prie Votre Excellence de bien vouloir me notifier cet assentiment, afin que je puisse le communiquer à Son Éminence le Cardinal Gasparri.” 69.  AMBAE—série politique—dossier no11.246/B/I, lettre du 24 avril 1921 de monsieur Jaspar à Monseigneur Nicotra.

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Cologne continued to behave as if he were the archbishop with full powers in these territories. In a letter of July 13, 1921, the apostolic nuncio in Brussels warned Cardinal Gasparri that, in spite of the erection of a new diocese, distinct from the Archdiocese of Cologne, the Archbishop of Cologne insisted on appointing clergy in Eupen-Malmedy and exercising his jurisdiction there.70 Governor Baltia sent similar messages to the Belgian Minister of the Interior, reporting that the clergy continued to receive instructions from the Archdiocese of Cologne and that Archbishop Schulte claimed that the situation would change.71 Pope Benedict XV ultimately decided to take the territory of Eupen and Malmedy away from the Archdiocese of Cologne and erected it on July 30, 1921 as the Diocese of Eupen-Malmedy, at the same time setting up a personal union between the new diocese and the Diocese of Liège.72 Interestingly enough, the apostolic constitution did not mention if the newly created diocese would belong to the ecclesiastical province of Mechelen or to the ecclesiastical province of Cologne. The problems with the Archbishop of Cologne continued, especially since the papal bull of erection of the new diocese had not yet arrived. Archbishop Schulte claimed that the powers of the nuncio had expired on July 18, and that he had again full power over the territories of EupenMalmedy.73 Because the situation was getting worse, the Nuncio asked in a letter of September 7, 1921 to Cardinal Gasparri for the bull of erection of the new diocese.74 The Pope ordered the bull to be sent to the 70.  Segreteria di Stato, S.RR.SS., Archivio Storico, AA.EE.SS., Belgio, Anno 1920–1922, Pos. 351, Fasc. 178, fol. 24. 71.  AMBAE—série politique—dossier no11.246/B/I, lettre du 21 juin 1921 du Gouverneur Baltia au Premier Ministre, Ministre de l’Intérieur. 72. Benedict XV, apostolic constitution Ecclesiae universae, July 30, 1921: AAS 13 (1921) 467–469. 73.  AMBAE—série politique—dossier no11.246/B/I, lettre du 1 septembre 1921 du Premier Ministre, Ministre de l’Intérieur, à Monsieur le Ministre des Affaires Étrangères: “Le Général Baltia, Haut-Commissaire du Roi pour les territoires réunis à la Belgique, vient de me faire connaître que l’Archevêque de Cologne a donné aux doyens d’Eupen, de Malmédy et de St Vith, les instructions suivantes: “Depuis le 18 juillet les pouvoirs du Nonce ont expiré; en conséquence l’autorité de Cologne est à nouveau complète sur les territoires d’EupenMalmédy. . . .” Foreign priests are forbidden to say Mass in the territory for longer than eight consecutive days, without explicit permission of the Archdiocese. That way Cologne wanted to avoid that Belgian priests appointed by the Nuncio and the Bishop of Liège would be able to continue to function. 74.  Segreteria di Stato, S.RR.SS., Archivio Storico, AA.EE.SS., Belgio, Anno 1920–1922, Pos. 351, Fasc. 178, fol 43.

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nuncio without any further delay,75 and in late September 1921 a French translation of the document was forwarded to the Belgian authorities.76 On October 18, 1921, the nuncio reported to Gasparri that the bull erecting the new diocese had been executed.77 d. Problems in the New Diocese

Not too long after the promulgation of this apostolic constitution Ecclesiae universae, Ambassador Beyens was received in audience by Pope Benedict XV and was asked if the solution was satisfactory. The ambassador used that question to complain about a letter of the Cardinal-Archbishop of Cologne to the clergy in Eupen-Malmedy. The report of the ambassador illustrated another problem: the problem of the loyalty of the clergy to their new country.78 It looks as if at one point, the deportation of German clergy from Eupen-Malmedy to Germany was being considered. But in a note of December 2, 1921 for Mr. Jaspar, Minister of Foreign Affairs, prepared by the Department of Foreign Affairs, caution was asked with 75.  AMBAE—série politique—dossier no11.246/B/I, lettre du 9 septembre 1921 de Mgr Nicotra, Nonce Apostolique, à Monsieur Jaspar, Ministre des Affaires Étrangères. 76.  AMBAE—série politique—dossier no11.246/B/I, lettre du 24 septembre 1921 de Mgr Nicotra, Nonce Apostolique, à Monsieur Japar, Ministre des Affaires Étrangères: “J’ai l’honneur de remettre à Votre Excellence la traduction française de la Bulle d’érection du nouveau diocèse Eupen et Malmédy, attaché au diocèse de Liège.” 77.  Segreteria di Stato, S.RR.SS., Archivio Storico, AA.EE.SS., Belgio, Anno 1920–1922, Pos. 351–353, Fasc. 179, fol. 3–4. 78.  AMBAE—série politique—dossier no11.246/B/II, Lettre du Baron Beyens, Ambassadeur près le St. Siège, à Son Excellence Monsieur H. Jaspar, Ministre des Affaires Étrangères, 27 novembre 1921, no297/140, Une audience du Saint-Père: “Le Saint Père m’a demandé si nous étions satisfaits de la solution apportée à la question d’Eupen et de Malmedy. Je me suis plaint aussitôt de la lettre récente adressée par l’Archevêque de Cologne au clergé de ces cantons pour l’engager à rester à son poste—“Peut-être est-ce le manque de ressources qui l’empêche de rappeler ses prêtres en Allemagne” ? Non, Saint-Père, ce n’est pas là le vrai motif des instructions envoyées de Cologne. La lettre du Cardinal Schulte communiquait au clergé d’Eupen et de Malmedy une lettre du Dr. Rosen, Ministre des Affaires Étrangères du Reich approuvant l’attitude patriotique de ce clergé et lui promettant des récompenses. Le Gouvernement belge ne prétend pas que des prêtres allemands puissent perdre leur mentalité d’origine, mais il n’admet pas qu’ils continuent leur apostolat germanique et, si décidé qu’il soit à user de douceux avec eux, il estime que leur rappel est le meilleur moyen d’amener la pacification parfaite des esprits chez ces populations éminemment catholiques. Sans doute, observa Sa Sainteté, il ne faut plus que le clergé d’Eupen et de Malmedy fasse de la politique, mais avez-vous assez de prêtres belges parlant l’allemand et capables d’exercer leur ministère dans cette région ? Je répondis affirmativement et j’insistai encore sur la nécessite de rapatrier en Allemagne des ecclésiastiques hostiles à la Belgique.”

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regard to this deportation of German clergy for two reasons: (1) it was not sure there would be enough Belgian clergy capable of ministering in German, and (2) even if there was enough Belgian clergy, replacing the German clergy en masse would give the measure the character of a persecution and that would make the measure unpopular with a population attached to their religion and their pastors. Such would have the opposite effect of what was intended. Instead, the minister was advised to act in a gradual way, and to remove immediately the undesired priests, and replace the others when there would be a vacancy. The same day, Jaspar informed Baron Beyens about this policy. Acquiring sovereignty and establishing a new diocese clearly were not enough to “Belgicize” the new territories. The publication of the directory for the newly created diocese became fairly quickly problematic: Epiphany, Corpus Christi, Peter and Paul, and the Immaculate Conception were listed as holy days of obligation. The Haut Commissaire du Roi for Eupen and Malmedy believed this to be problematic, first of all, because German holy days were maintained, and, secondly, because this created a situation different from the rest of Belgium.79 In other words, the battle to adjust ecclesial life in the new territories to Belgian practices has just begun. And that was just the start. What type of legislation would be applicable to the newly acquired territories? Bishop Rutten of Liège shared with the Secretary General, Vice-Governor of Eupen-Malmedy that two options were possible: extending the concordatarian regime applicable to the Belgian dioceses to the new diocese, or keeping the concordatarian regime thus far applicable to the new diocese.80 Such was clearly not the 79. AMBAE—série politique—dossier no11.246/B/II, Lettre du Baron Baltia, le Haut-Commissaire du Roi, Gouverneur, du 9 janvier 1922, concernant la différence du régime ecclésiastique au point de vue des fêtes: “Le Directorium du diocèse d’Eupen-Malmédy pour 1922 vient de paraître: la fête de l’Épiphanie (6 janvier), la Fête-Dieu (15 juin), la fête de St. Pierre et Paul (29 juin), la fête de l’Immaculée conception (8 décembre) constituent pour tous les fidèles du diocèse des fêtes de précepte et d’obligation. Cette différence de situation amène des ennuis ; au point de vue civil je pourrais décréter que ces fêtes sont des fêtes légales; j’y vois toutefois des inconvénients d’ordre politique et d’ordre pratique ; nous maintiendrons des fêtes qui sont légales en Allemagne ce qu’il faut éviter; . . . Toutefois cette situation hybride devrait être réglée, à mon sens d’une façon uniforme pour la Belgique entière et le diocèse d’Eupen-Malmédy devrait se conformer aux règles concordataires belges.” 80. AMBAE—série politique—dossier no11.246/B/II, Lettre de Mgr. M.H.Rutten, Évêque de Liège, à Monsieur le Secrétaire Général, Vice-Gouverneur, le 3 mars 1922: “Avant tout il faut obtenir une décision de la part du St. Siège, après entente avec le gouvernement belge, concernant la situation du nouveau diocèse Eupen-Malmédy au point de vue

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point of view of the civil authorities: the Belgian norms were applicable, otherwise Bishop Rutten would not have been able to appoint new pastors without the prior consent of the High Commissioner of the King, as would have been the case under the German concordatarian regime.81 The Belgian civil authorities further argued that the point of the Bishop was wrong, because he claimed that his vision was supported by article 16 of the Constitution, yet forgot that article 16 section 1 was not applicable in Eupen and Malmedy; only section 2 was. The civil authorities further added that the concordatarian regime existed in that area from 1802 until 1821; the decree of December 30, 1809 had been applied. When in 1821 the territory returned to the Archdiocese of Cologne, no decision of the Holy See was needed to end the concordatarian regime instituted in 1802 to replace it with the Prussian norms.82 Not that much later, Bishop Rutten informed the government that the Holy See had authorized him to apply the Belgian norms.83 The Belgian ambassador to the Holy See reported that he met with Cardinal Gasparri, who mentioned that the king and the queen had brought up this topic during their visit, and that the pope had asked to change nothing and to leave things as they were. It was further remarked that members of the fabrique d’église were appointed, not in virtue of the Prussian concordat, but in virtue of canon law.84 The choice of the system was not without its consequences for church property.85 In any politico-religieux. Le régime concordataire auquel sont soumis les diocèses belges sera-t-il étendu au nouveau diocèse ? Ou bien, continuera-t-on à y reconnaître le régime concordataire auquel il était soumis jusqu’à présent comme faisant partie du diocèse de Cologne? . . . Si, comme il est très probable, le régime concordataire belge est étendu au nouveau diocèse, je l’empresserai de nommer les trois membres des conseils de fabrique dont le choix est réservé par la loi à l’évêque, . . .” 81. AMBAE—série politique—dossier no11.246/B/II, Lettre du Secrétaire Général, Vice-Gouverneur, à Mgr M.H.Rutten, Évêque de Liège, Eupen et Malmedy, 8 mars 1922. 82. AMBAE—série politique—dossier no11.246/B/II, Lettre du Secrétaire Général, Vice-Gouverneur, à Monsieur Jaspar, Ministre des Affaires Étrangères, du 23 mars 1922 83.  AMBAE—série politique—dossier no11.246/B/II, Lettre de Mgr Rutten à Monsieur le Général, Baron Baltia, Haut-Commissaire royal, du 17 mai 1922: “J’ai l’honneur de vous informer que j’ai reçu de Rome les autorisations nécessaires pour que je puisse procéder à la nomination des nouveaux conseillers de fabrique, conformément au régime concordataire belge.” 84.  AMBAE—série politique—dossier no11.246/B/II, Lettre du Baron Beyens Ambassadeur de Belgique près le Saint Siège, à Monsieur Henri Jaspar, Ministre des Affaires Étrangères, 13 mai 1922. 85.  AMBAE—série politique—dossier no11.246/B/II, Ministère des Affaires Étrangères, Note pour Monsieur le Ministre, 2 juin 1922: “D’après les renseignements fournis par le général Baltia, il serait inexact que dans les cantons rédimés, les biens d’église appartinssent toujours

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event, the need for a uniform system was more than once underscored. Subsequent correspondence further emphasized the complex situation about property rights under the concordatarian system.86 The decision of the supreme authority of the Church to erect the territory of Eupen-Malmedy as a new diocese was recognized by civil authorities in a somewhat unusual way: article 2-II of the budget law for the department of justice stipulated that the territory of Eupen-Malmedy for the time being, as far as the exercise of the Catholic religion is concerned, was entrusted to the Diocese of Liège and that the bishop of Liège would have the title of bishop of Liège, Eupen and Malmedy.87 à la communauté religieuse, comme me l’affirmait le Nonce. Ces biens appartiennent tantôt à la commune dans le reste de la Belgique, tantôt aux communautés catholiques. Dans le premier cas, les objections du Vatican tombent, puisque rien n’est changé par l’application du régime belge ; dans le second cas, un arrangement est facile à trouver: en effet, le St. Siège vient de permettre (l’Évêque de Liège nous en informe) la constitution des fabriques d’églises à Eupen Malmedy, conformément au régime concordataire belge. Ces fabriques doivent être considérées, dans ces conditions, comme les successeurs des anciennes communautés catholiques et devenir propriétaires de leurs biens, y compris les églises, là où elles n’étaient pas la propriété des communes. . . . Nous avons d’ailleurs grand intérêt à insister pour l’unification des lois ecclésiastiques qui est un des chaînons importants de l’assimilation générale des cantons au reste de la Belgique. Le St. Siège de son côté ne perdra rien à voir appliquer à Eupen et Malmédy le régime de liberté religieuse belge bien plus large que celui dont jouissaient les cantons sous le régime prussien.” 86. AMBAE—série politique—dossier no11.246/B/II, Lettre du Card. Gasparri à Son Excellence Monsieur le Baron Beyens, Ambassadeur Extraordinaire et Plénipotentiaire de Belgique près le Saint Siège, 26 juin 1922: “Les articles organiques, annexés au Concordat français ont dépouillé les paroisses de leur personnalité civile à fin d’attribuer leurs biens à l’État ou à la Commune, qui donnent mandat au Conseil de Fabrique de les administrer. Mais cette disposition n’a jamais été approuvée par le Saint Siège. De sorte que les Conseils de Fabrique ont l’administration des biens paroissiaux, mais n’ont jamais été revêtus aux yeux du Saint Siège du moindre droit de propriété. C’est ce qui se produit, à l’heure actuelle, à Eupen et Malmédy. Le mode d’administration des paroisses n’y sera différent en aucune manière de celui qui est appliqué dans les autres paroisses du Royaume; mais le Saint Siège ne reconnaîtra pas aux Conseils de Fabrique—comme il ne l’a jamais reconnu jusqu’aujourd’hui,—le droit de propriété.” Also: AMBAE—série politique—dossier no11.246/B/II, Lettre du 17 juillet du HautCommissaire Royal au sujet des fabriques et des Kirchengemeinde et Pfarrgemeinde et la propriété des biens. 87.  Loi 27 juin 1922 contenant le budget du ministère de la justice pour l’exercice 1922, Moniteur belge 1er juillet 1922: “Art. 2-II.—Les territoires d’Eupen et de Malmédy sont, en ce qui concerne l’exercice cu culte catholique, attachés provisoirement à l’évêché de Liège. M. l’Évêque de Liège portera le titre d’Évêque de Liège, d’Eupen et Malmédy.” When proposing this article, the government explicitly referenced the apostolic constitution of July 30, 1921, and added: “Le Gouvernement estime qu’il est opportun que la disposition légale qui consacre provisoirement cette solution, et qui fait l’objet de l’article 2

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e. Suppression of the Diocese of Eupen-Malmedy and Its Incorporation into Liège

The Belgian ambassador to the Holy See, Baron Beyens,88 was not convinced that the religious difficulties in Eupen-Malmedy were now all solved by simply creating a new and separate diocese: in his memoirs, he recalls that, as ambassador to the Holy See, he had to deal with numerous questions, including the provisional confirmation of the appointment of German pastors appointed by the Archbishop of Cologne. It is not a surprise to read that Beyens was asked for a delicate mission: During the holiday that I spent in Brussels in the fall of 1923, Mr. Jaspar gave me an even more delicate mission than the one I had accomplished at the beginning with Benedict XV. I had to obtain from Pius XI the suppression of the separate Diocese Eupen-Malmedy, erected two years ago by a bull of his predecessor, the incorporation pure and simple of these two cantons in the Diocese of Liège and of the canton of Sankt-Vith in the Diocese of Namur, since the former would be incorporated in the province of Liège and the latter in the province of Luxembourg, the result of a law that would be soon presented to Parliament.89

The incorporation of the newly acquired territory into existing Belgian structures remained the ultimate goal of the Belgian government: (nouveau) ci-dessus, rende en même temps les lois relatives aux cultes applicables dans ces territoires. Si le Gouvernement propose d’insérer dans la loi budgétaire la disposition dont il s’agit, plutôt que d’en faire l’objet d’un projet de loi spécial, c’est qu’elle justifie l’inscription au Budget des crédits nécessaires.” 88.  Napoléon Eugène Louis Joseph Marie Auguste, baron Beyens (1855–1934) was a Belgian diplomat and politician. At the beginning of World War I, he was Belgian ambassador to Germany. As a result of the beginning of the war, he left Germany and later became a member of the Belgian government in exile. He was Minister of Foreign Affairs from 1916–1917. After the war, he resumed his diplomatic career. He finished his diplomatic career as Ambassador to the Holy See. 89.  Baron Beyens, Quatre ans à Rome 1921–1926. Fin du pontificat de Benoît XV, Pie XI, Les débuts du fascisme (Paris: Plon, 1934) 206: “Pendant le congé que je passai à Bruxelles dans l’automne de 1923, M. Jaspar me chargea d’une mission bien plus délicate que celle que j’avais remplie à mes débuts auprès de Benoît XV. C’était d’obtenir de Pie XI la suppression du diocèse séparé d’Eupen Malmédy, constitué deux ans auparavant par la bulle de son prédécesseur, le rattachement pur et simple de ces deux cantons à l’évêché de Liège et celui du canton de Saint-Vith à l’évêché de Namur, parce que les deux premiers seraient réunis à la province de Liège et le troisième à celle du Luxembourg, en vertu d’un projet de loi qui serait soumis prochainement au Parlement.”

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such would facilitate the territories’ incorporation in and assimilation with Belgium. The Holy See however wanted to keep absolute neutrality and wanted to guarantee an equal treatment for similar situations.90 To achieve its goal, the Belgian government sought and found historical examples:91 in the early Belgian history, territorial changes92 with the Netherlands and Luxemburg were recognized canonically almost immediately in 184093 and 184194 respectively. In the meantime, the Belgian House of Representatives voted a law on March 5, 1925, to incorporate Eupen, Malmedy and St. Vith in the province of Liège.95 The Senate approved the same law the next day, on March 6,

90.  AMBAE—série politique—dossier no11.246/B/II, Lettre du Baron Beyens, Ambassadeur de Belgique près le Saint Siège, à Monsieur Henri Jaspar, Ministre des Affaires Étrangères, 9 décembre 1923: “D’après ce qu’il m’a dit le principal argument sur lequel se base le Saint Siège pour refuser de nous donner satisfaction en ce moment, est l’identité qui existe entre la situation d’Eupen-Malmédy et celle d’autres territoires, détachés de diocèses dont le siège est resté en Allemagne, en Autriche et en Hongrie. La Pologne, la Tchécoslovaquie, la Yougoslavie, l’Italie, Fiume même, sont en instance auprès du Vatican en vue d’obtenir le rattachement de ces territoires, la plupart plus considérables que nos Cantons réannexés, aux diocèses de leur pays. Dans ces lambeaux arrachés aux anciens empires centraux, le Saint Siège a nommé des Administrateurs Apostoliques en attendant, non pas seulement la pacification universelle, comme il est dit dans la note ci-jointe, mais le règlement de questions épineuses avec ces différents Gouvernements: les unes concernent des biens ecclésiastiques ayant appartenu aux anciens diocèses, les autres les Concordats que le Saint Siège veut négocier avec les nouveaux États. Il n’entend pas créer en notre faveur un précédent que ceux-ci ne manqueraient pas d’invoquer pour faire cesser chez eux un régime provisoire.” It is here that the erection of a Diocese of Brussels, with a certain Msgr. Crooy as first bishop, was discussed. Gasparri was further informed that Eupen and Malmedy would be part of a civil province. A new law was being prepared to that end. 91. AMBAE—série politique—dossier no11.246/B/II, lettre du 27 décembre 1923 du Ministre de la Justice à Monsieur le Ministre des Affaires Étrangères. 92.  The territorial changes used as examples by the Belgian government, probably in the hope of invoking a precedent, were changes that were a consequence of the Treaty of London of 1839, also known as the Treaty of the XXIV articles. With this Treaty, the European powers recognized and guaranteed the independence and neutrality of Belgium. It included also loss of territory for Belgium compared to the situation immediately after the independence of Belgium in 1830–1831: territory was lost to the Netherlands and to Luxemburg. Pope Gregory XVI made the necessary canonical adjustments by changing the diocesan boundaries, and that happened almost immediately after the Treaty. 93.  AMBAE—série politique—dossier no11.246/B/II, Exécution de la disposition de Grégoire PP. XVI, en date du 2 juin 1840, pour les Pays-Bas et Grand-Duché de Luxembourg. 94. AMBAE—série politique—dossier no11.246/B/II, Démembrement du Diocèse de Gand, Exécution de la disposition faite par Grégoire P.P. XVI le 9 mars 1841 pour la Zélande. 95.  Annales parlementaires Chambre des représentants 1924–25, séance du 5 mars 1925.

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1925,96 and the law was published in the Moniteur belge on March 7, 1925.97 The idea of spreading the new Belgian territories over multiple provinces was abandoned. That paved the way for the incorporation of the Diocese of Eupen-Malmedy into the Diocese of Liège, thereby also abandoning the idea of incorporating the territory in two different existing dioceses. On April 15, 1925, Pius XI suppressed the Diocese of Eupen-Malmedy and added the three deaneries (Eupen, Malmedy and Sankt-Vith) to the Diocese of Liège. The canonical document suppressing the Diocese of Eupen-Malmedy and incorporating it into the Diocese of Liège was never published in the Acta Apostolicae Sedis. In a letter of April 23, 1927 to Cardinal Gasparri, the Sacred Consistorial Congregation wrote that the suppression and incorporation had taken place and that the apostolic nuncio in Belgium was responsible for the execution of the decision.98 When the Belgian ambassador to the Holy See, at the request of the Minister of Foreign Affairs, asked the Secretariat of State for some clarification and guidance, he was told that the apostolic bulls were transferred to the apostolic nuncio for execution, and that he had executed the decision by decree of September 24, 1925. It had been previously decided in common agreement that no publication would occur, since that was not required under canon law.99 Less than ten years after the end of the First World War, the territory 96.  Annales parlementaires Sénat 1924–25, séance du 6 mars 1925. 97.  Loi 6 mars 1925 portant rattachement des cantons d’Eupen, Malmédy en Saint Vith, Moniteur belge 7 mars 1925. 98. Segreteria di Stato, S.RR.SS., Archivio Storico, AA.EE.SS., Belgio-Lussemburgo, Anno 1923–1927, Pos. 164–166, Fasc. 21, f. 29: “In esecuzione degli ordine impartiti dalla S. Congregazione degli AA.EE.SS. con lettera 31 Marzo 1925 N°40.442, con decreto di questa S. Congregazione in data 15 Aprile seguente la diocesi di Eupen e Malmédy venne soppressa ed unita, insieme col Cantone di S.Vito, alla diocesi di Liegi. Le relative Bolle Apostoliche furono poi trasmesse, per la opportuna esecutoria, a Mgr. Nunzio del Belgio, il quale di fatto diede loro esecuzione con suo decreto del 24 Settembre 1925, comunicato in copia a questa stessa S. Congregazione.” 99.  AMBAE—série politique—dossier no11.246/B/II, Lettre de Monsieur van Ypersele de Strihou, Ambassadeur de Belgique près le Saint Siège à Monsieur Émile Vandervelde, Ministre des Affaires Étrangères, 1er mai 1927, N° 75/51: “Les Bulles Apostoliques relatives à cette incorporation ont été, pour exécution opportune, transmises à Monseigneur le Nonce en Belgique, lequel assurera leur exécution par son décret du 24 septembre 1925. “D’accord avec Son Excellence le Baron Beyens, alors Ambassadeur de Belgique près le Saint Siège on ne fit point la publication des Bulles au Bulletin officiel Acta Apostolicae Sedis afin de ne pas augmenter les difficultés locales. “Toutefois suivant les principes du Droit Canon, l’union des territoires est complète après l’exécution des Bulles Apostoliques et la publication de celles-ci au Bulletin Officiel du Saint Siège n’est pas nécessaire.”

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of Eupen-Malmedy was not only transferred to Belgium in a definitive way, also ecclesiastically a final solution was reached by ultimately incorporating the newly acquired territory into the existing diocese of Liège.

Conclusion

The Church rightly claims that it is for the competent ecclesiastical authority to erect and suppress particular Churches, to change boundaries, and to make any decisions pertaining to the organization of these particular Churches. Yet, one cannot forget that there is also the reality of life: Eccle­ sia vivit in mundo. Circumstances, especially of a political nature, may prevent the competent ecclesiastical authority to act, or at least to make any final decisions until the civil situation has been resolved. This illustrates how canonical norms and their application are at least influenced and conditioned by politics and civil law. This absolute neutrality is clearly visible in the case of the post-World War I transfer of the territory of Eupen and Malmedy from Germany to Belgium: as long as no final decision was made in virtue of the Treaty of Versailles, the Holy See waited, and took at most protective measures, among others by appointing an apostolic administrator to temporarily govern the territory. The choice made by the Holy See was certainly not easy, as a lot of political and diplomatic pressure was exercised. This prudential approach can best be compared with the situation of a sede vacante, where the principle sede vacante nihil innovetur always applies. No changes were made until the dust finally settled, and the political reality had stabilized. It was and is the only way for the Holy See to maintain its neutrality and impartiality, also and above all in the long run.

T H E C AT H O L I C U N I V E R S I T Y O F A M E R I C A

rose mcdermott, ssj*

Promoting Communion between the Apostolic See and Institutes of Consecrated Life: Canon 592 Revisited Introduction

Recently, this author published an article on canon 592 §1, the obligation of the Holy See to keep informed regarding the state and life of religious institutes and societies of apostolic life. To this end, the supreme moderators of these institutes and societies send a brief report to the Apostolic See at a specified time and in the format determined by the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life (CICLSAL).1 Dr. Kurt Martens, Editor of The Jurist, honored this religious with an invitation to present an article for the Festschrift of Msgr. Thomas J. Green, Ordinary Professor in the School of Canon Law, Washington, D.C., her once mentor, colleague, and always friend. As she reflected on the dedication of this priest scholar and considered a suitable topic for the Festschrift, she recalled how, before technology admitted greater access to ecclesiastical documents, Msgr. Green would generously share copies of papal and curial documents with his present and former students for their ongoing education and guidance as practicing canonists.

* Office of Clergy and Consecrated Life, Diocese of Trenton, NJ. 1.  Rose McDermott, “Fostering Communion Between the Apostolic See and Religious Institutes and Societies of Apostolic Life: 2008 Guidelines for the Report in Canon 592 §1,” The Jurist 72 (2012) 428–452. Canon 592 obliges both institutes of consecrated life and societies of apostolic life (c. 732).

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Therefore, she deems it appropriate to revisit canon 592 and address its second paragraph, i.e., the responsibility of moderators of institutes and societies to promote and implement papal and curial documents referring to their members. She presents this humble offering honoring Msgr. Green and completing her study of canon 592. Hopefully, it is a small tribute to one who has taught this woman religious by the example of his life the way to live in communion with all one’s fellow travelers on the journey to eternal life.

Aim of the Article

The article examines the provisions of canon 592 §2, obliging moderators of institutes of consecrated life and societies of apostolic life to promote knowledge and observance of the documents of the Holy See regarding their members.2 To this end, it will examine the fontes of canon 592 §2 and various commentaries on the revised canon. Finally, it offers synopsis of select postconciliar papal and curial documents that seem imperative for moderators to promote and implement in their respective institutes and societies for the efficacious living of a vocation “belonging to the life and holiness of the Church.”3 Hopefully, the article will demonstrate development not only in the canonical norm, but also in select postconciliar papal and curial documents issuing from the Apostolic See.

I. Fontes of Canon 592 §2

1. Canon 509 §1—The 1917 Code of Canon Law Can. 509 §1. Every Superior should promote among his subjects the knowledge and the execution of the decrees of the Holy See which concern religious.4 2.  While the article focuses on religious institutes, the content applies to societies of apostolic life, since they also have an obligation to common life. 3.  C. 574 §1: “ad vitam et sanctitatem Ecclesiae pertinet.” See also c. 207 §2. 4.  Codex Iuris Canonici Pii X Pontificis Maximi iussu digestus Benedicti Papae XV auctoritate promulgatus (Rome: Typis Polyglottis Vaticanis, 1917). Can. 509 §1. “Omnis Superior debet notitiam et exsecutionem decretorum Sanctae Sedis, quae religiosos respiciunt, suos inter subditos promovere.” English translation in Canonical Legislation Concerning Religious. Authorised

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Among the obligations of superiors of religious institutes and societies in the former code was that of making known and enforcing the decrees of the Holy See pertaining to their members.5 Abbo and Hannan agreed with other canonists that the public reading of sections of the former code pertaining to religious would seem to conform to the legislator’s intent.6 The obligation bound all superiors, local as well as major superiors.7 However, major superiors seemed to have the greater obligation of not only making known the decrees of the Holy See, but also attending to their proper execution.8 Without legitimate reasons, superiors’ negligence to inform and execute such decrees from the Holy See among the members in their respective institutes and societies could result in failures in religious discipline. The total omission of such a serious responsibility on the part of superiors could result in a just punishment.9 The provision in paragraph one of canon 509 included not only the canons in the former code pertaining to religious, but also any additional legislation, instructions, and/or responses that affected them. The obligation included not only decrees imposing obligations, but also those granting favors.10 Superiors were also to inform their members regarding those decrees affecting the faithful in general concerning indulgences, liturgy, pious associations, and other topics applicable to religious life. 11 While respecting the dignity and force of the decrees of the Holy See, superiors could make them known in a number of ways. Such provisions were often made in the constitutions of religious institutes. For lay

English Translation (Rome: Vatican Printing Office, 1918). All subsequent translations of the canons of the ‘17 CIC will be taken from this text. 5.  ‘17 CIC 675 applied c. 509 to societies of men or women living in community without vows. 6.  John A. Abbo and Jerome D. Hannan, The Sacred Canons A Concise Presentation of the Current Disciplinary Norms of the Church, 1: 518. See note 61, as the authors referenced Augustine, Coronata, Chelodi, and Beste. 7. Guidus Cocchi, C.M. Commentarium in Codicem Iuris Canonici Ad Usum Scholarum (Turin: Casa Editrice Marietti, 1931) 2: 59. 8.  Franciscus Xavier Wernz, Ius Canonicum and Petrus Vidal, Codicis Normam Exactum (Rome: Gregorian University, 1933) 3: 121. 9.  Ludovicus I. Fanfani, De Iure Religiosorum Ad Normam Codicis Iuris Canonici, Third Ed. (Rovigo: Istituto Padano di Arti Grafiche, 1949) 183. 10.  T. Lincoln Bouscaren, Adam C. Ellis, and Francis N. Korth, Canon Law A Text and Commentary, 4th rev. ed. (Milwaukee: The Bruce Publishing Co., 1963) 244. 11.  Abbo and Hannan, 1: 518; Bouscaren, et al., 244.

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religious, the decrees could be communicated in their native language and through exhortations in order to ensure their execution.12 Paragraph two of canon 509 states: §2. The local superior shall take care: 1° To have read publicly, at least once a year, on fixed days, the constitutions of the institute, as well as the decrees ordered by the Holy See to be read publicly;13

Paragraph two, number one of canon 509, provided that all local superiors were, at least once a year on stated days, to have the constitutions of the institute read publicly together with other decrees prescribed for public reading by the Holy See. The public reading could be accomplished in the refectory or chapter room with the community assembled. Augustine noted the seriousness of this norm. He observed that the study of the law led to knowledge; putting such knowledge into effect manifested good will.14 Prior to the promulgation of the 1917 code, the Sacred Congregation of Religious mandated seven decrees to be read publicly.15 These decrees addressed, among other topics, the manifestation of conscience, confessions, and the frequent Communion of religious.16 By 1917, the content of these seven decrees was incorporated into the former code, and commentators such as Cappello and Fanfani noted the future tense of the word praescribet.17 Unless the constitutions of an institute prescribed the reading of these former decrees, this obligation applied only to those documents designated for public reading after the promulgation of the code.18 Commentators noted examples of curial documents published after the 1917 code which superiors were to communicate to their members and 12.  Wernz and Vidal, 121. 13.  ‘17 CIC 509 §2, 1°: “Curent Superiores locales: 1.° Ut saltem semel in anno, statis diebus, publice legantur propriae constitutiones, itemque decreta, quae publice legenda Sancta Sedes praescribet”; 14.  Charles Augustine, A Commentary on the New Code of Canon Law (St. Louis: B. Herder Book Co., 1919) 3: 130. 15. Ibid. 16.  Augustine, 130; Bouscaren, et al., 244. 17.  Felix M. Cappello, Summa Iuris Canonici in Usum Scholarum (Rome: Gregorian University, 1951) 2: 21: “Nota verbum ‘praescribet’: igitur quae in posterum, non quae huc usque erant praescripta.” See also Fanfani, 182. 18.  Augustine, 130–131.

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have read in the religious houses. On July 16, 1931, the Sacred Congregation of Religious published a decree approving statutes for extern sisters of monasteries of nuns. Approved by Pius XI in an audience, June 24, 1931, the statutes were to be read publicly in monasteries having extern sisters at least four times during the year. Superiors were to see to the execution of these statutes.19 In an audience dated Dec.1, 1931, Pius XI ratified and approved an instruction, Quantum Religiones, of the Sacred Congregation of Religious on the formation of religious called to orders.20 At the beginning of each academic year, the instruction was to be read in all houses of studies of clerical religious. Pius XI ordered that the instruction be communicated to all major superiors of clerical institutes to be exactly observed by them. He also mandated that the instruction be read to clerical religious. Likewise, superiors were to inform the Sacred Congregation of the faithful fulfillment of these obligations in their quinquennial reports.21 The general statutes of the apostolic constitution, Sedes Sapien­ tiae, promulgated by Pius XII on May 31, 1956,22 were to be read publicly in all centers of formation for those religious aspiring to sacred orders. Entitled, “Principles and General Statutes for Those Called to States of Perfection,”23 the apostolic constitution addressed those called to embrace the religious and clerical state as well as their educators. The pope recognized the need for general ordinances authorized by the Holy See to be observed everywhere. While the apostolic constitution prepared the way by giving fundamental principles, Pius XII empowered the Sacred Congregation of Religious to implement the statutes by ordinances, instructions, declarations, and interpretations given with papal authority. The same congregation was to take measurers to insure the faithful observance of the constitution, statutes, and ordinances.24 19. Fanfani, 183. The decree promulgating the statutes and a summary of them are recorded in CLD 2: 170–172. 20.  AAS 24 (1932) 74–81; CLD 1:473–482. 21.  CLD 1: 482; Código de Derecho Canónico Y Legislación Complementaria. Texto Latino Y Versión Castellana, Con Jurisprudencia Y Comentarios (Madrid: La Editorial Catolica, S.A., 1975) 206; Fanfani, 183. 22.  Pius XII, apostolic constitution Sedes Sapientiae, May 31, 1956: AAS 48 (1956) 354–365; Código de Derecho Canónico, 206. 23.  CLD 4: 169. 24.  Ibid., 181–182.

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On February 2, 1961, the Sacred Congregation of Religious addressed anew the topic of the careful selection and training of candidates for religious life and sacred orders in an instruction, Religiosorum institutio. Without changing the principal directives and criteria in the1931 instruction, Quantum Religiones, Religiosorum institutio treated the same subject anew. The instruction was to be read at least in summary form before superiors, teachers, spiritual prefects, confessors and professors, as well as the general and provincial superiors of monastic orders. Provisions applicable to young candidates, particularly those referring to their freedom and the obligations assumed in embracing the religious and clerical life, were to be made known to them.25 2. Lumen Gentium 2526

Heralds of the faith, bishops share in the authority of Christ as authentic teachers in drawing disciples to Christ. They teach in communion with the pope and are respected as witnesses of divine and catholic truth. The exercise of magisterial teaching proves one of the more significant theological principles and highly debated issues addressed by the council fathers and postconciliar theologians.27 Past emphasis on the teaching authority of the pope omitted a similar study of the episcopacy. Many of the conciliar fathers wanted this lacuna attended during the sessions of the Second Vatican Council.28 The dogmatic constitution of the Church emphasizes the teaching function of bishops as having pride of place among their sacred duties. Bishops have the grave responsibility of preaching to the faithful under their pastoral care in order to: inform their thinking, direct their actions, and strengthen their faith. 25.  CLD 5: 452–486. The instruction was privately circulated, but the Sacred Congregation considered it “a matter of public law.” See 486. 26.  Vatican II, dogmatic constitution Lumen Gentium, November 21, 1964, AAS 57 (1965) 29–31; English translation Vatican Council II Constitutions, Decrees, Declarations. Rev. Trans. Austin Flannery, O.P., Gen. Ed. (Northport: Costello Publishing Company, 1996) 34–36. 27. For an interesting discussion of “definitive teaching” as introduced in LG 25 and employed in later documents, see Ladislas Orsy, Receiving the Council Theological and Canonical Insights and Debates (Collegeville: Liturgical Press, 2009) 118. Orsy translates into English an article he published in Stimmen der Zeit 216 (1998) 735–740 on “The Authority of Ecclesiastical Documents.” 28.  Richard R. Gaillardetz, Rediscovering Vatican II The Church in the Making (Mahwah: Paulist Press, 2006). See 17–18, 20, 23–24, 26–27 on Lumen Gentium; see also 27–37 on Christus Dominus.

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For their part, the Christian faithful are to revere bishops as witnesses of truth, submitting to them in matters of faith and morals. “This religious docility of the will and intellect must be extended, in a special way, to the authentic teaching authority of the Roman Pontiff . . . as he reveals his mind and intentions by the nature of the documents, the frequency in which a doctrine is proposed, and/or the manner in which it is formulated.”29 It is easy to see why paragraph 25 of Lumen gentium serves as the fontes for canon 592 §2 of the 1983 Code of Canon Law. Papal and curial documents serve to promote and foster those consecrated to God through the profession of the evangelical counsels.30 Such teachings provide principles and directives for the formation of candidates and novices beginning religious life, as well as providing spiritual, doctrinal, and practical guides for the on-going formation of members in temporary and perpetual profession.31 3. Mutuae Relationes 29

On October 16–18, 1975, members of the Sacred Congregations for Bishops and Religious and Secular Institutes joined in a plenary assembly. Honoring the tenth anniversary of the promulgation of the decrees Christus Dominus and Perfectae Caritatis, the assembly addressed three questions: 1) what bishops expect of religious, 2) what religious expect from bishops, 3) what practical means should be taken for an orderly and fruitful collaboration between them at various levels in the Church. Prior to this session, the congregations engaged in consultations and sought counsel from the conferences of bishops and religious, and the unions of superiors general. They prepared a document in collaboration with the Congregations for the Oriental Churches and the Evangelization of Peoples.32 Both congre29.  LG 25: “Hoc vero religiosum voluntatis et intellectus obsequium singulari ratione praestandum est Romani Pontificis authentic magisterio . . . iuxta mentem et voluntatem manifestatam ipsius, quae se prodit praecipue sive indole documentorum, sive ex frequenti propositione eiusdem doctrinae, sive ex dicendi ratione.” AAS 57 (1965) 30; Flannery, 34–35. 30.  C. 576. 31.  The present code emphasizes the ongoing formation of those members in perpetual profession, an obligation of both superiors and the individual members. See c. 661. 32. SCRSI, Mutuae Relationes, May 14, 1978: AAS 70 (1978) 473–506; English translation, “Directives for Mutual Relations Between Bishops and Religious in the Church,” in Vatican Council II, Vol. 2, More Post Conciliar Documents. New Rev. Ed. Austin Flannery, O.P., Gen. Ed. (Northport: Costello Publishing Company, 1998) 2: 209–243. See 228–229.

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gations recognized that conciliar teachings on the mystery of the Church and constant changes in modern society have influenced the relations between bishops and religious.33 Paragraph 29 instructs bishops and religious superiors, each according to their specific competence, to foster the knowledge of the teachings of the council and papal documents on the episcopate, religious life, the local churches, and the mutual relations that should exist among them. The paragraph makes several suggestions for fostering such knowledge: 1) study sessions of bishops and major superiors, 2) courses for diocesan priests and religious, 3) seminars adapted to the formation of lay religious, and 4) diocesan pastoral documents explaining such teachings. The paragraph encourages doctrinal studies be made known through the press and other means of social communications. While the paragraph recognizes the importance of disseminating such knowledge to all in the diocese, it states that such study should be an activity common to all religious.34 4. Mutuae Relationes 33

Paragraph 33 emphasizes the obligation of religious to be attentive and docile to the magisterium. Likewise, they should assist the ministry of bishops as “authentic teachers endowed with the authority of Christ.”35 Religious can facilitate this sacred ministry of the bishops in their various centers of study and publishing houses under their supervision. The paragraph further informs that religious seek the required approval of texts, such as those pertaining to Sacred Scripture, liturgy, catechetics, and others containing religion and morality.36 For their part, bishops should foster the work of religious engaged in the ministry of the word and social communications by encouraging the formation of specialized personnel in the ecclesial responsibilities and technical competence for this ministry.37 Here, one sees the postconciliar development in mutual obligations between bishops and religious in the ministry of the word. In the former 33.  MR Intro. I, Flannery, 2: 209. 34.  MR 29d, Flannery, 2: 228. 35.  LG 25: “doctors authentici seu Christi praediti.” AAS 57 (1965) 29; Flannery, 34. 36.  MR 33a. The paragraph refers to norms issued by the Sacred Congregation for the Doctrine of the Faith issued on March 19, 1975. See also canon 830 §3. The Pontifical Commission for the Interpretation of Legislative Texts explained on September 3, 1987, that the permission, the name of the one giving the permission, and the date and place of the grant of permission were to be printed in the published books. See Roman Replies (1990) 114. 37.  MR 33c.

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law, religious, apart from their own institutes, had little or no active part to play in the publication and dissemination of such teachings.38

II. Canon 592 §2—The 1983 Code of Canon Law

Canon 592 §2 of the 1983 Code of Canon Law states: The moderators of every institute are to promote knowledge of documents of the Holy See which regard the members entrusted to them and are to take care about their observance.39

Paragraph two follows paragraph one, the responsibility of the Holy See to know the state and life of institutes of consecrated life and societies of apostolic life. Another avenue of promoting communion between institutes and societies with the Apostolic See is the superiors’ obligation to insure the knowledge and implementation of papal and curial documents. One notes immediately the change in the norm from decrees (decretorum) in the former law to documents (documentorum) in the 1983 code, i.e., documents that are not only legislative or normative, but doctrinal and pastoral as well. It is not sufficient that the Holy See knows the state and condition of each institute and society; there is a corresponding obligation on the part of institutes and societies to know and comply with those teachings issuing from the Holy See applicable to consecrated life. Andres observes that these documents would include both papal and curial ones; this obligation extends to all institutes and societies, be they pontifical or diocesan, male or female, clerical or lay.40 Such documents, in addition to the norms in the code, bring about the communion of institutes with the hierarchy and encourage the holiness their members. Like38.  This development in the interrelationship of bishops and religious in the mission of the Church is rooted in ecclesiology of Vatican II. See Sharon Holland, “Religious and Bishops as Custodians of Communion,” The Jurist 62 (2002) 312. 39.  Codex Iuris Canonici auctoritate Ioannis Pauli PP. II promulgatus (Rome: Libreria Editrice Vaticana, 1989). English translation from Code of Canon Law Latin-English Edition New English Translation (Washington, D.C.: The Canon Law Society of America, 2001). All En­glish translations of the canons for the Latin church will be taken from this text. C. 592 §2. “Cuiuslibet instituti Moderatores promoveant notitiam documentorum Sanctae Sedis, quae sodales sibi concreditos respiciunt, eorumque observantiam curent.” Canon 592 obliges both institutes of consecrated life and societies of apostolic life (c. 732). 40.  Domingo Javier Andrés, Il Diritto Dei Religiosi Commento Esegetico Al Codice. Second Italian Edition. (Rome: EDIURCLA, 1999) 37.

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wise, the provision fulfills the Holy See’s obligation as stated in canon 576, “to take care that the institutes grow and flourish according to the spirit of the founders and sound traditions.”41 The obligation has implications for all moderators at all levels of the institute: general, provincial, and local. Each institute or society can provide the manner in which such documents are shared with the members: bulletins, circular letters, conferences or lectures adapted to the canonical status of the members.42 Today, religious and members of societies enjoy easy access to the documents on the website of the Roman curia. The coetus deliberating on this norm questioned its application to communications sent to superiors concerning particular situations within their own institute or society. However, the members of the coetus agreed that such communications would have accompanying letters to the competent superior specifying to whom the contents were to be made known.43 With the change from “decrees” to “documents,” one must attend to the value of the various documents. While all of the papal and curial pronouncements coming from the Holy See demand respect and attention, the juridical value of each would need to be determined.44 Beyer notes the recent volume of these documents. He observes that extensive and labored documents do not favor careful study and could end in a dead letter. It may be wiser to have brief and succinct documents that raise salient points for religious. He notes in particular, Mutuae relationes, requiring much study, reflection and adjustments in formation and structures that are not easily implemented.45 Since some of the documents issuing from the Holy See apply to all members of the Christian faithful, including members of institutes of consecrated life and societies of apostolic life, moderators would need to 41.  C. 576 “curare ut instituta secundum spiritum fundatorum et sanas traditiones crescant et floreant.” See Velasio DePaolis, La Vita Consacrata Nella Chiesa, ed. Vincenzo Mosca (Venice: Marcianum Press, 2010) 251. 42.  For example, the novitiate house, houses of ongoing formation for those in temporary profession and houses of those on mission. 43. Ellen O’Hara, “Norms Common to All Institutes of Consecrated Life: Canons 573–606,” in A Handbook on Canons 573–746, ed. Jordan Hite, Sharon Holland, and Daniel Ward (Collegeville: The Liturgical Press, 1985) 49. 44.  For an excellent article on the description of various papal and curial documents, see Kurt Martens, “The Nature of Authority of Roman Documents,” CLSA Proceedings 69 (2007) 131–164. See also Ellen O’Hara, “Norms Common to All Institutes of Consecrated Life: Canons 573–606,” in A Handbook on Canons 573–746, ed. Jordan Hite, Sharon Holland, Daniel Ward (Collegeville: the Liturgical Press, 1995) 48–49. 45.  Jean Beyer, Il Diritto Della Vita Consacrata (Milan: Editrice Àncora, 1989) 116.

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see that their members are apprised of these documents as well as those applying specifically to them in their canonical state. This would be congruent with the observation of the commentators on canon 509 §1 in the former code.46 Moderators have a particular responsibility for the common good of their institutes and societies. The documents coming from the Holy See assist them in promoting the patrimony of their respective institutes while fostering the vocations of the members . This can be accomplished through various programs of renewal in keeping with the content and spirit of the documents. However, the present law places responsibility for ongoing formation on the members as well.47 Given the educational advancement of members and their easy access to computers in their institutes and places of apostolic service, they can easily access copies of the documents for their personal study and reflection.48 Commentators note the absence of any reference to documents issued by diocesan bishops in their dioceses or at the level of Episcopal conferences. Given the relationship of institutes and their members with the pastoral life and ministry of particular churches, superiors would have a responsibility in keeping with the spirit of this norm to see that their members know and respect these magisterial documents.49

III. Synopsis of Select Postconciliar Papal Documents—Apostolic Exhortations

It would seem that no curial office in the Church encouraged members of religious institutes and societies of apostolic life in the challenging task of postconciliar renewal and adaptation more than Popes Paul VI and John Paul II. In addition to their many addresses to particular institutes on various occasions, three select papal exhortations stand out as fostering and encouraging this renewal and adaptation. Pope Paul VI encourages

46.  See note 11 above. 47.  See canons 652 §3, 661. 48.  Rose McDermott, “Title I Norms Common to All Institutes of Consecrated Life (cc. 573–606),” in New Commentary on the Code of Canon Law, ed. John P. Beal, James A. Coriden and Thomas J. Green (Mahwah: Paulist Press, 2000) 760. Many of the documents can be obtained in English on the website of the Holy See. 49.  Exegetical Commentary on the Code of Canon Law. English language edition ed. Ernest Caparros et al. (Montreal: Wilson & Lafleur, 2004) 2/2: 1532–1533. See also Elio Gambari, I Reli­ giosi Nel Codice Commento Ai Singoli Canoni (Milan: Editrice Àncora, 1986) 72.

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religious with an apostolic exhortation shortly after the council, while John Paul II addresses religious during the Jubilee Year of the Redemption and following the Ninth Ordinary Session of the Synod of Bishops on Consecrated Life. Popes employ this type of document rather frequently. They are advisory in nature; while informative, they are not legislative texts. Currently, the popes employ exhortations after the meetings of the Synods of Bishops in order to share the results of the synodal discussions proposed to the Holy Father.50 1. Pope Paul VI—Evangelica Testificatio51—June 29, 1971

Only six years into the postconciliar period, Pope Paul VI addresses religious in this apostolic exhortation. In the introductory paragraphs, the pope raises concerns about the anxiety of some religious resultant from the challenges of reform and renewal and the excessive hasty changes without serious discernment of other religious. He appeals to traditional teachings regarding religious life as a gift of the Holy Spirit given for the life and holiness of the Church. However, he admits that over the years outmoded practices and unstudied accretions have shrouded the witness of the vocation.52 The exhortation divides into four parts: 1) the various forms of religious life, 2) the essential commitments of the evangelical counsels; 3) the lifestyle of religious, and 4) renewal and spiritual growth of religious. Paul VI reminds religious first and foremost to study the intention and gifts of their particular founders, recalling the specific way each took to imitate Christ’s life and teachings in the gospels. He addresses the evangelical counsels, describing each, and demonstrating how the counsels eventually lead to a life of love of God and his people. The pope recognizes consecrated chastity as a special gift of God given to some members of the Church. He continues with a detailed 50.  Martens, 138, 146, and 149. The author discusses three authors’ ordering of papal and curial documents in accord with their juridical nature. Both Morrisey and D’Onorio agree that today popes employ apostolic exhortations to present the results of the Synods of Bishops. Huels would seem to agree in his description of a fourth level of non-binding documents. 51.  Pope Paul VI, apostolic exhortation Evangelica Testificatio (ET), June 29, 1971: AAS 63 (1971) 497–526; CLD 7: 425–449. 52.  ET 1–7.

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unfolding of the counsel of poverty, demonstrating the many forms it can take in today’s world. Likewise, he observes the contribution of obedience to the maturity and dignity of the individual religious. Paul VI explains how authority and obedience work in tandem, serving not only the common life of the religious, but also the mission of the Church through the various ministries and apostolic works of the religious, both communally and individually. The pope explains the witness of religious to the Church and society. This evangelical witness depends largely on the religious’ ability to follow Christ’s example by strengthening their inner lives in the practice of their own particular charism without excessive rigidity or unbridled change. He stresses the importance of an occasional withdrawal from apostolic service in order to devote oneself to periods of recollection and prayer in an ongoing conversion to Christ. Finally, he instructs renewal in liturgical and personal prayer that transforms fraternal life and strengthens one for an enriched participation in the Church’s mission. Paul VI concludes with an appeal for a more authentic living of religious life as encouraged by conciliar teaching. He exhorts religious to strengthen their evangelical witness, so much needed in today’s world. He petitions religious to be open to the teachings of the Church and the charism of their founders in order that they become imitators of Christ and offer the Church and the world the witness so greatly needed in today’s contemporary society.53 2. Pope John Paul II—Redemptionis Donum54—March 25, 1984

During the Jubilee Year of the Redemption on the Solemnity of the Annunciation, March 25, 1984, approximately thirteen years after Evan­ gelica Testificatio, John Paul II expresses the love the Church has for men and women religious in his apostolic exhortation, Redemptionis Donum. He notes that the anniversary of the crucifixion and resurrection of Christ calls for reflection on Christian vocation, particularly that of men and women religious. The pope recognizes consecrated life as taking its strength from the mystery of redemption. He draws inspiration primarily 53.  Ibid., 51–55. 54.  John Paul II, apostolic exhortation, Redemptionis Donum (RD), March 25, 1984: AAS 76 (1984) 377–486; Origins 13/44 (April 12, 1984) 721, 723–731.

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from Sacred Scripture with a few references to conciliar and postconciliar teachings.55 Apart from his greeting and the concluding affirmation of his personal love and that of the entire Church for men and women in consecrated life, the document contains five sections: 1) vocation, 2) consecration, 3) the evangelical counsels, 4) reflections on the counsels, and 5) religious’ love of the Church. John Paul II emphasizes the personal call of Christ for each religious, calling them to be imitators of God, walking in love as Christ did for mankind. A religious vocation has a spousal character, inasmuch as it springs from an interior encounter with Christ and a personal response.56 He speaks of religious profession as a fuller expression of baptismal consecration, the total gift of the human person to God, loved above all else. Religious choose this “burial in the death of Christ,” to walk in a new life hidden with God in Christ Jesus. It is a life of total self-giving, a self-emptying, a reflection of the mystery of Calvary, a consecration accomplished through the ministry of the Church.57 The exhortation demonstrates how each of the counsels enable the religious to grow in interior freedom through an ongoing conversion to Christ. They conquer the threefold lusts of the flesh, the eyes, and the pride of life. Pope John Paul II praises the witness and holiness this participation in the self-emptying of Christ gives to the Church.58 A special sharing in the mission of the Church accompanies this consecration of religious. Religious offer varieties of service throughout history, as they address the needs of God’s people. United in love through their various charisms, they offer to the world the love Christ has in giving Himself up for the redemption of all. The pope concludes with a prayer that religious may come to know Christ’s love and be filled with the fullness of God.59 3. Pope John Paul II—Vita Consecrata60—March 25, 1996

Vita Consecrata follows the Ninth Ordinary Synod of Bishops held on October 2–30, 1994. The synodal fathers presented John Paul II with fifty-five 55.  RD 1–2. 56.  Ibid., 3. 57.  Ibid., 7. 58.  Ibid., 9–10. 59.  RD 16. 60.  John Paul II, apostolic exhortation Vita Consecrata (VC), March 25, 1996: AAS 88 (1996) 377–486; Origins 25/41 (April 4, 1996) 681, 683–719.

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propositions resultant from their discussion sessions as themes for consideration in writing his exhortation.61 Between the introduction and conclusion, the document contains three chapters on consecrated life: 1) origins in the mystery of Christ and the Trinity, 2) sign of communion in the Church, and 3) sign of God’s love in the world. The apostolic exhortation is unarguably the longest and most detailed of the selected exhortations. Chapter one, a doctrinal explanation of consecrated life as an expression of the Christological/Trinitarian nature of Christian life, parallels consecrated life with the Paschal Mystery of Christ and the community of the three divine Persons.62 Through the profession of the evangelical counsels, one deepens his or her relationship with Christ begun at baptism. It is a particular gift of God involving a sacrifice on the part of the person that is joined to the sacrifice of Christ.63 Chapter two focuses on the consecrated life as a sign of communion in the Church. The Church is a mystery of communion, and the various forms of consecrated life demonstrate in a profound way this communion through the members’ love and commitment to each other and their charitable service to others in the Church’s mission. Common life offers a powerful witness to the Christian faithful and the world through the institute’s participation in the mission of the Church.64 Chapter three addresses the various apostolic works of institutes and societies, emphasizing the need for an ordered life of prayer and communal life that supports difficult missions.65 Consecrated persons offer special assistance to evangelization, proclaiming Christ and finding Him in the various cultures of the world. Recognizing the signs of the time, they address the needs of the poor, elderly, and ill. The pope notes the major challenges in today’s world that counter vowed communal life and service to those less fortunate.66 While he recognizes new fields of mission for consecrated persons, he stresses the need for the continuance of Christian education in the contemporary world.67 The exhortation encourages 61.  For a thorough account of the Ninth Ordinary Synod, see Giuseppe Ferrar, Il Sinodo Dei Vescovi 1994 “la vita consacrata e la sua missione nella Chiesa e nel mondo” (Rome: La Civiltà Cattolica, 1998). 62.  VC 21–25. 63.  Ibid., 30. 64.  Ibid., 41–43. 65.  Ibid. 74. 66.  Ibid., 87–93 67.  Ibid., 96.

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consecrated persons to continue on their journey of witness and service, reminding them they “have not only a glorious history to remember and to recount, but also a great history still to be accomplished!”68

IV. Synopsis of Select Postconciliar Curial Documents—Instructions

The select curial documents that follow fit in the category of instructions. From the vantage point of interpretation, instructions prove the more difficult form of all curial documents.69 They clarify the provisions of the laws, explaining them and offering directives in carrying out such obligations. Ordinarily, they are given for those whose responsibility it is to see that the laws are carried out. Instructions do not derogate from the laws; if they cannot be reconciled with the prescripts of the laws, they lack force (c. 34 §2). At times, instructions are approved in forma specifica.70 1. CICLSAL—Potissimum Instituioni71—February 2, 1990

One of the chief concerns of the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life (CICLSAL) has been the formation of those called by God to a life consecrated by the profession of the evangelical counsels.72 Cardinal Jerome Hamer, former Prefect of the Congregation, had a special audience with John Paul II on November 10, 1989. The Holy Father approved this document and authorized its publication under the title “Directives on Formation in Religious Institutes.” Published on February 2, 1990, the instruction addresses major superiors and formation personnel in response to their requests for guidance in this most 68.  Ibid. 110. 69.  Martens, 141. 70.  Martens, 141–143. See also, John M. Huels, “Interpreting an Instruction Approved in forma specifica,” Studia Canonica 32 (1998) 5–46. 71.  CICLSAL, instruction Potissimum institutioni (PI), March 2, 1990: AAS 89 (1990) 470– 532; Origins 19/42 (March 22, 1990) 677, 679–699. 72.  For examples, Quo Efficacius, January 24, 1944; Quantum Conferat, June 10, 1944; and Sedes Sapientiae, May 31, 1956. Following the council, the congregation published Renovationis Causam, 1969 which addresses canonical norms adapted to the formation of younger generations. While some documents do not deal specifically with formation, they address one or more aspects of it. For example, “Mutual Relations” in 1978; “Religious and Human Promotion” and “The Contemplative Dimension of Religious Life,” both in 1980; and “The Essential Elements of the Teaching of the Church on Religious Life” in 1983. See PI 3 and note 3.

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important work for the ongoing life of their institutes. While focusing primarily on religious institutes, it is a worthwhile guide to all engaged in the formation process in seminaries and other forms of consecrated life. The document describes religious life as a consecration of the whole person, a sacrifice offered to God as the person’s existence becomes an ongoing worship of God in love.73 Christ calls and the person responds in love to the Redeemer, a love given entirely and without reserve, losing oneself in the sacrifice.74 Religious profession brings together Christ’s call and the person’s response through the ministry of the Church. The effects of religious profession is a special consecration of the person and his or her incorporation into a specific religious institute in which the member gives ongoing witness in the Church and society.75 The document cautions accepting candidates undertaking a life of perfect continence and celibacy without adequate testing and sufficient psychological and affective maturity.76 While the counsel of poverty entails a life of labor lived in moderation, candidates should have a sense of the poor and the poverty that exists in so many parts of the world today.77 Obedience in imitation of Christ and a participation in his mission requires a submission of the will to legitimate superiors. Each institute must find its way in the observance of the counsels, always faithful to its nature, character, spirit and purpose.78 The document continues with the agents and environment for formation: the Holy Spirit, the Virgin Mary, the Church, a community, superiors, formation personnel, and the individual.79 The directives address such topics as the human and Christian dimension of formation, asceticism, and sexuality.80 It continues with the stages of formation common to all religious institutes: the preparatory period, the novitiate, first profession, temporary profession, and the ongoing formation of those in perpetual

73.  PI 7. 74.  Ibid., 9. 75.  Ibid., 9–10. 76.  Ibid., 13. 77.  Ibid., 14. 78.  Ibid., 13–16. 79.  Ibid., 19–32 80.  Ibid., 33–41.

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profession.81 One of the more significant sections of the document reviews the various times in one’s religious life that require special attention.82 Part five raises questions in the area of formation: vocation promotion,83 religious formation and culture,84 religious life and ecclesial movements,85 Episcopal ministry and religious life,86 and inter-institutional collaboration.87 Part six addresses the vocation and formation of religious called to orders. It is the shortest section, since all clerical institutes follow Ratio Fundamentalis Institutionis Sacerdotalis. The document concludes reminding superiors and formation personnel to follow requirements in the law during this period of experimentation. Openness to the Holy Spirit, compliance with the law, trained directors, and the cooperation of all members will assure quality formation not only for candidates and novices, but for all members in their ongoing conversion to Christ.88 2. CICLSAL—Congregavit nos in unum Christi amor89—February 2, 1994

Following the approval of John Paul II on January 15, 1994, CICLSAL published “Fraternal Life in Community” on the feast of the Presentation of the Lord, February 2, 1994. While not named an instruction, it seems to fit in that category, inasmuch as it offers criteria of discernment to religious communities based on conciliar and postconciliar teachings as well as the norms of the revised code for improvement of communal life.90 Cultural and social transformations taking place in the world, as well as the renewal and adaptation mandated by conciliar teachings, have had their impact on the common life of religious. The document begins with an overview of such changes in religious institutes, setting a background for the three parts of the document: 1) gift of communion and community; 2) religious community, becoming brothers and sisters, and 81.  Ibid., 42–69. 82.  Ibid., 70–71. 83.  Ibid., 86–89. 84.  Ibid., 90–91. 85.  Ibid., 92–93. 86.  Ibid., 94–97. 87.  Ibid., 98–100. 88.  Ibid., 110. 89. CICLSAL, Congregavit nos in unum Christi amor (VF), “Fraternal Life in Community,” Origins 23/40 (March 24, 1994) 693, 695–712. 90.  VF 6.

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3) religious community, source of mission. Since religious life belongs to the life and holiness of the Church, it participates in the mystery of the Church’s communion. Part one addresses the gifts of communion and community, explaining that each religious institute continues the community Christ called to share His life and mission.91 The Holy Spirit inspires various founders to attract others continuing this radical witness of communion with Christ and service to the needs of people. In proportion that religious institutes deepen their own communion within the Church, they become powerful witnesses of that communion in the world. Part two, the most detailed of the three sections, describes a religious community as the place where religious become brothers or sisters. Called by Christ to live in common, religious develop community life through lives of personal and liturgical prayer, as well as their contributions to community. This section addresses the sensitive balance required between personal freedom and communal life. Community demands personal commitment and dedication; the religious gives of herself or himself to others. This demands selflessness and a capability to love as Christ in accepting those in one’s community. Religious accept the weaknesses, problems, and difficulties of others, urged on by the love of Christ. Wholesome communities attract young people; however, the latter must learn in their formative years the sacrifices such community life demands. Often the failure to develop communal living results from personal deficiencies originating in negative experiences prior to entering religious life. At times, too, religious suffer due to rigid institutional experiences. Living with wounded members reminds those more mature that life in common requires heroic sacrifice at times and can be a real hardship. Respect for others and acceptance of their limitations and sufferings can lead one to put on the mind of Christ. Part three addresses the contribution of religious institutes to the mission of the Church.92 While religious perform their various ministries in a particular church, each institute enriches the Church with the dimensions of its special charism.93 The purpose of every apostolate is to bring humanity back to union with God and others; community life supports 91.  Ibid., 10. 92.  Ibid., 58–70. 93.  Ibid., 60.

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and sustains this goal of apostolic service.94 Part three addresses contemporary situations in which religious find themselves in order to respond to the needs of people: 1) a corporate apostolate, 2) a special office or service, 3) a missionary apostolate, 4) a community in a poor neighborhood, or 5) an apostolate requiring inter-congregational living.95 Each of these has its own demands with challenges to communal living. The document concludes in reminding religious that effective apostolic service demands a vibrant community life. At times this seems a daunting task beyond human capacities. However, prayer and reflection on the singular importance of community as supportive of one’s personal holiness and fruitful ministry will encourage religious to rise to the challenge.96 3. CICLSAL—The Service of Authority and Obedience97—May 11, 2008

Approved by Pope John Paul II on May 5, 2008, and published on May 11, 2008, the instruction continues in the path of the magisterial documents addressing the vocation of consecrated life on the challenging path to renewal and adaptation since the Second Vatican Council.98 It addresses the poised tension between the search for personal well-being and dedication to the common life and service of a religious institute in a culture focused on the dignity, freedom and autonomy of the human person.99 The document demonstrates how a preoccupied focus on self and one’s personal development and success can fracture fraternal sharing and collaboration. It takes note of the opposite problem, an excessive uniformity and rigid obedience that stifle personal growth and responsibility.100 The balance between the individual’s personal development and the community’s contribution to the mission of the Church demands ongoing dialogue between those in authority and the other members of the institute. 94.  Ibid., 2d. 95.  Ibid., 63, 65. 96.  Ibid., 71. 97.  CICLSAL, instruction “The Service of Authority and Obedience,” (SAO) Origins 38/5 (2008) 64, 66–83. 98.  SAO, 3. The document refers especially to: Potissimum Institutioni, 1990; “Fraternal Life in Community,” 1994; Vita Consecrata, 1996; and “Starting Afresh From Christ: A Renewed Commitment to Consecrated Life in the Third Millennium,” 2002. While primarily addressed to members of religious institutes, the content of SAO is applicable to societies of apostolic life. See para. 3. 99.  Ibid., 2. 100.  Ibid., 3.

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Addressed to members of religious institutes and societies of apostolic life, the instruction particularly aims to assist superiors in their triple task of: 1) enabling individual members called to common life, 2) constructing a fraternal community, and 3) collaborating with others in their common mission. To this end, the instruction divides into three chapters: 1) consecration and the Will of God, 2) authority/obedience in common life, and 3) in mission. Part one of the instruction addresses the individual religious, both those in authority and other members. It emphasizes openness to the Word of God in imitation of Christ. Such listening strengthens and humbles one for God’s will through human mediation. Persons in authority serve this search for God’s will by listening with their members to God’s word in order to learn his will. The section concludes with a list of noteworthy spiritual and normative priorities for persons in authority.101 Part two focuses on the task of consecrated persons building a community of love and support. Persons in authority serve the community; the community stands at the service of the Church through obedience to authority. After a period of mutual discernment and dialogue in seeking God’s will, the one in authority decides.102 In implementing the decision, the individual religious serves not only the one in authority, but the other members of the community in carrying out his or her particular ministry in accord with the end or common mission of the institute.103 Part three recalls that one is consecrated for mission. Mission implies being sent forth in obedience; otherwise, mission simply becomes a profession performed in view of one’s decision for personal fulfillment. Persons in authority consider not only the needs of the Church, but also the gifts of their members that respond to such needs. They strike a sensitive and delicate balance between assigning members to specific ministries and ordering the institute to its mission within the broader Church. An important service of those in authority is maintaining the balance between prayer, community life, and ministry. The instruction concludes with such sensitive issues as difficult orders of obedience, obedience and objections of conscience, and difficult kinds 101.  Ibid., 12–14. 102.  Ibid., 20f. 103.  Ibid., 20g.

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of authority.104 It assures that a life lived in imitation of Christ in obedience to God’s Word and superiors will prepare the religious for that final act of obedience in the twilight of life.105

Conclusion

This author finds the development from canon 509 §1, §2, 1° in the 1917 code to canon 592 §2 of the 1983 code most interesting. While the former law assigned “decrees” or legislative documents to superiors of all religious institutes and societies of men or women living in common for promotion and implementation, the present legislation obligates moderators of all institutes and societies to promote and implement “documents,” opening the door to a plethora of papal and curial documents, doctrinal, pastoral, and normative. One also easily recognizes the development in the content of the select papal exhortations. In Evangelica testificatio Paul VI encourages religious in their efforts at renewal and reform. He focuses on their internal life, stressing the essential elements of the evangelical counsels and common life. In Redemptionis Donum, John Paul II reflects on the external witness of a religious vocation in the Church and world. As a fuller expression of one’s baptismal consecration, religious profession recalls the selfemptying of Christ in the mystery of Calvary. Finally, John Paul II addresses the five forms of consecrated life in Vita Consecrata. A profoundly doctrinal document, the exhortation contextualizes the vocation to consecrated life within the mystery of Christ and the Trinity. The three select curial instructions demonstrate a progression in the topics addressed. Potissimum institutioni deals with formation and personal qualities requisite to cooperate with the demands of the Spirit’s gift of vocation. Vita Fraterna focuses on the demands of common life with its many challenges and possibilities. Finally, The Service of Authority and Obedience presents vowed obedience within the context of a mature and challenging common life, as superiors and other members remain open to

104.  Ibid., 26–28. 105.  Ibid. 30.

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God’s word, dialogue with one another, and commitment to the Church’s mission. At various times, the papal and curial documents explain the nature of consecrated life or a constitutive element of the vocation with progressively more nuanced detail based on magisterial teachings and human experience. The select documents, chosen from so many others of similar quality, demonstrate the serious responsibility of the popes and CICLSAL for the growth and flourishing of institutes and societies as provided in canon 576. Likewise, they place a corresponding responsibility on moderators and other members of institutes and societies for their ongoing doctrinal, spiritual, and practical formation as stated in canon 661. It is evident, from the developments in the canonical norm and select documents, that the popes, prefects, and staff at CICLSAL have accomplished their responsibilities towards this vocation in the Church.106 It remains for the members of these institutes and societies, particularly moderators, to attend carefully to the documents and their implementation in order that they and their members persevere in an ongoing conversion to Christ and untiring service to the Church’s salvific mission in the world.107

106.  C. 576. 107.  C. 207 §2.

T H E C AT H O L I C U N I V E R S I T Y O F A M E R I C A

sean o. sheridan, tor*

Preaching the Joy of the Gospel Introduction

Pope Francis’ apostolic exhortation Evangelii gaudium1 encourages the faithful to embrace the message of the Gospel and to live it out in their daily lives. But he also spends a significant portion of the document addressing how the members of the Christian faithful are to preach or evangelize the message of the Gospel, both through their words and their actions.2 In particular, Francis addresses the manner in which the homily should be an important part of the celebration of the Mass. He acknowledges the significance of the homily in paragraph 135, which includes perhaps one of the more notable quotes from the exhortation: I will dwell in particular, and even somewhat meticulously, on the homily and its preparation, since so many concerns have been expressed about this important ministry and we cannot simply ignore them. The homily is the touchstone for judging a pastor’s closeness and ability to communicate to his people. We know that the faithful attach great importance to it, and that both they and their ordained ministers suffer because of homilies: the laity from having to listen to them and the clergy from having to preach them! It is sad that this is the case. The homily can actually be an intense and happy

* President and Professor of Theology, Franciscan University of Steubenville, Steubenville OH. 1.  Francis, apostolic exhortation Evangelii gaudium, November 24, 2013: AAS 105 (2013) 1019–1137. English translation in Origins 43/27 and 28 (December 5 and 12, 2013) 421–465. 2.  EG 110ff. This suggestion points to the phrase often attributed to Saint Francis of Assisi, which was demonstrated by the manner in which he lived his life, but is not directly found in his writings: “Preach the Gospel at all times. Use words if necessary.”

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experience of the Spirit, a consoling encounter with God’s word, a constant source of renewal and growth.3

While some might gravitate to Francis’ remarks about the suffering associated with the homily—both by those who prepare them and those who hear them delivered at Mass—it seems that the more significant remark should be the latter statement, i.e., that, when properly done, the homily is an intense experience of the Holy Spirit and an encounter with God’s word that leads to personal renewal and growth. As such, the homily, appropriately considered within the context of the entire liturgy, should lead the faithful into that union with Christ and the Church that we celebrate during the Mass. For many years, the Church has recognized the significance of preaching and, in particular, the significance of the homily as the preeminent form of preaching.4 Much has been written about preaching and homily preparation to encourage the proper delivery of liturgical preaching.5 This article will focus on the canonical aspects of preaching beginning with a consideration of select canons of the 1983 Code of Canon Law to frame our discussion before moving to a review of Francis’ exhortation on preaching the joy of the Gospel. As we consider the thinking of Francis, we will also study recent ecclesiastical documents such as the Congregation for Divine Worship and the Discipline of the Sacraments’ 2014 Homi­ letic Directory,6 which may serve as a tool to assist the homilist with his sacred obligation to preach the Gospel.

3.  EG 135. 4.  Codex Iuris Canonici auctoritate Ioannis Pauli PP. II promulgatus (Vatican City: Libreria Editrice Vaticana, 1983). C. 767 §1: “Among the forms of preaching, the homily, which is part of the liturgy itself and is reserved to a priest or deacon, is preeminent; in the homily the mysteries of faith and the norms of Christian life are to be explained from the sacred text during the course of the liturgical year.” English translation from Code of Canon Law, Latin-English Edition: New English Translation, 2d printing (Washington, DC: CLSA, 2012). All subsequent English translations of canons from this code will be taken from this source unless otherwise indicated. 5.  See e.g., Brian Cavanaugh, “Proclaiming a Message of Hope: A Homiletics Practicum,” Homiletics & Pastoral Review 111/3 (December 2010) 42–46. 6.  Congregation for Divine Worship and the Discipline of the Sacraments, Homiletic Directory, ( June 29, 2014) (hereafter “Homiletic Directory”). Available at: http://www.vatican. va/roman_curia/congregations/ccdds/documents/rc_con_ccdds_doc_20140629_direttorio -omiletico_en.html

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I. Preaching from the Canonical Perspective

Blessed Pope Paul VI took up the topic of preaching in his 1975 apostolic exhortation Evangelii nuntiandi. Wishing to emphasize the importance of preaching, Paul wrote: Preaching, the verbal proclamation of a message, is indeed always indispensable. We are well aware that modern man is sated by talk; he is obviously often tired of listening and, what is worse, impervious to words. We are also aware that many psychologists and sociologists express the view that modern man has passed beyond the civilization of the word, which is now ineffective and useless, and that today he lives in the civilization of the image. These facts should certainly impel us to employ, for the purpose of transmitting the Gospel message, the modern means which this civilization has produced. Very positive efforts have in fact already been made in this sphere. We cannot but praise them and encourage their further development. The fatigue produced these days by so much empty talk and the relevance of many other forms of communication must not however diminish the permanent power of the word, or cause a loss of confidence in it. The word remains ever relevant, especially when it is the bearer of the power of God. This is why St. Paul’s axiom, “Faith comes from what is heard,” also retains its relevance: it is the Word that is heard which leads to belief.7

Thus, preaching is an indispensible component of who we are as Christians. Mandated by Jesus, Himself, all Christians preach in response to the Lord’s Great Commission to the apostles as set forth in the final verses of Saint Matthew’s Gospel: “Go, therefore, and make disciples of all nations, baptizing them in the name of the Father, and of the Son, and of the holy Spirit, teaching them to observe all that I have commanded you. And behold, I am with you always, until the end of the age.”8 Fuentes suggests that, at least from a canonical perspective, “preaching is an act of specifically authorized public teaching, done in the name of the Church by sacred ministers for the faithful, meeting for the purpose of being instructed and confirmed in the faith.”9 He further maintains that 7.  Paul VI, Evangelii nuntiandi 42, December 8, 1975: AAS 67 (1976) 5–76. English translation in Origins 5/29 ( January 8, 1976) 459–468. 8.  Mt 28:19–20. 9.  José A. Fuentes, “The Preaching of the word of God,” in Exegetical Commentary on the Code of Canon Law (hereafter “Exegetical Commentary”), English language edition, five volumes,

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The public aspect of preaching is so fundamental that it was traditionally thought necessary for this ministry to take place at sacred places, or if done elsewhere that it be made clear that it was a liturgical act. The Code does not expressly require this, but the general sense of the canons infers a relationship of the preaching ministry with sacred places or ceremonies. In any case, it is always necessary that preaching be a public act of the Church, done by a minister who is not speaking only in his own name, but who officially represents the Church. Liturgical preaching, particularly the homily within the Eucharist, is the model for all preaching.10

With the development of the New Evangelization, as advanced especially during the pontificates of Saint John Paul II and Pope Benedict XVI, non-liturgical preaching has more often been referred to as “evangelization” and “preaching” understood as liturgical preaching. This will be particularly evident in the discussion of Evangelii gaudium. Yet, the Code of Canon Law recognizes in canons 762 to 772 that preaching is informed by a number of issues, such as a person’s state in the Church.11 Also important is the form of preaching undertaken and the circumstances under which preaching might occur. For example, the code acknowledges in canons 763, 764 and 766 that there are different capacities to preach the Gospel based upon a person’s state of life in the Church,12 including within her hierarchical structure.13 Yet canon 762 directs clerics, in particular, to hold preaching in esteem. “Sacred ministers, among whose principal duties is the proclamation of the gospel of God to all, are to hold the function of preaching in esteem since the people of God are first brought together by the word of the living ed. Ernest Caparros et al. (Chicago: Midwest Theological Forum, 2004) 3/1: 75. The Exegeti­ cal Commentary is also available in its original Spanish edition. See, Angel Marzoa Rodríguez, Comentario exegético al Código de derecho canónico, five vols. (Pamplona: EUNSA, 1997). 10. Fuentes, Exegetical Commentary, 3/1: 75. 11.  Cf. c. 207: “§1. By divine institution, there are among the Christian faithful in the Church sacred ministers who in law are also called clerics; the other members of the Christian faithful are called lay persons. §2. There are members of the Christian faithful from both these groups who, through the profession of the evangelical counsels by means of vows or other sacred bonds recognized and sanctioned by the Church, are consecrated to God in their own special way and contribute to the salvific mission of the Church; although their state does not belong to the hierarchical structure of the Church, it nevertheless belongs to its life and holiness.” 12.  See c. 207. 13.  See, e.g., canon 763: bishops have a right to preach; canon 764: priests and deacons have a faculty to preach that can be limited; and canon 766: lay persons can be permitted to preach in a church or oratory.

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God, which it is certainly right to require from the mouth of priests.”14 The canon recognizes the balance that should be achieved between the right of the people to hear the word of God preached15 and the obligation of the cleric to preach.16 Next we turn to a consideration of the different capacities to preach in the Church. A. Bishops

Once ordained to the episcopate, all bishops have the right to preach everywhere unless precluded from doing so by the local diocesan bishop in a particular circumstance. “Bishops have the right to preach the word of God everywhere, including in churches and oratories of religious institutes of pontifical right, unless the local bishop has expressly forbidden it in particular cases.”17 The “right” of the bishop to preach everywhere is rooted in his obligation to preach that results from his episcopal ordination and membership in the college of bishops. Bishops are the successors to the apostles and preaching is an essential part of their ministry. As the Fathers of Vatican II taught in Lumen gentium: Among the principal tasks of bishops the preaching of the gospel is preeminent. For the bishops are the heralds of the faith who bring new disciples to Christ. They are the authentic teachers, that is, teachers endowed with the authority of Christ, who preach to the people entrusted to them the faith to be believed and put into practice; they illustrate this faith in the light of the holy Spirit, drawing out of the treasure of revelation things new and old (see Mt 13, 52), they make it bear fruit and they vigilantly ward off errors that are threatening their flock (see 2 Tm 4, 1–4).18

14.  C. 762. 15. Cf. c. 213: “The Christian faithful have the right to receive assistance from the sacred pastors out of the spiritual goods of the Church, especially the word of God and the sacraments.” 16.  Cf. c. 757’s exhortation for the priest to proclaim the word of God and the deacon’s service of God’s people in the ministry of the word. “It is proper for presbyters, who are coworkers of the bishops, to proclaim the gospel of God; this duty binds especially pastors and others to whom the care of souls is entrusted with respect to the people committed to them. It is also for deacons to serve the people of God in the ministry of the word in communion with the bishop and his presbyterium.” Accord, Fuentes, Exegetical Commentary, 3/1: 77–78. 17.  C. 763. 18.  Vatican Council II, dogmatic constitution Lumen gentium 25, November 21, 1964: AAS 57 (1965) 5–67. English translation in Decrees of the Ecumenical Councils, ed. Norman P. Tanner (London and Washington: Sheed & Ward and Georgetown University Press, 1990) 2: 849, 869.

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Canon 375 further embraces the importance of the bishop’s participation in the authority of Christ.19 Of particular importance here is the role of the bishop as teacher of doctrine who receives the functions of sanctifying, teaching and governing through episcopal ordination. Yet, canon 763 also allows the diocesan bishop to protect his particular church by permitting him to limit that right to preach for a visiting bishop in what, admittedly, would be rather particular and narrow circumstances. Such circumstances might include a concern over whether the visiting bishop has embraced some teaching from which the diocesan bishop would want to protect the people entrusted to him. Any such restriction should pertain to guarding the good of the particular church.20 B. Priests and Deacons

Priests and deacons, on the other hand, have a faculty to preach, which can be limited in a number of specific ways. Canon 764 provides in pertinent part: “presbyters and deacons possess the faculty of preaching everywhere; this faculty is to be exercised with at least the presumed consent of the rector of the church, unless the competent ordinary has restricted or taken away the faculty or particular law requires express permission.”21 The “faculty” that priests and deacons have to preach is not as extensive as the “right” that bishops possess. Presumably the canon’s reference to “rector of the church” would encompass not only, for example, the rector of a cathedral or basilica, but also the pastor of a parish church.22 Moreover, there are three ways in which the faculty of priests and deacons to preach can be limited.23 First, the diocesan bishop could, perhaps, 19.  C. 375: “§1. Bishops, who by divine institution succeed to the place of the Apostles through the Holy Spirit who has been given to them, are constituted pastors in the Church, so that they are teachers of doctrine, priests of sacred worship, and ministers of governance. §2. Through episcopal consecration itself, bishops receive with the function of sanctifying also the functions of teaching and governing; by their nature, however, these can only be exercised in hierarchical communion with the head and members of the college.” 20. Fuentes, Exegetical Commentary, 3/1: 80: “[A]ny preacher, including another bishop, may only preach within the just limits set by the bishop of the faithful entrusted to him.” 21.  C. 764. 22.  Cf. c. 556: “Rectors of churches are understood here as priests to whom is committed the care of some church which is neither parochial nor capitular nor connected to a house of a religious community or society of apostolic life which celebrates services in it.” 23.  See c. 18: “Laws which establish a penalty, restrict the free exercise of rights, or contain an exception from the law are subject to strict interpretation.”

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permit a priest or deacon to preach only in limited circumstances, such as at a particular apostolic venue or for a particular congregation. Second, the diocesan bishop could take away the priest or deacon’s faculty to preach such as when he suffers from early onset dementia or, like the circumstance for restricting the bishop’s right, the priest or deacon has embraced some potentially troublesome teaching. Lastly, the bishop can promulgate particular law that requires all priests and deacons to obtain the express permission of the local ordinary before he can exercise his faculty to preach. Hierarchical recourse would be available to the priest or deacon who believes that the bishop has “unjustly imposed on his faculty to preach.”24 The requirement for express permission to exercise a faculty to preach is one that is frequently utilized by diocesan bishops. Presumably, the bishop is well aware of the priests and deacons incardinated in his diocese as well as the clerical members of an institute of consecrated life or society of apostolic life who have permission to reside in his diocese. According to their sacred order, they assist the bishop with responsibilities within the diocese.25 However, the bishop might not be as aware of a priest or deacon who is visiting the diocese for only a limited period of time. A particular law promulgated for the diocese that requires express permission to exercise the faculty to preach affords the diocesan bishop the opportunity for a greater awareness of the presence of visiting priests and deacons in the diocese and permits him or his delegate to confirm that it is appropriate for them to preach within the diocese. The preaching of priests and deacons might also be limited by the need to obtain permission of the competent superior before preaching to members of a religious community in one of their churches or oratories. “Preaching to religious in their churches or oratories requires the permission of the superior competent according to the norm of the 24. Fuentes, Exegetical Commentary, 3/1: 83. 25.  See c. 757: “It is proper for presbyters, who are co-workers of the bishops, to proclaim the gospel of God; this duty binds especially pastors and others to whom the care of souls is entrusted with respect to the people committed to them. It is also for deacons to serve the people of God in the ministry of the word in communion with the bishop and his presbyterium.” See also c. 1009 §3: “Those who are constituted in the order of the episcopate or the presbyterate receive the mission and capacity to act in the person of Christ the Head, whereas deacons are empowered to serve the people of God in the ministries of the liturgy, the word and charity.”

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constitutions.”26 This restriction would not apply to a bishop since he has the right to preach everywhere, “including in churches and oratories of religious institutes of pontifical right.”27 Similar to the desire of the diocesan bishop to protect the faith of the Christian faithful within the diocese, the superior of a religious community also has an obligation to protect the members of the religious community entrusted to his or her care. Canon 619 addresses the obligations of a religious superior, one of which is to nourish the members of the community with the word of God.28 Nevertheless, similar to the presumed permission recognized in canon 764, it would seem that inviting a priest or deacon to participate in the celebration of the liturgy in a church or oratory of the religious community should carry with it at least the presumed permission to preach to the members. C. Members of the Laity

Lastly, pursuant to canon 766, members of the laity can be permitted to preach in certain locations. The canon provides: “Lay persons can be permitted to preach in a church or oratory, if necessity requires it in certain circumstances or it seems advantageous in particular cases, according to the prescripts of the conference of bishops and without prejudice to can. 767, §1.” Thus, in contrast to clerics, members of the laity need permission to preach under certain circumstances—if they intend to preach in a church or oratory and if necessity requires it or it is advantageous considering the particular circumstances. Particular law of the diocese can also regulate each of these potential limitations. The canon further recognizes that the permission for members of the laity to preach in a church or oratory does not extend to preaching the homily, which is addressed in canon 767. 26.  C. 765. 27.  C. 763. Accord, Fuentes, Exegetical Commentary, 3/1: 84: “The license required under this canon applies to priests, deacons, and of course to the eventual preaching of the laity. However, it does not apply to bishops, who, under c. 763, may preach anywhere, including churches and oratories at religious institutes under pontifical right.” 28.  C. 619: “Superiors are to devote themselves diligently to their office and together with the members entrusted to them are to strive to build a community of brothers or sisters in Christ, in which God is sought and loved before all things. Therefore, they are to nourish the members regularly with the food of the word of God and are to draw them to the celebration of the sacred liturgy. They are to be an example to them in cultivating virtues and in the observance of the laws and traditions of their own institute; they are to meet the personal needs of the members appropriately, solicitously to care for and visit the sick, to correct the restless, to console the faint of heart, and to be patient toward all.”

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Canons 1214 and 1223 describe the canonical understanding of a church or oratory. A church is “a sacred building designated for divine worship to which the faithful have the right of entry for the exercise, especially the public exercise, of divine worship.”29 In contrast, an oratory is reserved to a particular group of persons to worship there, although from time to time, others can be welcomed to participate in their worship. “By the term oratory is understood a place for divine worship designated by permission of the ordinary for the benefit of some community or group of the faithful who gather in it and to which other members of the faithful can also come with the consent of the competent superior.”30 Moreover, the sacred building that is often referred to as a chapel,31 e.g., on a university campus, in a hospital or nursing home, or the house of a religious institute, should more properly be referred to as an oratory to be consistent with the canonical understanding of those terms. The permission that members of the laity would need to preach is limited to these two locations, a church or an oratory, both of which are liturgical settings. However, if we consider “preaching the Gospel” in the broader sense—such as embodied in the mandate of the Great Commission or that phrase often attributed to Saint Francis, “preach the Gospel at all times and use words if necessary—arguably members of the laity have an obligation to preach (or evangelize) in non-liturgical places other than a church or an oratory where they might be permitted to do so. Similarly, Fuentes argues that “[s]ince the canon only addresses lay preaching in churches and oratories, this implies that there are no limits on the universal norms and that there is no special authorization of Conferences with respect to preaching in other places.”32 In all circumstances, however, as moderator of the ministry of the word in the diocese, the bishop is able to oversee what is taught in his diocese by anyone, whether in the sacred places of a church or oratory or elsewhere.33

29.  C. 1214. 30.  C. 1223. 31.  C. 1226: “By the term private chapel is understood a place for divine worship designated by permission of the local ordinary for the benefit of one or more physical persons.” 32. Fuentes, Exegetical Commentary, 3/1: 88 (emphasis in original). 33.  C. 756 §2: “With respect to the particular church entrusted to him, an individual bishop, who is the moderator of the entire ministry of the word within it, exercises that function . . .”

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While canon 766 does not specifically identify the person competent to grant permission to members of the laity to preach in a church or oratory, since the diocesan bishop is the moderator of the ministry of the word for the diocese,34 it would seem that he is the ecclesiastical authority competent to grant such permission. Some might question whether the pastor is also competent to grant permission for his parish. However, the United States Conference of Catholic Bishops’ complementary norm on lay preaching specifically designates the diocesan bishop as the competent authority. The complementary norm provides in pertinent part: If necessity requires it in certain circumstances or it seems useful in particular cases, the diocesan bishop can admit lay faithful to preach, to offer spiritual conferences or give instructions in churches, oratories or other sacred places within his diocese, when he judges it to be to the spiritual advantage of the faithful.35

Thus, the diocesan bishop is the competent ecclesiastical authority to permit members of the laity who are “orthodox in faith and wellqualified”36 to preach in a church or oratory out of necessity or for particularly advantageous circumstances. Presumably, the diocesan bishop could extend to his pastors the faculty to grant that permission or to enact particular law that extends his authority to them as well. The complementary norm also provides examples of necessity or particularly advantageous circumstances for which a lay person can be permitted to preach in these liturgical settings. The situations identified are: “the absence or shortage of clergy, particular language requirements, or the demonstrated expertise or experience of the lay faithful concerned.”37 Nevertheless, these circumstances are to be considered exceptional and not the norm to be encountered on a frequent basis.38

34. Ibid. 35.  United States Conference of Catholic Bishops, Complementary Norm Canon 766— Lay Preaching, December 13, 2001: The Jurist 73 (2013) 276–277. 36. Ibid. 37. Ibid. 38.  Congregation for Clergy, et al., instruction Ecclesiae de mysterio August 15, 1997: AAS 89 (1997) 852–877, Art. 2 §4: “It cannot, however, be regarded as an ordinary occurrence nor as an authentic promotion of the laity.” English translation in Origins 27/24 (November 27, 1997) 397–409. Also available at: http://www.vatican.va/roman_curia/congregations/cclergy /documents/rc_con_interdic_doc_15081997_en.html

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D. The Homily as the Preeminent Form of Preaching

Canon 767 describes the homily as the preeminent form of preaching during which “the mysteries of faith and the norms of Christian life are to be explained from the sacred text during the course of the liturgical year.”39 This exhortation encapsulates the theology of the Fathers of the Second Vatican Council expressed in Sacrosanctum concilium.40 Section 1 of canon 767 also indicates that since it is “part of the liturgy itself,” the homily “is reserved to a priest or deacon,” i.e., a cleric. Apparently this reservation would also include a bishop since he is entrusted with proclaiming the Gospel.41 In 1987, the question of whether a diocesan bishop can dispense from the reservation of the homily to a cleric was posed to the Pontifical Commission for the Authentic Interpretation of the Code of Canon Law. The response was “Negative.” Presumably, the response is based upon canon 86’s limitation on the bishop’s ability to dispense from obligations that are constitutive of an act itself.42 Thus, if a cleric does not deliver the homily, it is not a homily.43 The instruction Ecclesiae de mysterio further explains the reservation of the homily to those who have been ordained. This exclusion is not based on the preaching ability of sacred ministers nor their theological preparation, but on that function which is reserved to them in virtue of having received the Sacrament of Holy Orders. For the same reason the diocesan Bishop cannot validly dispense from the canonical norm since this is not merely a disciplinary law but one which touches upon the closely connected functions of teaching and sanctifying. 39.  C. 767 §1. 40.  Vatican II, constitution Sacrosanctum Concilium 52, December 4, 1963: AAS 56 (1964) 97–134: “Through the homily, the hidden realities of faith and the guiding principles of christian life are explained over the course of the liturgical year from the text of scripture. It is strongly encouraged, as it forms part of the liturgy itself.” English translation in Decrees of the Ecumenical Councils, ed. Norman P. Tanner (London and Washington: Sheed & Ward and Georgetown University Press, 1990) 2: 820, 831. 41.  C. 765. 42.  C. 86: “Laws are not subject to dispensation to the extent that they define those things which are essentially constitutive of juridic institutes or acts.” 43.  Contra, James Coriden, “The Homily,” in New Commentary on the Code of Canon Law, ed. John P. Beal et al. (New York/Mahwah, NJ: Paulist Press, 2000) [hereafter New Commen­ tary] 929–930.

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For the same reason, the practice, on some occasions, of entrusting the preaching of the homily to seminarians or theology students who are not clerics is not permitted. Indeed, the homily should not be regarded as a training for some future ministry.44

The USCCB’s complementary norm on lay preaching further reinforces this limitation and the bishop’s inability to dispense from the reservation to clerics. In providing for preaching by the lay faithful the diocesan bishop may never dispense from the norm which reserves the homily to the sacred ministers (c. 767 §1; cfr. Pontifical Commission for the Authentic Interpretation of the Code of Canon Law, 26 May 1987, in AAS 79 [1987], 1249). Preaching by the lay faithful may not take place within the Celebration of the Eucharist at the moment reserved for the homily.45

Because it is such an important part of the liturgy itself, a homily must be given during Masses celebrated on Sundays and holy days of obligation that are celebrated with a congregation, and there must be a sufficiently grave cause not to offer one.46 Similarly, homilies are to be delivered during other Masses “especially during the time of Advent and Lent or on the occasion of some feast day or a sorrowful event.”47 E. Content and Manner of Preaching

While canon 767 §1 indicates that “the hidden realities of faith and the guiding principles of Christian life” are to be explained in the homily, canons 768 and 769 give further guidance about what teachings are to be presented when preaching. Section 1 of canon 678 broadly identifies two categories of teaching—those things which one must believe and those things which one must do for the glory of God and the salvation of humanity.48 The “things which one must believe” point the preacher to the infallible 44.  Art. 3 §1. 45.  USCCB, Complementary Norm Canon 766—Lay Preaching. 46.  C. 767 §2: “A homily must be given at all Masses on Sundays and holy days of obligation which are celebrated with a congregation, and it cannot be omitted except for a grave cause.” 47.  C. 767 §3. 48.  C. 768 §1: “Those who proclaim the divine word are to propose first of all to the Christian faithful those things which one must believe and do for the glory of God and the salvation of humanity.”

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dogmas of the Church described in canon 750 §1, i.e., the Church’s teachings that must be believed with “divine and Catholic faith.”49 Similarly, the preacher is to focus on the ways in which the congregation can respond to the teachings of the Church through the manner in which they live their lives. Section 2 of canon 768 provides a more detailed listing of topics that ought to be addressed in preaching: They are also to impart to the faithful the doctrine which the magisterium of the Church sets forth concerning the dignity and freedom of the human person, the unity and stability of the family and its duties, the obligations which people have from being joined together in society, and the ordering of temporal affairs according to the plan established by God.50

This list is rather expansive and seems to be founded upon our rights and responsibilities as members of the Body of Christ in relationship with each other. Its historical roots are, at least in part, set forth in Christus Dominus 12, in a more extensive manner, but also encompassing the nature of our relational responsibilities.51 Canon 769 addresses the need to preach the Gospel in a manner that will be understood and embraced by the Christian faithful considering both “the condition of the listeners and . . . the needs of the times.”52 This requirement is also derived from Vatican II’s decree Christus Dominus, which points out the need to preach the Gospel so that the condition of

49.  C. 750 §1: “A person must believe with divine and Catholic faith all those things contained in the word of God, written or handed on, that is, in the one deposit of faith entrusted to the Church, and at the same time proposed as divinely revealed either by the solemn magisterium of the Church or by its ordinary and universal magisterium which is manifested by the common adherence of the Christian faithful under the leadership of the sacred magisterium; therefore all are bound to avoid any doctrines whatsoever contrary to them.” 50.  C. 768 §2. 51.  Vatican II, decree Christus Dominus 12, October 28, 1965: AAS 58 (1966) 673–696: “the inestimable value of the human person; his or her freedom and bodily vitality the family and its unity and stability; the begetting and educating of children; social structures with their laws and professions; labour and leisure, arts and technology; poverty and affluence. Finally, they should propose methods for finding an answer to questions of the utmost gravity: the ownership, increase, and just distribution of material wealth; peace and way; the effective fellowship of all peoples.” English translation in Decrees of the Ecumenical Councils, ed. Norman P. Tanner (London and Washington: Sheed & Ward and Georgetown University Press, 1990) 2: 921, 925. 52.  C. 769.

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the times are addressed and allows the Christian faithful are encouraged to incorporate the Gospel into their daily lives.53 Canon 770 reinforces the importance of offering preaching in the form of “spiritual exercises and sacred missions.”54 These venues afford the preacher the opportunity to focus in a more systematic way on particular topics or themes that will encourage the Christian faithful on their journey to the Lord. The diocesan bishop is given the opportunity to develop norms addressing these special forms of preaching.55 Canon 771 also encourages “especially bishops and pastors” to be concerned about those who do not regularly have sufficient pastoral care and to reach nonbelievers within their territory as well.56 F. Particular Norms for Preaching

Lastly, canon 772 reinforces the right of the diocesan bishop to establish norms on preaching that all persons in the diocese are obligated to observe.57 Since the bishop is the moderator of the ministry of the word for the diocese, presumably this also obliges those who reside in a house of an institute of consecrated life or society of apostolic life. Moreover, this would seem to apply even to institutes and societies of pontifical right since the members of such institutes are obligated to obey the bishop in the areas of full care of souls, public worship and works of the apostolate.58 Moreover, section 2 of canon 772 directs those who participate in radio or television talk shows on Christian doctrine to the complementary 53.  CD 13: “They should present christian doctrine in ways relevant to the needs of the times. Obviously, such teaching should deal with the most pressing difficulties and problems which weigh people down.” 54.  C. 770: “At certain times according to the prescripts of the diocesan bishop, pastors are to arrange for those types of preaching which are called spiritual exercises and sacred missions or for other forms of preaching adapted to needs.” 55. Ibid. 56.  C. 771: “§1. Pastors of souls, especially bishops and pastors, are to be concerned that the word of God is also proclaimed to those of the faithful who because of the condition of their life do not have sufficient common and ordinary pastoral care or lack it completely. §2. They are also to make provision that the message of the gospel reaches non-believers living in the territory since the care of souls must also extend to them no less than to the faithful.” 57.  C. 772 §1: “In the exercise of preaching, moreover, all are to observe the norms issued by the diocesan bishop.” 58.  C. 678 §1: “Religious are subject to the power of bishops whom they are bound to follow with devoted submission and reverence in those matters which regard the care of souls, the public exercise of divine worship, and other works of the apostolate.”

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norms of the conference of bishops.59 The 2001 complementary norm for canon 772 from the National Conference of Catholic Bishops addresses the situation for those Catholics who regularly promote Christian doctrine or radio or television originating in the United States. These persons must be specially qualified by his or her knowledge of the subject, by manifest adherence to the teaching of the Magisterium and by the witness of his or her life as a Catholic. The individual must obtain the permission of his or her proper diocesan bishop or the diocesan bishop of the place where the radio or television program is originally broadcast. In the case of members of institutes of consecrated life or societies of apostolic life, permission of the competent superior is also required, insofar as the constitution of the institute or society provides for it.60

Similar requirements may also be in place for members of institutes of consecrated life or societies of apostolic life that would be embodied in their proper law.61 With this understanding of the canonical requirements for preaching, and in particular, for liturgical preaching in the form of the homily, we next turn to a discussion of Pope Francis’ vision of preaching as set forth in his 2013 apostolic exhortation Evangelii gaudium.

II. Pope Francis’ Counsel on Preaching

In 2012, Pope Benedict XVI presided over the 13th Ordinary General Assembly of the Synod of Bishops. The discussion of the Synod Fathers was focused on “The New Evangelization and the Transmission of the Christian Faith.” Given the topic that Benedict selected, it is to be expected that

59.  C. 772 §2: “In giving a radio or television talk on Christian doctrine, the prescripts established by the conference of bishops are to be observed.” 60. National Conference of Catholic Bishops, Complementary Norm Canon 772 §2—Radio Or TV Talks On Christian Doctrine, December 13, 2001: The Jurist 73 (2013) 277–278. See also canon 831 §2 (“It is for the conference of bishops to establish norms concerning the requirements for clerics and members of religious institutes to take part on radio or television in dealing with questions of Catholic doctrine or morals”) and the corresponding NCCB complementary norm also promulgated on December 13, 2001. 61.  C. 832: “Members of religious institutes also need permission of their major superior according to the norm of the constitutions in order to publish writings dealing with questions of religion or morals.”

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much of the discussion during the synod focused on the New Evangelization. The Final List of Propositions62 addressed preaching and homilies in two places respectively. On the subject of preaching, Proposition 6, entitled “Proclamation of the Gospel,” emphasized that the Gospel is to be preached to all people,63 while Proposition 14, entitled “The New Evangelization and Reconciliation,” pointed to the need for the Church to be “the newness of the salvific Gospel of Our Lord.”64 As for the homily, Proposition 11 on “New Evangelization and the Prayerful Reading of Sacred Scripture,” suggested that “Scripture should permeate homilies, catechesis and every effort to pass on the faith.”65 Proposition 49 encouraged promoting a focus on the New Evangelization in seminary formation, particularly in the study of homiletics and preparation for the celebration of the sacrament of reconciliation.66 In response to the 2012 Synod of Bishops, Francis issued his 2013 apostolic exhortation Evangelii gaudium. The joy of the gospel fills the hearts and lives of all who encounter Jesus. Those who accept his offer of salvation are set free from sin, sorrow, inner emptiness and loneliness. With Christ joy is constantly born anew. In this Exhortation I wish to encourage the Christian faithful to embark upon a new chapter of evangelization marked by this joy, while pointing out new paths for the Church’s journey in years to come.67

Pope Francis divided this apostolic exhortation into five chapters. Chapter Three, split into four major subjects, includes a discussion of preaching, the homily and preaching preparation. Although there is some crossover in these topics that are addressed in both the Code of Canon Law and Evangelii gaudium, Francis does not discuss or rely upon the canons that treat preaching the ministry of the word. Evangelii gaudium’s only direct reference to the Code of Canon Law is set forth in EG 31, which involves a discussion of the missionary communion of the diocesan 62. 13th Ordinary General Assembly of the Synod of Bishops, “The New Evangelization and the Transmission of the Christian Faith: Final List of Propositions,” (October 27, 2012). Available at: http://www.vatican.va/news_services/press/sinodo/documents/bollettino_25_xiii -ordinaria-2012/02_inglese/b33_02.html 63.  Ibid., Proposition 6. 64.  Ibid., Proposition 14. 65.  Ibid., Proposition 11. 66.  Ibid., Proposition 49. 67.  EG 1.

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Church. The references to the code concern various diocesan structures in which the bishop is expected “to encourage and develop the means of participation.”68 To assist with our consideration of the thinking of Pope Francis on preaching and, in particular, the liturgical preaching of the homily, we will also undertake a brief examination of select recent documents that similarly raise these issues. Pope Benedict XVI promulgated two apostolic exhortations that discuss the important obligation of the members of the Body of Christ to proclaim the word of God and special responsibility of clerics to preach the homily. In Sacramentum Caritatis,69 on the Eucharist as the source and summit of the Church’s life and mission, Benedict promoted the homily as an integral component of the Eucharistic liturgy. His 2010 apostolic exhortation Verbum Domini,70 on Sacred Scripture, developed the themes of Sacred Scripture in the Church and in the world. He included a request for the development of a directory for homiletics, which the Congregation for Divine Worship and the Discipline of the Sacraments issued in 2014 with the approval of Pope Francis.71 Also, in response to Verbum Domini, the United States Conference of Catholic Bishops issued its 2012 document entitled “Preaching the Mystery of Faith: The Sunday Homily.”72 Each of these documents contributes to the study of preaching and homiletics. We now turn to Evangelii gaudium to frame our discussion. 68.  EG 31: “The bishop must always foster this missionary communion in his diocesan Church, following the ideal of the first Christian communities, in which the believers were of one heart and one soul (cf. Acts 4:32). . . . In his mission of fostering a dynamic, open and missionary communion, he will have to encourage and develop the means of participation proposed in the Code of Canon Law, and other forms of pastoral dialogue, out of a desire to listen to everyone and not simply to those who would tell him what he would like to hear . . .” The specific references to the code are: cc. 460–468 (diocesan synod); 492–502 (finance council and finance officer; presybteral college; college of consultors); 511–514 (diocesan pastoral council); 547–537 (parish pastoral council and parish finance council). 69.  Benedict XVI, apostolic exhortation Sacramentum caritatis, February 22, 2007: AAS 99 (2007) 105–180. Available at: http://w2.vatican.va/content/benedict-xvi/en/apost_exhortations /documents/hf_ben-xvi_exh_20070222_sacramentum-caritatis.html 70.  Benedict XVI, apostolic exhortation Verbum Dominii, September 30, 2010: AAS 102 (2010) 681–787. Available at: http://w2.vatican.va/content/benedict-xvi/en/apost_exhortations /documents/hf_ben-xvi_exh_20100930_verbum-domini.html 71. See supra n. 6. 72. United States Conference of Catholic Bishops, “Preaching the Mystery of Faith: The Sunday Homily,” (Washington DC, USCCB: 2012). Available at: http://www.usccb.org /beliefs-and-teachings/vocations/priesthood/priestly-life-and-ministry/upload/usccb-preaching -document.pdf

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A. All Members of the Body of Christ are “Missionary Disciples”

In Evangelii gaudium, Pope Francis reinforces that all members of the Body of Christ share in the obligation to proclaim the Gospel. But he describes that important commitment within the context of the broader concept of evangelization rather than using the term preaching. Evangelization is the task of the Church. The Church, as the agent of evangelization, is more than an organic and hierarchical institution; she is first and foremost a people advancing on its pilgrim way towards God. She is certainly a mystery rooted in the Trinity, yet she exists concretely in history as a people of pilgrims and evangelizers, transcending any institutional expression, however necessary.73

Francis later submits that all members of the Body of Christ are “missionary disciples,” and includes a direct reference to the Lord’s Great Commission to the apostles set forth in Matthew’s Gospel. In virtue of their baptism, all the members of the People of God have become missionary disciples (cf. Mt 28:19). All the baptized, whatever their position in the Church or their level of instruction in the faith, are agents of evangelization, and it would be insufficient to envisage a plan of evangelization to be carried out by professionals while the rest of the faithful would simply be passive recipients. The new evangelization calls for personal involvement on the part of each of the baptized. Every Christian is challenged, here and now, to be actively engaged in evangelization; indeed, anyone who has truly experienced God’s saving love does not need much time or lengthy training to go out and proclaim that love.74

Pope Benedict affirms the need for all members of the Body of Christ to respond to the missionary task, with baptism being the trigger for this responsibility. Reinforcing this role for members of the laity, Benedict maintained that “the laity are called to exercise their own prophetic role, which derives directly from their Baptism, and to bear witness to the Gospel in daily life, wherever they find themselves.”75 As with the discussion in EG, this missionary action is also referred to as evangelization rather than preaching in a non-liturgical context.76 73.  EG 111. 74.  EG 120. 75.  VD 94. 76. Ibid.

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But similar to the canons of the code on preaching, Francis recognizes that while all members of the Body of Christ are charged with being evangelizers, there are certain persons and forms of preaching in the Church that are distinct, i.e., preaching in the liturgical context and, in particular, preaching the homily. Sections II and III of EG’s Chapter III address the homily and preparation for liturgical preaching, respectively.77 We next consider these topics and the manner in which they expound upon the canonical understanding of preaching as set forth in the code. B. Preaching the Homily

Pope Francis emphasizes the importance of the homily, which occurs in the Eucharistic context, as a moment of dialogue between God and his people. This dialogue is to be facilitated by the preacher.78 As a result, “the preacher must know the heart of his community, in order to realize where its desire for God is alive and ardent, as well as where that dialogue, once loving, has been thwarted and is now barren.”79 Francis further suggests that within the homily, “the hearts of believers keep silence and allow God to speak.”80 To foster these purposes, Francis encourages the preacher not to consider the homily as “a form of entertainment” and to keep the homily “brief ” and avoid similarities to a speech or lecture. “If the homily goes on too long, it will affect two characteristic elements of the liturgical celebration: its balance and its rhythm. . . . [P]reaching should guide the assembly, and the preacher, to a life-changing communion with Christ in the Eucharist.”81 The focus should be on the Lord as the center of attention rather than the homilist.82 Moreover, the homilist ought to communicate his excitement for the message communicated and his desire to share with his listeners his own personal sharing of the Gospel and the joy that can be found in living an evangelical life as espoused by the Gospel and the teachings of the Church.83 77. See EG 135–144 (“the Homily”) and 145–159 (“Preparing to Preach”). 78.  Cf. c. 767. 79.  EG 137. 80.  EG 143. 81.  EG 138. 82.  Ibid. Accord VD 59: “Generic and abstract homilies which obscure the directness of God’s word should be avoided, as well as useless digressions which risk drawing greater attention to the preacher than to the heart of the Gospel message.” 83.  EG 141.

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Francis emphasizes that preaching should come from the heart of the homilist and not be “purely moralistic or doctrinaire, or one which turns into a lecture on biblical exegesis”84 since this removes the dialogue from a further encounter with Christ to abstract concepts that become more challenging to embrace in the Christian life. “To speak from the heart means that our hearts must not just be on fire, but also enlightened by the fullness of revelation and by the path traveled by God’s word in the heart of the Church and our faithful people throughout the history.”85 As a result, the homily should lead the listener to the celebration of the sacrament in the communion that we share as members of the Body of Christ. This connection between the word of God and the sacramental celebration “becomes the Church’s vital nourishment and support.”86 Likewise, the homily should be inculturated to the listeners87 to further facilitate this personal encounter. “The preacher has the wonderful but difficult task of joining loving hearts, the hearts of the Lord and his people. The dialogue between God and his people further strengthens the covenant between them and consolidates the bond of charity.”88 C. Preparing to Preach the Homily

Recognizing the importance of the homily within the celebration of Eucharist, Pope Francis emphasizes the need for the homilist to prepare appropriately—and extensively—to deliver his message. He summarizes his concern about homily preparation in paragraph 145: Preparation for preaching is so important a task that a prolonged time of study, prayer, reflection and pastoral creativity should be devoted to it. With great affection I wish to stop for a moment and offer a method of preparing homilies. Some may find these suggestions self-evident, but I consider it helpful to offer them as a way of emphasizing the need to devote quality time to this precious ministry. Some pastors argue that such preparation is not possible given the vast number of tasks which they must perform;

84.  EG 142. Cf. c. 768, which encourages the preaching of doctrines of the Church. 85.  EG 144. 86.  SC 46. Accord Homiletic Directory 15: [the homily] leads the assembly to the Eucharistic celebration in which they have communion in the Paschal Mystery itself.” 87.  Cf. c. 769. 88.  EG 143. Accord Homiletic Directory 8: “It should be emphasized that the homily should be tailored to the needs of the particular community, and indeed draw inspiration from it.”

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nonetheless, I presume to ask that each week a sufficient portion of personal and community time be dedicated to this task, even if less time has to be given to other important activities. Trust in the Holy Spirit who is at work during the homily is not merely passive but active and creative. It demands that we offer ourselves and all our abilities as instruments (cf. Rom 12:1) which God can use. A preacher who does not prepare is not “spiritual”; he is dishonest and irresponsible with the gifts he has received.89

To assist the homilist with his preparations, Francis divides the task of homily preparation into five major areas: reverence for truth; personalizing the word; spiritual reading; an ear to the people; and homiletic resources. To limit the potential for overlap in the presentation of these topics, we will rather consider five themes about homily preparation derived from these topics. 1. Prayer and Reflection

“The first step, after calling upon the Holy Spirit in prayer, is to give our entire attention to the biblical text, which needs to be the basis of our preaching.”90 Invoking the action of the Holy Spirit as the homilist prepares allows him to open his heart and mind to the voice of the Lord to assist with his understanding of the Scriptural text as written and as to be understood today. Patience and undivided attention contribute to a deeper understanding of what the Lord seeks to communicate to the homilist about the Scriptural text. Other aids that the homilist should use to prepare include: attention to words which are repeated or emphasized, recognition of the structure and specific movement of a text, consideration of the role played by the different characters, and so forth. But our own aim is not to understand every little detail of a text; our most important goal is to discover its principal message, the message which gives structure and unity to the text.91

To assist with understanding the Scripture, there are many exegetical resources and commentaries available for the homilist to consider. They

89.  EG 145. 90.  EG 146. Accord Homiletic Directory 26: “Clearly, in the preparation of homilies, study is invaluable, but prayer is essential.” 91.  EG 147.

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should be a source of meditation for the homilist to lead him to a deeper understanding of the Scripture. 2. Personal Application

Francis urges the homilist to incorporate his personal encounter with the Scripture text and to consider how the text speaks to him. He should also engage the text to ascertain how the Scripture challenges him personally and deepens his desire to grow in his commitment to Christ and to advance in living the Gospel.92 3. Spiritual Reading of the Scripture

Francis encourages the use of lectio divina to help the homilist to discern the voice of the Lord and to incorporate the message into his personal life. He suggests that the homilist should ask certain questions while praying over the Scripture. “Lord, what does this text say to me? What is it about my life that you want to change by this text? What troubles me about this text? Why am I not interested in this? Or perhaps: What do I find pleasant in this text? What is it about this word that moves me? What attracts me? Why does it attract me?”93 He also cautions about the tendency to water down the message because it might be too demanding or challenging for the congregation.94 Pope Benedict XVI also reflected extensively upon the role of lectio di­vina in Verbum Dominii. “[P]rayerful reading, personal and communal, prepares for, accompanies and deepens what the Church celebrates when she proclaims the word in a liturgical setting. Bu so closely relating lectio and liturgy, we can better grasp the criteria which should guide this practice in the area of pastoral care and in the spiritual life of the People of God.”95 The Homiletic Directory describes the four step process of lectio divina that is to be used as an aid to homily preparation: lectio—exploring what the biblical text itself says; meditatio—exploring what the biblical text says 92.  EG 150-151. 93.  EG 153. Pope Benedict XVI posed similar questions in VD 59: “What are the Scriptures being proclaimed saying? What do they say to me personally? What should I say to the community in the light of its concrete situation?” 94.  EG 153. 95.  VD 86.

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to us; oratio—a time for unscripted dialogue with God about the Scripture; and contemplation—considering what the Lord asks of us through the Scripture.96 Perhaps the significance of encouraging the incorporation of lectio divina into homily preparation is underscored by the fact that the eleven of the twelve paragraphs of the Homiletic Directory that address homily preparation are devoted to lectio divina.97 4. Needs of the People

Francis suggests that the homilist should “keep his ear to the people and to discover what it is that the faithful need to hear.”98 Making the message relevant to the congregation will assist them with incorporating it into their daily lives and move them closer to the Lord. Yet, Francis also submits that the homily is not the place to recount the latest news story or to offer commentary on current affairs. The homily should move the audience to conversion.99 5. Delivering the Message

Lastly, Francis argues that the message of the Gospel ought to be presented in a way that will enrich the preaching for the audience. He advocates for the use of imagery in preaching to help people to better accept the message. “A good homily . . . should have ‘an idea, a sentiment, an image.’”100 The homily should also include a positive message that “offers hope, points to the future, does not leave us trapped in negativity.”101 D. Additional Resources for Preaching

The 2014 Homiletic Directory is a valuable resource for the homilist to consider as he prepares to preach. Requested by Pope Benedict XVI in Ver­ bum Dominii, the aim of the Homiletic Directory is “to present the purpose of the homily as this has been described in the documents of the Church from the Second Vatican Council to the Apostolic Exhortation Evangelii

96.  Homiletic Directory, 27–36. 97.  Ibid., 26–36. 98.  EG 154. 99. Ibid. 100.  EG 158. 101.  EG 159.

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gaudium, and to offer guidance based on these resources to help preachers carry out their mission properly and effectively.”102 The Homiletic Directory is divided into two major parts: The Homily and its Liturgical Setting; and Ars Praedicandi. Part One expounds upon and more thoroughly develops the concepts addressed in Sacramentum ca­ritatis, Verbum Dominii and Evangelii gaudium about the homily and homily preparation. Part Two considers in six sections the seasons of the liturgical year and offers advice on how to prepare for each of the Sunday celebrations throughout the year. There are two appendices attached. The first addresses the Catechism of the Catholic Church as a valuable resource to assist the homilist with his preparations. The second appendix provides a variety of ecclesial sources that might also be of assistance to the preacher. While many resources describe what a homily should include, paragraph 6 of the Homiletic Directory describes what a homily should not be: It is not a sermon on an abstract topic; in other words, the Mass is not an occasion for the preacher to address some issue completely unrelated to the liturgical celebration and its readings, or to do violence to the texts provided by the Church by twisting them to fit some preconceived idea. Nor is the homily simply an exercise in biblical exegesis . . . Next, the homily is not catechetical instruction . . . Finally, the time for the homily should not be take up with the preacher’s personal witness.103

While there is a place for each of these topics in a good homily, the homily itself should not be devoted entirely to any one of these topics. Part Two of the Homiletic Directory provides “concrete examples and suggestions” to address the Paschal Mystery in the particular contexts of the liturgical year.104 The examples are quite extensive and should serve as a valuable resource for the homilist as he prepares to preach throughout the year. The USCCB’s 2012 “Preaching the Mystery of Faith: The Sunday Homily” is another valuable resource for the homilist to consult as he prepares. The document was also a response to Pope Benedict XVI’s call for better preachers in the Church. It considers in four major divisions many of the same topics addressed in other documents.105 However, it also develops the 102.  Homiletic Directory, 2. 103.  Ibid., 6. 104.  Ibid., 37. 105.  See, e.g., “Preaching the Mystery of Faith,” 23: “Certainly, doctrine is not meant to be propounded in a homily in a way that it might unfold in a theology classroom or a lecture for an academic audience or even a catechism lesson.”

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spirituality of the homilist that should lead to more effective preaching of the Sunday homily.106 Part III of “Preaching the Mystery of Faith,” develops the spiritual qualities of a good preacher. He is to live a life of holiness and know his people and their joys and sorrows.107 He is to be a man who loves the Scriptures and is shaped by the word of God.108 He should adhere to the Church’s Sacred Tradition but also have an understanding of contemporary culture.109 And he also needs to speak with reverence and respect for all people.110 Each of these resources should be of assistance to the homilist as he prepares to deliver the homily as an integral component of the Mass.

Conclusion

Our celebration of the Mass is the source and summit of who we are as members of the Body of Christ. The liturgy of the Word should naturally lead us to the celebration of the liturgy of the Eucharist, which strengthens and nourishes us for the many challenges that we experience in our daily lives as members of the Body of Christ. Moreover, the words proclaimed to the deacon at his ordination are particularly helpful in guiding the preacher in his mission to preach: “Believe what you read. Teach what you believe. Practice what you teach.”111 Effective preaching, both liturgical preaching and evangelizing in the non-liturgical setting, should deepen our relationship with Christ whether we are the cleric who delivers the message or the one who hears the message and is called to bring others to Christ. Regardless of what our state of life is in the Church, we are all mandated to evangelize and to proclaim the joy of the Gospel. 106.  Ibid., 6, 33–41. 107.  Ibid., 33–34. 108.  Ibid., 34. 109.  Ibid., 35. 110.  Ibid., 40–41. 111.  “Ordination of a Deacon,” in The Rites of the Catholic Church as Revised by the Second Vatican Ecumenical Council (New York: Pueblo Publishing Co., 1980) 2: 58.

T H E C AT H O L I C U N I V E R S I T Y O F A M E R I C A

william l. daniel*

The Reservation to the Judicial Vicar of the Introductory Stage of the Ordinary Marriage Nullity Process The August 15, 2015 motu proprios by which the norms governing causes of nullity of marriage were reformed1 has, among other things, brought into focus the figure of the judicial vicar. For it expanded his functions within the dynamic part (pars dynamica) of the process, especially in the introductory stage of the ordinary contentious marriage nullity process. This article shall first identify the new competencies of the judicial vicar in said processes and analyze their character and purpose. Then, some implications to this legislative reordering of the introductory period of the process shall be examined. These implications concern issues that can arise in the evolution of the process, even while not being explicitly addressed in law.

I. The Moderation of the Introduction of the Process by the Judicial Vicar

One of the main and most ancient sources of canonical procedural law is the Roman law governing the judicial process. It is in this source that * Assistant Professor, School of Canon Law, The Catholic University of America, Washington, DC. 1.  See Francis, motu proprio Mitis Iudex Dominus Iesus, August 15, 2015: AAS 107 (2015) 958–970 and motu proprio Mitis et misericors Iesus, August 15, 2015: AAS 107 (2015) 946–957. Throughout this article, the canons as revised by these two motu proprios will be cited simply as canons of the CIC and CCEO, instead of MIDI and MMI; and the norms of the Ratio pro­ cedendi attached to both documents shall be cited as RP. Any citation of the derogated canons will be made clear.

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one finds a remote precursor to the office of judicial vicar—obviously not an ecclesiological but an organizational, juridical precursor. In particular, the figure of the Roman magistrate, especially the praetor, prefigures this ecclesiastical office.2 It was that public Roman official who had the function of receiving claims introducing litigation. Especially in the ancient and classical periods in the legis actiones and formulary procedures, this included the initial hearing of the litigating parties, the moderation of the parties’ agreement about the issues to be treated in the trial, and the approval or appointment of the judge who would gather the proofs and issue the decision. The work of the praetor and of the judge were termed, respectively, the phases in iure and apud iudicem. For the introduction of litigation was a matter of bringing a private dispute into the legal forum for the vindication of one’s rights. It was for the magistrate to determine whether the matter was even one subject to litigation and, if so, how it was to be formulated as a contentious question. If the allegation passed this threshold, it could be given judicial treatment by the authorized person standing as judge, who was in a position to hear witnesses and had the power to declare what was just in the case (ius dicere). The function of the judicial vicar, as generally regulated in the 1983 Code of Canon Law and the Code of Canons of the Eastern Churches issued in 1990, bears a resemblance to this in limine function of the Roman magistrate. As is deduced also from judicial praxis, upon receipt of a libel­ lus introductorius at the chancery of the tribunal, the judicial vicar examines it and immediately constitutes a college of judges or a sole clerical judge with two assessors, as well as a promoter of justice and/or a defender of the bond, as the case may be.3 Then, he entrusts the cause to the deputed judge(s) and has no further part to play in the evolution of the instance, at 2.  Cf. H. F. Jolowicz and Barry Nicholas, Historical Introduction to the Study of Roman Law, 3rd ed. (New York: Cambridge University Press, 1972) 175–232. See also Gerald Francis Chleborad, The Elements of Roman Law in Canonical Judicial Procedure (Washington, DC: The Catholic University of America, 1968) 7–9, 20–22, passim; Henry Dugan, The Judiciary Department of the Diocesan Curia, Canon Law Studies no. 26 (Washington, DC: The Catholic University of America, 1925) 32–40; Mark Anthony Plewka, The Office of the “Officialis” in the “Corpus iuris canonici” (Washington, DC: The Catholic University of America, 1985); Thomas Tobin, De Officiali curiae dioecesanae (Rome: Pontificia Universitas Gregoriana, 1936). 3.  Cf. CIC cc. 1424, 1425 §§1 and 3–4, 1430–1432; CCEO cc. 1084, 1089, 1094–1096; DC artt. 48 §1, 53 §1, 118. This all remains valid for penal causes, causes of rights and causes of separation of spouses.

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least qua judicial vicar. As a rule, the judicial vicar or an adjutant judicial vicar is to act as presiding judge (praeses), that is, not as the bishop’s vicar having directive and supervisory authority over the tribunal but as a member of the college.4 Now, in virtue of the above-mentioned reform, the judicial vicar in causes of nullity of marriage bears even further resemblance to the Roman magistrates of old. For like them, he not only designates the college of judges or judge but in fact conducts the whole introductory stage of the process. This stage—distinct from the stages set apart for the instruction of the cause, the discussion of the cause and the decision—consists in the admission or rejection of the libellus, the citation, and the formulation of the doubt(s). This is a matter of the legislative reservation of these functions to the judicial vicar or, under his direction, the adjunct judicial vicar.5 As is clear from the plain meaning of the revised canons, it is for the judicial vicar personally to issue the procedural acts pertaining to each of these moments:6 (a) The judicial vicar admits the libellus by decree, or rejects it, as the case may be: “Recepto libello, Vicarius iudicialis . . . eum admittat” (CIC c. 1676 §1, CCEO c. 1362 §1); (b) The judicial vicar then immediately designates the defender of the bond for the cause, this being implicit from the fact that he next needs to cite that public official; (c) The judicial vicar cites the other spouse and the defender of the bond, communicating the libellus and calling them to offer their opinion about the terms of the controversy within 15 useful days from its receipt: “. . . Vicarius iudicialis . . . , decreto ad calcem ipsius libelli apposito, praecipiat ut exemplar notificetur defensori vinculi et . . . parti conventae” (ibid.; cf. RP art. 15); 4.  Cf. CIC c. 1426 §2, CCEO c. 1091 §1, DC art. 46 §1. 5.  DC art. 41: “§ 1. Vicario iudiciali dari possunt adiutores, quibus nomen est Vicariorum iudicialium adiunctorum seu Vice-officialium (can. 1420, §3). §2. Salva eorundem libertate in iudicando, Vicarii iudiciales adiuncti agere tenentur sub ductu Vicarii iudicialis.” 6.  Cf. John P. Beal, “Mitis Iudex Canons 1671–1682, 1688–1691: A Commentary,” The Jurist 75 (2015) 489–497; Paolo Moneta, “La dinamica processuale nel M.p. Mitis iudex,” Ius Ecclesiae 28 (2016) 41–44; Julián Ros Córcoles, “El vicario judicial y el instructor en los procesos de nulidad matrimonial tras el motu proprio Mitis Iudex,” Ius Canonicum 56 (2016) 87–103. See also Apostolic Tribunal of the Roman Rota, “Subsidium” for the application of the M.p. “Mitis iudex Dominus Iesus” (Vatican City: 2016) 23–26, 38.

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(d) If there is no response to the citation, the judicial vicar repeats the citation to the non-responsive other spouse or the defender of the bond (cf. CIC c. 1676 §2, CCEO c. 1362 §1, DC art. 138 §§2–3); (e) In light of the libellus, the other spouse’s response to the citation, and the votum of the defender of the bond, the judicial vicar decrees the formula of the doubt and the manner of proceeding (i.e., via the ordinary process or the abbreviated matrimonial process before the bishop): “. . . Vicarius iudicialis suo decreto dubii formulam determinet et decernat utrum causa processu ordinario an processu breviore ad mentem cann. 1683–1687 pertractanda sit” (CIC c. 1676 §2; cf. CCEO c. 1362 §2); (f ) Finally, the judicial vicar deputes the appropriate officials, whether it be a college of judges or sole clerical judge with assessors in the case of the ordinary process, or the instructor and the assessor in the case of the abbreviated matrimonial process: “Si causa ordinario processu tractanda sit, Vicarius iudicialis, eodem decreto, constitutionem iudicum collegii vel iudicis unici cum duobus assessoribus iuxta can. 1673, §4 disponat” (CIC c. 1676 §3; cf. CCEO c. 1362 §3); “Vicarius iudicialis, eodem decreto quo dubii formulam determinat, instructore et assessore nominatis . . .” (CIC c. 1685, CCEO c. 1371; cf. RP art. 16). In the case of the abbreviated process, he also cites the parties and witnesses to the instructional session to be carried out by the instructor (cf. ibid.). All these functions are proper to the judicial vicar by the will of the supreme legislator. This is clear from the explicit reference in each of these cases to the judicial vicar (Vicarius iudicialis), since the legislator does not employ the economical legislative technique of naming in these places the judge in generic terms (iudex).7 It is thus a matter of judicial competence by law. Indeed, the particular will of the legislator in this matter has the result of rendering vicarious judges other than the judicial vicar and his adjunct(s) absolutely functionally incompetent to issue the decrees in question. Surely other judges of the competent tribunal enjoy the judicial power of governance, but the exercise of this power may be and is limited 7.  For an exception, see art. 10 of the RP; evidently the iudex in that case is the judicial vicar.

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by the judicial order. The legislator may reserve certain acts to individual judges and thus exclude others endowed with judicial power from placing those acts. Thus, for example, not just any member of the college of judges issues the decree convening the college for the decisive judicial session; it is reserved to the presiding judge.8 Were another to do so, the decree would be invalid. Likewise, no judge other than the judicial vicar or adjunct judicial vicar—even if the college had already been illicitly constituted—may validly admit the libellus, cite the parties, establish the terms of the controversy or, evidently, constitute the college of judges. This can be a real problem in certain tribunals that have failed to implement this aspect of the new matrimonial procedural law, maintaining the derogated practice—although highly rational in its own right—of the judicial vicar constituting the college of judges, from among the membership of which the presiding judge and ponens were competent in turn to place these same acts.9 The juridical effects of the nullity of such judicial decrees may be various. For example, were the judicial vicar to constitute the college of judges and designate one other than himself (or his adjutant) as presiding judge and illegitimately entrust the whole introductory stage of the process to that college, the decree of admission of the libellus, the decree of citation, and the formulation of the doubt would all be null. A null decree of admission of a libellus has the effect of inertia in the juridical condition of the object of the controversy (viz., the alleged nullity of the marriage). In other words, that question will not have been validly assumed within the jurisdiction of the Church, causing the subsequent judicial treatment of the matter to be juridically irrational (cf. CIC cc. 1060 and 1512, 1º). A null citation not only renders the jurisdiction of the tribunal highly insecure10 but may cause the nullity of all the acts due to derived nullity; for a null citation cannot be legitimately communicated to the other parties (cf. CIC c. 1511). On the other hand, the fact that “the party nevertheless appeared to act in the cause” (CCEO c. 1193) may seem to repair defects in this matter related to the right of defense.11 The nullity of the formulation of the doubt creates technical chaos, since there would technically be no 8.  CIC c. 1609 §1, CCEO c. 1292 §1, DC art. 248 §1. 9.  Cf. DC artt. 119, 126 §1, 127 §1, 135 §1. 10.  Cf. CIC c. 1512, 2º–3º; CCEO c. 1194, 2º–3º; DC art. 129. 11.  With application to the public parties, cf. CIC c. 1433, CCEO c. 1097, DC art. 60.

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questions to investigate in the instruction, debate in the discussion of the cause, or resolve by definitive sentence. While the principle of the conservation of juridical acts (cf. CIC c. 124 §2, CCEO c. 931 §2) would urge one to apply the equity necessary for concluding against the irremediable nullity of the definitive sentence,12 the nullity of these foundational acts would typically cause at least the remediable nullity of the definitive sentence. For the absolute functional incompetence of the judge issuing them causes such decrees to be invalid. And the judicial process can rightly be said to be based on such acts, since they constitute the intraprocedural origin of the jurisdictional assumption of the cause, of the judicial contradictorium and of the statement of the judicial controversy. Accordingly, whatever else may occur in the otherwise natural evolution of the process, the definitive sentence will be remediably null inasmuch as “it is based on a null judicial act whose nullity is not sanated according to the norm of canon 1619 [CCEO c. 1302]” (CIC c. 1622, 5º; CCEO c. 1304 §1, 5º; cf. DC art. 272, 5º). It frequently happens that the priest13 upon whom the office of judicial vicar is conferred is also entrusted with demanding offices of governance or those involving the full care of souls (e.g., pastor), leaving him less freedom for devoting himself to an attentive examination of each cause in accord with the obligations of his judicial office. This has given rise in some places to the practice of the judicial vicar delegating to others the faculty to carry out some or all of these steps in the introductory phase of the trial. The nullity of such delegation, however, is clear from the general norm governing the delegation of judicial power: “Judicial power, which judges and judicial colleges enjoy, is to be exercised in the manner prescribed by law, and it cannot be delegated, except to complete acts preparatory to some decree or sentence.”14 This applies not only to an associate 12.  Cf. CIC c. 1620, CCEO c. 1303 §1, DC art. 270. 13.  CIC c. 1420 §4, CCEO c. 1086 §4, DC art. 42 §1. 14.  See CIC c. 135 §3 (“delegari nequit”), CCEO c. 985 §2 (“delegari valide non potest”), DC art. 32 §1 (“delegari nequit”). Nevertheless, this prohibition against the delegation of judicial power does not apply to the bishop, who is not merely a judge. For a digest of the literature and a demonstration of this argument, see William L. Daniel, “The Abbreviated Matrimonial Process before the Bishop in Cases of ‘Manifest Nullity’ of Marriage,” The Jurist 75 (2015) 556–563. That being said, with application to the present question, it would be illegitimate for the bishop to delegate to judges the faculty to admit libelli, cite parties and decree formulations of the doubt, since this would contravene the explicit reservation of these acts in law to the judicial vicar. In other

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judge but also to the judicial vicar, who is the judge in the introductory stage of the process of matrimonial nullity.15 The acts in question are in fact decrees, which may only be issued according to the norm of law personally by one enjoying judicial power who holds the function indicated by the legislator. While the judicial vicar could entrust the preparation of the text of a decree to another, he is the one to issue and sign the decree. It remains true in some places that the necessary attention to the priest-judicial vicar’s other duties together with the just celerity of the judicial process in a matter so grave may limit the ability of the judicial vicar to give sedulous and meticulous attention to each libellus, to responses to the citation and to the appropriate decrees resulting in the formulation of the doubt. In North America, this problem can be related to the defect of advocates well-prepared in canon law, who are to be conveniently available to prospective petitioners for counsel and for assistance in preparing a libel­ lus (cf. RP artt. 2–5). This is a grave problem, not only because it can leave petitioners bewildered about the process from its outset, but also since it fails to respect their human dignity by giving them due information and assistance about what they are initiating before the Church. The real solution, according to the mind and discipline of the Church, fundamentally resides with the bishop moderator of the tribunal, upon whom weighs the grave pastoral duty to prepare suitable ministers of justice and at the same time to allot them the just opportunity to carry out their function diligently.16 This includes the use of resources to provide effective structures, skilled advocates, and ministers of justice who are free to carry out their function correctly, diligently, and fully. Until these things can be accomplished, it may be necessary for the judicial vicar to obtain the counsel of canonists internal to the tribunal in the examination of libelli, the proposal of capita nullitatis at the time of the citation, and in the drafting of decrees,

words, it would materially amount to the bishop’s relaxation of these procedural norms, which he cannot validly do (cf. CIC c. 87 §1, CCEO c. 1537, DC art. 1 §3). 15.  Cf. Ronny E. Jenkins, “Vicario judicial,” in Diccionario General de Derecho Canónico, ed. Javier Otaduy, Antonio Viana and Joaquín Sedano (Pamplona: Thomson Reuters Aranzadi, 2012) 7: 855: “El vicario judicial no puede delegar la potestad judicial, si no es con la finalidad de realizar los actos preparatorios de un decreto o sentencia (c. 135 §3).” 16.  Cf. Congregation for Bishops, Directory for the Pastoral Ministry of Bishops Apos­ tolorum Successores, February 22, 2004 (Vatican City: Libreria Editrice Vaticana, 2004) 196, no. 180; DC art. 33.

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always preserving the appropriate distinction of functions and avoiding invalid delegations. Among the many uncertainties introduced by the motu proprios is the question of the purpose for the reservation of these introductory judicial decrees to the judicial vicar. This matter is not addressed explicitly in the preamble, which does, however, give much emphasis to the role of the bishop in supervising and even participating in the administration of justice in the particular Church entrusted to his care. A plausible explanation for this legislative choice, then, is the aspiration more deeply to involve the bishop in causes of nullity of marriage. Structurally, this may be accomplished both by the institution of means for the so-called pastoral or pre-judicial investigation and by entrusting the introductory stage of the process—when the spouses first become acquainted with the episcopal tribunal—to the official who constitutes “one tribunal” with the bishop. “Vicarius iudicialis unum constituit tribunal cum Episcopo.”17 This is not merely symbolic but is also functional, inasmuch as the judicial vicar is the chief titular of the bishop’s vicarious judicial power and is meant to give daily direction to the tribunal for the bishop and communicate with the bishop about the state and activity of the tribunal. The judicial vicar is, among other things, the main, ordinary organ for the bishop’s exercise of vigilance over the correct administration of justice (cf. DC art. 38 §3). This is much enhanced by the judicial vicar’s own involvement in every cause of nullity of marriage—whether personally or with the aid and collaboration of an adjunct judicial vicar (cf. DC art. 41 §2). The concrete experience and insights of the judicial vicar flowing from this directive judicial activity ought to have the result of habitually giving him more profound counsel and information to share with the bishop moderator. The reservation of the introductory stage of the process to the judicial vicar raises some questions about moments of procedural “crisis” that can occur. These pertain to events that have long been encountered in forensic experience and have been given solutions in legislation and jurisprudence; but the reordering of this material may cause doubt about the correct manner of proceeding subsequent to the coming-into-effect of the motu 17.  CIC c. 1420 §2, CCEO c. 1086 §2, DC art. 38 §2. On this institutional bond, see Thomas J. Green, “Marriage Nullity Procedures in the Schema De processibus,” The Jurist 38 (1978) 362, sub C.1.

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proprios. Among other questions that may arise, let us consider three. As will be seen, they are all resolved in virtue of the general norm that concludes each motu proprios’ reform of the canons: “In other things that pertain to the manner of proceeding, unless the nature of the matter prevents it, the canons concerning trials in general and concerning the ordinary contentious trial are to be observed, having observed special norms for causes concerning the status of persons and causes pertaining to the public good” (CIC c. 1691 §3; cf. CCEO c. 1377 §3).

II. Recourse against the Decree of Rejection of the Libellus

Upon examining the libellus introducing a cause of nullity of marriage, the judicial vicar is to decide whether it is to be admitted or rejected. Since this decision impacts a person’s exercise of the fundamental right to vindicate one’s rights in the Church and, in particular, to obtain a declaration concerning’s one’s state in life, a libellus must be admitted unless the judicial vicar is certain that it is inadmissible.18 Such a libellus is not to be admitted—that is, it is to rejected—when any one of the following is verified and is not immediately supplied: 1) the tribunal is absolutely or relatively incompetent, 2) the petitioner is not a spouse or a competent promoter of justice or one enjoying a legitimate interest, or the petitioner lacks procedural capacity due to a grave psychic anomaly, 3) the libellus is not signed and dated, and it lacks the address of the petitioner or procurator or a basic allegation of nullity of marriage presented before the tribunal, resting on some canonical norm and certain proofs, and 4) it lacks any foundation whatsoever, nor could such foundation emerge from a judicial process (e.g., the allegation is not a ground of nullity or the allegation is manifestly false or unprovable).19 Prior to the time when the motu proprios came into effect, the judicial vicar in such causes had already constituted a college of judges prior to this first decision of the tribunal. The decision about the admission was made by the presiding judge, but the libellus could be rejected either by the presiding judge singly or by the college of judges. If the presiding judge 18.  Cf. CIC cc. 18, 221 §1 and 1674 §1, 1º; CCEO cc. 24 §1, 1360 §1, 1º and 1500. 19.  Cf. CIC c. 1505 §2, CCEO c. 1188 §2, DC artt. 120–123.

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rejected the libellus, the petitioner could make recourse to the college of judges or to the appellate tribunal. If the college of judges rejected the libellus, the petitioner could make recourse to the appellate tribunal— whether the ordinary appellate tribunal or the Roman Rota.20 Now, however, no college of judges exists at the moment of the rejection of the libel­ lus. The judicial vicar rejects the libellus, but to whom may the petitioner direct recourse against this decree of rejection?21 The decree of rejection is an act of judicial power, and in particular it is one that has the force of a definitive sentence inasmuch as it impedes a trial (CIC c. 1618, CCEO c. 1301, DC art. 262). Especially in causes concerning the status of persons, such a decree must be subject to recourse. Otherwise, the decree of rejection would give rise to a res iudicata without giving the party any opportunity to defend himself. It is surely necessary that the petitioner have some opportunity for recourse. It is certain that recourse may not be made to the bishop moderator of the tribunal since, as was discussed above, the judicial vicar constitutes one tribunal with him. This means that the bishop, while clearly the administrative superior to the judicial vicar, is not situated above the judicial vicar as a superior judge or a judge of appeal. This follows naturally from the fact that the judicial vicar, like every judge of the tribunal, exercises the bishop’s own power, albeit with an appropriate judicial independence. Assuredly, the norm of canon 1505 §4 of the CIC (CCEO c. 1188 §4, DC art. 124) still applies to causes of nullity of marriage, as is implied ex natura rei and in the above-quoted canon 1691 §3 (CCEO c. 1377 §3). That norm, however, is to be observed mutatis mutandis. In the new organization of the introductory period of the trial, there is no college, nor is there a presiding judge, properly speaking. Rather, the judicial vicar is the sole judge in the matter, in virtue of office—not in virtue of being designated to the particular cause. And the only remaining superior judge is the appellate tribunal—whether this be the ordinary appellate tribunal or the Tribunal of

20.  Cf. Zenon Grocholewski, “De periodo initiali seu introductoria processus in causis nullitatis matrimonii,” Periodica 85 (1996) 108–111; CIC c. 1505 §4, CCEO c. 1188 §4, DC art. 124. 21.  Carlos M. Morán Bustos states that the recourse would be made to the judicial vicar of the appellate tribunal; but since this would cause delays, he says that the judicial vicar could constitute a college even prior to the decision about the admission of the libellus, to which recourse could be made, as the case warrants. See his “Retos de la reforma procesal de la nulidad del matrimonio,” Ius Canonicum 56 (2016) 33.

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the Roman Rota. Therefore, the petitioner may make recourse against the judicial vicar’s decree of rejection to either of these appellate tribunals.22

III. Recourse against the Decree of Formulation of the Doubt

The motu proprios, taken alone, may give the impression that the decree by which the judicial vicar establishes the formula of the doubt may not be challenged. For there has been a derogation from the old canon 1677 §4, which stated that the judge, who had decreed the formulation of the doubt, could after ten days proceed to the instruction of the cause “if the parties make no opposition” (see also CCEO c. 1363 §4). In other words, the parties could make recourse against the formulation of the doubt, which recourse had to be resolved prior to the instruction of the cause. The reformed canons do not include this provision but leap from the formulation of the doubt (CIC c. 1676 §5, CCEO c. 1362 §5) to the rights of the parties within the instruction period of the trial (CIC c. 1677, CCEO c. 1363). However, as was stated above, it is necessary to consider the matter in light of the norm of canon 1691 §3 (CCEO c. 1377 §3). Prior to the formulation of the doubt, the judicial vicar potentially receives the petitioner’s response to the proposed formula of the doubt and the other spouse’s response to the citation, and he must weigh the defender of the bond’s initial votum about the cause and especially about the proposed formula of the doubt. The content of the formula may in fact be a disputed matter among the parties, leaving the judicial vicar to make a decision about the just terms of the controversy; this is accomplished in the decree of formulation of the doubt. This decree is communicated to the spouses and the defender of the bond, and any one of them might find himself aggrieved by it if, for example, it includes a ground that arguably lacks any foundation whatsoever or excludes a ground that should arguably be a central question in the cause. In virtue of a norm concerning the ordinary contentious trial, the aggrieved party has a right to make recourse against this decree.

22.  The ordinary appellate tribunal seems not to be bound to act collegially in deciding whether to confirm or overturn the decree of rejection, since this is not the issuance of a definitive sentence (cf. CIC c. 1441, CCEO c. 1085 §3, DC art. 30 §4).

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Indeed, canon 1513 §3 concerning the contestatio litis (CCEO c. 1195 §3) declares that, “unless [the parties] have already agreed, they may make recourse to the same judge within ten days, so that it may be changed.”23 In other words, the parties who have not previously agreed to the formula of the doubt may make recourse, not to the appellate tribunal or to the bishop moderator of the tribunal, but to the judge before whom the present cause is being treated (ad ipsum iudicem). Causes of nullity of marriage are, as a rule, reserved to a college of three judges,24 such that “the judge” in the case is really a college—not an individual judge, not even the judicial vicar. In practice, this college does not direct the whole process, which a just expediency and simplicity suggests be done by one of its members, whether it be the presiding judge or the ponens. The full college only acts when it is prescribed by law or when the nature of the matter suggests it. Within the Church’s system of procedural law, the means for challenging a decree of an individual judge within the same level of jurisdiction is recourse to the college of judges.25 This is necessary in order to respect the right of an aggrieved party to receive a new hearing in a matter that 23.  “Decretum iudicis partibus notificandum est; quae nisi iam consenserint, possunt intra decem dies ad ipsum iudicem recurrere, ut mutetur; quaestio autem expeditissime ipsius iudicis decreto dirimenda est.” 24.  CIC cc. 1425 §1, 1º, b) and 1673 §3; CCEO cc. 1084 §1, 2º and 1359 §3; DC art. 30 §1. 25.  See, e.g.: Sacred Roman Rota, Normae S. Romanae Rotae Tribunalis, June 29, 1934: AAS 26 (1934) 474: “Art. 96. A decretis et rescriptis Iudicis instructoris datur recursus ad Turnum a quo causa, instructioni obnoxia, iudicanda est.” Sacred Congregation for the Discipline of the Sacraments, instruction Provida Mater Ecclesia, August 15, 1936: AAS 28 (1936) 328 and 349: “Art. 69.—Adversus actus praesidis vel instructoris recursus patet ad collegium, cuius est decretum vel sententiam interlocutoriam edere, audito vinculi defensore et, si adsit, promotore iustitiae (cfr. Tit. XI)”; “Art. 188— [. . .] §2. A quocumque instructoris decreto pars cuius interest ad collegium recurrere potest, ut quaestio incidens instituatur.” Tribunal of the Roman Rota, norms Quammaxime decet, April 18, 1994: AAS 86 (1994) 525, 527 and 529: “Art. 57. [. . .] §2. Die statuta pro litis contestatione, Ponens, comprobatis legitimis citationibus atque attentis partium petitionibus aut responsionibus, dubia concordata decreto firmat; quodsi partes dissentiant, ipse ex officio rem definiet. Quod contra decretum, intra decendium a die notificationis, patet recursus ad Turnum, qualibet ulteriore appellatione remota”; “Art. 66. Si pars a Ponentis decreto intra tempus utile decem dierum ad Turnum provocaverit, recursus expeditissime definietur”; “Art. 73. Adversus actum aut decretum a Ponente vel a Iudice instructore positum recursus patet ad Turnum, nisi agatur de decretis mere ordinatoriis; quaestio autem expeditissime definienda erit.” Decree c. Pompedda, Florentina, Nullitatis matrimonii; Appellationis et querelae nullitatis, July 8, 1986: RRDecreta 4: 116–119, at 118, no. 10: “a decretis praesidis vel instructoris dari recursum ad collegium.” Cf. Decree c. Stankiewicz, Aquilana, Nullitatis matrimonii; Nullitatis decisio­ num et avocationis causae, December 21, 2000: RRDecreta 18: 340, no. 23.

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may have ramifications for the rest of the process. While it can be abused by one acting with obstructionistic motives, it essentially promotes procedural economy, since it avoids any immediate dependence upon a hierarchically related tribunal for the resolution of intra-procedural disputes. In a manner of speaking, this element of the canonical judicial order amounts to “a kind of ‘double instance’ within the confines of the same level of the trial”26—the hearing before the individual judge being the “first instance,” and that before the college being the second. This is only analogously possible when the cause is legitimately being handled by a sole judge, since then recourse is made to the same judge who is to decide whether to confirm, revoke or amend his own decree. As regards the decree of the formulation of the doubt in particular, this same rule applies. And this is explained clearly in art. 135 §4 of the instruction Dignitas connubii in these terms: “[T]he parties . . . , unless they have already agreed to [the formula of the doubt], can have recourse to the college within ten days to have it changed; but the question is to be decided  expeditissime  by the decree of the same college.” Indeed, when the judicial vicar establishes the formula of the doubt and decrees that the ordinary process is to be used, he at the same time constitutes the college of judges. We read in the reformed canon: “[T]he judicial vicar by his decree determines the formula of the doubt and decides [that] the cause is to be treated by the ordinary process . . .”; “[T]he judicial vicar by the same decree arranges for the constitution of the college of judges or a single judge with two assessors according to canon 1673 §4 [CCEO canon 1359 §4]” (CIC c. 1676 §§2–3, CCEO c. 1362 §§2–3). In other words, upon

See CCEO c. 1085 §1, 2º. For numerous examples of acts of the college, see DC art. 45, which is commented upon, e.g., by Pasquale Silvestri, “I ministri di giustizia in specie: Il Vicario Giudiziale, I Vicari giudiziali aggiunti e gli altri giudici (artt. 38–49),” in Il giudizio di nullità matrimoniale dopo l’Istruzione “Dignitas connubii.” Parte Seconda: La parte statica del processo, ed. Piero Antonio Bonnet and Carlo Gullo, Studi Giuridici 76 (Vatican City: Libreria Editrice Vaticana, 2007) 141–145. 26.  Cf. Decree c. Stankiewicz, Rheginen., Nullitatis matrimonii; Iuris appellandi, March 12, 1987: RRDecreta 5: 44–49, at 46, no. 6: “Etenim si causa collegio trium iudicum reservetur (can. 1425, §1, n. 1, b), pars quae se gravatam censet ius habet instandi apud collegium ipsum, ut probatio ab instructore seu auditore reiecta admittatur, attente considerata ‘quasi duplici instantia’ intra fines eiusdem gradus iudicii in causae instructione. Propterea si forte coram iudice unico causa pertractetur (cf. can. 1425, § 4), pars gravata reiectione novae probationis instare potest apud eundem iudicem, ut probationem admittat, licet hic etiam munere instructoris seu auditoris fungatur.”

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issuing the decree of formulation of the doubt and constitution of the college of judges, the judicial vicar entrusts the cause in its present state to the college, while the judicial vicar, as such, ceases to direct the trial. A party aggrieved by the formulation of the doubt makes recourse to the judge, which at this moment is now the college of judges. The college is not bound by the judicial vicar’s decree who, as a judge intraprocedurally, is primus inter pares. The college is to weigh the recourse and all the other acts and, by its own decree, is either to confirm or partially or totally modify the decree of the judicial vicar. The decree of the college, which is to be issued expeditissime, is subject to no recourse on its merits (cf. CIC c. 1629, 5º; CCEO c. 1310, 5º; DC art. 280 §1, 5º). Practically speaking, then, the judicial vicar issues the decree of the formulation of the doubt, which also institutes the ordinary process and designates the college of judges. One of the judges is named as presiding judge in that decree, and the presiding judge names a ponens. The presiding judge or the ponens receives the cause for the college and, if the parties have not expressly agreed previously to the formula of the doubt, waits until ten days have passed from notification of the formulation of the doubt. If there is a recourse, the presiding judge or ponens hears the parties and transmits the whole matter to the college of judges, who convene and decide the recourse. If there is no recourse, the presiding judge or the ponens decrees the instruction of the cause (cf. CIC c. 1516, CCEO cc. 1085 §2 and 1198, DC art. 137).

IV. Modification of the Formulation of the Doubt Later in the Trial

It is true that the determination of the capita nullitatis on which the alleged nullity of marriage is to be examined is reserved to the judicial vicar within the introductory period of the trial. The judicial vicar, or his adjunct, is meant to direct the whole process at least by governing its introduction. And it should be expected that what he sets as the terms of the controversy will be stable throughout the course of the trial. Nevertheless, it can happen for any number of reasons that the terms of the controversy are justly changed. Frequently this may occur during the course of the instruction of the cause, when a more well-founded allegation emerges after the depositions. The advocate, whether motu proprio

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or after being notified about the matter by the judge, counsels his client to request a modification of the grounds. And after hearing the other spouse and the defender of the bond, the judge, in order to avoid issuing a sentence on a question that is really peripheral to the petitum, may modify the formula of the doubt by a new decree (CIC c. 1514, CCEO c. 1196, DC art. 136). The question is: which judge is competent to do this? While the judicial vicar is the judge competent to issue the formulation of the doubt proper—namely, the immediate result of the judicial citation—there is no basis in law for deeming the terms of the controversy themselves to be something reserved to the judicial vicar. He directs the introduction of the trial, but he does not have exclusive jurisdiction over what the grounds are. Once again, upon issuing the decree of formulation of the doubt, the cause is entrusted to the college of judges and is no longer moderated by the judicial vicar as such. It is for the presiding judge or the ponens of that college to handle the request of the party for the modification of the formula of the doubt; and any challenge of his (or, in the case of the ponens, possibly her) decree is made to the college of judges. Frequently, the judicial vicar, or his adjunct, will not be uninvolved in this matter, since he may ordinarily be the presiding judge.27 His involvement, though, would not be as judicial vicar but as a member of the college. The norm of canon 1514 (CCEO c. 1196, DC art. 136) certainly retains its full effect as a general norm for contentious ordinary trials, including those concerning nullity of marriage. And there is no basis for holding “the judge” in the canon to be identified with the judicial vicar, simply because he is the one competent to issue the formulation of the doubt during the introductory stage of the process.28

27.  Cf. CIC c. 1426 §2, CCEO c. 1091 §1, DC art. 46 §1. 28.  Pontifical Council for Legislative Texts, private reply, Prot. N. 15210/2015, November 26, 2015 (unpublished, signed by the Secretary and Under-Secretary): “While the new canon 1676 regards cases for the declaration of the nullity of marriage, canons 1513 and 1514 regard the ordinary contentious trial and are not affected by the changes in canons concerning special processes, i.e. the marriage cases. While the judicial vicar decrees the initial doubt in a marriage case, the faculty of the judge to change the doubt or add another is not affected by the modifications introduced with the MP Mitis Iudex.”

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Conclusion

The reforms of August 15, 2015 to the marriage nullity process bring about an expansion of the function of judicial vicar. For, prior to those reforms, the judicial vicar—with few exceptions, such as handling objections against ministers of justice—had largely an extrajudicial or ­ pre-judicial function: granting or denying consent for the treatment of a cause in another forum, constituting the college of judges in limine iudicii, and arranging for the execution of the eventual definitive sentence. He participates in and aids the bishop moderator’s vigilance over the correct administration of justice in the tribunal. Now, in addition to some of these functions (i.e., those not derogated), he acts as judge in each trial precisely as judicial vicar. Tribunals would do well in these first years of implementing the reformed canons to take note of and catalogue their forensic experience with this change. Any observations about the matter could then be transmitted to the Apostolic See, and this could offer an advantageous service to the supreme legislator and the canonical science.

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john p. beal*

The Tribunal Notary In North America: Glorified Secretary Or Misunderstood Professional?

Throughout his long and distinguished career as a scholar and as a teacher of canon law at the Catholic University of America, Monsignor Thomas Green has exhibited a special interest in the structures of the particular church. He has taught the course on structures of the particular church to students at the Catholic University (including this writer) for as long as anyone can remember and has published extensively on the subject. In teaching and writing he has had occasion to elaborate on the diocesan curia which assists the diocesan bishop in the governance of the local church and the various offices that comprise this curia, both in its administrative and its judicial sections. One of the curial offices that has received little attention in scholarly literature, even that of Monsignor Green, is that of the notary. This brief essay on the office of notary has been written to honor Monsignor Green as he reaches another milestone in his illustrious career and to perhaps give him an additional tidbit to insert in his course bibliography as he continues to enlighten student on the structures of the particular church. Notaries in most North American tribunals are hired primarily, if not exclusively, for their secretarial skills and are then designated as “notaries”

* Ordinary Professor, School of Canon Law, The Catholic University of America, Washington, DC.

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with (or, too often, without) the observance of the formalities for the provision of ecclesiastical office. Most of their duties are routine clerical tasks—typing, filing, answering the telephone and referring calls, entering data into the computer, printing and copying, and the like. Their notarial responsibilities are generally limited to co-signing tribunal decrees and sentences (when judges remember to seek their signatures), certifying the correspondence of copies of documents to their originals, and attesting that the texts of interviews with parties and witnesses which they have transcribed are accurate. While some knowledge of canon law can be helpful for tribunal secretaries who double as notaries, this knowledge is not expected to be either deep or broad. Tribunal secretaries can usually acquire the canonical background they need to carry out the tasks expected of them from on-the-job training or perhaps from attendance at the annual Institute on Matrimonial Tribunal Practice sponsored each summer by the School of Canon Law of the Catholic University of America. Since so little knowledge of canon law is expected of those who serve as tribunal notaries in North America, those who peruse the Code of Canon Law and other canonical texts are often shocked at the weighty responsibilities entrusted to notaries therein. Drawing up “the acts and instruments regarding decrees, dispositions, obligations or other such things”1 is a challenge that even those with licentiates in canon law often find daunting and is certainly not one that could prudently be entrusted to a minimally trained tribunal secretary, but it is a responsibility assigned by the code to the notary. Although tribunal secretaries routinely produce verbatim transcripts of interviews with parties and witnesses in marriage nullity cases, few tribunals would allow these secretaries with limited canonical expertise to summarize the relevant portion of the testimony and limit verbatim reporting to “what pertains to those points which touch directly on the matter of the trial”2 or to determine what are the things “worth remembering which may have occurred while the [parties or] witnesses were being examined” and to make sure that they are recorded.3 The fact that the code does entrust such responsibilities to tribunal 1.  1983 CIC, c. 484, 1°. 2.  Ibid., 1567 §1. 3.  Ibid., c. 1568.

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notaries leaves many North American canonists with the gnawing suspicion that, when the law of the Church refers to the “notary,” it has in mind a function much different than the one carried out by the secretaries who double as notaries in most North American tribunals. In fact, the code does have another figure in mind. The notary sketched in the code is an official whose roles and responsibilities have been shaped by the civil law tradition of continental Europe of which canon law is a part, while the notary of North American tribunal practice represents an unreflective assimilation of the tribunal notary to the “notary public” of the common law legal culture.

I. The Notary of the Civil Law Tradition

The figure that has emerged as the notary in the civil law world had a rather humble origin in a minor governmental functionary not unlike present day notary public of the common law world. The remote forerunners of modern notary are the tabellarius, the tabellio, the exceptor and the notarius in the late Roman Empire, all of whom were officials attached as secretaries to imperial magistrates to commit to writing their decrees and decisions, to maintain an archive of official documents, and to furnish copies of these documents to those who needed them.4 Roman magistrates used the formalities of the trial to exercise both involuntary (contentious) and voluntary (non-contentious) jurisdiction. The latter extended to legal transactions which were deemed to be of sufficient importance that they [had] to be effectuated by court adjudication. [Voluntary jurisdiction’s] 4.  Alessandra Luini del Russo, “The Notary Public in the Civil Law of Italy,” George Washington Law Review 20 (1951–1952) 525–529. The history of the evolution of the figure of the notary in the civil law tradition is treated at some length in Luini della Russo, 524–547; Pedro A. Malavet, “Counsel for the Situation: The Latin Notary, A Historical and Comparative Model,” Hastings International and Comparative Law Review 19 (1995–1996) 403–430; Edouard Fournier, L’Origine du vicaire general et des autres membres de la curie diocésaine (Paris: Séminaire des Missions Étrangères, 1940) 9–57, 89–150; Guillaume Aral, “Le notariat en droit ecclésiastique: étude historique et juridique,” Studia Canonica 36 (2002) 169–187; René Naz, “Notaire,” Dictionnaire de Droit Canonique 6: 1015–1020; Peter L. Murray and Rolf Stürner, The Civil Law Notary—Neutral Lawyer for the Situation (Munich: Verlag C. H. Beck 2010) 9–23; C.M. Cappon, “Just Cause for Despair Among Dutch Notaries?” in The Landscape of the Legal Professions in Europe and the USA: Continuity and Change, ed. Alan Uzelac and C.H. Van Rhee (Cambridge: Metro, 2011) 71–84.

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ancient core included important legal acts such as the emancipation of children, freeing of slaves or adoption. The formalization of such legal transactions originally took place through an imitation of an adversarial proceeding, in which the desired condition was established without dispute and that ended with a written judgment by the magistrate known as the addictio. The scope of non-contentious jurisdiction grew in post-classical times.5

Since these exercises of voluntary jurisdiction they were legally binding or “said the law” for those affected by them, they were also considered to be authentic or authoritative findings of the facts on which they were based. Although the decisions in these matters were composed and dictated by the magistrates, notaries would be present in court when these decisions were rendered to transcribe the proceedings. In addition, since the ability to write was not widespread in the late Roman and early medieval worlds, private individuals also sought the services of these court officials to draft and maintain copies of important personal legal documents like wills, contracts, deeds, and bills of sales. After the collapse of the Roman Empire in the West, this notarial role continued and evolved in both the secular and the ecclesiastical realms throughout Western Europe. By the twelfth (or in some places, the thirteenth) century, the role of the notary had grown from that of a mere stenographer who wrote down decrees, decisions, and instruments dictated by others to that of a professional who, in virtue of power delegated by the competent ecclesiastical (papal or episcopal) or civil authority (imperial or ducal), gave these documents the cachet of “public documents.”6 Early in this development, practitioners of the notarial profession in both the church and the secular world, practitioners were usually embedded in the chanceries of magistrates and in tribunals. However, the evolution of the notarial profession took a somewhat different route in the secular world than it did in the ecclesiastical realm and resulted in the emergence in the secular world of notaries who were legal professionals unattached to administrative or judicial apparatuses.

5.  Murray and Stürner, 9. Cappon, 72: “When such a judge-notary drew up an act for a private person, a purchase agreement for instance, he did so in the form of a report of legal proceedings, with claim, defense and judgment.” 6.  Naz, 1016.

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A. Notaries in the Civil Law World

In the secular sphere, by the twelfth century something quite like the modern notary had begun to emerge in Lombardy and elsewhere in what is now Italy from a class of public officials who combined the roles of judge and notary. As judges, they initially continued the practice of formulating their decisions or sentences pursuant to the formalities of a trial even when the proceedings were not meant to resolve truly contentious matters. As public documents these exercises of voluntary jurisdiction enjoyed the authority of public acts.7 In other words, “like any judicial document, the notarial act now constituted prima facie proof; it was regarded as authentic. The formulation of a notarial act in the form of a judgment handed down by a court was a decisive step in the creation of the public notariat.”8 In time the conceit of a “mock trial” was abandoned and the notary’s judicial role faded into the background, but the notary still issued the requested legal document in a quasi-judicial form. Thus, the cross-fertilization of Lombard legal practice and the recently retrieved Roman law of Justinian allowed the secular notary to emerge as an autonomous legal professional acting under authority delegated by the emperor or local sovereign.9 The professionalization of the notary was assured by the development of programs for training notaries first at the university in Pavia, then in Bologna, and ultimately in other centers of legal studies.10 Although aspiring notaries were expected to master the legal formularies contained in such handbooks as the “Formularium tabellionum” of the great Roman law scholar Irnerius and to reproduce these formularies to the specifications and needs of prospective clients, they also had to understand the law on which the formularies were based. As a result, preparation for admission to the notarial corporation or guild of a community required several years of legal studies and the successful completion of a competitive examination.11 In 1591, the program of studies at the University of Bologna stipulated that future notaries “were trained in the law of contracts during the first year, in the law of wills during the second, and judicial decisions in 7.  Malavet, 415. 8.  Cappon, 77. 9.  Ibid., 76. 10.  Luini del Russo, 537–543. 11.  Ibid., 540–541.

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the third.”12 Thus, by the sixteenth century, notaries had emerged in much of continental Europe who were university-educated and occupied a distinct niche in the legal profession. The trajectory that stretched from the tabellarius of late Roman times to the university-trained notary of the sixteenth century has extended without interruption to the notary in the contemporary civil law world. Today, the notariat is one of several career paths available to graduates of university law schools. After completing legal studies, an aspiring notary interns or does an apprenticeship for several years in the office of a notary and prepares to take the highly competitive national examination to qualify for a notarial appointment. Candidates who successfully complete this examination are eligible for appointment by state authorities to notarial positions when they became vacant. Nations are divided into notarial districts for each of which only a limited number of notarial appointments are available. Within their assigned district, notaries enjoy virtually monopoly powers, but they are not authorized to practice their profession outside their assigned districts.13 Since they serve a public function, notaries are not free to choose their clients. Rather, they are bound to provide their professional services to all who request them (and are able to pay the established fees). Once appointed notaries serve indefinitely unless suspended or removed for cause by the state authorities responsible for admitting them to practice or the national professional organization for notaries.14 In civil law countries, notaries typically carry out three principle functions. First, they draw up a wide variety of legal documents to meet the needs and specifications of those who seek their services. These legal instruments include “wills, corporate charters, conveyances of land, and contracts.”15 In other words, the notary performs many functions for which people in North America are accustomed to seek out the services of an attorney. However, the role of the civil law notary is much different than that of a North American attorney, especially in bi-lateral and multi12.  Ibid., 541. 13.  John Henry Merryman and Rogelio Perez-Perdomo, The Civil Law Tradition: An Intro­ duction to the Legal Sytem of Europe and Latin America, 3rd ed. (Stanford, CA: Stanford University Press, 2007) 107; Malavet, 464–474; Luini del Russo, 547–548 14.  Malavet, 476–479. 15.  Merryman and Perez-Perdomo, 105.

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later transactions, where the notary’s responsibility is not principally to give effect to the desires of or to serve the interests of the client or clients. In fact, he or she does not represent any party or parties to transactions but the public interest. The notary gives proper legal advice to all parties to the transactions and advises them of the consequences of the proposed transaction. Therefore, the notary functions in these matters as a witness who is responsible to give form to the transaction that has been agreed to, and who must advise the parties of the legal aspects of the instrument that they subscribe and which he authorizes. The notary must be impartial and must advise all parties accurately and equally. This obligation includes a duty to counsel parties who are not well informed. In other words, the notary must counteract the effect of the differences in the legal sophistication of the parties, in order to produce a balanced well-informed result. The notary represents the law for all the parties to the transaction.16

As a result, the notary has sometimes been described as a neutral “counsel for the situation.”17 Second, notaries authenticate the legal documents they draft and cosign as “public acts” and thereby endow them with special evidentiary weight.18 In North America, a notary public’s seal on and subscription of a document is considered to provide only prima facie proof that the document was executed under oath by the person who purports to have signed it. The notary public’s certification does not, however, prove any of the facts stated in the document to which the certification is attached.19 In the case of a conflict, these facts have to be established by oral or parol testimony during a trial to have probative force. In the civil law world, by contrast, the “notarial document is deemed to be authentic and executory and constitutes proof of the facts asserted therein.”20 In other words, a document drafted and subscribed by notary is “supported by a conclusive presumption of law regarding the absolute certainty of time, place, facts stated therein as having taken place before the notary and identity

16.  Malavet, 486. 17.  Ibid., 485–488. 18.  Merryman and Perez-Perdomo, 106. 19.  Ibid., 442–443. 20.  Malavet, 442.

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of contracting parties.”21 Documents subscribed by notaries are, therefore, public documents that are fully probative of what they contain and can be challenged only with difficulty. Finally, the civil law notary serves as “a kind of public records office” who retains “the original of every instrument he prepares and furnish[es] authentic copies on request.”22 These copies prepared by the notary are generally considered to have the same probative value as the originals. The parties for whose sake the documents and instruments were drafted have a right to copies of them as needed, but they are privileged with regard to third parties. Although the notary retains his or her own archive of documents and instruments effected, they are considered to be the property of the State. As a result, his registers are subject to periodic state inspection and must be deposited with the State authority when he or she ceases from office.23 Unlike the notary public who is a rather peripheral figure the legal process of the common law world, the notary plays a prominent, indeed indispensable role, in the legal environment of the civil law world. The stature and role of the civil law notary are different in notable respects from those of the notary sketched in the Code of Canon Law and other sources of ecclesiastical law. Nevertheless, the notary that has emerged in the Church is much more similar to the civil law notary than to the notary public of the common law world, and those who have shaped the canon law governing the notary’s office clearly had the civil law notary in mind as they went about their work. B. Notaries in the Canon Law World

Although the same continental legal culture that gave rise to the autonomous secular notary also fostered the emergence of notaries in the Church, ecclesiastical notaries did not evolve into autonomous legal professionals as did their civil law counterparts. Instead, they remained tethered to the episcopal and papal chancelleries where their offices had originated. Two types of notaries appeared in ecclesiastical circles. The first was an official of the episcopal chancery who served the roles of archivist 21.  Del Russo, 549. 22.  Merryman and Perez-Perdomo, 106. 23.  Malavet, 445–449.

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and secretary for the bishop; the second was an official of the tribunal who assisted the judge.24 Like the royal and papal curias upon which they were modeled, the episcopal curias required the services of flocks of notaries to draft the decrees, rescripts, decisions and other instruments which served as the vehicles for the bishops’ governance of their dioceses. The chief notary of the episcopal curia and head of his chancery eventually came to be known as “the chancellor.” This chancellor not only drew up documents for the bishop but was entrusted with the episcopal seal.25 Like the notaries of the royal and imperial courts that were emerging at the same time, the chancellor and the other notaries of the episcopal curia were eventually authorized to make the documents they prepared worthy of public trust by their signature alone.26 A decretal of Alexander III attributed to a document signed by a “public hand” or notary the same probative force as a charter to which an authentic seal had been affixed.27 The essential function of the diocesan chancellor was that of notary. Although the position, or perhaps office, was not well defined or regulated in universal law, it was the subject of considerable elaboration and refinement in particular law.28 More specifically, since the general law did not link the chancellor’s notarial function with the role of archivist for the episcopal chancery, this latter role was carried out by a variety of functionaries whose titles differed from diocese to diocese. This link between the notarial and archivist roles of the chancellor was made, however, in some particular legislation on the diocesan chancellor, most notably in the norms enacted for the dioceses of the United States by the Third Plenary Council of Baltimore in 1884.29 Moreover, since, in virtue of the decree of the Second Plenary Council of Baltimore, the vicar general in the United States possessed only those powers expressly delegated to him by the 24.  Naz, 1016. 25.  John E. Prince, The Diocesan Chancellor: A Historical Synopsis and Commentary, Canon Law Studies 167 (Washington: Catholic University of America Press, 1942) 18. 26.  Naz, 1016 and Prince, 21–23. Aral, 176, holds that it was not until the promulgation of the 1917 code that documents subscribed by notaries were recognized as enjoying publica fides, but on this point he seems to be mistaken or at least to overstate the point. 27.  X. 1.2. 22.2. 28.  Prince., 19–40 29.  Acta et Decreta Concilii Plenarii Baltimorensis Tertii, A.D. MDCCCLXXXIV (Baltimore: Murphy, 1886) nn. 271–272.

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diocesan bishop, the title “vicar general” was often given to a respected senior priest (much like today’s honorific “Protonotary Apostolic”) while the powers traditionally associated with the office of vicar general were delegated to the chancellor. As a result, the diocesan chancellor became a figure of particular prominence in many American dioceses with extensive delegated powers that overshadowed his more modest notarial and archival functions.30 The 1917 Code of Canon Law consolidated nearly a millennium of evolution in its description of the diocesan chancellor as both the chief notary and the chief archivist of the diocese. As the chief notary of the episcopal curia, the chancellor (like the other notaries under his supervision) was charged: 1° to draw up acts and instruments regarding decrees, dispositions, obligations, or other things which require their action; 2° to record faithfully in writing what has taken place and to sign it with a notation of the place, day, month and year; 3° having observed what is to be required, to furnish acts or instruments to one who legitimately requests them from the records and to declare copies of them to be in conformity with the original.31 The 1917 code stipulated that these acts and instruments prepared and signed by chancellors and other notaries enjoyed the presumption of authenticity or entitlement to publica fides.32 Chancellors and other notaries were appointed by the diocesan bishop and could not legitimately exercise their office outside the territory of the prelate who appointed them.33 As archivists, the chancellors were responsible to see that documents relating to both the temporal and the spiritual affairs of their dioceses were deposited in a secure archive,34 to maintain inventories of these documents,35 and to control access both to the general diocesan archives and to their secret archives.36 The 1983 code has substantially incorporated 30.  See Prince, 36–40. 31.  1917 CIC, c. 374 §1, 1°–3°. 32.  Ibid., c. 373 §1. 33.  Ibid., c. 374 §2. 34.  Ibid., c. 375 §1. 35.  Ibid., c. 372 §1 and c. 375 §2. 36.  Ibid., c. 377 §2 and c. 379 §3.

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the discipline governing the chancellor and other curial notaries from the previous code.37 One notable innovation of the revised code, and one that highlights the chancellor’s role as chief notary of the diocesan curia, is its stipulation that the signature of the chancellor or another notary is necessary for the validity of curial acts which are intended to have juridic effects and that the chancellor is obligated to inform the moderator of the curia of such acts.38 As the chancellor and other notaries were finding a home in episcopal and papal chancelleries during the Middle Ages, notaries were also proliferating in the Church’s judiciary. The services of notaries were needed not only to draft and authenticate the range of decrees, decisions and other instruments issued by judges to move the process along to its conclusion but also to serve as court stenographers taking down accurately the testimony of parties and witnesses in cases before the court.39 In 1215, the Fourth Lateran Council’s canon 38 mandated the presence of a notary at every stage of the judicial process to take down in writing all the acts of the inquiry, namely, citations and delays, refusals and exceptions, petitions and replies, interrogations and confessions, the depositions of witnesses and presentation of documents, interlocutions, appeals, renunciations, decisions, and other acts which take place must be written down in convenient order, the time, places, and person to be designated. A copy of everything thus written is to be handed to each of the parties, the originals are to remain in the possession of the writers.40

The notary has been a fixture in ecclesiastical tribunals of every grade ever since. Although universal law specified only minimal qualifications for appointment as tribunal notary, it is evident from the prescribed duties that something more than secretarial skill was required for the office. As early as1250, the University of Bologna was requiring candidates for the position of notary to pass a professional examination which tested their knowledge of the various species of contracts, their ability to write clearly,

37.  1983 Code, cc. 482–490. 38.  1983 CIC, c. 474. 39.  Naz, 1016. 40. X.1.2.19.11.

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their ability to repeat testimony accurately from notes taken in the vernacular, their fluency in Latin, and their ability to take dictation.41 The 1917 and 1983 codes simply recapitulate and elaborate on the law governing the role of the tribunal notary from the Corpus Iuris Canonici. A notary selected from among those duly appointed to this office by the diocesan bishop is “to take part in every process, so much so that acts are null if the notary has not signed them” and acts, both substantive (acta causae) and procedural (acta processus), warrant public trust.42 In particular, a notary must be present at the questioning of parties, witnesses, and experts. At these hearings, it is the responsibility of the notary to take down in writing the responses to the judge’s questions, using exact words “at least in what pertains to those points which touch directly on the material of the trial,”43 and to make note “of whether the oath was taken, excused or refused, of the presence of the parties or other persons, of the questions added ex officio, and in general of everything worth remembering which may have occurred while the [parties or] witnesses were being examined.”44 Although the 1983 code foresees that the testimony of parties and witnesses may be tape recorded and transcribed only later,45 it still requires the notary’s presence at these examinations to insure the integrity of the taping and to make note of related details. At the end of the examination, what the notary has taken down is to be read back to the parties or witnesses (or they are to be given the opportunity to listen to the tape recording of their testimony) and they are to be given them the opportunity “to add, suppress, correct, or change it.”46 The record of the examination is then to be signed by the party or witness, the judge or auditor and the notary.47 Once prepared and signed by the notary, the transcript of the interrogation of a party or witness is considered a public record of what transpired during the session, a record whose accuracy cannot be easily challenged. Transcripts of examinations of parties and witnesses that are not signed by the notary are null and cannot serve as an evidentiary base

41.  Naz, 1017. 42.  1983 CIC, c. 1437 §§1–2; 1917 CIC, c. 1585. 43.  1983 CIC, c. 1567 §1; 1917 CIC, c. 1178. 44.  1983 CIC, c. 1568; 1917 CIC, c. 1779. 45.  1983 CIC, c. 1567 §2. 46.  1983 CIC, c. 1569 §1; 1917 CIC, c. 1780 §1. 47.  1983 CIC, c. 1569 §2; 1917 CIC, c. 1780 §2.

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for the judge’s decision. The nullity of an individual judicial act because of the absence of a notary’s signature can result in the remediable nullity of the sentence only if the decision cannot be sustained without the invalid act being taken into consideration,48 but the failure to secure the notary’s signature on the definitive sentence results automatically in its remediable nullity.49 The responsibilities assigned to the tribunal notary by the code clearly presuppose that those who perform this function will possess a considerable canonical expertise. Notaries need to know canon law quite well if they are to draw up the various kinds of decrees and instruments needed to move the judicial process from the preparation of the initial libellus to the definitive sentence and to discern in the testimony of parties and witnesses what matters pertain “to those points which touch directly upon the material of the trial” and so must be recorded verbatim and what matters can merely be summarized.50 Nevertheless, the requirements of the law for appointment to this office are quite minimal. To be a tribunal notary, no more is required than that one “be of unimpaired reputation and above all suspicion.”51 Notaries can be male or female, clerics or lay people, but, “in cases in which the reputation of a priest can be called into question, the notary must be a priest.”52 Despite these not very demanding standards for appointment as tribunal notaries in the code, the level of canonical knowledge presumed of tribunal notaries by the law is better reflected in the qualifications for appointment as notary at the Roman Rota where notaries perform essentially the same functions as notaries in lower tribunals. Nonetheless, to be appointed a notary at the Rota one must not only possess a doctorate in canon law but also have earned a diploma as a Rotal advocate from the Studi Rotale and have had appropriate experience in judicial practice.53 Notaries at the Supreme Tribunal of the Apostolic Signatura must also have earned a doctorate in canon law.54 At the Apostolic Tribunals, the qualifications for notaries are well matched 48.  1983 CIC, c. 1622, 5°. 49.  1983 CIC, c. 1622, 3°; 1917 CIC, c. 1894, 3°. 50.  1983 CIC, c. 1567 §1. 51.  1983, CIC, c. 483 §2. 52. Ibid. 53.  Romanae Rotae Tribunal, Normae, April 18, 1994, art. 7 §1: AAS 86 (1994) 511. 54.  Benedict XVI, apostolic letter Antiqua ordinatione, June 21, 2008, art. 1 §2: AAS 100 (2008) 515.

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to the tasks these officials are expected to perform. The same cannot be said of most of those who serve as notaries in North American tribunals. Although these notaries meet the minimal qualifications established by the Church’s common law, most of them lack the canonical training to perform many of the functions expected of notaries. The reason for this mismatch between the de facto qualifications of notaries and the de iure expectations of those who carry out this role is that North Americans have unreflectively assimilated the notary mentioned in canon law with the figure of notary public familiar from everyday experience in the common law world.

II. The “Notary Public” in the Common Law Legal Culture

In the United States and most other countries whose legal systems derive from the “common law” tradition, the position of notary or “notary public” has never achieved prominence or even been accorded particular importance. In North America, notaries public are ubiquitous. There are currently some 4.4 million notaries public in the United States, one for every 66 persons in the population.55 By comparison, there are only 7,500 notaries in all of France and 4,500 in Italy.56 Like European notaries, American notaries public are public officials appointed by an elected official of their states, usually the governor or secretary of state, but for a defined but renewable term. Notaries public can usually exercise their office throughout the state for which they are commissioned, but only there, unless their state has a reciprocity agreement with an adjacent state. Unlike European notaries, however, American notaries public do not enjoy quasi-monopoly powers within the state. Also unlike civil law notaries, American notaries public are not highly trained legal professionals. As a rule, any person over eighteen years of age who can read and write English (and is not a convicted felon) can, upon paying a small fee and taking 55.  Michael Closen, Glen-Peter Ahlers, Robert Jarvis, Malcolm Morris, and Nancy Spyke, Notary Law and Practice: Cases and Materials (Chatsworth, CA: National Notary Association, 1997) 1. See the website of the National Notary Association, the largest professional association of notaries public, http://www.nationalnotary.org (last visited August, 24, 2014). 56.  Malavet, 474.

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an oath, become a notary public by appointment; such a “commission. . . . requires either very little training (of perhaps a few hours of coursework) or none at all; most states do not require an exam either, and where they do, it can be passed after memorizing a small booklet and is “almost analogous to driver’s license test.”57

Since they have no special legal training, notaries public have no authority to draft legal documents or to provide legal advice. Indeed, were a notary public to attempt to do so, he or she would be subject to prosecution for practicing law without a license.58 The service provided by notaries public are purely ministerial, i.e., it “involves obedience to instructions but demands no special discretion, judgment, or skill.”59 The Model Notary Act of 2010 which has been substantially adopted by at least 40 of the 50 states lists among the most common notarial acts:

(1) acknowledgements; (2) oaths and affirmations; (3) jurats; (4) signature witnessings; (5) copy certifications; [and] (6) verifications of facts.60

For each of these notarial acts, the persons seeking the services of the notary must appear personally before the notary and either be known personally to the notary or provide to the notary adequate proof of their identity. For an “acknowledgement,” the individual seeking the notary’s attestation simply indicates that he or she has voluntarily affixed his or her signature to a document presented to the notary and that the signer had the authority to do so; the notary then co-signs the document and applies his or her official seal to it.61 For “oaths and affirmations,” the individual makes a promise of truthfulness under penalty of perjury before 57.  Matthias Reimann, “The Notary in American Legal History: The Fall and Rise of the Civil Law Tradition?” in Handbuch zur Geschichte des Notariats der europäischen Traditionen, ed. Matthias Schmoeckel and Werner Schubert (Baden-Baden: Nomos Verlagsgesellschaft, 2009) 561. 58.  Reimann, 561. 59.  Black’s Law Dictionary, 6th ed., s.v. “ministerial.” 60.  Model Notary Act, January 1, 2010 §5–1 (Chatworth, CA: National Notary Association, 2010) 28. 61.  Common Notary Law §2–1.

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the notary who attests by his or her signature and seal that this oath or affirmation was made.62 For “jurats,” the individual not only signs a document such as an affidavit, deposition, or interrogatory in the presence of the notary but also takes an oath or makes an affirmation usually administered by the notary “vouching for the truthfulness or accuracy of the signed document.”63 After the individual has identified himself and made his acknowledgement, affirmed his or her veracity and signed the document in the presence of the notary, the notary co-signs the document, dates it, and affixes the official seal.64 When certifying the authenticity of copies of documents or signatures, the notary actually compares the copy with the original document and attests by signature and seal to the exact correspondence between the two.65 While notaries public are empowered by their commissions to attest and certify documents to verify their authenticity, the legal consequences of their acts of attestation and certification are quite limited. Unlike the notaries in civil law jurisdictions in Europe and Latin America, notaries public in the United States cannot, by their signature and seal, impart to documents any particular publica fides or probative value with regard to their substance. All the notary’s attestation does is “to certify that a person who identified himself or herself to the notary, executed a signature (typically in the notary’s presence) and thus voluntarily put the document into effect.”66 Although an affiant can be charged with perjury should the content of his or her affidavit submitted to a public authority be shown to be untruthful, the affidavit itself is of no value as evidence in the trial on the principal issue. Thus, a person who submits a notarized affidavit to a court will later have to testify orally before the court if the matter for which the affidavit was submitted is brought to trial. Also unlike notaries in civil law jurisdictions, American notary publics do not maintain archives of all the legal documents they have drafted and reproduce these documents on receipt of a legitimate request. Although some, but by no means all, states do require notaries public to maintain a register in which they record the legal acts which they have performed, 62.  Ibid. §2–2 and §2–11. 63.  Ibid. §2–7. 64.  Ibid. §2–9. 65.  Ibid. §2–4. 66.  Reimann, 561–562.

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they do not retain copies of documents they sign and seal.67 If a question is raised about a notarized document that has been lost, the most a notary public would be able to do is to attest that, on a particular, date he or she had notarized a document for a particular person. Even though a figure analogous to the civil law notary has emerged in England and some other English-speaking jurisdictions68 and Spanish, French and Dutch colonists to what is now the United States did bring European-style notaries with them to the New World,69 the office of notary as it emerged in the civil law world never took root in North America, except in a few jurisdictions whose legal systems were decisively shaped by the civil law tradition.70 According to Matthias Reimann, there are substantive, procedural, cultural, and historical reasons why the American legal system has not been a fertile ground for the blossoming of the notarial profession in its civil law form. First, “as a matter of substantive law, the American system simply did not have any need for notaries.”71 Unlike the civil law, American law does not require the intervention of a notary (or a lawyer of any kind) as a condition for the validity of certain acts and transactions with legal effects. American law often will not recognize the validity of certain acts such as wills and contracts unless they are redacted in written form and unless certain formalities are observed by their drafters, but these requirements do not include the involvement of a notary or any other public official. People would certainly be well advised to consult an attorney about the drafting of important legal documents, but American law does not require the observance of such elementary prudence. The absence in American law of a requirement that such documents be notarized to achieve their legal effect is probably the reason why North American marriage tribunals are notoriously lax about making sure that affidavits, decrees and sentences 67.  Ibid., 562. 68.  Brooks, Helmholz and Stein, 136–141. See also Nigel Ramsay, “The History of the Notary in England,” in Handbuch der Geschichte des Notariats der europäischen Traditionen, ed. Schmoeckel and Schubert, 375–391. 69.  Reimann, 563–573. 70.  The role and status of notaries is somewhat more important and more akin to those of European notaries in the few jurisdictions whose laws have been decisively shaped by the civil law tradition, most notably in Quebec, Louisiana, and Puerto Rico. See Reimann, 577–580. 71.  Reimann, 584–585.

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have been duly notarized in accord with the norm of canon law before being incorporated into the judicial acts of marriage nullity cases. Second, the procedural framework of American law provided and continues to provide little incentive to use the notaries to draft and authenticate legal documents. Since European civil law procedure is conducted primarily in writing with the judge as the decision-maker, it relies heavily on documentary evidence and “notarial documents in particular are often accorded heightened probative value, sometimes to the point of conclusiveness.”72 American procedure, on the other hand, is primarily oral. The paradigm for American procedure is the jury trial, one’s “day in court,” in which in-person testimony by parties, witnesses and even experts in open court is the standard method for making evidence available to the decision-making panel. In this system, documents, even notarized documents, are not a particularly important form of proof. Moreover, the highly contentious nature of the American procedural system in which opposing attorneys vigorously advance the interests of their clients, especially through sometimes ruthless cross-examination of parties and witnesses, with the judge as a referee contrasts sharply with the less contentious civil procedure of the civil law world which is “dominated by the judge” and “often has an administrative touch.”73 The notary who does not represent either party to a transaction but is a neutral “counsel for the situation” fits neatly into the civil law system but not into the more contentious American system. Third, the civil law tend to be abstract and pro-active, trying to anticipate problems and conflicts and provide clarifications and resolutions in advance; American law tends to be concrete and re-active, leaving the clarification of ambiguous terms and the resolution of potential conflicts for the future, if and when they become issues. This difference in approaches is well illustrated in the different ways in which the two legal traditions formulate rights. American law tends to assert rights in rather stark and almost absolutist terms and then to allow the courts to develop criteria for restrictions on the exercise of these rights as concrete disputes arise. For example, the First Amendment to the Constitution of the United States asserts baldly: “Congress shall enact no law respecting the establishment 72.  Ibid., 585. 73.  Ibid., 586.

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of religion or prohibiting the free exercise thereof.” However, as conflicts have arisen, the courts have carved out a variety of exceptions which allow public authority to restrict the exercise of religious freedom in the interest of the common good. On the other hand, the civil law tradition tends to build the criteria for restricting the exercise of the rights into the assertions of the rights themselves so that, in cases of conflict, courts need only apply the law to the particular case. Thus, canon 218 asserts a carefully qualified right of scholars to freedom of inquiry and expression: “Those engaged in the sacred disciplines have a just freedom of inquiry and of expressing their opinion prudently on those matters in which they possess expertise, while observing the submission due to the magisterium of the Church.”) This difference of approach is significant for the position of notary. Reimann explains: The civil law tradition . . . prefers to address legal problems in the abstract; it thus tries to have the solution ready at hand before an issue comes alive. . . . The virtue of this approach is that many problems are more easily solved before the fighting breaks out. That is exactly what the civil law notary is all about. It is his or her function to write a document that bindingly regulates the parties’ affairs while people are still at peace with each other. As a kind of legislator for a specific transaction, the notary is the very embodiment of the civil law mentality. By contrast the common law as a tradition of practitioners litigating cases and of courts deciding them prefers concrete problem-solving; it tackles issues only when and if they arise. . . .Thus, it is by its very nature backward-looking, i.e., reactive. This preference reflects the belief that it is difficult to predict what questions will come up and that effective problem-solving requires cognizance of the particular circumstances in which an issue arises. From such a perspective, notarial efforts to produce watertight solutions in advance are not only much less valuable but, in a sense, even counterproductive.74

Finally, “as a closed and privileged profession, civil law notaries sat uneasily with . . . American ideals of populism, egalitarianism, and electoralism.”75 From an early date, Americans have had an ambivalent attitude toward the law and the lawyers who ply it. On the one hand, the American legal system has been the object of almost religious devo74.  Ibid., 586–587. 75.  Ibid., 587.

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tion. As Henry Steele Commager observed long ago: “Americans alone of western people made constitutionalism a religion and the judiciary a religious order and surrounded both with an aura of piety.”76 On the other hand, law and lawyers have been widely viewed as dishonest, elitist, and virtually un-American.77 Popular authors from James Fennimore Cooper to Mark Twain to John Grisham have entertained readers with portrayals of lawyers as shysters, often good-hearted shysters, but shysters nonetheless. Through this lens, the European-style notary, a professionally trained expert with a local monopoly on the production of documents needed for everyday social intercourse, could easily be seen as the embodiment of everything Americans disliked viscerally about the law and lawyers. This environment did not provide fertile soil for the civil law notarial profession to take root in the New World. As a result, with few exceptions, the office of notary withered and eventually disappeared even in the few places where it had been introduced by colonial powers. What proliferated instead, was the American style notary public. As a result, in most of North America, to be a notary public is not a prestigious profession and certainly not, as in the civilian tradition, an exclusive status. It is essentially a clerical job performed for a modest fee. While there are people who make a living that way, most of the notaries public perform their acts on a part-time basis or simply in the course of their employment as bank clerks, public employees or secretaries.78

Rather clearly, it is this figure of the American notary public, a rather unimportant secretarial function requiring only a minimum of legal training and expertise, that has provided the job description that has guided the selection of those who have been appointed to serve as notaries in ecclesiastical tribunals in North America.

76.  Henry Steele Commager, The American Mind: An Interpretation of American Thought Since the 1880’s (New Haven: Yale University Press, 1950) 361. 77.  Michael Himes, “Reflections on American Attitudes Toward Law,” CLSA Proceedings 44 (1982) 63–92. In the same vein but more briefly, se Philip Kennicott, “Judge Not: In the Court of Public Opinion, The Bench is on the Hot Seat,” The Washington Post, May 17, 2005, C01. 78. Ibid.

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III. Conclusion

There is little likelihood that North American tribunals will follow the lead of the Roman Rota and the underlying expectations of the Code and begin to appoint as tribunal notaries trained canon lawyers who have the expertise to carry out all of the roles assigned to them by the Church’s procedural law. Nor is it likely that any time soon we will see existing notaries enrolling in faculties of canon law to upgrade their skills. Rather, for the foreseeable future, tribunal notaries will remain members of the tribunal’s secretarial staff who, at least at the time of their hiring, will be largely ignorant of canon law. Nevertheless, tribunals will continue to operate in a legal world that presupposes the availability of European-style notaries and often makes for the validity of procedural acts dependent on the interventions of these notaries. To comply with the expectations of the law with the sort of notaries actually available, tribunals will have to take a number of remedial actions. First, since the position of tribunal notary is an ecclesiastical office, those appointed must meet the qualifications for the office. To hold any ecclesiastical office, one must be “in the communion of the Church”79 and be “of unimpaired reputation and above all suspicion.”80 Since all the baptized are “in the communion of the Church” even if they are not all in “full communion” with the Church, it would seem that baptized non-Catholics are eligible for appointment as tribunal notaries. Those who carry out the function of notary in tribunals must be appointed by the competent ecclesiastical authority before they can validly carry out their responsibilities. The competent authority to appoint tribunal notaries is the diocesan bishop,81 although this is a task that could be delegated to the judicial vicar, the moderator of the tribunal chancery, or whoever is responsible for hiring secretarial personnel for a particular tribunal. No matter who is 79.  1983 CIC, c. 149 §1. 80.  1983 CIC, c. 483 §2. 81.  1983 CIC, c. 483 §1. Although this canon does not specify the authority who is to appoint the chancellor and other notaries of the diocesan curia, canon 485 does provide that they can be freely removed by the diocesan bishop, but not by the diocesan administrator. Normally, the authority who can remove an office holder is the one who can appoint a replacement. Moreover, canon 157 stipulates: “unless the law explicitly establishes otherwise, it is for the diocesan bishop to provide for ecclesiastical offices in his own particular church by free conferral.”

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authorized to appoint notaries in a tribunal, a decree or document must be issued to make provision of the office and a copy of the official appointment should be retained in the employee’s personnel file. Since those who become tribunal notaries are, in practice, hired primarily as tribunal secretaries, it is easy to overlook the additional formalities required for their appointment to ecclesiastical office when these notaries begin to carry out their responsibilities. Second, those who are hired by tribunals as secretaries or administrative assistants and who will be expected to serve the additional role of tribunal notary usually bring adequate secretarial skills with them to the job. Most of them, however, have little if any knowledge of canon law in general and of its substantive and procedural norms governing marriage nullity processes in particular. Consequently, part of their initial orientation to tribunal work should include explicit instruction on marriage nullity procedures and the roles they will be expected to play in them. Notaries should have a sufficient understanding of the marriage nullity process to enable them to be aware of the points at which their professional interventions will be needed and to make sure that these interventions occur. Since they will often be the members of the tribunal staff who field telephone calls from anxious petitioners, respondents and other interested parties about the status and progress of their marriage cases, the notaries’ inservice training should enable them to provide appropriate, accurate and helpful information. Programs like the Institute on Matrimonial Tribunal Practice offered annually by the School of Canon law at the Catholic University of America as well as attendance at regional and national canon law society meetings can help tribunal notaries to upgrade their canonical knowledge. Whatever the vehicles chosen, continuing on-going in-service education is also important to assist notaries to understand and carry out effectively their canonical responsibilities. Third, even with extensive in-service training it is unlikely that many notary-secretaries in North American tribunals will develop the expertise needed to draw up the various decrees and other instruments needed to move the marriage nullity process along toward their conclusions. The task of producing these degrees and instruments can be simplified by use of a computer program in which all of the standard procedural decrees for marriage nullity processes are stored and which allows these formularies to be merged with the data specific to individual cases and printed as

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needed. However, judges and other canonically trained personnel assigned to cases in North American tribunals need to be particularly attentive to insure that notaries have generated the necessary decrees in a timely manner and that all of the legally required signatures, include that of the notary, are affixed to them. Even with the best and most complete set of formularies for merely procedural decrees, the many decrees that are not merely procedural (e.g., decrees rejecting petitions and decrees confirming prior affirmative decisions) and, therefore, must contain the reasons motivating them at least in summary form will still need to be drafted.82 This task will usually be beyond the capacity of the typical tribunal secretarynotary and will have to be performed by the judge himself or herself. Finally, North American tribunal’s almost exclusive reliance on notaries who are primarily secretaries with only limited canonical expertise to transcribe tapes of interviews with parties and witnesses in marriage nullity cases almost necessitates that the notary-secretaries generate verbatim transcripts of these interviews. Since these notaries have little knowledge of the canonical grounds for nullity, it is unreasonable to expect them to be able to take down word for word only those parts of the testimony that bear directly on the object of the trial and to summarize the rest as is suggested by canon 1567 §1. Although verbatim transcripts are the norm in North American legal proceedings which give priority on oral testimony before a jury, they are not the norm in canon law which does not share American law’s fetish for verbatim transcripts. The result of the proliferation of verbatim transcripts (and the related phenomenon of written affidavits submitted in response to generic and often poorly focused questionnaires) in marriage nullity cases is the sort of bloated acts of the case about which Rotal judges have frequently complained.83 This proliferation of irrelevant and unnecessary material in the acts of cases could be avoided if notaries well versed in canon law were available. Since such notaries are unlikely to be available, the bloating of case files could be minimized if judges took a more active role in editing transcripts of interviews to remove irrelevancies and redundancies. One useful technique for achieving this end is for the judge or auditor who is responsible for questioning 82.  1983 CIC, c. 1617. 83.  See, for example, coram Huot, June 26, 1984: RRDecisiones 56 (1984) 437: “The tape contains [answers to] 223 questions of which half are totally useless or not pertinent to the caput nullitatis in question.”

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the party or witness to pose a question to a party or witnesses, allow the person to answer, summarize the answer on tape using the exact words only for those elements that bear directly on the matter of the trial and inviting the person to correct any inaccuracies in the judge’s summary of his or her testimony. The result of the use of this technique (by which the judge or auditor performs the role the law expects the notary to perform) is that the verbatim transcript generated by the notary–secretary will contain only the judge’s summaries of the party’s or witness’ responses to questions. The type of well-trained notaries familiar to denizens of the civil law world and well represented among the staffs of the tribunals of the Holy See probably will never be found in great numbers, if at all, in North American tribunals. These tribunals are hard pressed to engage enough trained canonists to serve as judges and defenders of the bond, the two tribunal offices whose occupants are required to have degrees in canon law. It is, therefore, unlikely that tribunals will be able to afford to divert this scarce supply of personnel to the relatively less important role of notary. Nevertheless, the law of the Church and the legal culture that lies in its background will continue to call for tribunal personnel to fulfill the functions European-style notaries in the marriage nullity process. To accommodate these expectations of the law while retaining American style notaries public in church tribunals, judges and other trained tribunal personnel will have to take a more active role in insuring that the instruments required to move cases along are properly drafted and duly signed. In short, unless canonists serving on tribunals in North America are willing to get their hands dirty carrying out many of the responsibilities the law assigns to notaries, our tribunal practice will continue to be judged at least sloppy, if not incompetent, by judges of the Roman Rota and other officials of the Holy See. I hope Monsignor Green will be active for a long time to train canonists for this important function.

T H E C AT H O L I C U N I V E R S I T Y O F A M E R I C A

phillip j. brown, pss*

Prescription and the Usefulness of Time Under the 1983 Code of Canon Law the time period for the prescription of delicts is calculated absolutely and without exception from the time the alleged offense was committed.1 This norm has been modified in a couple of ways by decree since promulgation of the 1983 Code, which is discussed below. This was not the case under the 1917 Code, which provided that the time period was tempus utile.2 The records concerning the code revision process that resulted in promulgation of the 1983 Code reveal nothing concerning why the qualification tempus utile was left out of the 1983 provisions regarding the prescription of criminal delicts, and one can only speculate, therefore, as to why that may have been done and whether it was inadvertent or intentional. Whatever the case may be, the consequences of this omission are significant and have had an impact on the manner in which the prescription of offenses based on sins against the Sixth Commandment have been addressed over the past twenty years or so. This article will discuss the canonical institute of prescription in relation to criminal delicts and the impact of this change in the law in relation to the 1917 norms and * President-Rector, St. Mary’s Seminary & University, Baltimore, MD. 1.  1983 Code, canon 1362 §2: “Prescription runs from the day on which the delict was committed or, if the delict is continuous or habitual, from the day on which it ceased.” 2. 1917 Code, canon 1702: Omnis criminalis actio perimitur morte rei, condonatione legitimae potestatis, et lapsu temporis utilis ad actionem criminalem proponendam. (emphasis added) 1917 Code, canon 1703: “Firmo praescripto can. 1555 §1 de delictis Sacrae Congregationi S. Officii reservatis, tempus utile ad actionem criminalem proponendam est triennium, nisi agatur . . .” (emphasis added).

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how this change has affected the way that the prescription of the relevant offenses is handled today. It will end by suggesting that it might be prudent to restore the tempus utile qualification to the current law of the prescription of criminal delicts.

I. Prescription in General

Prescription is a broad concept in canon law. It applies to the acquisition or loss of any subjective right as a result of the passage of time.3 With respect to delicts it refers to the ability of the competent authority to proceed with an action to punish the delict. With regard to private actions it refers to the ability of private persons to initiate an action before an ecclesiastical tribunal or some other authoritative ecclesial body to enforce a right or free oneself from an obligation. It also applies to such things as the acquisition of ownership (or “title”) to property, the acquisition or loss of a privilege, and the extinction of various kinds of canonical obligations. Prescription also applies to the amount of time required for custom to gain the force of law. Further clarity can be gained by placing these in relief as distinct from one another: the effects of prescription involving the acquisition of a right, those that effect the loss of a right, and those that act as a bar to proceeding by way of a legal action without reference to whether a right has been gained or lost. The kind of prescription involved can affect whether or not prescription is available in a given case, especially when prescription is viewed as merely procedural rather than as creating or extinguishing a substantive right. This is because procedural rules can usually be altered retrospectively, whereas substantive rights may not be, unless a change in the law is seen as benefitting those whose rights are affected.4 The recent clergy sexual misconduct scandals in the United States and elsewhere have focused attention on prescription in relation to canonical delicts.

3.  1983 Code, canon 197: “The Church receives prescription as it is in the civil legislation of the nation in question, without prejudice to the exceptions which are established in the canons of this Code; prescription is a means of acquiring or losing a subjective right as well as of freeing oneself from obligations.” 4.  1983 Code, canon 9: “Laws regard the future, not the past, unless they expressly provide for the past.”

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a. Roman Law Background

Canon 197 of the 1983 Code states that “prescription is a means of acquiring or losing a subjective right as well as of freeing oneself from obligations.” Thus, “prescription” in canon law concerns all subjective rights, not just legal actions. Prescription may bar an action in an ecclesiastical tribunal; but it can also result in a change of property ownership, the acquisition, retention or loss of a privilege, or to the acquisition or loss of any other kind of subjective right. In this article we are concerned with the barring of the prosecution of criminal delicts by prescription. Thus, we have to distinguish between the barring of actions for the prosecution of a criminal delict due to the passage of time, and other canonical consequences that accrue through the passage of a prescribed time limit. It is helpful to look at the history of prescription in its broader sense as affecting all subjective rights and obligations, especially as it has been applied to property rights, in order to gain a better understanding of how it has evolved as a canonical institute with respect to the prescription of criminal delicts. This is because the prescription of criminal actions and penalties is a relatively recent phenomenon in canon law, whereas prescriptive rights in general have a long and rich history. The prescription of criminal actions first appears in canon law in the late nineteenth century, followed by its incorporation into the norms of the 1917 Code. Its distant origins, however, are found in Roman law. Although actions were in principle perpetual in Roman law, over the course of history time limitations began to be established for various kinds of actions.5 The institutes of usucapio and praescriptio, dealt principally with a determination of rights of dominium (actual ownership of property) and possessio (actual control of property owned by another with the intent of treating it as though it were one’s own, best described as similar to what we understand as the distinction between the owner of property and a tenant). 5. Edgar H. Ailes, “Limitation of Actions and the Conflict of Laws,” Michigan Law Review 31 (1932–33) 474, citing William Warwick Buckland, A Text-Book of Roman Law from Augustus to Justinian (Cambridge, UK: University Press, 1921) 683–684; Rudolf Sohm, The Insti­ tutes: A Textbook of the History and System of Roman Private Law, trans. James Crawford Ledlie, 3rd ed. (Oxford: Clarendon Press 1907) 282–284; Paul Frédéric Girard, Manuel élémentaire de droit romain, 6th ed. (Paris: A. Rousseau, 1918) 740.

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The Twelve Tables contained rules for determining usucapio. 1 Gaius Institutes, sec. 44 refers to the social utility of this kind of legislation.6 The emperors Honorious and Theodosius decreed that all actions should be barred after specified periods “moved by obvious considerations of convenience.”7 The Civil Law also recognized actiones temporalis which could be maintained only if brought within prescribed periods, requiring that certain actions, such as de statu defuncti, be brought within a defined time period. The effects of the passage of a prescribed time period also applied to the enforceability of rights and obligations established by custom, in relation to the point in time at which a custom would be considered to have gained the force of law. The existence of time limits for bringing criminal prosecutions or their equivalent is more uncertain in Roman law. This is because the entire matter of criminal law is a rather uncertain thing in the study of Roman law. It is also because of the relationship between what today would be considered “crimes” and the “delictual action” in Roman law. The delictual action, as such, was a private action (rather than one initiated by the public authority), at least until the post-classical period. However, at a certain time in Roman legal history, so far as is known, the public authority also started awarding what today we would consider money damages to an injured party in a related criminal prosecution. Available sources are not entirely clear, however, regarding how these mechanisms worked in Roman law. Roman law addressed what today we consider crimes in a very different way than modern legal systems. Very few crimes were prosecuted and punished exclusively by the public authority, and there was nothing in Roman law akin to the comprehensive criminal law of today.8 Most offenses that we consider crimes today were relegated to the “delictual action,” an institute of private law whereby the injured party, or any citizen for that matter, could prosecute an offense on his own initiative. Upon conviction, punishment for the offense might involve money damages, or even a “fine,” paid, however, to the injured party not to the state.9 The 6.  Ibid., 474, footnote 1. 7.  Ibid., citing Sohm, 283 and Buckland, 251. 8.  Adolf Berger, Encyclopedic Dictionary of Roman Law, s.v. “Crimen,” (Washington: Catholic University of America Libraries, 1953) 418. 9. Ibid.

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amount paid might be assessed in relation to proof of the damage suffered by the injured party, but conceptually the payment was punitive rather than compensatory, however much it might look like “damages” in the modern sense. Furthermore, the assessment of such “damages” was clearly dependent on a finding of criminal wrongdoing rather than of “negligence” as understood in modern Anglo-American tort law. In postclassical Roman law delictum and crimen began to be used interchangeably, since by that time public prosecution had absorbed the prosecution of wrongdoings previously classified as delicta.10 Nevertheless, what we refer to today as “damages” for private injuries were given in Roman law only in relation to conviction of culpable behavior for the commission of a “delict.”11 Roman law did not in general have time limits for taking action in criminal matters. The prescription of a criminal action seems first to have appeared in the Lex Iulia de Adulteriis in 18 B.C. According to this law, a husband was not allowed to accuse his wife of adultery more than five years after the offense was alleged to have occurred. It seems that prescriptive time limits were eventually established for other crimes as well, such as theft, violent robbery, insult and wrongful damage to property. The Codex also attests to a constitution of Severus Alexander in 223 A.D. which established a time limit of fifteen years for a man to accuse his wife of adultery.12 What is not at all certain, however, and perhaps impossible to ascertain from the available sources, is the effect that the limitation of private actions had on the delictual action, given its nature as private law. Authors have concluded in general that there were no limits on the prosecution of criminal actions (except as already noted), but are otherwise silent on the question of limits to the delictual action per se, except as it related to criminal actions, especially in later Roman law. 10. Ibid. 11.  This approach finds its echo in canon 1729 of the 1983 Code, which allows for the appending to a penal trial of an action for damages by an injured party, showing the rootedness of canon law in the “delictual action” of Roman law. This should be clearly distinguished from the approach of Anglo-American law in which private actions for personal damage have been completely severed from the prosecution of criminal offenses. Thus, in Anglo-American law two different systems and two separate bodies of law have developed: one for criminal offenses addressed by the public authority (criminal law), and the other for addressing personal injuries (whether physical injury or injury to some other protected personal interest) dealt with as a matter of private law (that is, the tort law system). 12.  C. 9.5.5.

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As noted, the right to bring a legal action was generally considered perpetual in Roman law. Lapse of time did not extinguish obligations or the right to bring an action on an obligation until very late in Roman legal history.13 Many praetorian actions were annuae, however (referring not to a time limit for bringing the action, but to a time for completing the action once commenced; thus, these praetorian actions had to result in a judicial decision within one year of initiation, or they were concluded by force of law at that time). Thus, Roman law imposed time limits for concluding actions once commenced, but not for commencing litigation in the first place. It is only in the fifth century that Theodosius barred the bringing of an action after a thirty-year limit, with exceptions for certain privileged cases.14 Prior to this, civil actions were considered perpetual, with a few notable exceptions imposed by express legislation such as the actio auctori­ tatis which was regulated by the time limit of usucapio, the lex Furia which limited actions against sponsores and fidespromissores to two years, the que­ rela inofficiosi testamenti which altered the period of limitation from time to time, and actions under the lex Cicereia which were limited to thirty days.15 Normally, praetorian actions ad rem persequendam were, at least in theory, potentially perpetual in duration once commenced when based on a civil law rule, but otherwise annuae (they had to be completed within one year dies utiles from their initiation).16 It must be noted, however, that the available texts are not entirely clear about this, and their correct interpretation is controverted. The coming into force as law of custom after the passage of a prescribed period of time can be thought of as a kind of prescription. The sources for understanding how Roman law viewed the passage of time as giving custom the force of law are by and large from the late Roman period, principally the Corpus Iuris Civilis of Justinian as understood and commented on by the Glossators and Post-glossators. The commentators seem to have been of the common opinion that ten years observance was sufficient for a customary rule to be considered law, deriving this from the

13.  Buckland, 341. 14.  Ibid., 367. 15. Ibid. 16. Ibid.

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rules of longi temporis praescriptio in Roman law (Inst. 2.6. pr.; C.7.31.1).17 The medieval commentators were not confusing custom and prescription, but rather simply holding by analogy that if “long” as understood temporally meant ten years in the one case (for prescription), it ought to mean the same thing in relation to custom becoming law. This kind of analogy has been favored in canon law as well, since a number of papal constitutions required that a custom should be legitime or canonice praescripta18 (though canonists generally held the prescriptive period to be forty years, rather than ten, at least for customs that derogated from the common law of the Church, based on Justinian’s prohibition against prescription against the Church in any shorter period of time).19 Indeed, some canonists required “time immemorial” for custom to become law, a standard not found in Roman law.20 The ability of custom to become law through the passage of time has long been hedged about with qualifications designed to prevent irrational or otherwise socially harmful customs becoming enshrined as law. Thus, C.8.52.2 declared that a custom is invalid not only if it conflicts with statute law, but also if it is “against reason.”21 Canon law further prohibited customs contrary to ius divinum or ius naturale, or that infringed the principles of the Church, from ever becoming law.22 Consternation over the possibility of irrational, harmful or even evil norms acquiring the force of law through the mere passage of time reflects the ambivalence that the law has always shown toward prescription. All legal systems, but canon law in particular (at least until the late Twentieth century), have approached the idea of fixing legal rights in relation to the passage of time alone with the utmost reserve. For, as C. F. Glück once remarked, “A hundred years of wrong do not make an hour’s right.”23 Likewise, the prescription of criminal actions can easily result in perceived if not actual injustices sanctioned by the law itself. The establishment of custom as law, or the acquisition or 17.  H.F. Jolowicz, Roman Foundations of Modern Law (Oxford: Clarendon Press 1957) 24, citing Siegfried Brie, Die Lehre vom Gewohnheitsrecht (Breslau: M. & M. Marcus, 1899) 143 and Suarez, De legibus, lib. Vii, c. 15. §5. 18.  Ibid., footnote 4 referring to C. II. x. I. 3. 33, and the gloss on C. II. I. 4. 19.  Ibid., citing Nov. 131. c. 6. 20. Ibid. 21.  Ibid., 32. 22.  Ibid., 33, citing Brie, 33. 23. Ibid.

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loss of legal rights through the passage of time, may settle matters once and for all, and in many instances guard against unfairness or injustice to those accused of crimes; but it can just as easily result in injustice with regard to property rights or other subjective rights, and allow some who are plainly guilty to go free. Thus, prescriptive rights have always been viewed skeptically by the law and by society, and the law has struggled with the question of how to develop norms of prescription that will minimize the risks of injustice and dangers to the community, while making prescription available in appropriate cases to avoid injustice and protect the innocent from unjust prosecutions. b. Medieval Canon Law

It is not surprising that property rights were a major focus of attention regarding prescription in medieval canon law. During the middle ages the Church controlled vast estates in real property, producing enormous streams of income. Ascertaining legal ownership of real property, or at least the legal right to revenues deriving from it, was of considerable consequence to the Church. As often as not, establishment of the boundaries of ecclesiastical territories such as parishes or dioceses, or of properties lying within the bounds of a monastic foundation, was the principle concern to which the principles of prescription were applied. Also important were the effects of the benefice system. Under that system the boundaries of a given benefice determined who was entitled to receive the income. Thus, title to real estate belonging to a benefice, as determined by its boundaries, was a question of great consequence to those concerned. The income of the rector of any church depended in part on the territorial boundaries of the parish. Likewise, parish boundaries determined to whom the parishioners were required to pay tithes. However, boundaries were subject to considerable uncertainty during this period due to a lack of adequate mapping and surveying methods. Thus, disputes over boundaries were sure to occur, even if the boundaries had in fact been established at the time the parish was erected. As often as not, disputes could only be settled by applying norms of prescription.24

24.  Richard H. Helmholz, The Spirit of Classical Canon Law (Athens and London: The University of Georgia Press, 1996) 174.

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The fundamental problem for the Church was whether established rights to property, or to an office, should ever be overridden simply as a result of the passage of time. That is, should the continuation of an illegal act for a lengthy period of time render it legal? The recognition of custom as law through the passage of time relies on the tacit consent of those involved. Prescriptive rights that originate in the violation by one person (whether knowingly or otherwise) of the rights of another are another matter. It is wrong in principle to allow someone to keep property or some other good that lawfully belongs to another; and if the deprivation was knowing and intentional, it is in fact sinful. Thus, prescription was a very challenging concept to a system self-consciously based on morality and religion. In fact, the continuance of a sinful act, far from making it less sinful, increases its sinfulness according to some medieval writers.25 Nevertheless, medieval canonists were aware that every legal system incorporates principles of prescription to settle property rights, and they recognized the practical reasons for the Church doing so as well.26 The period during which the canon law of prescription developed (i.e., the thirteenth and fourteenth centuries) saw many examples of longstanding tenure of property and usages contrary to established rules that clerics considered usurpations of ecclesiastical property, but laypersons considered as establishing rights. On the other hand, many of the Church’s own property rights were in fact settled through long usage rather than juridically clear acquisition. Furthermore, secular authority was weak during these times, and dislodging those who were actually in possession and safeguarding property rights obtained through prescription would not have been easy. Establishing rights would also have been quite difficult, because accurate record-keeping was the exception rather than standard practice, and most transactions were oral in any event. Thus, the development of adequate legal rules for prescription must have seemed imperative to medieval canonists. In developing such rules they relied heavily on texts from the Corpus iuris canonici and Corpus iuris civilis, from which commentators developed a law of prescription “ . . . that turned out to be different from that found in any one of the sources. It was a system not 25.  Gl. Ord. ad X 2.26.5: “Nota quod diuturnitas temporis peccatum non minuit sed auget.” Cited by Helmholz, 176, footnote 4. 26.  Helmholz, 176.

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without faults and absurdities But it was a sophisticated and remarkably durable system nonetheless.”27 a. Gratian

Gratian addresses prescription in Causa 16 of the Decretum. His example involves a dispute between a parish church and a monastery over a church the monastery was in possession of for over forty years. The pastor of the neighboring parish claimed it was a chapel within the precincts of his parish. The real dispute was over the revenues from the church. Quaes­ tio 3 asks “whether the rights of churches [were] to be taken away by prescription.”28 In his response, Gratian relies on four texts from the earliest centuries of Christianity: a canon from the Council of Chalcedon (451), a letter of Pope Gelasius (c. 494), and two canons from the Fourth Council of Toledo (633),29 all of which dealt with resolving disputes over parish or diocesan boundaries. All four favored prescription, holding that where boundaries had remained unchanged and unchallenged for thirty years or more they should not be challenged.30 This followed principles of Roman law, and perhaps those of Christian emperors found in the Codex. (C. 7.39.7) The glossa ordinaria to Quaestio 3 notes that prescription cannot be justified as part of natural law, since it is contrary to natural right, and because one person is enriched at the expense of another’s right. Gratian acknowledges that prescription was introduced as a matter of positive law, “lest dominion of things be left forever uncertain.”31 Thus, at least as early as the twelfth century canon law explicitly acknowledged as the rationale for prescriptive rights the necessity that the law bring litigation with its accompanying disruption of social order to an end. This remains a principle rationale for prescription to this day. However, because prescription contravenes natural rights, it has also always been disfavored by the 27.  Ibid., 178. 28. Ibid. 29.  It is noteworthy that Gratian relied on texts from a Spanish council. Church property rights were especially unsettled in Spain at this time due to the Muslim invasions. Thus, at the time Gratian was writing the resolution of boundaries and property rights in the Spanish Church was of particular moment. 30.  Helmholz, 179. 31.  Ibid., 180, citing Gl. ord. ad C. 16. 3 c. 4 s.v. legis: “nam de iure naturali non sunt praescriptiones inductae; nam de iure naturali iniquum est aliquem ditari cum aliena iactura . . . sed ideo inventa est praescriptio, ne dominia rerum semper sint in incerto.”

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law. Especially during the medieval period, statutes allowing prescription were to be strictly construed, and were hedged about with exceptions and qualifications.32 On the other hand, since it brings litigation to an end and restores stability in the face of uncertainty, prescription has to that extent been favored by the law, at least after long possession of property or the exercise of a right. Gratian refers to C.9.5.5 (the text concerning adultery noted above) with respect to the prescription of criminal actions in Causa 32 q.1 d.p.c.10 of the Decretum (although this reference is not included in later recensions).33 In q.1 he treats the question of whether or not, and under what conditions, a man could keep a wife who has committed adultery. A rubric in the margin of St. Gall states that “adultery cannot be prosecuted after 15 years,” reflecting the influence of Roman law.34 However, according to at least one scholar of medieval canon law “. . . as far as I know, this rule of Roman law was never accepted by the canonists.”35 Thus, while there may be evidence of some kind of criminal prescription in Roman law, there does not appear to be any evidence that the prescription of criminal offenses was adopted in canon law prior to the late 19th century. b. Gregorian Decretals

The Gregorian Decretals restated and amplified the rules for prescription found in the Decretum, adding one important qualification: the requirement of good faith.36 Prescription could not be relied on to gain title to property (or other property rights) unless the possessor acquired the property believing that it was rightfully his. Canon law would not tolerate the acquisition of property as a consequence of the mere passage of time if it had been obtained through cleverness, chicanery or concealment. The 32.  Ibid. See Helmholz, 180–185 for a discussion of the kinds of limitations that medieval canon law placed on prescription. 33.  Kenneth Pennington, “The ‘Big Bang’: Roman Law in the Early Twelfth-Century,” Rivista internazionale di diritto comune 18 (2007) 67. 34.  Ibid., citing St. Gall, Stiftsbibl. 673, fol. 178a. 35. Ibid. 36.  In fact, Gratian seems to have assumed that good faith would be absent in some cases; see D.p. C. 16 q. 3 q. 15 §1. While Roman law had also admitted the possibility of prescription in spite of possession in bad faith, canon law explicitly rejected this aspect of its Roman law heritage. Citing the Letter to the Romans to the effect that “whatever is not from faith is sin,” the Fourth Lateran Council decreed that “no prescription, whether civil or canonical, shall be valid without good faith.” (see: Decretals of Gregory IX, X. 2.26.20)

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possessor must have acquired the property honestly and without knowledge of the true state of the title. Canon law therefore disavowed any system of prescription that would entertain concealment of the truth as a means of gaining or losing rights. This eventually raised the question of how to deal with the situation of someone who gained possession in good faith, but subsequently learned the truth that someone else has a superior claim of ownership. If a clear conscience on the part of the possessor is a determining factor for allowing prescription, what difference would the passage of time make once he becomes aware of the true state of the title and can therefore no longer continue possession in good faith? If the property really belongs to someone else, can he retain possession without committing sin? Respectable theological opinion held that he could not.37 How could canonists adopt the theologians’ position without ignoring clear provisions of the Decretals, and a principal point made by the Decre­ tum, that such prescription is possible and consistent within the assumptions of canon law? Adopting the position of the theologians would relegate prescription to a mere theoretical possibility, since most disputes arise only after the possessor becomes aware of the other party’s claim to title. It was necessary for canonists to reconcile formal canonical enactments with the position of the theologians, that is the allowance of prescription with claims of conscience and the requirements of salus animarum. They did so in two ways.38 The first was to make distinctions that could reasonably be argued as a basis for allowing prescriptive title. Joannes Andreae proposed a distinction between taking and retaining. He considered it reasonable to say that where a possessor had not himself taken property, but only held what someone else had taken, he should be treated more leniently than the one who had actually taken in bad faith. This, in his mind, would justify allowing the former, but not the latter, to retain the property after the truth became known. Andreae’s idea is not unlike the notion of a “good faith purchaser” in modern commercial law. Alanus Anglicus suggested a distinction between property taken ex causa lucrativa and property acquired 37.  Helmholz, 191, citing Hostiensis, Summa aurea II, tit. De praescriptionibus, no. 3, and referring as well to José Luis de los Mozos, “Del Aforismo ‘Mala fides superveniens nocet’ a la ‘Bona fides’ canonica,” in Estudios canónicos en homenaje al Profesor D. Lamberto de Echeverria (Salamanca: Universidad Pontificia de Salamanca, 1988) 351–70. 38. Ibid.

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for some other legitimate reason. And Hostiensis treated the question of good faith as a question of fact, leaving it to the conscience of the possessor. The advantage of these distinctions was that they allowed canonists to reconcile the texts they were working with: texts that denied prescription were in agreement with one set of distinctions; those that allowed it agreed with the others. The disadvantage was that the distinctions seemed arbitrary. Therefore, the solution most canonists relied on was to simply recognize the power of the lawgiver, as a matter of positive law, to legislate in favor of prescriptive rights. In this way, prescription was effected not by the bona fides, or knowledge or lack of knowledge of the possessor, but by the law itself: title transferred by operation of law, not through the disposition or actions of the possessor. His continued possession was considered an incidental result of following the law’s dictates to cure title to the property. Thus, the possessor’s conscience at the end of possession (as opposed to at the beginning) was irrelevant, since at that point the possessor played only a secondary role in the transfer of title, which occurred through operation of law.39

II. Contemporary Canonical Norms on Prescription

a. 1898 Response of SCBR

Whatever influences Roman law may have had, and whatever the influence of the medieval canon law of property rights, the prescription of criminal actions in canon law finds its immediate source in a response to a dubium submitted by the bishop of Lublin to the Sacred Congregation for the Council on 16 June 1894. The dubium asked whether either a private person or the public authority was prevented from taking action against a cleric guilty of a carnal delict due to the passage of time. It further asked how many years had to pass, if the law did recognize a time limit, before punishment of the offender would be barred. The question was transferred to the Sacred Congregation for Bishops and Regulars in 1897, which gave its decision on March 22, 1898. The Congregation outlined the following limits in its response: one year for injury, five years for property claims or carnal delicts, and twenty years for other crimes. The Congregation 39.  Ibid., 192.

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noted further that for certain carnal delicts the longer time limit of twenty years would be required. The more serious delicts mentioned were: abduction, rape, and incestuous adultery. The Congregation did not recognize any time limit to act with respect to certain other delicts: sodomy, assassination, counterfeiting, apostasy, heresy, simony, claiming false fatherhood, genocide, dueling and extortion. The time limit for prescription was to be considered continuous, with the following qualification: namely, that the time begins to run on the day the crime was committed, unless completely occult (that is, known only to the one who committed it), in which case the time would begin to run from the day the crime became known to the accuser or the investigator. b. 1917 Code

The canonical institute of prescription was incorporated in the 1917 Corpus Iuris Canonici both with respect to property and other subjective rights, and with respect to criminal delicts. The rules for the extinguishment by prescription of civil actions, both real and personal, were contained in canons 1508–1512. Actions that pertained to the status of persons (such as the validity of religious profession, sacred orders or marriage) were held never to be extinguished (c. 1701; c. 1492 §1 of the 1983 Code restates the same principle).40 Canon 1508 provided that the laws of the country involved were to be applied in canon law for determining prescription (that is, civil law was “canonized”), with a few notable exceptions as outlined in canons 1509–1511.41 In any given case, therefore, the law of prescription of the civil jurisdiction where the question arose governed under the 1917 Code.42 Some commentators assume that the canon law of prescription and American and English law of prescription differ significantly in their underlying bases. As already noted, Roman law, and later canon law insofar as it pertains to property ownership, came to understand prescription as extinguishing the right of the former owner and transferring title by operation of law to the possessor. According to some commentators, however, English and American law simply offer a remedy for wrongful possession and extinguish the availability of that remedy after a particular period 40.  Stanislaus Woywod, rev. C. Smith, A Practical Commentary on the Code of Canon Law (New York: Joseph F. Wagner, Inc.; London: B. Herder, 1957) 274. 41.  The same principle applies in the current discipline: see 1983 Code, cc. 197–199. 42.  Which ordinarily is the case today under the 1983 Code as well.

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of time has passed if, and only if it is raised as a defense by the party in possession in an action by another to recover possession. In other words, in English and American law the right to institute a court action to recover possession is barred by passage of the prescriptive time period if raised by the possessor, but title is not transferred by operation of law as in Roman and canon law.43 A noted civil law commentator, however, does not agree, saying: “While in form these statutes [of limitation] merely limit the right of the owner to bring legal proceedings to repossess his property or to recover its value in the case of a conversion, all but universally in the United States the expiration of the statutory period has the effect not only of barring the legal remedy, but also of extinguishing the owner’s title and of transferring it to the adverse possessor or possessors.”44 The significance of the difference is that transfer by operation of law affects the substantive rights of the parties, whereas the availability of a defense that can be raised once an action is commenced is more in the nature of procedural law. And as noted earlier, substantive rights ordinarily cannot be altered retroactively, whether in civil or canon law, whereas procedures and procedural rights can. As far as the 1917 Code was concerned, every criminal action expires with the death of the perpetrator or her or his pardon by the competent authority. More importantly for our purposes, a criminal action was extin­ guished by passage of the time fixed for bringing the action (c. 1702); the time limits for various offenses were set forth in c. 1703. Canon 1703 also provided that the Sacred Congregation for the Holy Office (the predecessor of the Congregation for the Doctrine of the Faith) was permitted to follow its own rules with its own time limits for offenses reserved to it; namely (as identified in the 1917 Code): heresy, solicitation during the course of a sacramental confession, and absolution of an accomplice in a sin against the Sixth Commandment. For cases not reserved to the Holy Office, one could only be prosecuted within three years of the commission of the offense, with the following exceptions: 1) actions for defamation, insult, striking and wounding, and other kinds of injury were extinguished after one year; 2) actions for certain offenses against the Sixth and Seventh 43.  Ibid., 275. 44.  Ray A. Brown, The Law of Personal Property, third ed. by Walter B. Raushenbush sub nom. Brown on Personal Property (Chicago: Callaghan & Company, 1975) 33.

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Commandments were extinguished only after the passage of five years; and, 3) actions for simony and homicide were extinguished only after ten years.45 The 1917 Code did not explicitly define the offenses that carried a fiveyear limitation period. Canonists of the era interpreted canon c. 1703 as referring to offenses against the Sixth Commandment during the commission of which another crime was committed by the same act; for instance: rape involving violence committed against the victim; the sacrilege involved when theft occurs in a church, or involves a sacred object. It would have been important, of course, to know exactly which crimes were considered “delicta qualificata” in c. 1703, since ordinary offenses involving the two Commandments mentioned carried only a three-year statute of limitation, whereas the more serious offenses carried a five year limitation. E. Eichman considered the offenses to be those mentioned in cc. 2357, 2359 §2 and 2354.46 If so, they would have been the following if committed by a lay person: a sin against the Sixth Commandment committed with a minor under sixteen years of age, rape, sodomy, incest, and “trafficking in vice;” also included would have been public adultery, or publicly living in concubinage (c. 2357). The five year limitation applied, according to Eichman, to the following delicts when committed by a cleric: a sin against the Sixth Commandment with a minor under sixteen years of age, adultery, rape, bestiality, sodomy, trafficking in vice, incest with a relative within the first degree, whether by blood or marriage (c. 2359), homicide, abduction of a minor, selling a human being as a slave or for any other evil purpose, usury, robbery, theft under aggravating circumstances, theft of a sacred thing or ordinary theft in a very grave matter, arson, malicious and very wanton destruction of things, grave mutilation, and wounding or violence. He also considered the five year limit to apply to a cleric living in concubinage, but only after failing to heed the admonition of his ecclesiastical superior to separate and repair the scandal. Canon 1703 was largely taken from the 1898 decree of the Congregation of Bishops and Regulars, which enumerated the crimes for which twenty years were required before prosecution would be barred, and which also enumerated other crimes for which prosecution could be initiated anytime 45.  Woywood/Smith, 275–276. 46.  Ibid., 276.

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during the life of the offender. The 1898 decree did not, however, use the expression “delicta qualificata.” Therefore, Eichman’s opinion would have held only if that term was considered to apply to the offenses enumerated in cc. 2357, 2359 §2 and 2354 and no others. A significant feature of the 1917 Code’s treatment of the prescription of criminal actions was the designation of prescriptive time periods as tem­ pus utile. The practical and canonical effect of this designation was that the prescriptive time periods involved did not run during any times when the competent authority was unable to act. Thus, if the competent authority was unaware that a crime had been committed, and there was no accusation, the prescriptive time period would not begin to run until an accusation was made or the competent authority otherwise became aware that a crime had been or may have been committed.47 Including the qualification tempus utile did not contradict the underlying rationales for the prescription of criminal actions, but rather balanced legitimate interests of accused persons against those of the community: the interest of the accused that he be able to defend himself effectively, and the interest of the community in the effective prosecution and punishment of crimes. The tempus utile qualification did not allow the competent authority to use the threat of prosecution manipulatively, since no such malicious motive could be present when the competent authority was unaware of the offense or of any accusation. Establishing prescriptive time limits recognized the importance of assuring that accused persons be able to defend themselves by requiring action by the competent authority to the extent possible before potentially exonerating evidence would disappear, or witnesses’ memories fade. Making the time limit tempus utile, however, took into account the fact that if justice and good order in the community require that crimes be prosecuted and punished, this can only be done once the competent authority knows that a crime may have been committed. 47.  The 1898 decree of the Sacred Congregation for Bishops and Regulars provided that the time limit began to run at the time the crime was committed, unless the crime was completely occult. This meant that if anyone other than the offender, including the victim, knew of the crime, the time limit would begin at the time the offense was committed. The 1917 Code did not include the same qualification, however, stating only that the time period is tempus utile. The term tempus utile ordinarily applies with respect to whoever has the right in question, including the public authority. It is at least arguable that under the 1917 Code even if a victim knew that a crime had been committed, the time period for prosecuting the crime would not begin running until the public authority gained knowledge of it.

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c. 1983 Code

The norm of the 1917 Code was transformed by the 1983 Code, which eliminated the qualification that prescriptive periods be calculated tempus utile. The effect of deleting tempus utile from the 1983 Code is that under the 1983 Code prescriptive periods begin to run the moment an offense is committed, regardless of the knowledge of anyone other than the perpetrator and the victim, extinguishing the possibility of prosecution absolutely upon passage of the established time limit. An unfortunate consequence of this change is that it would seem to encourage the concealment of offenses, even intimidation of victims and witnesses into silence, more than might otherwise be the case, and creating a perverse incentive for doing so. The general rule of prescription in the 1983 Code is found in canon 197: Canon 197—The Church receives prescription as it is in the civil legislation of the nation in question, without prejudice to the exceptions which are established in the canons of this Code; prescription is a means of acquiring or losing a subjective right as well as of freeing oneself from obligations.

The prescription of criminal prosecutions and penalties is found in canons 1362, 1363, 1718 and 1720. A leading commentary on the 1983 Code addresses the rationale for prescription, which it says: . . . is grounded in societal needs for the peace and good order that ensue from bringing closure to disputes, precluding prolonged uncertainty of ownership, curing transactional defects flowing from failure to fulfill formalities, avoiding the bringing of stale claims after witnesses and relevant documentary evidence are no longer available, and encouraging social and economic development and productivity by removing fears of future litigation.48

With regard to criminal prescription, the commentary states: A concern for the public good requires that criminal actions be pursued expeditiously. The evidence may become stale if too long a time lags 48.  Robert T. Kennedy, “Title X Prescription [cc. 197–199]” (introduction), in New Com­ mentary on the Code of Canon Law, ed. John P. Beal et al. (New York/Mahwah, NJ: Paulist Press, 2000) 230.

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between the commission of an alleged delict and its formal prosecution. Furthermore, the legal security of the accused is unduly jeopardized if church authorities do not pursue potential criminal actions with reasonable expeditiousness.49

The general norms for the prescription of criminal actions are contained in canon 1362: Canon 1362—§1. Prescription extinguishes a criminal action after three years unless it concerns: 1° delicts reserved to the Congregation for the Doctrine of the Faith; 2° an action arising from the delicts mentioned in cann. 1394, 1395, 1397, and 1398, which have a prescription of five years; 3° delicts which are not punished in the common law if particular law has established another period for prescription. §2. Prescription runs from the day on which the delict was committed or, if the delict is continuous or habitual, from the day on which it ceased.

Canon 1362, following the practice of prior law, provides that prescription extinguishes criminal actions; that is, it prevents the prosecuting authority from initiating a criminal action after the prescriptive period has run.50 It also follows prior law in holding that the prescription of criminal actions runs from the day on which the delict was committed. It notably alters prior law, however, by deleting any reference to the prescriptive period being tempus utile. The effect of this is that the time period for the prescription of criminal actions in canon law is absolute, to be calculated from the moment the delict was committed, although with respect to certain offenses the initiating event may be something other than the commission of the offense itself. Thus, regardless of whether a delict was known to the prosecutorial authorities or not, and even if knowledge of the delict by the authorities was actively concealed or suppressed by the perpetrator, the ability of the authorities to initiate a criminal action is extinguished by operation of law upon the passage of the prescriptive period. This interpretation seems to be reinforced by the language of canon 198 which states explicitly that the requirement of good faith mentioned therein is 49.  Thomas J. Green, “Prescription of Criminal Actions-Canon 1362,” in New Commen­ tary, 1573. 50.  But see the discussion below of the significance of the term extinguitur in c. 1362.

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“without prejudice to Can. 1362.” It seems clear that the drafters of canon 198 had the manner of calculating time for the prescription of criminal actions established by canon 1362 explicitly in mind when they addressed the question of good faith and the calculation of time for the prescription of non-criminal actions. Canon 1718 concerns prescription in that it requires an ordinary, when conducting a preliminary investigation into the possibility that a delict has been committed, to determine whether a process to inflict or declare a penalty can be initiated even if it is found that the delict did occur. This obviously has reference to the fact that any action to punish a delict is extinguished once the prescriptive period has run. Canon 1720 is relevant because it requires the ordinary to issue a decree according to cc. 1342–1350 if “a criminal action is not extinguished.” The prescriptive periods set forth in c. 1362 for specific classes of crimes do not apply to delicts reserved to the Congregation for the Doctrine of the Faith, delicts mentioned in cc. 1394, 1395, 1397 and 1398, or delicts not punished in the common law if particular law has established another prescriptive period (a qualification beyond the scope of the current study). The first two exceptions are of particular interest because they touch on issues involved in the recent scandals surrounding the sexual abuse of minors by clerics in the United States. Regarding delicts reserved to the Congregation for the Doctrine of the Faith, when first published in 1995 the commentary The Canon Law: Letter & Spirit of the Canon Law Society of Great Britain and Ireland held that “There is, regrettably, no official list of the offences thus reserved.”51 The New Commentary on the Code of Canon Law of the Canon Law Society of America noted that “one needs to consult CDF rules for delicts of faith or morals referred to it (PB 52).”52 The 1917 Code did not list crimes reserved to the Holy Office (now the CDF) other than those already noted (simony, heresy and absolution of an accomplice in a sin against the Sixth Commandment), nor does the 1983 Code. Hence, prior to 2001 no crimes came under the special procedural

51.  John Martin, “The Cessation of Penalties,” in The Canon Law: Letter & Spirit, ed. Gerard Sheehy et al. (Collegeville, MN: Liturgical Press, 1995) 783, par. 2724. 52.  Thomas J. Green, “Prescription of Criminal Action,” in New Commentary, 1573.

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rules, or any special rules regarding prescription, of the CDF other than the three noted.53 d. SST

Any uncertainty about what delicts are reserved to the CDF was removed in 2001 through promulgation of the Apostolic Letter Issued Moto Proprio known as Sacramentorum Sanctitatis Tutela (SST), which identifies the more grave delicts reserved to the Congregation for the Doctrine of the Faith.54 They are: (1) Certain delicts against the sanctity of the Most Holy Sacrifice and Sacrament of the Eucharist, namely: (a) Taking or retaining for a sacrilegious purpose, or the throwing away of the consecrated species as mentioned in c. 1367 of the Latin code and c. 1442 of the Eastern code. (b) Attempting the liturgical offering of the Eucharistic Sacrifice as mentioned in c. 1378 §2, n. 1, or simulation thereof as mentioned in c. 1379 of the Latin code and c. 1443 of the Eastern Code. (c) Concelebration of the Eucharistic Sacrifice as prohibited by c. 908 of the Latin code and c. 702 of the Eastern code as mentioned in cc. 1365 of the Latin code and 1440 of the Eastern code with ministers

53.  It has been argued by some that the so-called graviora delicta were not subject to prescription prior to 2001 because they had been reserved to the Holy Office/CDF and the Holy Office had not established any prescriptive period for them. [See: Gordon F. Read, “Clerical Sexual Abuse of Minors: Recent Developments,” in Newsletter of the Canon Law Society of Great Britain and Ireland no. 139 (September 2004) 25).] However, of the crimes referred to as graviora delicta in SST it appears that only solicitation to an act against the Sixth Commandment in the confessional and the absolution of an accomplice in a sin against the Sixth Commandment were ever reserved to the Holy Office. As discussed in the text regarding prescription in the 1917 Code, canon 1703 of the 1917 Code did speak of delicta qualificata, but not of graviora delicta (the origin of this expression apparently being the 1898 Decree of the Sacred Congregation of Bishops and Regulars mentioned in the text). However, it did not identify what the delicta qualificata were, nor was there, nor has there ever been any indication that any such crimes were reserved to the Holy Office/CDF prior to SST. Thus, any such crimes, whatever they may have been, were covered by the general and specific rules regarding prescription established by the 1917 Code, other than for the crimes specifically reserved to the Holy Office at that time (heresy, solicitation and absolution of an accomplice). See: Woywod-Smith, A Practical Commentary, 275–276; Charles Renati, “Derogation and Prescription,” in Advocacy Vademecum, ed. Patricia M. Dugan (Montreal: Wilson and Lafleur, 2006) 513, footnote 23. 54.  April 30, 2001: AAS 93 (2001) 737–739.

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of communities that do not have apostolic succession and do not recognize the sacramental dignity of priestly ordination. (2) Consecration for a sacrilegious purpose of one matter without the other in a Eucharistic celebration, or even of both outside of the Eucharistic celebration. (3) Certain delicts against the sanctity of the sacrament of Penance: (a) The absolution of an accomplice in a sin against the Sixth Commandment mentioned in c. 1378 §1 of the Latin code and 1457 of the Eastern code. (b) Solicitation of a sin against the Sixth Commandment in the act, on the occasion, or under the pretext of confession mentioned in c. 1387 of the Latin code and 1458 of the Eastern code if directed toward sinning with the confessor himself. (c) A direct or indirect violation of the sacramental seal mentioned in c. 1388 §1 of the Latin code and 1456 of the Eastern code. (d) The recording by any technical instrument and broadcast/transmission by means of instruments of social communication of anything said in sacramental confession by the confessor or penitent (according to the Decree of the CDF of 23 September 1988, AAS, 70–1988, p. 1367). (4) A delict against the Sixth Commandment committed by a cleric with a minor below the age of eighteen years. SST addresses the prescription of criminal actions for the delicts mentioned in the letter, the time period for which is now ten years. The prescriptive period is to be calculated according to the norm of c. 1362 §2 of the Latin code and c. 1152 §3 of the Eastern Code, an absolute time limit calculated from the day on which the delict was committed, with one exception. In the case of a delict against the Sixth Commandment committed by a cleric with a minor below the age of eighteen years, the prescriptive period begins to run on the day the minor completes his or her eighteenth birthday. In theory this could extend the prescriptive period to a full 28 years from the date of the offense, as opposed to other offenses for which the period would end absolutely ten years from the date of the offense. Application of prescription to delicts based on offenses against the Sixth Commandment with a minor by a cleric is rather complicated,

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due to modifications made to the age of the victim and when prescription begins to run. When first made these modifications applied only in the United States, but SST now makes them applicable everywhere. The first modification involves the nature of the delict as determined by the age of the victim. Canon 1395 §2 of the 1983 Code provided that the delict was committed if the offense occurred with a minor under the age of sixteen years. On April 25, 1994 Pope John Paul II temporarily raised the age under which the delict is committed from sixteen to eighteen years in the United States, although it remained sixteen throughout the rest of the Church.55 In 1999 he extended the applicability of the modification in the United States another ten years to April 25, 2009.56 SST, however, raised the age to eighteen throughout the universal Church from and after the date of its promulgation (April 30, 2001). Thus, existence of the delict of an offense against the Sixth Commandment committed with a minor by a cleric depends in any given case on when the delict was committed. In the United States, if the offense was committed prior to April 25, 1994 it is an ecclesiastical delict only if the minor was under the age of 16, as was true at that time throughout the universal Church. However, after April 25 1994 in the United States there is a delict if the minor was under the age of eighteen, although in the rest of the Church there is a delict only if the minor was under sixteen. After 2001, in virtue of SST, the delict has been committed anywhere throughout the universal Church if the minor is under the age of eighteen. The Holy Father’s decree of April 25, 1994 also changed the manner in which prescription was to be calculated for offenses committed in the United States. According to the decree, the prescriptive period would be ten years from the victim’s eighteenth birthday, rather than from the date of the offense, provided at least one year had passed since the delict was denounced. This standard has now been made universal by SST. Therefore, after April 30, 2001 the delict is committed anywhere in the world if the minor was or is under eighteen years of age, and the prescriptive period is ten years from the eighteenth birthday of the victim. 55.  See the rescript Ex Audientia, reproduced in Roman Replies and CLSA Advisory Opinions 1994 (Washington, DC: Canon Law Society of America, 1994) 21–22. 56. Letter of Cardinal Sodano to Bishop Joseph Fiorenza, President NCCB, dated December 4, 1998.

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The practice of the Holy See seems to be to treat the legal prescription of this delict as a matter of substantive, rather than as merely procedural law (although this is not entirely clear). If changes in the law of prescription are considered substantive, they cannot be applied retroactively. Prescription must be applied according to the date on which the delict was committed and the age of the minor involved at the particular time and jurisdiction in which the offense was committed, rather than allowing new norms for prescription to be applied retroactively because, as a matter of principle, only procedural laws can be applied retroactively if changed, whereas substantive norms must be applied according to what they were at the time of the event with regard to which application of the law is in question.57 Whether the rules regarding prescription are merely procedural or constitute substantive norms of law is a crucial question. Does the current law distinguish between offenses committed before April 1, 2001 and those committed after that date for purposes of determining prescription, or are all such offenses, no matter when they were committed, extinguished only ten years after the minor has completed his or her eighteenth year of age, as a consequence of SST? The question does not appear yet to have been definitively resolved. What is clear is that SST does not use the qualifier tempus utile in relation to prescription as the 1917 Code did, so it seems clear that prescription is to be calculated absolutely from the date on which the prescriptive period commences, that is the date on which the offense was committed for most offenses, and ten years after the alleged victim reaches his or her eighteenth birthday with respect to the delict of an offense against the Sixth Commandment by a cleric with a minor under the age of eighteen. Neither is currently suspended during times when the competent authority is unable to act, however, since the prescriptive period is not tempus utile. It should be noted that these changes in the way prescription is applied to sexual offenses involving a minor and a cleric incorporate a new rationale for extending the period of prescription beyond a definite period of time following the date of the offense itself. This rationale takes into 57.  See Canon 9 CIC 1983: Laws regard the future, not the past, unless they expressly provide for the past; Canon 18: Laws which establish a penalty, restrict the free exercise of rights, or contain an exception from the law are subject to strict interpretation.

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consideration the nature of the harm done to the victim and the kind of actions that offenders sometimes, or perhaps often take to deter victims from reporting the offense. It is widely believed that feelings of shame and guilt on the part of minors who have been taken advantage of sexually or who have been sexually abused, or perhaps simply their immaturity, act as a deterrent to reporting offenses to public authorities and Church officials who could take legal action either civilly or canonically. By the same token, the law must also take into account the same considerations of fairness to the accused that apply with respect to other offenses when prosecution is delayed. On the other hand, the existence of an absolute prescriptive period from the date of the offense may create incentives for perpetrators to conceal their offenses from public and ecclesiastical authorities, even through subtle and not so subtle forms of intimidation. The current policy attempts to balance these considerations, taking into account the greater maturity and ego strength of victims as they approach adulthood, which should make it easier for them to bring their victimization to light, while also creating incentives for them to come forward and report offenses within a reasonable time in order to make it as likely as possible, given the nature of the offense and the psychological and other dynamics involved, that the accused will be able to adequately defend himself or herself against the accusation. e. The Essential Norms and Derogation from Prescription

A final aspect of current policy which applies only in the United States should be mentioned. The Holy See approved “Essential Norms” for addressing accusations regarding these offenses as particular law for the United States in 2002, which were revised and re-approved by the Holy See in 2006.58 According to these special norms for the United States, “If the case would otherwise be barred by prescription, because sexual abuse of a minor is a grave offense, the bishop/eparch may apply to the Congregation for the Doctrine of the Faith for a derogation from the prescription, while indicating relevant grave reasons.”59 This has been interpreted to mean that a bishop or eparch can apply for derogation even if a criminal 58.  Essential Norms for Diocesan/Eparchial Policies Dealing With Allegations of Sexual Abuse of Minors by Priests or Deacons, granted recognitio of the Holy See December 8, 2002; revised Norms granted recognitio January 1, 2006. 59.  Norm 8, A., Essential Norms.

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action would otherwise be considered extinguished, allowing the case to go forward if the request is granted; and, such derogations have in fact been granted by the CDF.60 This interpretation and application of the Essential Norms and the authority given to the CDF to grant derogation has generated some controversy. The Holy Father granted the CDF the faculty, “. . . di derogare ai ter­ mini della prescrizione, caso per caso . . .” (“. . . to derogate from the limits of prescription, case by case . . .”).61 It has been argued that this only permits the CDF to derogate from the time limits of prescription in cases where the limit has not yet run, but not for actions that have already been “extinguished by prescription” (in the language of canon 1362 of the 1983 Code).62 C. Renati argues, on the basis of the language of the rescript, that the decree does not grant the faculty to derogate from a prescriptive time limit that has already run: “Again, the faculty granted to the CDF was not a faculty to derogate ‘from the law of prescription,’ as the CDF stated, but a faculty to derogate from the ‘termini’ of prescription. That faculty does not, and could not, include the faculty to derogate from the effect of prescription law once that effect has occurred. It is not a faculty to revive a dead action.”63 Renati distinguishes between the intention of the rescript and the effects of prescription. It probably goes too far to say that the rescript by its terms does not refer to cases where the prescriptive limit has already run. It is hard to say that the Holy Father in granting the rescript did not intend for it to be applied to cases in which the prescriptive time limit had already run based on the use of the Italian word termini, notwithstanding the effects of the Latin word extinguitur in canon 1362. The grant of a faculty to derogate from the “limits” (termini), or time limits, of prescription does not in and of itself exclude the possibility that the intent of the decree was to permit the prosecution of cases in which those limits had already been surpassed. In fact, granting the faculty to derogate from the time limits of prescription can be understood as granting the faculty whether or not the existing time limit for prescription has passed, because 60.  See Renati, 508. 61. Rescript Ex Audientia, November 7, 2002 in Decisiones Summi Pontificis (Vatican City, 2002) Pars Prima, re: art. 5. 62.  Renati, 504–510. 63.  Ibid., 508.

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any application of the faculty constitutes a derogation from “the time limits of prescription,” not just from the prescriptive effects of passage of the time period. Renati’s argument from the text of the rescript seems weak. It may very well have been the Holy Father’s intent to permit the prosecution of cases in which the time limit of prescription has already passed, and the intention of the legislator ought to be determinative. Renati’s stronger argument is that it is not possible to “derogate” from a time limit in such a way as to bring back into existence something that has already passed out of existence. It is hard to understand the word extin­ guitur as meaning anything other than the complete annihilation of something, which has therefore passed out of existence and cannot be brought back into existence. This seems to be the source of all the controversy around the granting of this faculty of derogation. This entire controversy, it seems, could have been avoided if the legislator had retained the qualification tempus utile with respect to prescription in the 1983 Code. While it is true that any act such as a criminal act that has occurred in the past does not cease to have occurred by virtue of a declaration of some legal authority that it no longer exists. But the fact that a criminal act may have occurred is not what is involved in prescription and its effects. Rather, what is concerned is the existence of a legal cause of action based on the accusation that a criminal act was committed, something that is within the provenance of the proper legal authorities to recognize or abolish, to establish or repeal. Once a legal action has been “extinguished” (or “annihilated”), it is difficult to contemplate how it would be jurisprudentially possible to bring it back into existence. Too much is at stake in terms of the rights of the accused, the stability of the community, and the credibility of the legal system, for this to happen without serious deleterious consequences to the legal system, confidence in those who exercise responsibility in the legal system, and the authority and respect with which they are able to govern the community. It goes against the grain to entertain the resurrection of legal actions once the law has declared them extinguished. It seems a lot like “changing the rules in the middle of the game,” or rather after the game is already concluded, and to violate basic notions of justice and fair play. All of this may have been able to have been avoided, however, by retention of the qualifier tempus utile in the 1983 Code provisions regarding prescription.

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III. Conclusions

Why was tempus utile omitted from the 1983 norms on prescription? Was the omission inadvertent or intentional? If intentional, why was it omitted, given that it deprives the administrators of justice of an important tool for addressing cases that have remained hidden, perhaps through positive acts on the part of an offender to conceal a crime, and perhaps for a very long time, in favor of a rigidly formalistic rule that permits known offenders to escape the administration of justice and the consequences of their actions? The omission does appear to have been intentional. If so, it is difficult to understand the legislator’s reasons for doing so. The idea that the omission was intended to permit offenders who could keep their crimes hidden long enough to escape the canonical consequences of serious and seriously damaging crimes is too disturbing to contemplate. It is hard to believe that the legislator would have intended to turn the system of justice into some sort of a game such as this, given the serious consequences involved that we are now only too painfully aware of. Perhaps the omission was the result of excessive confidence in the ability of the Church to address harmful behaviors through the spiritual remedies of repentance and reconciliation, or as behavioral disorders susceptible of being addressed successfully through medical or psychological treatment, without the need to resort canon law and penal remedies. Perhaps it was felt that there would no longer be any need for penal law in the new age that the Church had entered upon. If so, subsequent history has demonstrated that the human condition and human nature did not change fundamentally in the mid-Twentieth Century. Human beings, even ordained clerics, continue to commit serious criminal acts, for whatever reasons; they continue to do serious harm to other people, and communities continue to have to address these disorders through legal means, in the Church through canon law, in order to preserve good order in the community. We now understand the psychological and behavioral dynamics involved in offenses of a sexual nature, especially predatory behaviors against minors, better than we perhaps did at the time of the Code revision process. We now know that it is in the very nature of these offenses to be hidden when committed, to remain hidden, and for offenders to attempt to keep them hidden, especially from those who are responsible for administering

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justice and vindicating rights and the harm done to victims. A fundamental purpose of the system of justice is to bring the truth to light and to apply the law to what has been uncovered as true. It is hard to reconcile this purpose with the omission of a legal mechanism that furthers it in a reasonable way, in favor of one that prevents ministers of justice from acting on the truth when it finally comes to light in ways that further the ends of justice while protecting the rights of accused persons. The mechanism of tempus utile has proven over time to be the most effective means of preserving the competent authority’s ability to act when crimes have remained hidden, while also requiring that they act as soon as an alleged offense is known. The experience of the Church over the past fifteen to twenty years in the United States, but increasingly in other parts of the world as well, should convince us of the wisdom of the former law’s inclusion of the qualifier tempus utile in its provisions on prescription. Recognition of that wisdom, and of the procedural flexibility and efficiency that the concept of tempus utile embeds in the law should persuade the legislator to restore it to the norms on prescription of the current law.

T H E C AT H O L I C U N I V E R S I T Y O F A M E R I C A

ronny e. jenkins*

The Case of the Missing Candles: An Illustration of Rotal Jurisprudence between its Reconstitution (1908) and the Promulgation of the PioBenedictine Code of Canon Law (1917) By the Apostolic Constitution Sapienti Consilio, issued on June 29, 1908, Pope Pius X reconstituted the Sacred Tribunal of the Roman Rota, which had ceased nearly all operations in 1870 with the capture of Rome by the Italian army.1 With its reconstitution, the Sacred Tribunal was competent to judge cases, “both civil and criminal”2 according to a judicial process * Dean and Associate Professor, School of Canon Law, The Catholic University of America, Washington DC. 1.  AAS 1 (1909) 7–19. Section II, 2° pertains to the Roman Rota. It reads: “Quum sacrae Romanae Rotae tribunal, anteactis temporibus omni laude cumulatum, hoc aevo variis de causis iudicare ferme destiterit, factum est ut sacrae Congregationes forensibus contentionibus nimium gravarentur. Huic incommodo ut occurratur, iis inhaerentes, quae a Decessoribus Nostris Xysto V, Innocentio XII et Pio VI sancita fuerunt, non solum iubemus « per sacras Congregationes non amplius recipi nec agnosci « causas contentiosas, tam civiles quam criminales, ordinem iudiciarium « cum processu et probationibus requirentes » (Litt; Secretariae Status, xvii Aprilis MDCCXXVIII); sed praeterea decernimus, ut causae omnes contentiosae non maiores, quae iri Romana Curia aguntur, in posterum devolvantur ad sacrae Romanae Rotae tribunal, quod hisce litteris rursus in exercitium revocamus iuxta Legem propriam, quam in appendice praesentis Constitutionis ponimus, salvo tamen iure sacrarum Congregationum, prout superius praescriptum est.” 15. Between 1870 and 1908, the Roman Rota continued to exist and popes continued to appoint auditors to it. However, these were merely honorific sinecures. By 1895, there were only five auditors of record. See, Stefan Killermann, Die Rota Romana: Wesen und Wirken des päpstlichen Gerichtshofes im Wandel der Zeit (New York: Peter Lang, 2011) 154–155. 2. Ibid.

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that required proofs.3 It was competent to hear these cases in first and subsequent instances, depending on how the case arrived at the tribunal. If it arrived for an original, first instance hearing the case would remain at the Rota for subsequent appellate reviews.4 One such case, a causa iurium for unlawful removal from office, arrived at the Rota in first instance shortly after its reconstitution and was decided by judicial sentence on February 1, 1912. The case remained there on appeal for two more hearings, receiving a final decision on July 14, 1913.5 The course of the proceedings offers an informative view into the way the Roman Rota decided the cases in the short period between its reconstitution and the promulgation in 1917 of the first codified legislative text adopted by the Catholic Church. The three decisions also represent an exceptionally rare instance of the Rota hearing a case from original jurisdiction to final appeal. Moreover, given that three judges sat on each of the hearings, and that there were only eleven judges appointed to the Rota at the time, these decisions were decided with all but two members of the court having a chance to weigh the merits in one of the three hearings.6 This article will examine the three decisions to highlight some of the procedural and substantive issues of interest found in them and to provide an illustration of the methodology employed by the court prior to the introduction of codified law. What follows is far more of an illustration of the case and decisions than an analysis of them. The contribution hopes

3.  Norms for the tribunal were appended to the constitution (AAS 1 [1909] 20–29). These consisted of 34 canons that governed its constitution and the procedural rules for adjudicating causes. Those procedural matters not covered by the canons would take place “iuxta receptas canonicas regulas (can. 22).” Substantive jurisprudence, as will be seen, was that found in the standard canonical works of the past centuries. It was soon discovered that so few canons would not serve well the administration of justice at the tribunal. Accordingly, two years after Sapienti consilio, Pius X issued a fuller set of procedural norms for the Rota, the Regula ser­ vandae in iudiciis apud Sacrae Romanae Rotae Tribunal (AAS 2 [1910] 783–850), consisting of 238 sections, many of which would influence the development of the procedural law of the 1917 Codex Iuris Canonici. It is the norms of 1910 under which all three judicial cases discussed here were decided. 4.  A case arrived in first instance by commission of the Roman Pontiff. 5. (I) c. Sincero, February 1, 1912: RRDec 3: 69–83; (II) c. Many, August 13, 1912: RRDec 3: 408–429; (III) c. Lega, July 14, 1913: RRDec 4: 440–459. The respective roman numerals and page numbers will reference the decisions. 6.  The two auditors who did not take part in any instance of this case were Anton Parathoner (1864–1930) and Giuseppe Alberti (1863–1915).

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to provide the story of three rare sentences, the problems they addressed, and the players who made it happen.

A Generous Gift Begins It All

In the year 1650, an Italian nobleman, Marquis John Paul, bequeathed a large sum of money to establish a fund whose income was to support the erection of a collegiate church dedicated under the title of the Blessed Virgin Mary in a certain city located within an Italian diocese.7 It was a common gesture of benevolence.8 The origin of collegiate churches remains disputed, although an element found from the earliest times is the desire or need for diocesan clergy to live in common life and to celebrate the sacred liturgy.9 Establishment of collegiate churches as separate, legal entities appears first in the Carolingian era. In Italy, wealthy, noble families founded collegiate churches well into the modern era, although this diminished greatly as the number of such families lessened.10 By an apostolic constitution of 1796, Pia personarum, issued almost 150 years after Marquis John Paul made his generous gift, Pope Pius VI erected

7.  For the sake of confidentiality, none of the three decisions mentions the true name of the persons discussed or the location of the collegiate church. 8.  By way of illustration, in 1845 in the Archdiocese of Florence there were 469 parishes and 11 collegiate churches. The Archdiocese of Pisa had 139 parishes and 4 collegiate churches, and the Archdiocese of Sienna had 109 and 1, respectively. Of the 22 suffragan sees of these three metropolitan archdioceses, there were 1053 parishes altogether and 22 collegiate churches. See, Matteo Bianchi, Geografia Politica dell’Italia (Florence: Società Editrice Fiorentina, 1845) 350. 9.  See Josef Jungmann, “Diocesan Organization,” in History of the Church, ed. Hubert Jedin (New York: The Seabury Press, 1980) 3: 264–269. 10.  At the time of Italian unification, by a law of August 15, 1867, the Italian collegiate churches were suppressed, only to be revived on an individual basis by the concordat of 1929 (art. 29). See, Gaetano Greco, “Capitoli Cattedrali, Collegiate e la Chiesa in Italia,” in Diziona­ rio Storico Tematico La Chiesa in Italia, ed. P. Filippo Lovison (Rome: Associazione Italiana dei Professori di Storia della Chiesa, 2015) available at: http://www.storiadellachiesa.it/glossary /capitoli-cattedrali-collegiate-e-la-chiesa-in-italia From the 17th century on, erection of collegiate churches was reserved to the Sacred Congregation for Rites. Under the 1917 Pio-Benedictine Code, which references collegiate churches nine times, competence for their erection, modification or suppression fell to the Sacred Congregation of the Consistory (c. 248 §2). See, Raoul Naz, “Églises Collégiales,” in Dictionnaire de Droit Canonique, ed. Raoul Naz (Paris: Letouzey et Ané, 1953) 5: 234. The 1983 Code of Canon Law contains only one express mention of them, stipulating that the diocesan bishop is to diligently preserves their archives (c. 491 §1).

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the Collegiate Church of B.A.11 It was to be composed of twelve canons and twelve priest chaplains who resided at the church.12 The duty of the chaplains was pro servitio chori, which included principally offering Mass for the intentions of the foundation. Their office did not include the pastoral care of the faithful.13 The administrators of the foundation, descendants of the founder, appointed the chaplains and they were removable by the will of the same officials. In this sense, the chaplains held their office tan­ tum ad nutum. A priest served as superior at the collegiate church, enjoying not only jurisdiction over them in spiritual and temporal matters, but also the authority to correct or discipline them as necessary.14

An Appointment, a Theft and a Dismissal

In 1894, a priest named Father Anthony received an appointment as a chaplain at the collegiate church.15 Other priests served the church as well, but not in the office and with the duties of the chaplains. As superior of the collegiata Father Paul was responsible for assuring that the canons fulfilled their duties according to the stipulations of the apostolic constitution and the directions of the administrators. This included supervision of the newly appointed Father Anthony. Five years after Father Anthony arrived, on March 19, 1899, a fellow chaplain, Father C. approached Father Paul to tell him that the day before he had seen Father Anthony take some candles from a cabinet in the 11.  II, 412. The constitution is not included in the Bullarium Romanum, even though several other acts of erection of collegiate churches by Pius VI are. 12.  I, 70. All 12 chaplains resided at the collegiate church even though only four held a residential office (see II, 412). 13.  I, 70. 14.  II, 412: “Abbas, qui, iuxta eandem Bullam . . . ‘ius habet . . . superioritatem, iurisdictionem et correctionem in spiritualibus et temporalibus. . . supra canonicos et alios eiusdem ecclesiae presbyteros, clericos et ministros.’” The term abbate as used at the time of the collegiate church included not only abbots as understood today (superiors of monasteries), but also priests who were given an honorific title attached to a benefice. Although there were collegiate churches attached to monasteries, it is not certain that this collegiata was one of them. Most likely the “Abbot Paul” referred to here was not a professed religious, but a secular cleric who functioned as superior of the chaplains. In this article I will refer to him as Father Paul or the superior. 15.  The first two sentences refer to Father Anthony as Father Aristide. Only the third names him Father Anthony. For the sake of simplicity, this article will use “Father Anthony” throughout.

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Church sacristy.16 On the same day, Chaplain C. mentioned this as well to some of his fellow priests.17 The following day, on March 20, Father Paul promptly informed Father Anthony that he was forbidden until further notice from returning to the Church or otherwise fulfilling the duties of chaplain. This took place in the same sacristy from which the candles were taken and in the presence of other chaplains. One week later the superior informed Father Anthony of his dismissal, authorized by a letter to Father Paul of March 23 from the patron of the foundation. Father Anthony felt gravely wronged by the actions taken against him. He contested the accusation of theft and complained, among many other things, that the superior had unjustly dismissed him and that he had gravely damaged his good name in the process.18 Initially, Father Anthony sought readmission by recourse to the chapter of the collegiate church. The chapter rejected his recourse by a unanimous vote on May 2, 1899. On September 20 of the same year, he then sued the Patron of the foundation in civil court for unlawful dismissal.19 In the meantime, Father Anthony received an invitation to come to the curia of the diocese where the collegiate church was located to settle his complaint before an ecclesiastical judge. He received the offer of an honorable dismissal, a one-time payment of one thousand pounds, and payment for his legal expenses. He rejected the offer because it did not and would not include reappointment to the collegiate church. With that, after two years without meeting success in the civil forum, including a failed attempt to bring criminal charges against the superior,20 Father Anthony decided to approach the Sacred Congregation for the Council for the vindication of his rights. The Congregation accepted the case and began to gather evidence. However, when Pope Pius X reconstituted the Apostolic Tribunal of the Roman Rota in 1908, he remanded judicial proceedings pending before Roman congregations 16.  I, 70. It will later become a contested point as to whether Chaplain C. accused Father Anthony of theft or of merely taking candles (without suggestion of malicious intent on Anthony’s part). 17.  II, 417. 18.  I, 70. 19.  III, 447. 20.  At about the same time, in 1906, Father Anthony also sought to initiate a criminal action in the civil courts against Father Paul for defamation of character. He asked for pro bono representation. The court found, however, that his petition lacked any foundation. See III, 448.

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to the newly organized Apostolic Tribunal for resolution. This included Father Anthony’s case against Father Paul.

A First Attempt at a Resolution

After the Sacred Congregation of the Council referred Father Anthony’s case to the Roman Rota, the dean of the tribunal, the famed jurist Michele Lega established a panel of three auditors to hear the case.21 The same dean will serve as the presiding judge on the third instance hearing of this case, although that was unknown at this point. The first panel of three judges was likewise impressive. Luigi Sincero (1870–1936) authored the sentence on behalf of the court. Ordained a priest of Rome in 1892, he received an appointment to the Roman Rota in 1908. In 1917, he became the Secretary of the newly created Commission for the Authentic Interpretation of the Code of Canon Law while remaining a rotal auditor until 1923. Thereafter he served as the cardinal secretary of the Congregation for Oriental Churches, Cardinal Archbishop of Palestrina and, from 1935, the president of the Commission for the Authentic Interpretation of the Code. The two other judges were Giuseppe Mori (1850–1934) and Federico Cattani (1856–1943). The former would be named Secretary of the Congregation for the Council in 1916 and a cardinal in 1922 and the latter served on the Roman Rota until 1924, at which time he was named Secretary of the Apostolic Signatura. In 1935, Cattani was also named a cardinal. The judicial controversy concerns the vindication of Father Anthony’s rights. No criminal charges were brought against the superior or any of the administrators of the fund. There are two questions, or dubia, for the court to answer: “I. Whether, in this case, the priest Anthony had been unjustly dismissed from the office of presbyter of the Foundation named Our Lady of R. II. And if affirmative: whether, by whom, in what measure

21.  The use of the term auditor to refer to the judges of the Rota is of ancient origin and is still customary today. This article will also use the term judge, which is precisely what the auditors function as. Likewise, the term tribunal and court will be used interchangeably to refer to the panel of judges adjudicating an instance of this case.

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and in what way should the same priest have the damage repaired.”22 We will see that the principle question of unjust dismissal will relate throughout to the question of whether Father Anthony’s reputation suffered by the dismissal executed by Father Paul. Even the final appellate decision will end with a discussion of calumny. At this stage, however, we see that the dubium does not specify who might have unjustly dismissed the petitioner. The court will take little time in announcing who that might be. It is clear from the outset that the first instance auditors consider the question of unjust dismissal to be related directly to the supposed theft of candles by Father Anthony. The superior moved to dismiss the chaplain immediately upon hearing of the missing candles. The connection between the report to the superior and the timing of the dismissal defines precisely the core question the court will consider: “Therefore the principle question on which this entire case turns is whether the priest Anthony was dismissed for the theft or the accusation of the theft.”23 We will see from subsequent hearings of the case that the resolution of the petitioner’s complaint does not revolve simply around this question. The instruction of the case at first instance was extensive. To evidence already gathered during the process underway at the Sacred Congregation for the Council was added yet more testimony and documents. Besides the declarations of Father Anthony and Father Paul, the first instance court considered the testimony of over 30 witnesses, including mostly priests associated with the collegiate church. The superior presented only four witnesses; the petitioner most of the others. In the first instance decision, Sincero argues strongly that all the witnesses are credible and in no way open to a complaint of bias. A challenge against this conclusion will also arise on appeal. At this stage, however, their testimony is taken as consistent, corroborated and empty of excessive attachment to the outcome of the lawsuit, be it in favor of Father Anthony or Father Paul.24

22.  I, 70: “I. An sac. Aristides [Anthony] iniuste dimissus fuerit ab officio Presbyteri Massae D.N. de R. nuncupatae. II. Et quatenus affirmative: an, a quibus, qua mensura et qomodo sint eidem sacerdoti reficienda damna, in casa.” 23. I, 70: “Summa igitur quaestio, in qua tota haec causa vertitur, in eo est, utrum sa­cerdos Aristides [Anthony] dimissus fuerit ob hoc furtum, seu sub huius furti imputatione.” 24.  I, 75: “Sed nec horum testium auctoritas seu veridicitas potest denegari, neve excipi eos esse nimis addictor causae sac. Aristidis et Abbati infensos, quippe qui sint capellani eiusdem Collegiatae.

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The substance of the court’s argument begins with the letter of March 23, 1899, from the administrators of the foundation to Father Paul. The correspondence arrived only three days after the superior had heard from Chaplain C. that Father Anthony had left the sacristy the day before with candles under his vestments. The letter reads: “Rev. Superior, the undersigned by virtue of their respective competencies, having come to know of the report made to Your Reverence concerning the charge against Rev. Anthony, allow for the dismissal of said Reverend from the duty of priest of the Foundation of Our Lady of R., and invite Your Reverence in this respect to provide for it.”25 From this letter, it is clear to the court that Father Paul had informed the administrators of wrongdoing on the part of Father Anthony and it was that report that resulted in the letter permitting his dismissal. What is not yet clear, however, is whether the wrongdoing mentioned was the actual theft of candles or whether there were other motives for the superior to seek Father Anthony’s dismissal. In addition, if the missing candles were the motivation for dismissal, was it the principal one? On June 16, 1902, during a period of early litigation of Father Anthony’s complaint, one of the foundation’s administrators, a lawyer by profession, made a written declaration concerning the dismissal of Father Anthony. In it, he stated that the administrators were not happy with Father Anthony’s fulfillment of his duties. He had received stipends for the offering of Masses in the Collegiate Church for the intention of the Foundation, but he did not say the Masses. Instead, the lawyer alleges, Father Anthony feigned illness. He then offered a public Mass at a church other than the collegiate church. The administrators considered suspension to be a suitable response. However, Father Paul was insistent with the administrators—and with the lawyer in particular—that Father Anthony had to suffer dismissal and not simply suspension. According to the lawyer, the superior stated, “secretly, and in the name of the Reverend Canons as well, the reasons why the Reverend had to be removed from the Collegiate Church.”26 25.  I, 70: “Rev. Abbate, I sottoscritti nelle loro rispettive qualità, avuta cognizione del referto fatto dalla S. V. Rma a carico del Rev. Aristide [Anthony], consentono che il detto Reverendo venga dimesso dalla carica di prete della RR. Massa di N. S. del R., ed invitano S. V. Rma a provvedere in proposito.” 26.  I, 71: “. . . l’Abbate insisteva presso i Patroni e specialmente presso lo scrivente, esponendo sotto segreto i motivi, ed anche nome dei Rev. Canonici, perchè il Reverendo fosse allontanato dalla Collegiata.”

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The administrators, he concluded, felt compelled to agree to the superior’s urgent request; they could not contradict him. The court then considers a large body of evidence that supports the conclusion that it was not Father Anthony’s poor performance of duties that resulted in his dismissal, but the secret information that the superior shared with the administrators; namely, his conclusion that Father Anthony had stolen the candles. The first two witnesses are priests of the Collegiate Church. They provide hearsay evidence concerning a statement allegedly made by the Marquis, the principal patron of the collegiate church. The first priest overheard a response the Marquis made to his wife, in answer to her question as to what was reported about Father Anthony: “What was reported about him? I didn’t dismiss him.”27 When asked if he also heard the Marquis mention a reason for the dismissal, the priest responded, “I believe somewhat vaguely that he mentioned a theft of wax candles that Father Anthony was said to have committed.”28 The second priest witness also claims to have overheard the Marquis tell his wife that the dismissal was due to the theft. Importantly, the second witness notes as well that the Marquise mentioned acts of insubordination committed by Father Anthony and difficulties of character that he exhibited. This witness also admitted that his memory is a bit confused since all of this took place many years ago. Despite the admission from both witnesses that their memories are vague or confused, the court accepts their testimony as foundational for establishing that Father Anthony was dismissed for the accusation of theft revealed by the superior to the administrators. How so? The two witnesses corroborate each other’s testimony and the vagueness of memory does not regard the question of theft, but other issues of insubordination related to Father Anthony. Moreover, an additional witness testifies: “I knew besides from [another witness] that the Marquise told him that the dismissal of Father Anthony was due to a theft of candles of which the superior accused him.”29 It is certain to the auditors, then, that the

27.  I, 71: “Che chosa vuol riferirgli? Io non l’ho licenziato.” 28.  I, 71: “Mi pare così vagamente che accennasse ad un furto di candele di cera che si diceva perpetrato da Don Aristide [Anthony].” 29.  I, 71: “Seppi poi dalla stesso Signor A. che la Marchesa gli disse che il licenziamento di Don Aristide [Anthony] proveniva dall’accusa fattagli dal Rmo Abbate, di furto di candele.”

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Marquis revealed the true cause for dismissal in a public way that failed to maintain the original secrecy of the revelation. Once the judges recognize the probative value of the above witnesses, they consider the circumstantial evidence, all of which allows the court to conclude that “no doubt remains” that the alleged theft was the cause for the dismissal. A parade of some 16 witnesses follows. The first two relate that they had heard Chaplain C. (who in the meantime had passed away) recount the alleged theft to them: that one evening he saw Father Anthony take a candle from a cabinet in the sacristy, break it apart, place it under his vestments, and leave the church. They heard this one or two days before Father Anthony was dismissed. Another witness recounts hearing the same story, this time from another canon and not from Chaplain C. The witness notes that the timing of the circulation of Chaplain C.’s narrative and the dismissal of Father Anthony indicates that Father Paul could not have undertaken an investigation into the matter. Rather, what Chaplain C. related to him must have been taken as truthful and used as “the finishing blow” to remove Father Anthony.30 Yet another witness testifies that one day he was standing in the sacristy of the church waiting to go into the choir. As he stood there, he overheard the superior tell Father Anthony that he was forbidden until further notice from entering the church or undertaking his choral duties. Surprised by what he heard, the witness asked an altar server (between 15 or 16 years old) what it meant: “[The altar server] responded that Father Anthony was dismissed because he was said to have stolen candles from the church.”31 The court considered not only the statements of individual witnesses, but also weighed the general opinion of the canons and chaplains concerning why the superior dismissed Father Anthony. Several witnesses attest to the fact that the general understanding of everyone was that the dismissal of Father Anthony was due to a theft of candles. This conclusion

30.  As the witness testifies: “Il furto fu l’occasione del licenziamento. Il fatto della candela dette il colpo di grazia. Per quanto so, l’Abbate si appagò della denunzia di Don C. e della relazione dei canonici, senza chiedere altre spiegazioni.” I, 72–73. 31.  I, 73: “Sorpresa di tal cosa, chiesi informazioni ad uno dei chierici di sagrestia, che erano giovanetti dai 15 ai 16 anni, e mi rispose che D. Aristide [Anthony] era stato licenziato perchè si diceva che avesse rubato delle candele della chiesa.” The court notes the young age of the alter server, but accepts the statement as true.

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resulted not only due to the growing number of conversations about what Chaplain C. reported to the superior, but also to the fact that Father Anthony disappeared quickly and did not return. The temporal connection between the allegation of theft and the disappearance was evidently lost on no one.32 The court holds that even though these opinions relate to subjective impressions and public rumors, they are probative of the motive for dismissal since they follow on the prior evidence that was more particular and equally indisputable. Based on a careful consideration of all the evidence, the auditors conclude there is no doubt that Father Paul dismissed the petitioner due to an allegation of theft. He did not take the time to investigate the allegation, but accepted it as true the moment he heard it. Father Paul then went to the administrators of the Foundation to insist on the dismissal of Father Anthony. It remains to be seen whether the superior believed the allegation or whether he simply wished to make convenient use of it to finally get rid of a chaplain he long wished gone. The outcome of future hearings of this case will depend greatly on that question. It was now time for the court to consider the arguments of the parties and reach a decision. Father Paul’s advocate (patronus) argued to the court that Father Anthony’s appointment was at the will of the administrators. It was, as noted earlier, a removable office ex natura beneficiorum manualium.33 Therefore, the question of whether theft was the cause for removal—or any other issue for that matter—was irrelevant. If the competent authority wished Father Anthony to be gone, he was gone. No cause or motive was even needed. The only qualification on the rule was that the removal could not take place based on hate or calumny or occur in a way that resulted in shame or defamation to the one removed from office; for instance, by the way the removal took place.34 The advocate for Father Anthony, however, countered that this was precisely the problem. Basing his conclusions on legal sources he does not cite, the advocate argues that the superior had no authority (neither his own nor that of the administrators) to dismiss Father Anthony without first investigating the allegation of the crime of theft. Instead, the 32.  See I, 74 and I, 76. 33.  I, 76. 34.  I, 76: “. . . modo fiat non ex odio vel calumnia, et ne ex amotione deducus vel infamia, vel aliud magnum praeiudicium eiecto inferatur.”

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superior proceeded to dismissal in bad faith without informing the administrators—more will be said on this shortly—and in a hateful manner that resulted in calumny against Father Anthony.35 The court accepts neither argument since they are both partially irrelevant. It does not matter whether the office held by Father Anthony was ad nutum and likewise it is not relevant whether the superior conducted a criminal investigation prior to dismissal. As Sincero writes: “The only thing to be investigated is whether the removal due to the crime of theft was just.”36 The respondent’s advocate, for his part, insists that the theft of candles was merely the occasion or pretext for the dismissal; certainly, not the cause of it. The occasion for something does not influence the action as a cause does. Therefore, if the theft was merely the occasion for dismissal, then the court cannot find fault with the respondent since the true cause for removal lies elsewhere. The temporal connection to the theft of candles is incidental; it cannot be the cause for a finding against the respondent. The court strongly rejects this argument, finding instead that the supposed theft of candles, “in this case truly influenced, incited, and indeed determined the superior to dismiss Father Anthony.”37 The judges add that if they were to recognize as true the argument advanced by the advocate, it would not help the superior’s cause since if there had been true and nondefamatory reasons for dismissal, but an untrue and defamatory allegation of theft was used instead, the superior is even more gravely culpable of wrongdoing. Yet, in an official declaration from February 1903, the superior did advance reasons for dismissal other than the supposed theft.38 These causes will come to play as a central issue in appellate hearings. He offers six specific causes, all which regard Father Anthony’s unacceptable behavior in the 35.  I, 76: “Patronus autem actoris contendi Abbatem ab officio capellani nec sua nec patronorum auctoritate, nisi regulari processu interveniente de cupla gravi, et a ss. Canonibus contemplate, potuisse sac. Aristidem [Anthony] removere: remotionem vero ipsam factam fuisse insciis patronis, dolo malo ab Abbate, et unice ex odio, inimicitia et calumnia.” 36.  I, 76: “Sed unice investigandum, an haec remotio ob crimen fuerit iusta necne.” 37.  I, 77: “Nam crimen furti in casu vere influxit, invitavit, imo et determinavit Abbatem ad dimittendum sac. Aristidem [Anthony].” 38.  Father Paul repeated and confirmed the 1903 deposition by a written deposition of August 20, 1910, sent to the Roman Rota and included in the acts. See: II, 413. This second deposition will play a key role in the arguments of the third instance court.

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monastery or the town. Included as a cause is Father Anthony’s neglect of his duties as chaplain. As already noted, he would feign illness to avoid having to offer Mass for the intentions of the foundation. Yet, he would then go elsewhere to offer Mass or simply undertake other activities outside of the church.39 To each of the six proffered causes for dismissal, the court responds with a contrary argument to show they were not the immediate cause at all. They were present well before the alleged theft took place. Had the superior dismissed Father Anthony at the time these causes arose, things would be quite different. Instead, he waited to dismiss until immediately after the theft was reported to him. It is true that the superior had long thought of dismissing the chaplain. However, he did so at last only on the report of a theft of candles. The court further finds that there was no cause to allow Father Paul to assign the crime of theft to Father Anthony. Two witnesses testify that the candles he possessed were samples that belonged to a vendor, a friend of his named Thomas. Even more to the point, three witnesses testify that the chaplain who originally informed the superior that Father Anthony had taken candles retracted his accusation very shortly after making it. An additional witness states the superior was aware of this fact. Yet, it was still the allegation of theft that Father Paul used to convince the administrators of the foundation to allow the dismissal of Father Anthony. He did so without any prior investigation; indeed, without even speaking to Father Anthony about the accusation.40 From all of this, the court of first instance finds that Father Paul acted with culpa lata, or gross negligence when he failed to investigate the accusation. Father Anthony’s advocate argues, however, that the superior’s action was committed with malicious intent (dolus) as shown by the hatred and malice that motivated him. The court rejects this argument since the superior did not publicize the alleged theft. It was already public when he acted to dismiss. Therefore, he was negligent in not investigating the allegation, but not malicious in publicizing it. All the same, when the superior took the accusation for true, and so acted on it, he harmed Father Anthony’s interests, regarding both his loss of office and income and his right to a good reputation. They rule in favor of the petitioner. 39.  See I, 76–77 for the complete list. 40.  See I, 80.

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The judges consider, finally, who should repair the damages and how. The ruling is against the superior. He is found liable in response to his grossly negligent actions. Two forms of harm need repair. The first is the real harm suffered by Father Anthony; namely, the loss of income due to his unjust dismissal. The second is an estimation of damages due the plaintiff due to loss of his good name. The court orders Father Paul to pay the plaintiff the sum of 10,000 pounds over a period of two years and all court expenses. Interestingly, the petitioner argues at this point that it is not the superior who should be held liable, but the patrons. Father Anthony considers the superior to have defamed him maliciously, a criminal offense. Yet, this is not a criminal trial, but a civil action. So, it is the patrons who should provide him relief. To the contrary, the judges rule that harm caused by gross negligence is sufficient to warrant damages in a causa iurium. Moreover, no damages will be borne by the patrons of the church since, even though they are the ones who authorize dismissal, functioned merely as consultors to Father Paul. They did not execute the dismissal. That was the duty of the respondent, who acted with gross negligence in carrying it out.

And Now the Other Side of the Story

Father Paul, now clearly a respondent to the petitioner’s claims, was expectedly displeased with the outcome of the lawsuit. He appealed the decision immediately and, later the same year on August 13, 1912, a sentence was issued in second instance of judgment. As with the first instance tribunal, several esteemed auditors sat on this panel, although unlike as we saw with the prior judges, none of these would leave the Rota for other positions in the Roman Curia. They included Séraphin Many (1847–1922), who authored the decision, Franz Heiner (1849–1919), and John Prior (1861– 1926). Many would serve as dean of the tribunal for the two years before his death, and Prior would succeed him for the next four years. Heiner, who had earned a reputation as an outstanding German canonist of his time, would serve on the Rota until his death in 1919.41

41.  See Killermann, 424–425.

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The appellate judges considered the same body of evidence admitted by the first instance court. No further instruction of the case took place. Yet, with the same degree of conviction and force of argument as used in the Sincero decision to find Father Paul had acted unjustly against Father Anthony, the second instance court determined not only that no negligence of any degree had occurred, but that Father Paul had, in fact, removed Father Anthony from office justly and “with prudence and mercy.”42 Accordingly, the court reversed the decision of first instance. To arrive at this conclusion, the auditors had to reject the first instance arguments that the superior acted with gross negligence in the unjust dismissal of Father Anthony. They do so by highlighting the legal character of the appointment that Father Anthony possessed, something the prior judicial panel considered as only incidentally relevant. According to the decree of Pius VI that erected the foundation, the chaplaincies were ad nutum patronorum amovibili.43 A benefice established in this way permitted its administrators to remove office holders freely, without cause, and without observance of the law.44 They were at liberty to act as they chose and were not even obligated to offer a reason for removal.45 The court takes pains to show that this doctrine is doctrina communis by citing three prior decisions of the Roman Rota,46 followed by words from Pope Benedict

42.  II, 421: “His ergo omnibus perpensis quae respiciunt modum dimissionis, concludendum est Rev. Abbatem non modo non iuste egisse, sed etiam usum fuisse prudentia et clementia.” 43.  I, 410. 44.  The decision cites several legal sources to support this assertion, most notably Pyrrhi Corradi’s standard work Praxis beneficiaria (Venice, 1699) lib. I, n. 269: “. . . et propterea qui facultatem habet amovendi, non tenetur ad observantiam iuris, et sic absque causa potest amovere capellanum.” II, 410. More will be said below on the legal sources used in all three decisions. 45.  The decision does maintain that a reasonable cause for removal would always be prudently expected even if the removal is entirely at the liberty of the administrators. However, the removal would still be valid if no reasonable cause led to it or even if an unreasonable one did so. II, 411. 46.  The decisions are all in Hispalen., and concern the removal by an archbishop without cause of a vicar charged with the care of souls ad nutum. The first hearing of the cause was decided April 20, 1640, coram Peutingerio. The two appeals of that decision were decided June 21, 1641, and June 21, 1642, with the final decision confirming the prior two. Many does not quote any text from the decisions. The sentence coram Peutingerio lays the legal foundation for free removal of office holders ad nutum. It may be found in: Decisiones Sacrae Rotae Roma­ nae coram R.P.D. Christophoro Peutingerio (Rome: Reverendae Camerae Apostolicae, 1673) 18–27.

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XIV, who refers in his work De Synodo Dioecesano to this legal doctrine as de iure communi and cites an additional rotal decision to that effect.47 However, the second instance decision reiterates what the first panel of judges noted: that it was also common doctrine that an authority acted illicitly who, although authorized to remove an office holder freely and without cause, did so out of hatred or malice.48 Removal motivated by these causes is always unjust. If proof exists that removal defamed or denigrated the one removed, the more easily it can be proven that hatred or malice motivated the removal. The example offered by the court is the very issue it now faces: removal from office for a false accusation of the commission of a crime. In any case, the presence of motivating hatred or malice is never to be presumed; it must be proven.49 This is due to the presumption that once someone authorized to place an act does so, the act is licit. If there is doubt concerning the question, the presumption still stands in favor of the one who enjoyed and used the free right of removal.50 How, then, does the court apply these general legal principles to the question of whether the petitioner was unjustly dismissed? The judges conclude that even though no cause was necessary for removal, several were present. Here the sentence cites the same six causes advanced by Father Paul in his statement of February 1903 and used against him by the first instance court. Whereas the prior judges held that the temporal gap between the causes and the dismissal was too great to make those causes the true motive for dismissal, the second instance judges find no issue of concern in this regard. The decision cites a letter from an advocate named Peter, who wrote in August 1902 to Archbishop Andreas, the bishop of the diocese where 47.  Benedict XIV, De synodo, lib. XII, cap. I, n.2. (II: 410–411). The decision referred to by Benedict is one coram Cerro, March 23, 1667, which ruled against a decision of the Synod of Pamplona. That synod had determined that the removal of a vicar from an ad nutum office could take place only with just cause. Cerro held that no cause was necessary. The full text of the decision can be found in: Decisiones Sacrae Rotae Romanae coram R.P.D. Carolo Cerro (Rome: Giuseppe Corvi, 1682) 3: 137–139. 48.  Many cites De Luca to this effect. De Luca, for his part, cites the above referenced rotal decisions. II: 411. 49. II, 411: “Notandum vero est hoc odium vel malitiam nullo modo praesumi, sed debere probari.” 50.  II, 411. Many cites Pignatelli, Consultationes, t. IX, cons. 143, n. 34: “Est regula quod actus, qui potest referri ad licitum et illicitum, potius referendus est ad licitum.” The sentence adds, “Nam in dubio quis iure suo uti praesumitur.”

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the collegiate church was located, regarding Father Anthony’s less than praiseworthy service to the collegiate church. For his own part, Archbishop Andreas wrote a letter in 1905 to the Sacred Congregation of the Council when the petitioner first sought relief there. In it, Archbishop Andreas asserts that he heard already of difficulties with Father Anthony in 1893 when the priest served at a shrine in the same diocese. Archbishop Andreas recalls that Father Anthony was supposedly dismissed from that position as well due to his contentious behavior. He adds that the sacristan of the church was then under orders by the (now deceased) rector of that church to place the wax used for candles under lock and key, “because Anthony would often buy petrol.”51 The Archbishop was not surprised, he remarks, to know that Father Anthony had to be dismissed from the Collegiate Church for the same contentious and disturbing behavior he had exhibited in his prior assignment. He concludes by noting that Bishop Remus, Father Anthony’s own ordinary who welcomed him into his diocese and ordained him a priest asked him formally to leave the diocese in 1901 due to the problems Father Anthony was causing there. The decision then cites multiple witnesses who assert that numerous causes led to the dismissal of Father Anthony besides the matter of the alleged theft of candles. Six canons testified that Father Anthony’s dismissal resulted principally for negligence in his duties as a chaplain and for his offensive behavior toward other priests of the collegiate church. Several other witnesses assert that the theft of candles was the occasion for dismissal, but not the principle cause, which once more was the failure to perform his duties and his insulting behavior toward others. Finally, the Sacred Congregation of the Council concluded its own investigation by a decree of February 20, 1905, stating, “With this investigation by the Curia completed, the same priest [Father Paul] is considered as having been convicted of no crime.”52 The witnesses used by the second instance tribunal are largely the same ones used at first instance. In fact, the testimony of a critical witness in first instance adverse to the superior’s interests—the one who testified that the theft of candles was the ‘coup de grace’ that led to dismissal—is 51.  II, 413–414: “. . . e vi si dice testualmente che il chierico sagrestano aveva avuto ordine di chiudere a chiave la cera, perchè l’Aristide [Anthony] di rado comperava il petrolio.” 52.  II, 416: “Cum ex inquisitione in Curia perfecta, idem sacerdos de nullo crimine con­ victus fuisse videatur.”

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now used to argue in favor of the superior’s defense since the final cause of alleged theft was evidently not the only one. The second instance court then rebuts the argument of first instance—that the causes other than theft were not temporally tied to the dismissal or were not materially sufficient to warrant dismissal at the time it occurred: “On the contrary, the aforementioned causes for dismissal were many and so persisting that it can be said that the superior and the patrons had not only the right (ius), but even the obligation (officium) to dismiss the chaplain for the sake of the honor due the collegiate church.”53 Regarding the manner of dismissal, the court again highlights the “at will” nature of the chaplaincies to emphasize that the superior needed to have no cause and to follow no procedure. Despite this, the respondent still consulted with the two patrons of the foundation and the ordinary of the local diocese before dismissing Father Anthony. Marchese John, one of the Patrons, testified that there was no need for him to have conducted the consultation; the superior went beyond what was required to dismiss the priest. So far, then, Father Paul enjoys the presumption of having acted justly and licitly. To overturn that presumption, the petitioner would have to supply sufficient proof of motivating hatred or malice. At first instance, we recall, the judges found he had done so by demonstrating that the superior’s actions were, because of gross negligence, defamatory and injurious. Father Anthony argued that the superior acted only on false information and did so in a way that brought the chaplain’s reputation into public dishonor. However, once again using the same evidence adduced in the first hearing the second instance judges find to the contrary. The four pillars of proof at first instance, the declaration of the Marchese, testimony of witnesses, public rumor and circumstantial evidence all now fail on appeal. Regarding the statement made by Marchese John and overheard by the two priest witnesses—that a theft was supposedly a cause for dismissal— witnesses who heard it or heard of it are vague in their recollection. For the first instance judges this did not undermine their credibility. Now it does. There are few first-hand witnesses to his words and other witnesses 53. II, 416: “Imo praedictae dimissionis causae tantae erant et tam perseverantes, ut dicendum sit Abbatem et pratronos non solum ius, sed etiam officium habuisse dimittendi dictum capellanum, propter honorem Collegiatae debitum.”

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weaken the claim that the Marchese considered the alleged theft to be the cause for dismissal. Three people could have known what the motive for dismissal was: the Marchese, his lawyer, and Father Paul. The evidence does not support the claim that any of them held that the theft was the cause. In fact, the documentary proof establishes the opposite. As for the public rumor, the judges find only one witness who claims the alleged theft was broadly known. Others testify to the opposite. Therefore, the claim of defamation falls as well. Indeed, Chaplain C., the priest who initially witnessed Father Anthony take the candles and who spread that news through the community, testified that immediately after Father Anthony was dismissed he told his fellow priests and those outside the church that the candles taken did not belong to the church at all. They were, as we know, samples from a candle merchant that Father Anthony knew. The priest had agreed to bring them to the collegiate church to see if there was interest in purchasing some from the merchant in the future. Father C. claims that the chaplains and the entire town knew this narrative from the start.54 Other witnesses corroborate this account. The court acknowledges that the initial impression given some was that the dismissal was due to a reported theft. However, the decision then argues that the true motive for dismissal could not have been any criminal allegation. We see this when the collegiate chapter met one month after the dismissal. The members discussed Father Anthony’s plea for reinstatement due to the unjust nature of his dismissal. They rejected the petition based on their determination that the theft was not the principal cause; indeed, by this time they were aware of the withdrawal of the accusation. There were several other reasons why the dismissal should have occurred and these still stand. The court then concludes: “These things all having been considered which concern the manner of dismissal, the conclusion is reached that the Reverend Superior did not act in an unjust way, but rather used prudence and mildness.”55

54.  II: 418–419: “sac. C[arlo] . . . dicebatur nimirum cereos a sacerdote Aristide ablatos, non esse cereos ecclesiae, sed esse specimina cereorum, quae sac. Aristidi commissa fuerant ut ea in Collegiata ostenderet, et harum mercium emptionem procuraret.” 55.  II: 421–422: “His ergo omnibus perpensis quae respiciunt modum dimissionis, concludendum est Rev. Abbatem non modo non iniuste egisse, sed etiam usum fuisse prudentia et clementia.”

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Would the last pillar of proof at first instance, the circumstantial evidence, prove harder to dismiss? As did the first instance court, the Promoter of Justice at second instance argued that the short temporal interval between the accusation of theft and the dismissal establishes that the cause for dismissal was the accusation.56 This is more apparent given the many other causes that could have led to a prior dismissal, but did not. Instead, the respondent failed to act on all the prior causes contrary to his duty to maintain vigilance and to correct or discipline the chaplains. The question for the Promoter of Justice, then, is simple: “What new fact determined the actions of the superior and the patrons?” The answer is as simple: “[Father Anthony] was accused by a certain C., who revealed the matter not only to the superior, but to the public . . . Privation of office followed immediately on the accusation.”57 The court responds by counting time. The dismissal did not follow immediately after the accusation. Suspension from office did. Removal from office did not occur for some eleven days after the report of missing candles. Therefore, it was not at all a matter of immediately. During that period, the superior appropriately weighed the matter and consulted the patrons. Moreover, the evidence is clear that the accusation of theft was a cause, although not the principal one. The report concerning the candles was merely an occasion for dismissal, one cause among many others. Nor can the Promoter of Justice sustain the argument that the swift dismissal caused defamation to Father Anthony’s name. By the time the removal took place, the public was already aware that Chaplain C. had withdrawn the accusation of theft and that the candles taken belonged to Father Anthony’s friend. The dismissal could not, then, have caused public rumor that Father Anthony was a thief. The second instance judges conclude: Wherefore, in summary, neither from the alleged declaration of the patron John, nor from the deposition of witnesses, nor from the so-called “general rumor,” nor from circumstantial facts, is it established that the patrons or the Very Reverend Superior dismissed Father Anthony due to the accusation

56.  The Promoter of Justice was a party to this case supposedly due to its notoriety and the serious nature of the accusation. 57.  II: 424: “Accusatus est a quodam C[arlo] qui non solum Abbati rem detulit, sed vulgavit. . . . Accusationem hanc statim secuta est officii privatio.”

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of theft. Wherefore since, as it is established from the arguments in first part of this sentence, that the Superior and patrons had just causes to dismiss said chaplain and they proceeded according to the norm of the Bull of erection of the Collegiate Church, it follows that Father Anthony was not dismissed unjustly from the office of chaplain and therefore the complaint against the Reverend Father Paul is to be rejected entirely.58

The Final Verdict Arrives

It was now Father Anthony’s turn to lodge an appeal, which he promptly did, resulting in the publication of a third and final instance decision on July 14, 1913. The doubt for the judges to resolve is which of the two previous decisions is to be upheld and which is to be overturned.59 The last appellate panel was composed of Michele Lega (1860–1935), Guglielmo Sebastianelli (1855–1920), who would later serve as dean, and Pietro Rossetti (1841–1929). Lega, who authored the third instance decision, was the most illustrious of the jurists on the panel. He served first as undersecretary of the Sacred Congregation of the Council and then as dean of the newly constituted Rota from 1908–1914. In 1914, Pius X created him a cardinal and appointed him prefect of the Sacred Tribunal of the Apostolic Signatura, where he would remain until 1920. Lega then served as Prefect of the Sacred Congregation for Discipline of the Sacraments from 1920 until his death in 1935. Throughout his long career, he exercised a notable influence on both canon law and Italian civil law, including criminal law.60 The third instance hearing begins with the final resolution of an ongoing, incidental issue and the consideration of a new one. We recall the much-discussed letter of of March 23, 1899, by which the superior 58.  II, 428: “Unde, in summa, nec ex praetensa declaratione patroni Ioannis, nec ex depositionibus testium, nec ex sic dicta ‘fama generali’, nec ex facti adiunctis, constat patronos aut Rmum Abbatem Paulum dimisisse sac. Aristidem [Anthony] ob imputationem furti. Cum ergo, uti constat ex dictis in priori parte huius sententiae, Abbas et patroni habuerint iustas causas dimittendi dictum capellanum, et processerint ad normam Bullae erectionis Collegiatae, sequitur sac. Aristidem non fuisse dimissum iniuste ab officio capellani, et proinde prorsus reiciendam esse eius querelam contra Rev. Abbatem Paulum.” 59.  III, 442: An sentential Rotalis diei 1 Febr. 1912, vel potius sententis rotalis [sic] diei 13 augusti 1912 sit confirmanda, 60.  See Matteo Nacci, “Lega, Michele,” in Dizionario Biografico dei Giuristi Italiani (XXII– XX Secolo), ed. Italo Birocchi, et al. (Bologna: Società Editrice Il Mulino, 2013) 1159–1160.

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supposedly received authorization from the administrators of the foundation to dismiss Father Anthony. The letter was entered as documentary evidence in first instance. At that hearing, the petitioner asserted that the letter had been falsified. Therefore, he argued, the court should reject it and find that Father Paul had no authority to dismiss him. However, the first instance judges dismissed the question as irrelevant to its conclusions since evidence other than that of the letter clearly showed that the administrators had authorized the dismissal.61 The court did so while admitting that there is evidence for the letter’s falsification; namely, the one who signed the Marquis John’s name to it was the advocate of the Patron’s wife and not the Patron himself. The second instance tribunal also examined the question of the letter’s authenticity. After a more detailed consideration than at first instance, the auditors concluded that the letter was, in fact, authentic and so the superior had the authority to dismiss the petitioner. During the third instance hearing, it was the Promoter of Justice’s turn to attack the letter. He had lodged a querela falsi62 against the document, arguing that the March 23 letter could not have been written before 1902, as a forensic expert would confirm. He then argued that there appears to have been no foundation for the dismissal decreed by the letter of March 27, 1899, which claimed the dismissal occurred with the authority of the patrons as expressed in the letter now under attack.63 However, before the conclusion of the third instance hearing the Promoter of Justice withdrew his complaint. He acknowledged that the authenticity of the letter did not bear on the just outcome of the case since there was no longer a dispute 61.  II, 80: “Hanc aliasque circumstantias ad trutinam revocarunt Domini: at quum dimissionem ab Abbate, utcumque factam, ratam habuerint patroni, non est cur in hac quaestione immoremur.” 62. The querela falsi allows a party to contest the authenticity of a public or private document that a court had recognized as authentic. It remains a remedy in the current ecclesiastical procedural law, although not expressly mentioned there. It is an express remedy in Italian civil law: see artt. 221ff of the Italian Code of Civil Procedure. Article 221 stipulates: “La querela di falso può proporsi tanto in via principale quanto in corso di causa in qualunque stato e grado di giudizio, finchè la verità del documento non sia stata accertata con sentenza passata in giudicato. La querela deve contenere, a pena di nullità, l’indicazione degli elementi e delle prove della falsità e deve essere proposta personalmente dalla parte oppure a mezzo di procuratore speciale, con atto di citazione o con dichiarazione da unirsi al verbale d’udienza. È obbligatorio l’intervento nel processo del pubblico ministero.” 63.  III, 442: Authenticitas litterarum diei 23 martii 1899 impetita est ab ipso Promotore Iustitae qui opinatur, ‘epistolam fuisse scriptam non ante annum 1902,’ hinc nullum habere fundamentum mandatum cui innititur dimissionis decretum diei 27 martii 1899.

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that the superior had the authority to dismiss. There was no need for the letter of March 23 to establish that fact. This was not, however, the only querela the court had to decide. The Promoter of Justice also lodged a complaint against the advocate Matthew (procurator of the Patron’s wife) and two witnesses of the Abbot, Licinius and Uldericus, for offering false statements to the court. The petitioner also lodged a complaint of false attestation against one of his own witnesses, Cesare, and an accusation against the superior of subornation of witnesses. All of this had to be dealt with prior to resolving the principal question since, in the mind of the court, the outcome of the incidental questions impact the discovery of the truth concerning the principle question.64 Regarding the assertions of false attestations, the auditors first determine they are not criminal complaints of perjury since the principle of law, expressed by Reiffenstuhl, holds that a witness cannot be punished for saying something in a trial (and so under oath) that contradicts what he might have said prior to the proceedings and when not sworn to tell the truth.65 It is what a witness says while under oath that enjoys the presumption of truthfulness. Given that the querela falsi have no foundation as criminal complaints, they must be reduced to an exceptio suspicionis against each of the witnesses; that is, exceptions for the rejection of the witnesses due to false statements in their testimony. Based on procedural grounds, the court rejects from the outset the exceptions against all four witnesses.66 Exceptions of suspicion against witnesses must be lodged prior to their examination or immediately after the testimony is made known to the parties. The rule of equity provides that the period for lodging an exception should be such that the party is able to exercise his rights without appearing to engage in fraudulent or malicious

64.  Nam, ad querelas in primis quod attinet, patet heic agi incidenter, seu quatenus earum cognition inserviat veritati detegendae controversiae principali.” Lega offers a citation from De Luca to this point (de iud. disc. 15, n. 9). 65.  III, 443. Lega cites Reiffenstuhl at test. Quest. 66, n. 83: “Si unum dixit in iudicio (testis), contrarium eius extra iudicium, non punitur de falso.” 66.  III, 444: “Praeterea istae exceptiones, seu querelae hodie iam essent ab ipso limine iudicii repellendae.”

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delays. The court rejects the exceptions for precisely this reason, to avoid delays in rendering final judgement on the principle question.67 Regarding Father Anthony’s exception against his own witness Cesare, the auditors also invoke the rule of law, again expressed by Reiffenstuhl, that a party cannot bring an exception against his own witnesses once they have testified unless a new cause for it arises.68 That was not the situation here. It was, rather, that in the end Cesare’s testimony favored the respondent more than the petitioner. Since all parties had sufficient time to take exception to witnesses, their attempt to do so now would be dilatory. Concerning particularly the testimony of Advocate Matthew, who was the procurator who signed the Patron’s letter of March 23, 1899, the court also finds the exception of suspicion against him falls because his testimony is not relevant to the case. Father Anthony’s claim is that the superior said he had spoken with the patrons and suggested that they write the letter of March 23. The Advocate, on the other hand, said that meeting did not take place. The court responds that it makes no difference to whom the superior spoke or if he spoke to anyone at all. The authorization to dismiss was still his. In any case, Lega notes, there is no true contradiction between the testimony of the Advocate and the superior. They offered their statements sixteen years after the unfolding of the events. Some confusion as to how events precisely unfolded at the start is understandable. Moreover, the superior himself clarified his testimony, by a parenthetical remark added after he offered his statement: “Regarding the dismissal . . . I spoke about it with the Patrons (not precisely with the Patrons but things were dealt with through Advocate Matthew: the advocate is the procurator of the wife of the Patron) . . .” Since the procurator could act on the patron’s behalf, the superior considered this sufficient to initially assert he had spoken with the patron himself.69

67.  III, 444: “Hisce attentis et consideratis, reiectae sunt eiusmodi querelae seu exceptions quae nullimode retardare possunt iudicii definitionem.” 68.  III, 444: “. . . invocandam esse regulam dixerunt Domini, nempe posse contra testem a se productum excipi, post eius deductum testmonium nisi nova causa exceptionis exorta sit eademque congruis argumentis demonstretur.” 69.  III, 445: “Quanto al licenziamento . . . ne parlò coi Patroni (non precisamente coi Patroni, ma con l’Avvocato Matteo fu trattata la cosa: l’Avvocato è procuratore della moglie del Patrono, etc.).”

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What remains, then, is the accusation brought by Father Anthony that the superior engaged in subornation of witnesses. The auditors reject this exception as well, stating succinctly that he raised it far too late in the trial and there was little proof adduced to merit a hearing on the matter. In the end, the testimony of the witnesses stands, the credibility of the superior remains intact, the letter of March 23, 1899 retains its force and the court is at last able to resolve definitively the principle question: Did Abbot Paul dismiss Father Anthony unjustly? Lega begins by recalling the outcome of Father Anthony’s attempts at vindicating his rights prior to the first instance decision at the Rota. By a unanimous vote, the collegiate chapter refused to readmit him on May 2, 1899. That September he sued the Marchese in civil court for defamation and reinstatement; that failed as well. In the meantime, he engaged in the negotiations with the ecclesiastical authorities, only to reject their offers. In 1906, he attempted to have the superior charged criminally in civil court for defamation. The civil court rejected his petitioner for lack of foundation. Finally, the Sacred Congregation of the Council twice attempted to resolve the dispute, but to no avail. Father Anthony refused to drop his complaint in exchange for an ecclesiastical benefice. Lega remarks: “These were the particular vicissitudes of this case before it arrived as our Tribunal. And they bring attention to the fact the complaint has minimally obtained its effect either in the civil or the ecclesiastical forum, because the complainant did not prove what he intended.”70 A significant reason for the lack of proof is that the decree of dismissal and discussions surrounding it make no mention of an accusation of theft. Moreover, witnesses in the earlier stages excused the superior from defamation, while other evidence pointed strongly to negative behavioral and performance issues related to Father Anthony. Additionally, at no time in any hearing, including this final appeal, was an investigation conducted or conclusions drawn regarding whether Father Anthony did, in fact, steal the candles. Evidence can be found to support his innocence or guilt. Yet, since the action before the Rota is not a criminal cause, this is not of concern. What does concern the outcome, 70. III, 448: “Haec fuerunt praecipuae vicissitudines huius causae, antequam ad nostrum Tribunal haec perveniret, et advertere praestat, querelam motam minime obtinuisse suum effectum sive in civili, sive in ecclesiastico foro, quia querelans non probavit suam intentionem.”

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however, is that there is no certain proof that an accusation was ever made against Father Anthony. It seems, instead, that circumstances before, during and after the dismissal were used to infer that someone accused Father Anthony of theft to Father Paul and so that the superior acted on the accusation of theft to dismiss the petitioner.71 It is easy to see how such a conclusion could be drawn, as was strongly argued by the first instance auditors, given the temporal connection between the taking of candles and the dismissal of Father Anthony. We recall that the superior received the report concerning the candles on March 17 or 18. On March 20, the superior told Father Anthony in the sacristy of the collegiate church (in the presence of others) that he was temporarily relieved of his duties. Only three days later, the superior supposedly discussed the matter with the patrons. Then on March 27, the dismissal took place. The court concludes: “A moral connection existed between one fact [report of missing candles] and the other fact [dismissal]. The [auditors] observe that all the witnesses diligently examined in both sentences confirm this. But was this connection the efficient or necessary cause [for dismissal] or simply occasional or accidental?”72 As we recall, the answer to this question mattered a great deal to the first instance tribunal and much less so to the second instance auditors. For the third instance judges, the evidence is ambiguous. At times, it seems that the accusation was not the principal cause. Witnesses testified as much: it was the bad character Father Anthony displayed and the failure to fulfill his duties. Other witnesses, however, indicated the accusation was the primary motivating factor. Yet others held something of both positions. As Canon John testified: “I believe that the accusation was the predominant motive for the dismissal. It is certain that no one was satisfied with the service that the petitioner gave. He always appeared to have a bizarre character, ignorant, poorly educated and quarrelsome. Certainly,

71.  III, 449: “Porro hic est status facti, nunquam accusatum et accusatores fuisse discussos, et unumquemque eam sibi efformasse persuasionem quae visa est deduci ex adiunctis antecedentibus et concomitantibus, imo et subsequentibus prolatam accusationem.” 72.  III, 450: “Connexionem fuisse morale inter unum aliudque factum, animadverterunt Domini confirmari ab omnibus testibus diligenter examinatis in utraque sententiae sed quaenam adfuit connectionem, causae ad effectum seu necessaria, an tantummmodo occasionalis, seu accidentalis?”

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the dismissal was not judged a surprise by anyone; rather, the satisfaction with it was unanimous.”73 It was testimony such as this that led the first instance auditors to find that the accusation was the primary and necessary cause for dismissal. However, Lega observes it can be very difficult to draw a precise line between a necessary cause and an accidental one. If uncertainty remains, then the principle holds that a dismissal is just if the authority who dismisses acts based on his legal right, since the one who exercises his right is presumed to do no harm to his interests. The first instance tribunal concluded that the superior had acted unjustly since he dismissed because of the alleged theft. Yet, the third instance auditors respond, if this is so it must be proven that the accusation of theft was false. That cannot be the case, however, since no investigation into the alleged theft had ever taken place. Therefore, one cannot argue the superior acted on a false allegation since neither the nature of the report can be proven or, if it had been proven to be an accusation, that it was a false one. At this point, the final appellate decision offers an unveiled attack on the decision of first instance that found in the petitioner’s favor. That decision, Lega writes, conforms neither to the rule of law or to the truth of the facts in evidence. First at issue is the question of what legal right the patrons and superior had to dismiss the petitioner. Lega cites the same doctrinal sources as the second instance panel to emphasize that the office of chaplain was amovendi ad nutum and, therefore, removal from it could take place “by the superior according to his will and choice, even without cause.”74 The freedom to remove is absolute and requires no observance of law. The only limitation on this authority, as we have seen the prior two instances assert for different reasons, is that the motivation for the dismissal cannot be malice or hatred committed ex dolo.75 73.  III, 451: “. . . tale imputazione ritengo che sia stato il motive preponderante per il licenziamento. Certo che nessuno era sodissfatto del servizio che prestava l’attore il quale sempre si mostrava di carattere bizzarro, ignorante, poco educato, e litigioso . . . Certo è pure che il licenziamento non fu giudicato un sorpreso da alcuno, anzi la soddisfazione fu unanime.” 74.  III, 454: “. . . a Superiore ad eius nutum et arbitrium, etiam sine causa.” The citation is again from De Luca, disc. 97, n. 6. De Benefic. Lega then notes, as did the second instance decision, “Est doctrina communis et certa quae confirmatur a De Luca . . .” 75.  Lega cites the same legal sources as did the second instance decision. He adds one from Innocent III: “Ego puto quod si nulla subdit causa, dum tamen non ex militia, tenet

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As was the case with the prior hearings, Lega also mentions a possible second limitation on the right to remove ad nutum; namely, if the removal will bring shame or infamy on the one removed or cause him some other grave prejudice. Now the Promoter of Justice argues that this second limitation is relevant to the case of Father Anthony. Even if the office he held was ad nutum, the removal would be unjust if it were to defame the priest or otherwise cause a grave harm to him. Lega responds to this with the most detailed legal analysis of the three decisions.76 In summary, the second limitation mentioned by De Luca applies directly to maintaining possession of a thing by its possessor. In these cases, it is not necessary to prove that malice or hatred motivated the loss of the thing, but simply that the loss brought about defamation in the possessor or another grave harm. This means that the remedy De Luca discusses would apply to Father Anthony only if an office held tantum ad nutum gave the office holder right of possession. It does not. By conclusion, then, the second limitation set by De Luca would not allow the petitioner to receive relief if he were to prove that the dismissal resulted in defamation or grave prejudice to his interests. He had to show instead that the dismissal was done out of hate or malice. However, Lega continues, this does not mean that the tantum ad nutum office holder would be without any recourse at all if dismissal were due to another grave harm incurred. In those situations (under the second limitation of De Luca) the remedia possessoria should be available to him saltem ex aequitate.77 Relief in equity is distinct from relief sought through a judicial action. Recourse is made to the superior of the one who brought about the loss, not to a court of law. The equitable recourse is not an action for vindication of a right. It is a plea for the benevolence or mercy of the superior. Moreover, the recourse cannot result in either a grant of restitutio in integrum regarding the office or the awarding of damages. It is a matter of the equitable resolution of a harm.78 Whatever relief in equity is granted, revocatio.” Glossa ad Cap. Final. De off. Ord. in VI. Cardinal in Clementia., l., de supplen., neglig. Praelat. 76.  III, 454–456. 77.  II, 453. 78.  III, 454: “Superior qui excipit recursum, cum recurrenti, ex supposito, non competat actio seu ius ad obtinendam restitutionem in integrum quoad officium, vel damni refectionem, pro sua potestate, si aliqualis subsit causa aequitatis decernet quid dandum sit aut faciendum recurrenti ut aequitati quoque et clementiae satisfactum sit.”

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it must always be proportionate to the harm that was caused the recurrent. This is the correct reading of De Luca, not that of the Promoter of Justice. Father Anthony chose not to pursue this equitable path the remedia possessoris. Instead, from 1899 onwards he pursued formal legal actions against the superior, among others. As we noted earlier, when Father Anthony took his case to the Sacred Congregation of the Council, an effort was made to resolve it in an equitable way that would remove the growing scandal and provide him with something for his sustenance. In 1907, he was offered the amount of 1700 pounds. However, he rejected the offer, insisting that he had suffered a far greater monetary loss and that great harm had been brought to his reputation. Father Anthony then pursued his cause at the Roman Rota, closing off the opportunity for an equitable solution. What, then, does the final appellate panel make of the petitioner’s plea? The auditors note that there is no question that Father Anthony suffered monetary losses due to the dismissal. The asserted harm to his reputation, although not proven, remains controversial. Even so, “Harm to financial status and even loss of reputation are not in themselves sufficient reasons to plead for damages.”79 As has been well discussed, the patrons had the right to dismiss the petitioner with no cause at all and no attention to positive law. Only the natural law limited the dismissal; namely, it could not take place because of malice, hatred or calumny. In short, the presence of dolus would have to show that the unjust dismissal rose to the level of a criminal act. From all of this, the auditors offer four conclusions.80 First, the petitioner did not complain that the superior had no authority to dismiss him; the complaint was that an unjust dismissal took place. Therefore, since no one has contested the fact that the office was ad nutum the court concludes the respondent and the Patrons of the foundation exercised their rights under the foundational documents of the collegiate church to dismiss the petitioner. Second, we can infer legitimately from the testimony and the circumstantial proof that the accusation of the theft of candles provided the 79.  III, 455: “Sed damnum in re patrimoniali et etiam famae iactura non est, per se ratio sufficiens ad petendam indemnitatem.” 80.  III, 456–457.

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superior an impulse to dismiss the chaplain. Nevertheless, Lega asks, what bearing does this have on the case? It is true that there was little proof that the priest stole the candles. Yet, neither was there proof that the accusation was false. The fact that within months of his dismissal Father Anthony approached a civil court to vindicate his reputation left no room for a criminal investigation into any question of theft. Indeed, the activity of the petitioner himself helped to spread the rumor that theft might have led to the dismissal. His own witness did not agree with him and the collegiate chapter refused to reinstate him at a time when the accusation of theft was clearly no longer an issue. This allows the court to conclude that even if the superior included the accusation among the reasons for dismissal, that alone did not cause the reputation of the petitioner to be harmed. A third conclusion holds that even though it was not proven that the petitioner was dismissed due to the false accusation, it was established that at least one cause existed for his removal; specifically, his poor service as a chaplain. Many testified to this in all instances. The large number of examples of this poor service not only supports the claim that the accusation of theft was one among many, but also makes it difficult for the petitioner to prove to a sufficient standard that the accusation and it alone was the necessary, efficient cause. Fourth, the loss of good reputation that the petitioner makes a great deal of was not due largely to the dismissal itself.81 The petitioner could have remedied the situation quickly. Instead, he chose to publicize the accusation even beyond the circle of those within the collegiate church who had initially heard about it. Moreover, if it were true that the mere act of dismissal brought about the loss of reputation then it would make little sense for the law to allow for removal ad nutum since those who made use of their right to dismiss could by that fact be accused of unjust actions. Those who accept such an office should also be aware that free removal attaches to it. Under normal circumstances, this would lead the person to carry out his duties in a faithful and excellent manner. This was not the case with Father Anthony: His assertion that his dismissal was carried out 81.  As Lega comments with perhaps some sarcasm: “Famae iacturam inde ab eiecto passam, et ab eo tam alte lamentatam, iam dictum est, ex manga parte non pendere ab ista dimissione.” III, 456.

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maliciously and with criminal intent was not proven; his own unacceptable behaviors that led to the dismissal were. The decision of third instance ends with an interesting response to the decisive question at first instance: was Father Paul guilty of negligence? Lega observes that Father Paul cannot be accused of lack of due diligence, or culpa, simply because he might have failed to investigate sufficiently the accusation of theft, which, whether the principal cause of the dismissal or not, was certainly the final one sequentially.82 There is little evidence an investigation took place in the ten days after the superior heard of the missing candles and before he dismissed Father Anthony. This does not mean one did not occur, as was weakly claimed at first instance. If an investigation had taken place, it would customarily have been in secret. We simply cannot conclude one way or the other. As for the act of dismissal, then, absent proof to the contrary every act performed is presumed to be rightly performed.83 If the superior cannot be held liable for damages for acting under gross negligence, he certainly cannot be liable for having acted under culpa levissima, or the failure to exercise the slightest degree of diligence. Lega remarks that this type of legal negligence applied outside of contractual agreements only if the law foresaw it. Within contractual agreements, it was relevant for liability only within formal covenants or tacit ones where the matter of the agreement makes the applicability of this type of culpa clear. Chaplains at the collegiate church had no such contract. They received their office at best by a contractus innominatus or anonymous contract. This quid pro quo type of contract existed for the mutual utility of the parties and would admit only of culpa levis, or failure to exercise ordinary diligence as common persons would regarding their own affairs. Accordingly, even though the petitioner could have sought equitable relief for reinstatement to his office due to culpa levissima, he still cannot argue that the superior acted under this type of negligence. Although the evidence does not establish that the superior usually acted with suitable due diligence, he still enjoys the presumption that he did. Failure to do so must be proven. As for the petitioner, Lega concludes, the evidence does 82.  III, 457. 83.  Lega cites the traditional moral principle: “Omne factum praesumitur recte factum.” III, 457.

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indicate he acted frequently in a negligent and disruptive fashion regarding his duties. The claim made by first instance that Father Paul acted with gross negligence has now been refuted. There is no proof the respondent was negligent to any standard and, even if he had acted under culpa levis­ sima this would have brought relief ex aequitate, something we know the petitioner refused from the Sacred Congregation of the Council. With that, the auditors pronounce their final decision: they reject all incidental exceptions proposed by any party and they overturn the decision of first instance and confirm the second instance sentence. The case comes to an end with the second exoneration of Father Paul and no further appellate routes open to Father Anthony who, fourteen years earlier, had learned of his dismissal from the collegiate church and who now had the obligation to pay all his legal fees incurred throughout this long, judicial journey.

A Look Backwards and Forwards

By the time the Case of the Missing Candles, as I have labeled this controversy, reached the Roman Rota, the collegiata had been suppressed. Marchese John Paul remained the administrator of the temporal goods belonging to the foundation, but the collegiate church itself was no more and the chaplains who formerly held an office there tantum ad nutum no longer possessed it. Perhaps this is one reason that Father Anthony did not make his reinstatement as a chaplain part of his lawsuit. Just as we never knew the name and location of the church, we also do not know what happened to the players in the judicial drama after the suppression of the institution.84 The exception would be the judges who decided it. Michele Lega, for instance, would be created a cardinal and leave the Rota one year after he issued the final decision.

84.  Of course, a search of the archives of the Roman Rota would perhaps reveal the information. Since this article does not intend to present a history of the collegiate church or those associated with it, a search of the archives was not undertaken. Nor was there an attempt to review the acts of the case since the purpose of this work is to examine the sentences as such and not the individual acts upon which they are based—should they be available.

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Five years after the case became a res iudicata we will also see the beginnings of a fundamental change in the way legal sources or doctrine will be used at the Rota to motivate decisions on the merits of a case. Each of the decisions illustrated here relied on traditional, accepted canonical sources to argue and apply the law to the facts. Some were centuries old and others more recent. Justinian’s Digest and the Corpus Iuris Canonici were cited as sources of law. The jurisprudence of prior decisions of the Roman Rota were included. And the list of jurists used as doctrinal sources is impressive: Prospero Farinacci, Praxis et theorica criminalis (1616); Ioannes de Lugo, Disputationum de iustitia et iure (1652); Ioannes Baptista de Luca, Theatrum veritatis et iustitiae (1671); Anacletus Reiffenstuhl, Ius canonicum universum (1700–1714); Pyrrus Corradi, Praxis beneficiaria (1735); Aloysius Cremani, De jure criminali (1791); Giuseppe d’ Annibale, Summula theologiae moralis (1881–1883); and Franz Xaver Wernz, Ius decretalium (1898). Each of the three decisions employed these sources of law and doctrine to a different degree in fashioning the court’s argument and conclusions. Clearly, it is the third decision authored by Michele Lega that does so most forcefully and masterfully, including his comments on canonical equity. For all the decisions, the legal doctrine of the jurists controls the arguments much more than individual legal sources, which was common at the time. All decisions also engage in an interweaving of law and argument. A fluid nature to this allows each argument to come with its support in law. Interestingly, there is no reference to the special norms of the Rota issued by Pope Pius X in 1910. This might have been appropriate given, for instance, that the third instance panel considered several incidental causes, something the norms address directly.85 What is perhaps most surprising is the striking disagreement between the first instance court and the two appellate panels. It is not only the conclusion of first instance that is overturned, but almost all the arguments that build to it are dismissed or critiqued. This is so regarding the law and the facts surrounding the respondent’s actions. Given that no additional instruction of the case took place after first instance, all the judges dealt with the same body of evidence. But the same element of proof that was decisive at one hearing for one conclusion became decisive at another for an opposite one. This was so on several occasions. At least one conclusion 85. §§81–100.

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was held in common by all three panels: the authenticity of the letter of March 23, 1899, had no relevance to any outcome. It is interesting to imagine how these decisions would appear if they had been written some years after the promulgation of the Corpus Iuris Canonici in 1917. There are no truly similar cases to allow for a sound comparison.86 The number of causae iurium heard at the Rota will gradually and persistently decline to the point where most years under the revised code see none. Likewise, the use of the traditional (now historical) sources of law and doctrine will diminish, yielding to citations of the canons of the new codified law. A rights decision heard coram Grazioli from 1936 contains a masterful law section that cites multiple canons from the 1917 code together with traditional legal sources.87 Another causa iurium decided in 1988 coram Palestro cites only canons of the 1983 Code, rotal jurisprudence under codified law, but no traditional sources.88 This is not to fault such jurisprudential developments. Following the promulgation of the Pio-Benedictine Code, the Roman Rota was bound to develop its jurisprudence under the new legal system presented by the code. Jurisprudence under a modern codified system will not resemble jurisprudence prior to the adoption of that form of law. Moreover, given the paucity of now heard by the Rota other than those of marriage nullity the opportunities to see where this trajectory would move—back to historical sources or firmly away from them—will not soon arise. All the same, perhaps The Case of the Missing Candles will serve as more than a historically interesting piece of jurisprudence. It can also serve as a reminder of a rich and expansive use of legal doctrine and manner of judicial argument that is still beneficial to the Church’s legal system.

86.  This is especially so given the rarity of the Roman Rota hearing a case from original jurisdiction through two appellate reviews. 87.  C. Grazioli, April 6, 1936: RRDec 28: 207–225. Grazioli served as the dean of the Rota at the time and this case was heard before 11 auditors, indicating the status of its petitioner and the subject under dispute. 88.  C. Palestro, June 15, 1988: RRDec 80: 400–414.

T H E C AT H O L I C U N I V E R S I T Y O F A M E R I C A

robert w. oliver*

The Responsibilities of Judges for the Admission of Proofs in a Penal Trial

Decisions regarding the admission of evidence in a penal trial are a principal exercise of judicial discretional authority, owing to the norm that the definitive sentence is to be based solely on proofs legitimately admitted, published to the parties, and contained in the official acts. The codes of canon law allow considerable latitude in discretion regarding the admissibility of evidence, granting the judge competence to admit a specific proof to the trial or to exclude it. The judge may also admit evidence for a limited purpose, but exclude it for all other purposes. Penal law experts have provided substantial analyses of questions which arise in this discernment. From the years immediately following the Second Vatican Council, and continuing through contemporary debates on the “sexual abuse crisis” in the Church, they have examined the underlying principles in this process and emphasized the protection of natural and canonical rights. The revision of penal law may not be “one of the most hotly debated areas of contemporary legal reform,” Thomas J. Green observed in 1981, but it is nonetheless an area which “merits some serious reflection to ensure that the final text reflects the best insights of our legal tradition and can thereby serve the legal-pastoral life of the church as effectively as possible.”1 * Secretary, Pontifical Commission for the Protection of Minors, Vatican City State. 1.  Thomas J. Green, “Penal Law Revisited: The Revision of the Penal Law Schema,” Stu­ dia canonica 15 (1981) 135–136. For a compilation of the literature on the early stages of the reform of penal law, see Green, “The Future of Penal Law in the Church,” The Jurist 35 (1975) 274–275.

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Attention to these norms has taken on a new role in recent years with the increase of penal trials for delicta graviora reserved to the Holy See. This development, not entirely foreseen during the code revision process, calls for renewed attention to the norms for admitting proofs and the tests judges use to examine evidence brought forward in a canonical process.2

General Norms for the Admission of Proofs

The general norm for admitting evidence, both in the 1983 Codex Iuris Can­ onici and in the 1990 Codex Canonum Ecclesiarum Orientalium, is that the parties may bring forward any kind of proof which is “licit” (licitae) and seems “useful” (utiles) for adjudicating the case.3 An important consequence is that the promoter of justice and the accused have the right to introduce questions regarding the liceity or usefulness of evidence admitted by the court and, when evidence is rejected on these bases, to insist that it be admitted. The court is to then decide the matter “as promptly as possible (expeditissime).”4 To obviate delays to the process, the law allows no immediate appeal to this decision, but the matter may be raised again in the briefs or during an appeal of the definitive sentence.5 Liceity

When examining the liceity of proofs offered to the court, the judge first determines whether divine law or ecclesiastical law prohibits a piece of evidence from being introduced or used in the process. 2.  Thomas J. Green, “Clerical Abuse of Minors: Some Canonical Reflection,” The Jurist 63 (2003) 366–425 and Thomas J. Green, “Sacramentorum Sanctitatis Tutela: Reflections on the Revised May 2010 Norms on More Serious Delicts,” The Jurist 71 (2011) 120–158. 3.  CIC c. 1527; CCEO c. 1208 §1. The section “De probationibus” is the fourth title in CIC, Book VII, Part II, Section I: “The Ordinary Contentious Trial,” cc. 1526–1586, and the fifth article in CCEO, Title XXV: “The Contentious Trial,” Chapter I: “The Ordinary Contentious Trial,” cc. 1185–1342. 4.  CIC c. 1527 §2; CCEO c. 1208 §2. 5.  CIC c. 1629, 5°; CCEO c. 45. For informative comparisons of the canons on penal law in the Latin and the Eastern codes, see Thomas J. Green, “Penal Law in the Code of Canon Law and in the Code of Canons of the Eastern Churches: Some Comparative Reflections,” Studia canonica 28 (1994) 407–451; “Procedural Law: Some Comparative Reflections on the Latin and Eastern Codes,” in Art of the Good and Equitable: A Festschrift in Honor of Lawrence G. Wrenn, ed. Frederick C. Easton (Washington: CLSA, 2002) 103–124; and “Penal Law: An Eastern Perspective (CCEO 1401–1487),” Studies in Church Law 8 (2012) 87–114.

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Natural law is the first foundation for the tests regarding liceity. The judge is responsible, for example, to decide whether a statement offered to the court appears to have been acquired through force or coercion.6 Some evidence is illicit in se and should not be brought forward by the parties nor admitted by the judge. This norm excludes, for instance, information gained on the occasion of sacramental confession, as well as matters that are confidential by reason of office or ministry.7 The incapacity for information known from sacramental confession is clearly established in law and no one is permitted to testify regarding matters which have become known from confession, nor can any information be accepted that was heard by anyone on the occasion of confession, in any way. This incapacity affects the priest who heard the confession and anyone else who heard information on the occasion of the confession, even when it pertains to something which could otherwise serve as an indication of the truth. Priests are incapable of testifying about such matters even if the penitent seeks their disclosure.8 This norm can raise difficult issues in some trials, such as those involving the crime of offering sacramental absolution to an accomplice in a sin against the sixth commandment or solicitation to sin with the confessor against the sixth commandment, in the act of, context of, or pretext of the sacrament of penance.9 The 2010 Normae de gravioribus delictis of the Congregation for the Doctrine of the Faith emphasize that in a penal process for these grave crimes “it must always be observed that any danger of violating the sacramental seal be altogether avoided.” Regarding an accomplice in a sin against the sixth commandment, the tribunal “cannot indicate the name of the accuser to either the accused or his patron unless the accuser has expressly consented.” At the same time, the tribunal “must consider the particular importance of the question concerning the

6.  CIC c. 1538; CCEO c. 1219. This canonical norm is a concrete example of an application of the general principles stated in CIC cc. 125–126; CCEO cc. 932–933. See the commentary in the Canon Law Society of Great Britain and Ireland, Canon Law Letter and Spirit: A Practical Guide to the Code of Canon Law (London: Chapman, 1995) 877–878 and Velasio De Paolis and Andrea D’Auria, Le Norme Generali, 2nd ed. (Rome: Urbaniana Press, 2014) 374–400. 7.  CIC c. 1548 §2, 1˚; CCEO c. 1229 §2, 1˚. 8.  CIC c. 1550 §2, 1˚; CCEO c. 1231 §2, 1˚. 9.  CIC cc. 977, 1378 §1, 1387; CCEO cc. 730, 1457, 1458.

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credibility of the accuser,” including evidence introduced licitly regarding any canonical crimes allegedly committed by the reus.10 Ecclesiastical law is the source for other norms that certain evidence may not be introduced licitly in a trial. The law itself considers some people “incapable” (incapaces) of testifying, including the judges and those who are assisting the judges, the promoter of justice, the advocate of the reus, those who stand for the parties at the trial, and others who assist or have assisted the parties in the same cause.11 Other persons are excluded by law and it is necessary that the judge grant explicit permission to testify if such evidence is sought in a trial. A judge does not ordinarily permit, for example, testimony from minors below fourteen (14) years of age and those of limited mental capacity.12 The law establishes a legal exemption for testimony about other matters, such the obligation to respond regarding certain issues. The judge may rule a priest exempt regarding information gained in connection with the sacred ministry (ratione ministerii).13 Other exemptions apply to anyone regarding matters legitimately subject to professional secrecy (ratione offi­ cii) and to those who fear that their testimony will result in dishonor, dangerous harassments, or “other grave evils” (aliave mala gravia) for themselves, their spouses, or persons related to them by consanguinity or affinity (ratione gravis incommodi).14 These norms can include, for instance, civil officials, physicians, advocates, and notaries. Some proofs may be introduced for certain reasons, but not others. The law states, for example, that the court may not admit evidence regarding factors like those arising from ignorance, mental disturbance, and passion when they are introduced to argue for an exemption from a penalty or for tempering a penalty based on a mitigation of imputability. However, evidence concerning these factors may be introduced for other reasons, such as an argument about intention.15 10.  Normae de delictis Congregationi pro Doctrina Fidei reservatis seu Normae de delictis contra fidem necnon de gravioribus delictis, 21 May 2010, art. 24. 11.  CIC c. 1550 §2, 1˚; CCEO c. 1231 §2, 1˚. 12.  CIC c. 1550 §1; CCEO c. 1231 §1. 13.  CIC c. 1548 §2, 1˚; CCEO c. 1229 §2, 1˚. 14.  CIC c. 1548 §2, 2˚; CCEO c. 1229 §2, 2˚. 15.  CIC c. 1325; CCEO c. 1416. These factors include crass, supine, or affected ignorance, which are signs of bad faith and criminal intent (dolus); drunkenness or another mental disturbance induced deliberately so as to commit the offense; and voluntarily stimulated or fostered

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Usefulness

The norms regarding the “usefulness” of evidence address the evaluation of proofs regarding their utility and suitability for understanding the case. The judge renders this judgment in relation to the purpose of a judicial penal process, which is to establish guilt, determine imputability, and apply an appropriate penalty. A complementary norm states that, when either party is negligent in presenting proofs, the judge is to supply for them whenever it is necessary in order to avoid an unjust sentence.16 Certain tests assist the court when evaluating the usefulness of evidence. Is it, for example, authentic, relevant, and necessary? Or, is it overly conjectural, merely hearsay, unfairly prejudicial, or based on suspicious motives?17 The “authenticity” of a proof refers to the court’s responsibility to ensure the integrity of the evidence, according to the norms discussed below in the sections on documents, witnesses, and experts. For this reason, the judge may require the parties to give clear evidence for establishing that a proof is authentic and to respond to any questions regarding its integrity. The “relevancy” of a proof refers to its usefulness for making more or less probable the existence of a consequential fact. Facts subject to a test of relevancy must be “in issue,” that is, needing to be proven or disproven by one party. Relevant facts tend to prove facts in issue or to establish important collateral facts, such as the credibility or competence of a witness. Judicial discretion permits the exclusion of irrelevant evidence, but the proof must then be reliably shown to have no probative value regarding a fact in issue or for assessing a consequential piece of evidence.

passion. As Green noted, “While acts influenced by such factors are not entirely deliberate or free, they reflect a certain bad faith and criminal intent.” Thomas J. Green, “Book VI: Sanctions in the Church [cc. 1311–1399],” New Commentary on the Code of Canon Law, in ed. John P. Beal, James A. Coriden, Thomas J. Green (Paulist Press: New York/Mahwah) 1545. 16.  CIC c. 1452 §2; CCEO c. 1110 §2. The judge may supply for the parties even after the conclusion, following the norms for supplementary instruction, attentive to the norm of CIC c. 1600; CCEO c. 1283. 17. When evaluating the arguments and observations given in writing, the CCEO requires that “an oral discussion must be carried out” (c. 1476). The CIC does not have a corresponding canon in the section on the development of the process (cc. 1720–1728). Green, “Procedural Law: Some Comparative Reflections,” 443.

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The “necessity” of a proof refers to its utility for certain reason, that is, its influence in determining a fact at issue in the trial. The judge is not to admit information to the trial when it has no bearing on the case or when it does not appear to have any legitimate influence in making a necessary determination. Evidence offered to the court may be excluded, for example, as “immaterial,” because it is not necessary for assessing any fact or proposition at issue in the process. The judge may rule that a piece of evidence is overly remote in time to prove a fact in controversy. Other facts may be deemed needlessly cumulative or repetitive and so excluded because introducing them would unreasonably prolong the trial. The judge may also exclude evidence which would unnecessarily raises collateral issues, thereby introducing new facts into the controversy and requiring new proofs that do not bear on the charged offense. Regarding necessity, the judge is to note carefully the type of evidence offered to the court. The probative value is strongest when a proof is based on personal knowledge, especially what has been seen and heard first-hand. Such “direct evidence” tends to establish a principle fact without need of other proofs.18 The necessity of “circumstantial evidence” is evaluated according to different criteria. Such evidence is generally useful to establish a fact from which the judges can infer something about an issue that is in controversy. It is also called, therefore, “indirect evidence,” and is admitted when it is truly useful for corroborating other proofs presented to the court.19 The judge excludes evidence as “overly conjectural” when it appears to have no rational, legitimate influence in determining a fact in issue. For example, the judge may determine that no reasonable conclusions, or even inferences, can be drawn from a witness statement or a document. 18.  Direct evidence, also called “real” or “demonstrative” evidence, can generally be perceived by the senses, whether through testimony, documents, photographs, charts, audio or video recordings, or the like. The most common examples of direct evidence are witnesses who personally saw or heard something or physical evidence that is introduced to establish a fact that is in issue. The tribunal may consult experts when evaluating the probative value of some forms of direct evidence. 19.  Circumstantial evidence can be used, for example, to argue that a certain fact is either possible or impossible, probable or improbable, permanent or transitory, clear and simple or complicated. Circumstantial evidence is generally excluded when the judge determines that its connection to a fact in issue is too weak to assist in deciding the cause. The court is also to avoid basing the decision on a chain of inferences made from a series of facts introduced as circumstantial evidence.

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The rule regarding “hearsay” is used to exclude certain evidence, either wholly or in part, when it is offered to prove the truth of a fact asserted in the statement. According to this principle, if the veracity of the statement cannot be tested and the person’s ability to recall events accurately is not clear, the judge may exclude the evidence on the basis of compromising the right of defense. It is also important to note, however, that the judge need not apply this rule to the simple fact that a particular statement. If, for example, the fact itself contradicts the testimony of another witness, the judge may choose to admit it, without a ruling on its truthfulness, for the purpose of impeaching the credibility of that witness. The judge may exclude a proof as “prejudicial” if its probative value is substantially outweighed by the danger of unfairly confusing the main issue, creating undue prejudice, or misleading the other party or the tribunal. The basis for this rule is the judge’s responsibility to balance the probative value of evidence, which is a question of law, with the potential prejudicial effect of admitting it. Evidence may be excluded as prejudicial, for instance, when it serves solely to establish a general propensity to criminal behavior, but when this specific behavior has no bearing on the charged offense. The obvious danger of admitting such evidence is that a reus may be condemned for the charged delict on the basis of actions or statements which do not establish guilt for that crime.20 Finally, the judge may exclude evidence as based on “suspicious motives” if information offered to the court appears to be based on dubious or highly questionable motivations. Such motivations can include self-interested fabrications of the truth, excessive ill will toward the reus, an illicit search for monetary gain, conspiracy to commit a crime, and collusion.21 Regarding the judge’s ruling, either party may object to the admission or exclusion of some piece of evidence based on the finding of utility or a lack thereof. The promoter of justice may object, for example, that a certain witness should not be excluded, offering arguments why the testimony is useful for establishing a consequential fact in the case.22 The defense advocate may object, on the other hand, that the witness should 20.  On imputability, see Green, “Book VI,” 1543–1548. 21.  The revision process for these canons demonstrated that the “fundamental values of the community” are reflected in its penal law. Green, “Penal Law Revisited,” 183. 22.  CIC c. 1530; CCEO c. 1211.

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not in fact be admitted, because the law requiring the judge to curb an excessive number of witnesses includes witnesses who fail to add anything useful to the proofs before the court.23

Admitting Different Types of Proofs

The judge applies these general norms to evidence offered to the court in the form of documents, witness and expert testimony, and confessions and declarations by the reus. All types of proofs are admissible to the process when they tend to establish or disprove the truth of the charged act and the definitive sentence is to address the probative value of the more important proofs, with indications of the reasons for this judicial determination. Documentary Proofs

Judicial evaluation of the liceity and usefulness of documents offered as evidence is governed by the norms on probative force, exhibition of a document, and whether it has been altered or is defective in some way.24 To have probative force, documentary evidence must be an original or a certified copy and deposited at the chancery of the tribunal. This general norm ensures that the evidence is available for examination by the judge, the promoter of justice, and the advocate. When a document pertains to the reus, it must be acknowledged by him/her and, if the reus refuses to do so, the judge is to seek corroborating proofs prior to admitting the document.25 Public documents “are to be trusted” (fidem faciunt) concerning everything directly and principally affirmed in them, unless contrary and evident arguments show otherwise. The judge has discretionary authority whether to admit “public ecclesiastical documents” to the trial, like official files kept in the chancery, seminary, or vocations office. It is not

23.  CIC c. 1553; CCEO c. 1234. 24.  CIC cc. 1543–1546; CCEO cc. 1224–1227. Documentary evidence is a primary form of proof in the trial, including a broad range of materials such as paper documents, photographs, charts, video recordings, transcriptions of audio recordings, etc. 25.  CIC c. 1544; CCEO c. 1225.

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licit, however, to admit medical or psychological documents without the express permission of the reus.26 “Public civil documents” may be admitted to the process, including civil court transcripts and records of civil proceedings. The judge is to remind the parties that all public civil documents are to be introduced and examined according to canonical standards, together with the fact that a civil finding does not represent conclusive proof in a canonical trial. When ruling on a document’s probative value, the judge is to note carefully the standard of proof used by the civil authority in rendering a decision, and its distinction from the canonical standard of moral certainty for conviction.27 The judge determines the probative force of a “private document” in light of several factors, particularly the time in which it was written. A private document written by the reus in “non-suspect time” (tempore non sus­ pecto) has probative value when the court is provided with manifest proof its authenticity and the time when it was written. The weight given to a private document against its author or signer, as well as those deriving a case from it, is determined according to the norms for an extra-judicial confession, including the need for other corroborating elements.28 The norms for the exhibition of documents in an ordinary contentious trial include the discretionary judicial authority to order the parties to exhibit a certain document, particularly one that is common to both parties. No one is bound, however, to communicate a document when there is danger that it will cause ill repute, dangerous hardships, or “other grave evils” (aliave mala gravia) to themselves, their spouses, or persons related to them by consanguinity or affinity. Likewise, no one is obliged to exhibit a document when it cannot be communicated without the danger of violating the obligation to observe secrecy in a canonical proceeding. In such cases, the judge may determine that an excerpt from the document can be 26.  CIC c. 1540 §1; CCEO c. 1221 §1. Public ecclesiastical documents are those drawn up by public ecclesiastical authority in the exercise of a legitimate function in the Church according to the norm of law. 27.  CIC c. 1540 §2; CCEO c. 1221 §2. Public civil documents are those which are defined as such by the law of each place and must conform to the civil laws of each place. 28.  CIC c. 1540 §3; CCEO c. 1221 §3. The law considers all other documents to be “private,” including letters, photographs, video recordings, and the like. The certification of a private document can be a public act, as when done by a notary, but the document itself remains private. For the norms on extra-judicial confessions, see the section below.

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transcribed without incurring these serious dangers, and order by decree that a copy of the excerpt be produced and presented to the parties.29 Regarding a document which has been altered or is defective in some way, the law states that it is “for the judge to decide what value, if any, must be afforded” to it. This norm applies to any document which is shown to have been “erased, corrected, interpolated, or affected by another such defect.”30 As such, the judge may require the party who proposes a documentary proof to demonstrate its genuineness, to authenticate that it has not been altered, and the like. For anonymous documents, the tribunal may require corroborating proofs to verify the facts asserted in the document before considering it even simply as an indication of a fact. Witness Testimony

All persons can be called as a witness in the trial, unless expressly excluded by the law either in whole or in part. The tribunal seeks witness testimony especially from persons who have knowledge of the charged act, particularly first-hand knowledge, in order to corroborate proofs at issue in the case, and, when necessary, to gain information regarding the life, morals, and reputation of the reus or, with due care, of a certain witness.31 At the request of either party, the judge may exclude a witness for a just cause, ordinarily hearing the other party prior to rendering a decision. The judge may also accept the renunciation of a witness by the party who proposed the examination, after first providing an opportunity to the opposing party to request that the witness be examined.32 The purpose of the examination of a witness is to draw out the truth more effectively regarding a fact that is issue. The examiner is to formulate the questions, therefore, in light of the requirement that the judges reach moral certitude. The judge may designate an auditor to examine a witness, particularly one who is unable to be present at a hearing or who refuses to appear for a legitimate reason. Until a matter can be submitted to the tribunal for a decision, the auditor has the authority to decide questions regarding the proofs and the manner of collecting them, attentive 29.  CIC cc. 1545–1546; CCEO c. 1226–1227. Cf. CIC c. 1548 §2, 2˚; CCEO c. 1229 §2, 2˚. 30.  CIC c. 1543; CCEO c. 1224. 31.  CIC c. 1549; CCEO c. 1230. The tribunal admits or excludes witnesses according to the norms of CIC, cc. 1549–1557; CCEO cc. 1230–1238. 32.  CIC cc. 1551, 1555; CCEO cc. 1232, 1236.

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to any limits on this authority established by the judge in the decree of appointment.33 The legal tests regarding the liceity of testimony include the incapacities and exemptions stated above. Some people are legally incapable of testifying, such as the judges, the promoter of justice, and the advocate of the reus. A legal incapacity is also established concerning anything which has become known from sacramental confession, including anyone who has heard information on the occasion of the confession. Legal exemptions from testifying includes clerics regarding things known by reason of the sacred ministry, those bound by professional secrecy, and those who legitimately fear dishonor, dangerous harassments, or other grave evils.34 For these reasons, when a question arises at trial regarding a legal incapacity, exemption, or a claim of privileged communication, the parties may request that the judge make a formal ruling of fact regarding the legal competency of a witness to testify. The judge does not ordinarily permit some people to give testimony, including minors below fourteen (14) years of age and those of limited mental capacity. When necessary, however, the judge may issue a decree that declares such testimony to be admissible, under precise conditions and with adequate protections for the witness.35 Before issuing the decree, the judge consults particular law and existing protocols on the interviewing of children. An expert in a relevant field may also be called upon to offer an informed opinion. When permitting a minor to testify, the judge may order that the examination proceed in secret, that is, without the parties, advocates or procurators being present. When doing so, the promoter and advocate may be asked in advance to submit questions that will be put to the witness. The judge may appoint an auditor to conduct the deposition, with the assistance of a notary.36

33.  CIC cc. 1428 §3, 1528, 1561; CCEO cc. 1093 §3, 1209, 1242. The auditor designated by the judge to instruct part or all of the case follows the same norms in this section, at least until the auditor can submit a question regarding admissibility to the judge for confirmation or rejection. 34.  CIC cc. 1548 §2, 2˚, 1550 §2˚; CCEO cc. 1229 §2, 2˚, 1231 §2. 35.  CIC c. 1550 §1; CCEO c. 1231. 36.  CIC cc. 1559, 1561; CCEO cc. 1240, 1242.

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Regarding the usefulness of proofs from witness testimony, the judge is responsible for restraining an excessive number of witnesses and for excluding witnesses brought forward solely to cause a delay in the process. The party who proposes a witness may be required, therefore, to indicate the specific issues about which the person is competent to give evidence. Reasons for excluding the testimony include that it would not add anything useful or necessary to the trial, including relatively minor points and unnecessary duplications of other testimony.37 It should be noted, however, that the number of witnesses is not an automatic reason for exclusion. The number of witnesses could be itself an important issue in a highly contested matter or it may strengthen an argument in which the proofs rely on much circumstantial evidence. The tests regarding usefulness include necessity, including whether a proof offered to the court unnecessarily introduces information regarding the life, morals, and reputation of either the accused or of the injured person. The judge may admit such evidence, with due caution, when it is relevant and necessary to the trial and when it is provided by knowledgeable and reliable persons. In so doing, the judge may apply the tests regarding information deemed to be overly conjectural, merely hearsay, prejudicial, or based on suspicious motives.38 Experts

The judge applies these same principles to proofs introduced from experts. Evidence in the trial is sought from experts who can corroborate or evaluate other proofs, establish a fact, or clarify the true nature of some matter.39 The judge may nominate an expert, accept a report already drawn up by an expert, or accept the testimony of private experts offered by one of the parties. The judge may also decree that each expert is to prepare a report separate from any others or that one report may be signed

37.  CIC c. 1553; CCEO c. 1234. On the questioning of witnesses, cf. CIC cc. 1533, 1552 §2, 1561; CCEO cc. 1214, 1233, 1242. 38.  The attention to these procedural rights during the code revision process reflected criticisms of earlier approaches and an emphasis on the theological foundations of Church law. Thomas Green, “Revised Code,” 628–633. 39.  CIC cc. 1574–1581; CCEO cc. 1255–1262.

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by several experts, with the requirement that any differences of opinion among them be carefully noted in the report.40 Regarding liceity, the judge or expert may not compel the reus to undergo either non-invasive or invasive psychological tests that would violate the person’s privacy, and the results even of non-invasive psychological tests cannot be used as evidence without the person’s consent. If the reus does not consent to testing or refuses to allow the results to be used, however, the judge may ask an expert to study the acts and to provide an evaluation based on proofs legitimately admitted to the trial.41 Regarding usefulness, the law requires the judge to hear “the parties and their suggestions” prior to admitting evidence from an expert.42 The judge ensures, thereby, that evidence from the expert is relevant and necessary to the case. At the time a party proposes an expert, the judge may require information regarding the specific issues on which the person is competent to give evidence to the tribunal and that the qualifications of the expert are clearly established. For these purposes, the judge can require the party to provide proof of the expert’s qualifications, including a testimonial of suitability which specifically addresses the expert’s knowledge and experience in a particular area.43 The test of necessity includes the discretional authority to restrain an excessive number of experts and for excluding experts brought forward solely to cause a delay in the process. The law requires that the report or testimony of each expert indicate how he or she gained certainty regarding the identity of the persons, things, or places and “above all on which arguments they based their conclusions.” The expert is also to identify the “manner and method” used to fulfill the function entrusted by the judge and, in so doing, may indicate the degree of certainty which each conclusion enjoys. The expert’s report is to be presented within the time 40.  CIC c. 1578 §1; CCEO c. 1259 §1. Green noted that the Essential Norms issued by the United States Conference of Catholic Bishops does not adequately indicate that the opinion of the experts on a Review Board should be offered to the bishop in writing, nor is it clear how disagreements among the experts are indicated. Green, “Clerical Abuse of Minors,” 398. 41.  CIC cc. 220, 1728 §2; CCEO cc. 23; 1471 §2. The canons on the development of the penal process provide an exception to the norm in CIC, can. 1531, CCEO c. 1212 that parties who are lawfully questioned are obliged to respond and to tell the whole truth. See the comments of William H. Woestman, Ecclesiastical Sanctions and the Penal Process: a Commentary on the Code of Canon Law (Ottawa: St. Paul University, 2003) 180–181. 42.  CIC c. 1575; CCEO c. 1256. 43.  CIC c. 1573; CCEO c. 1254.

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determined by the judge, a requirement founded on the judicial responsibility to ensure that the trial not suffer pointless delays.44 A norm introduced by the Congregation for the Doctrine of the Faith in the 2010 Normae de gravioribus delictis is an example of discerning the usefulness and necessity of expert testimony in assisting the court “to discern the true nature of some matter.”45 The norm concerns “the acquisition, possession, or distribution by a cleric of pornographic images of minors under the age of 14, for the purposes of sexual gratification, by whatever means, or using whatever technology.”46 Expert testimony can be a crucial factor in the court’s efforts to distinguish the age of the minor for the purposes of the offense, the different kinds of pornographic images, and to resolve any questions or doubts related to the ways in which the offense was committed, including acquisition, possession and distribution.47 The court is to weigh each expert’s conclusions together with the other circumstances of the case and, when necessary, summon an expert to confirm or to explain the report or testimony.48 In this process, the judge may apply the other tests above regarding conclusions which appear to be overly conjectural, prejudicial, or based on suspicious motives. If the decision to accept or reject an expert’s conclusions is consequential to the tribunal’s verdict, the definitive sentence is to indicate the specific reasons for the decision. Confessions and Declarations

The law carefully regulates the liceity and usefulness of proofs introduced from statements by the reus, including evidence of a free admission of guilt for the delict given in testimony before the court (confessio iudicialis), a confession in another place or manner (confessio extra iudicium), and any other oral or written statements (declarationes).49 44.  CIC cc. 1577 §3, 1578; CCEO cc. 1258 §3, 1259. 45.  CIC c. 1574; CCEO c. 1255. 46.  Normae de gravioribus delictis, art. 6 §1, 2˚. 47.  Mark L. Bartchak, “Child Pornography and the Grave Delict of an Offense against the Sixth Commandment of the Decalogue Committed by a Cleric with a Minor,” The Jurist 72 (2012) 178–239. 48.  CIC cc. 1578 §3, 1579; CCEO cc. 1259 §3, 1260. See also the comments of Thomas J. Green, “CDF Circular Letter on Episcopal Conference Guidelines for Cases of Sexual Abuse of Minors: Some Initial Observations,” The Jurist 73 (2013) 151–180. 49. For the admission of confessions and declaration, cf. CIC cc. 1530–1538, 1728 §2; CCEO cc. 1211–1219, 1471 §2.

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A “judicial confession” is defined as a written or oral assertion of some fact against oneself that is made while being questioned by the judge or made spontaneously before the judge. By law, no one can be convicted in a penal trial solely upon evidence of a judicial confession. The judge must evaluate its probative force “together with the other circumstances of the case.” The burden of proof remains, therefore, for the promoter of justice, who must introduce other corroborating elements for the tribunal to attribute the force of full proof to the confession.50 The judge is to decide how much value to accord an “extrajudicial confession” only “after considering all the circumstances.”51 The burden of proof remains for the promoter of justice to introduce other elements which either thoroughly corroborate the statement or which argue that the court should attribute the force of partial proof. The probative force of “declarations” which are not confessions must also be evaluated together with the other circumstances of the case, and the force of full proof cannot be attributed to them “unless other elements are present which thoroughly corroborate them.”52 Admissible declarations include statements which provide evidence for the reus’ consciousness of guilt for the charged delict or which clearly contradict a denial of the charged act. Such declarations can provide circumstantial evidence when formulating an inference in connection with other proofs of a truly substantial nature. The norms for the liceity of evidence include the rule that the tribunal cannot assign probative value to any statement made due to an error of fact. Further, if a statement was “extorted by force or grave fear” (vi

50.  CIC cc. 1535–1536; CCEO cc. 1216–1217. When the reus confesses to the charged delict before the tribunal the required degree of corroboration may be, in fact, relatively low. For example, the presence of other corroborating proofs may make it clear to the court that the only other necessary proof is that the delict was in fact completed. When corroborating proofs are not produced, the judge can attribute the force of partial proof to a confession after carefully evaluating it together with the other circumstances. 51.  CIC c. 1537; CCEO c. 1218. 52.  CIC cc. 1536, 1542; CCEO cc. 1217, 1223. Regarding both extrajudicial confessions and declarations, proof is to be given either in writing through an authentic instrument or orally, either through witness testimony or a legitimate deposition. When it is introduced by means of a private document, the judge attributes probative force against its author or signer only when the document is acknowledged by the reus or recognized by the judge.

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vel metu gravi extortam), such evidence “lacks force” (vi caret).53 When evidence is introduced regarding force or fear, the judge may carefully determine whether any part can be lawfully admitted and require the parties to produce information to prove an argument either about the voluntary nature of the statement or that it was not given freely. As stated above, the law establishes a legal incapacity regarding testimony about any matters known from sacramental confession and a legal exemption from testifying regarding information gained in connection with sacred ministry, when bound by professional secrecy, or regarding matters about which the reus legitimately fears dangerous vexations from the testimony.54 The legal privilege against self-incrimination signifies that the reus cannot be required to confess to the charged acts, nor be obliged to give evidence regarding the charged acts. For this reason, the court is neither to administer an oath, nor demand that the reus take an oath.55 In a penal trial, however, the judge has the right to examine the reus regarding matters that do not require a confession and may ask questions “to draw out the truth more effectively” and “to prove a fact which the public interest requires to be placed beyond doubt.” The privilege against s­ elf-incrimination also does not preclude the judge from requiring the reus to give non-testimonial evidence or to produce something that is relevant to the issue. When legitimately questioned, the reus must respond and tell the whole truth, and the tribunal may weigh a refusal to answer, in whole or in part, according to what may be legitimately inferred from this silence regarding a fact in issue.56 The court applies the tests above to determine the usefulness of confessions and declarations. Is the evidence of a confession or a declaration authentic, relevant, and necessary, or is it merely hearsay, unfairly prejudicial, or based on suspicious motives? Is a piece of circumstantial evidence necessary for the tribunal to draw a legitimate inference regarding 53.  CIC c. 1538; CCEO c. 1219. The canons on penal cases are more stringent in this regard than the general norm on juridic acts in CIC c. 125; CCEO c. 933. 54.  CIC cc. 1548 §2, 1˚, 1550 §2, 1˚; CCEO cc. 1229 §2, 1˚, 1231 §2, 1˚. 55.  CIC c. 1728 §2; CCEO c. 1471 §2. The importance of applying these norms to the preliminary investigation are noted in Green, “CDF Circular Letter,” 169–174. 56.  CIC cc. 1530–1531; CCEO cc. 1211–1212. Examples of non-testimonial evidence include speaking or writing for identification, displaying relevant physical characteristics within the boundaries of decency, or making a particular gesture.

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the truth or falsity of a confession? The judge is to consider carefully, for example, reasons why someone may have made a particular statement and why the promoter or the advocate have introduced it to the process. Its relevance to a fact in issue may include its ability to show the state of mind of the one who made the statement or of the person who heard it. Or, if the fact of the reus making of a statement is in issue, the judge may admit the evidence simply as proof that the declaration was made, while declaring it as inadmissible as hearsay regarding the truth or falsity of its contents. These norms of canonical penal law, as Thomas Green observed in a 1986 article in Theological Studies, represent “one area that can raise especially delicate questions concerning the rights of believers.” The Christian community has an understandable concern for serious breaches of ecclesial faith and order, as well as the just reconciliation of offenders, because these crimes “jeopardize the rights of persons and impair the Church’s mission.” For this reason, the observations offered by canonists to pastoral leaders, theologians, and fellow experts in the law are an essential part of the “ongoing task of interpreting and implementing” the norms articulated in theology and canon law. Ultimately, this continuing service to the body of Christ is ordered to the work of enhancing “the exercise of the Church’s sanctifying, teaching, and pastoral-service ministries.”57 57.  Thomas Green, “Revised Code,” 626, 652.

T H E C AT H O L I C U N I V E R S I T Y O F A M E R I C A

john d. faris*

Particular Law and the Eastern Catholic Diaspora** Introduction

In 1990 Pope John Paul II promulgated the Codex Canonum Ecclesiarum Ori­ entalium1 (hereafter Eastern Code or CCEO), the first complete common code of canon law for the twenty-two Eastern Catholic Churches. The significant liturgical, disciplinary and theological diversity among the Eastern Catholic Churches made the creation of a common code an especially delicate task because there was always the danger that the code would “homogenize” these Churches, obliterating their individual ritual patrimonies. To avoid such a negative consequence, the Eastern Code frequently relegates legislative matters to the respective competent authorities of the Churches:2

* Contract Assistant Professor, School of Canon Law, The Catholic University of America, Washington, DC, and Pastor, Saint Louis Gonzaga, Utica, New York. ** This study is dedicated to Msgr. Thomas J. Green, truly “a gentleman and a scholar” who has dedicated himself to the education of future canonists to serve the People of God in a variety of ministries. His love of the Eastern Churches and dedication to the cause of the unity of Christians is just one more sign of the expanse of his vision and desire that the Church “breathe with two lungs.” 1.  Codex Canonum Ecclesiarum Orientalium auctoritate Ioannis Pauli PP. II promulgatus (Vatican City: Libreria Editrice Vaticana, 1990). English translation from Code of Canons of the Eastern Churches, Latin-English Edition: New English Translation (Washington, DC: CLSA, 2001) [hereafter CCEC]. All English translations of canons from the CCEO will be taken from this source unless indicated otherwise. 2.  “The new Code should limit itself to the codification of the discipline common to all the Oriental Churches, leaving to the competent authorities of these Churches the power to regulate by particular law all other matters not reserved to the Holy See.” Nuntia 3 (1976) 21.

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Furthermore, in this area full attention should be given to all those things that this Code entrusts to the particular law of individual Churches sui iuris, which are not considered necessary to the common good of all the Eastern Churches. Our intention regarding these things is that those who enjoy legislative power in each of the Churches should take counsel as soon as possible for particular norms, keeping in mind the traditions of their own rite and the precepts of the Second Vatican Council.3

Because the Eastern Code relegates certain matters to particular law that the Latin Church’s code does not, the former is notably shorter than the latter. The common law of the Latin Church, the Codex Iuris Canonici,4 (hereafter Latin Code or CIC), comprises 1752 canons. Despite the Eastern Code’s extensive treatment of institutions not found in the Latin Code (e.g., patriarchal churches, major archiepiscopal churches, metropolitan and miscellaneous churches sui iuris and the assembly of hierarchs of several Churches sui iuris), it contains only 1546 canons, 206 fewer than the Latin Code.5 In order to enact particular law for themselves, the Eastern Catholic hierarchies need the power to do so. The Second Vatican Council, in its decree on the Eastern Catholic Churches, Orientalium Ecclesiarum,6 affirmed the right and duty of the Eastern Catholic Churches to govern themselves: Hence, it solemnly declares that the churches of both east and west enjoy the right, and are bound by duty, to govern themselves in accordance with their own particular rules, seeing that they are recommended by venerable

3. John Paul II, apostolic constitution Sacri Canones, 18 October 1990: AAS 82 (1990) [Hereafter Sacri Canones] 1037–1038; CCEC, xxiv. 4.  Codex Iuris Canonici auctoritate Ioannis Pauli PP. II promulgatus (Vatican City: Libreria Editrice Vaticana, 1983). 5.  Guidelines for the Revision of the Code of Oriental Canon Law, “The Principle of Subsidiarity in the CICO,” Nuntia 3 (1976) 21: “The new Code should limit itself to the codification of the discipline common to all the Oriental Churches, leaving to the competent authorities of these Churches the power to regulate by particular law all other matters not reserved to the Holy See.” 6.  Vatican II, decree Orientalium Ecclesiarum, 21 November 1964: AAS 57 (1965) [hereafter OE] 76–85. English translation in Decrees of the Ecumenical Councils, ed. Norman P. Tanner (London and Washington: Sheed & Ward and Georgetown University Press, 1990) [hereafter Tanner] 2: 900–907.

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antiquity, are more suited to the customs of their faithful and seem more suitable for assuring the good of souls.7

This self-governing authority is not only a right but also a duty of the Eastern Catholic Churches. If those responsible for legislation in the Churches sui iuris fail to carry out this responsibility, the result will be significant lacunae in the body of the law of their respective churches. The importance of particular law in the life of the Eastern Catholic Churches merits a careful examination of how the laws are enacted and to what degree they bind the faithful now dispersed throughout the world. Current practice indicates that the hierarchs, both individually and in synods and councils, are still navigating in terra incognita. One of the most challenging aspects of creating a corpus of particular law for a Church sui iuris that the patriarch and synod of bishops are now entrusted with a community with faithful dispersed all over the world. The Eastern Code, in conformity with the disposition of the Second Vatican Council, generally restricts the jurisdiction of the patriarch and synods to the historical territory of the patriarchal church. Such an arrangement creates an awkwardness in enacting legislation. With the exception of liturgical laws (cf. CCEO c. 150 §2), laws enacted by the synod of bishops and promulgated by the patriarch enjoy the force of law only in the territory of the patriarchal church. The Eastern Code provides a certain means for the legislation of the synod to have the force of law outside the territory, but the processes themselves create confusion and effectively diminish the self-governing authority of the synod of bishops. This study will examine those issues and propose arrangements that could result in greater clarity. However, in order to do so, it will first be necessary to explain the structures and legislative procedures in the various kinds of Churches sui iuris. At the outset of the process, the Pontificia Commissio Codici Iuris Canonici Orientalis Recognoscendo approved Guidelines for the Revision of the Code of Oriental Canon Law (hereafter Guidelines),8 a set of principles that would guide the codification process. This conciliar affirmation that the Eastern Catholic Churches have the power to govern themselves had 7.  OE 5; Tanner, 2: 902. 8.  Nuntia 3 (1976) 18–24. The original text is in Italian: Principi direttivi per la revisione del Codice di Diritto Canonico Orientale (Nuntia 3 [1976] 3–10. For an analysis of the Guidelines, see Sunny Kokkaravalayil, The Guidelines for the Revision of the Eastern Code: Their Impact on CCEO, Kanonika 15 (Rome: Pontifico Istituto Orientale, 2009) [hereafter Kokkaravalayil].

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enormous impact on the codification project. The Guidelines called for the examination of the notion of rite and a determination of an appropriate nomenclature, and further stated that the governance structure of the particular churches (cf. OE n. 3) should reflect the conciliar assertion regarding their self-governing authority (OE n. 5). The notion of subsidiarity is of crucial importance to the Eastern Catholic Churches with their patriarchs and synods as intermediate authorities between the Roman Pontiff and the eparchial bishops. An examination of both issues will be beneficial. Definition of Church sui iuris

Orientalium Ecclesiarum frequently refers to the intermediate ecclesial structures (i.e., those between the Universal Church and the eparchy / diocese) as Ecclesiae particulares.9 After extensive discussion, it was decided not to use this terminology in the Eastern Code because of its use in the Latin Code to designate the diocese and its canonical equivalents in law. An alternative term, Ecclesia sui iuris was agreed upon. The term is not entirely satisfactory since it restricts itself to the canonical status of the Church, ignoring its other qualities, but for purposes of law it is adequate.10 The Eastern Code defines the term Ecclesia sui iuris in canon 27:11 A community of the Christian faithful, which is joined together by a hierarchy according to the norm of law and which is expressly or tacitly recognized as sui iuris by the supreme authority of the Church, is called in this Code a Church sui iuris.12

9.  See OE n. 2 et passim. This assertion must be qualified as “generally,” because the document occasionally reverts to an older, imprecise usage of ritus. See the subtitle before n. 2: “De ecclesiis particularibus seu ritibus.” Tanner is inconsistent with the translation of the term “Ecclesia particularis,” sometimes translating it as “various churches” or “individual churches.” See Tanner, 2:901. 10.  One is faced with the awkwardness of translating the phrase “sui iuris.” “Autonomous” can lead to misinterpretation. “Of its own law” is a jargon understood only by canonists. Commentators generally leave the term in the Latin original. 11.  For more information about the nature of the Churches sui iuris, see Luis Okulik, Le Chiese sui iuris. Criteri di individuazione e delimitazione (Venice: Marcianum Press, 2005); Ivan Žužek, “Le Ecclesiae sui iuris nella revisione del diritto canonico,” in Ivan Žužek, Understanding the Eastern Code, Kanonika 8 (Rome: Pontificio Istituto Orientale, 1997) 94–109. 12. “Coetus christifidelium hierarchia ad normam iuris iunctus, quem ut sui iuris expresse vel tacite agnoscit suprema Ecclesiae auctoritas, vocatur in hoc Codice Ecclesia sui iuris.”

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The key factor in a Church sui iuris is the self-governing authority of the hierarchy that binds it together. This hierarchy, and not the uniqueness of its rite or geographic origins, distinguishes one Church sui iuris from another. The self-governing authority cannot be self-proclaimed or even conceded by the other Churches sui iuris, but the supreme authority of the Church must expressly or tacitly recognize it. The precise manner in which the self-governing authority is exercised by the superior authorities of the Churches sui iuris is delineated in the Eastern Code.13 Intermediate Ecclesial and Hierarchical Structures

It is necessary to situate the Churches sui iuris as intermediate ecclesial communions within the framework of the Universal Church, and likewise to indicate the role of the hierarchical heads of these intermediate ecclesial communions vis-à-vis the Roman Pontiff and the individual eparchial bishop. The Church is entrusted with one power of Christ to govern itself, not different powers. This power is entrusted to various persons or bodies in the Church.14 The authority of Christ entrusted to the Church is exercised, in virtue of divine law, at two levels: supreme authority and episcopal authority. Various hierarchical figures participate in these two powers in various ways. The Roman Pontiff and the College of Bishops exercise in different ways the supreme authority in virtue of divine law.15 CCEO canon 43 describes the participation of the Roman Pontiff in the supreme authority as “supreme, full, immediate and universal ordinary power in the Church which he is always able to exercise freely.”16 Hence, the Roman Pontiff exercises the power of his office independent of any earthly power, even the College of Bishops.

13.  See especially CCEO Titles 4–6, which provides for the governance structures of the various kinds of Churches sui iuris. 14.  1 Cor. 12:4–6. 15.  Vatican II, Lumen gentium, Nota explicativa praevia, nn. 3–4, November 21, 1964: AAS 57 (1965) [hereafter LG] 74–75; Tanner, 2: 899–900. See also CCEO cc. 43. 16.  CCEO c. 43. The canon is taken verbatim from CIC c. 331.

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Patriarchs and the synods of bishops participate in the supreme authority of the Church in virtue of canon law.17 This power is ordinary18 and not exercised in the name of the supreme authority.19 The College of Bishops, the second participant in supreme authority in virtue of divine law, shares in it in a different way. The College of Bishops can exercise the supreme power only as a body “together with its head [the Roman Pontiff] and never without its head.”20 At the other end is episcopal power. In virtue of divine law, eparchial / diocesan bishops participate in this power. The protosyncellus, syncellus and judicial vicar participate in episcopal power vicariously in their collaboration with the eparchial bishop. This distribution of the power of Christ entrusted to the hierarchy is reflected in the ecclesial structures. Two ecclesial structures exist in virtue of divine law: • The Universal Church, governed by the Roman Pontiff and the College of Bishops; and • The eparchy / diocese, governed by the eparchial / diocesan bishop In addition to the two levels that exist in virtue of divine law, there are intermediate hierarchical and ecclesial institutions. As stated above, Sacri Canones declares that the patriarchs are participants in the supreme authority of the Church, but in virtue of canon law.21 This is to say that the participants in the supreme authority of the Church are the Roman Pontiff and the College of Bishops (in virtue of divine law) and the patriarchs (in virtue of canon law). The resulting hierarchical / ecclesial structure is: • Roman Pontiff and College of Bishops—Universal Church • Patriarch and Synods—Patriarchal Church • Eparchial / Diocesan Bishop—Eparchy / Diocese 17.  Sacri Canones, 1037; CCEC, xxiv: “[ . . . ] iure canonico supremae auctoritatis participes sunt [ . . . ].” OE 9; Tanner 2:903: “The patriarchs with their synods are the highest authority for all business of the patriarchate, including the right of establishing new eparchies and of nominating bishops of their rite within the territorial bounds of the patriarchate, without prejudice to the inalienable right of the Roman Pontiff to intervene in individual cases.” 18. CCEO cc. 56 and 110. 19.  The Roman Curia and papal legates participate in the supreme authority vicariously as collaborators with the Roman Pontiff. 20.  See LG 22 and the Nota explicativa praevia, n. 3. 21. Likewise, mutatis mutandis, the major archbishops, metropolitans and heads of other Churches sui iuris participate in the supreme authority of the Church in virtue of canon law.

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Now that the ecclesial and hierarchical structures have been delineated, let us examine the notion of subsidiarity, which is key in appreciating how those entrusted with the power of governance relate to each other. Subsidiarity

Understanding the relationships of the entities entrusted with the power of governance requires and understanding of subsidiarity, the principle that competencies should be entrusted to the lowest level of governance structures capable of fulfilling them properly. This principle figured extensively in the elaboration of the Eastern Code.22 With regard to the Eastern Catholic Churches, subsidiarity can be considered as a consequence of the Council’s recognition of legitimate pluralism (OE n.2) and the exercise of episcopal powers (CD n. 8a).23 As seen above, the governance of Eastern Catholic Churches, with their intermediate structures and the allocation of powers between the patriarch and the synod of bishops, clearly manifests the principle of subsidiarity. The Guidelines note that the Eastern Churches have traditionally implemented the principle of subsidiarity: Thanks to their traditional structure within the One Church of Christ, the Oriental Churches have, to a certain extent, adhered to the principle of subsidiarity all through the ages, even without explicit reference to it.24

A major concern during the codification process was the integral preservation of the office of the bishop because there is the danger that the authority of the eparchial bishop, of divine institution, would be encroached upon the by the patriarchs and synods. That which the individual bishops are empowered to do in their respective dioceses should not be withdrawn from them, since their “power, which they exercise in Christ’s name, is proper, ordinary and immediate, although

22.  While the Guidelines called for the application of the notion of subsidiarity, the term itself is not found in the CCEO. Despite the absence of the term itself, Žužek asserted that it “shaped one of the principal characteristics of the Code”; see Ivan Žužek, “Particular Law in the Code of Canons of the Eastern Churches,” in The Code of Canons of the Eastern Churches: A Study and Interpretation, ed. Jose Chiramel and Kuriakose Bharanikulangara (Alwaye, India: St. Thomas Academy for Research, 1992) [hereafter Žužek, “Particular Law”] 39–56, esp. 44–45. 23.  Vatican II, decree Christus Dominus, October 28, 1965: AAS 58 (1966) [abbreviated CD] 673–696. See Thomas J. Green, “The Latin and Eastern Codes: Guiding Principles,” The Jurist 62 (2002) 244. 24.  Guidelines, 21.

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its exercise is ultimate regulated by the supreme authority of the Church, and can be circumscribed by certain limits, for the advantage of the Church or of the faithful” (Lumen Gentium n. 27).25

Father Ivan Žužek, SJ, the canonist most responsible for the Eastern Code, was wary that the patriarchs and synods would encroach upon the authority of the eparchial bishop. He observed that subsidiarity was usually invoked when dealing with one’s superiors; in the case of patriarchs and synods, subsidiarity would be observed in their relations with the Roman Pontiff and College of Bishops, but ignored in dealings with the eparchial bishops.26 The transfer of a bishop’s power over his eparchy / diocese to an intermediate authority is illegitimate—indeed, contrary to divine law. Therefore, it is not possible for a synod to detract from the legitimate authority of the individual bishop. Likewise, it is not possible for a bishop to abdicate his role of divine right to an intermediate authority.27 This issue is addressed in CCEO canon 178: The eparchial bishop, to whom the eparchy has been entrusted to shepherd in his own name, governs it as the vicar and legate of Christ; the power which he exercises personally in the name Christ, is proper, ordinary, and immediate, although by the supreme authority of the Church its exercise is ultimately regulated and can be circumscribed within certain limits in view of the benefit of the Church or of the Christian faithful. [Emphasis added]

The phrase “as the vicar and legate of Christ” is taken from Lumen gentium n. 2728 and does not appear in the counterpart CIC canon 381.29 It 25.  Guidelines, 21. 26. Žužek, “Particular Law,” 45: “Without doubt this participatio requires that these organs, relatively to communities or also to individuals, subordinate to them, exercise their authority with the mens and the manner of government proper to the Supreme Authority, and they do not tend to accumulate in themselves powers which the norma iuris, established by the supreme authority, is not wont to grant them. In case this should happen, it would not only be contrary to the principle of subsidiarity, (so readily invoked in one’s own favour), but it would also be illegitimate, because it lies outside of the aforesaid norma iuris.” 27.  Žužek, “Particular Law,” 45: “In case of limitations of the exercise of authority of eparchial Bishops, that would go against the very ius divinum, which even the Bishops themselves, cannot renounce or surrender to a unanimous vote expressed in a Synod.” 28.  LG 27; Tanner, 2: 871. 29.  CIC c. 381 §1: “A diocesan bishop in the diocese entrusted to him has all ordinary, proper, and immediate power which is required for the exercise of his pastoral function except for cases which the law or a decree of the Supreme Pontiff reserves to the supreme

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is precisely included to emphasize the divine right of episcopal power and to prevent illegitimate erosion of it.30 It should also be mentioned that principle of subsidiarity is also to be implemented in infra-episcopal governance structures.31 In the same manner, also, it must be born[e] in mind that, ordinarily, the bishop should not do that which others in his diocese are in a position to carry out, on the contrary, he should be careful to respect the legitimate competence of others, grant his cooperators the requisite faculties of which they are in need, and support the rightful initiatives of both individuals and of groups.32

With regard to eparchial structures, the Guidelines make specific reference to the presbyteral councils and pastoral councils.33 Legislative Activity of the Churches sui iuris34

While the Second Vatican Council recognized the Eastern Catholic Churches as self-governing (cf. OE n. 5), and CCEO canon 27 identifies some of them as Ecclesiae sui iuris,35 the self-governing authority of these Churches is not identical in all the Churches. Rather, it is authority or to another ecclesiastical authority.” English translation from Code of Canon Law, Latin-English Edition: New English Translation (Washington, DC: CLSA, 2001). 30. Žužek, “Particular Law,” 45: “The insertion of this text as a canon with legal force in the new Code is the most faithful application of the ‘third criterion (no. 3)’ indicated in the title “The Principle of Subsidiarity in CICO’ contained in the ‘Guidelines for the Revision of the Eastern Canonical Codification.’” 31. Žužek, “Particular Law,” 45, emphatically asserts: “May it never happen that the observance of the principle of subsidiarity, which was invoked with respect to the relations between the ius commune of all the Eastern Catholic Churches and the ius particulare of each of them, is not respected in the ‘ius’ established by the inferior legislators as regards the communities subject to them in as much as they possess legislative authority.” 32.  Guidelines, 21. 33.  Guidelines, 21. 34.  See Pablo Gefaell, “La Capacità Legislativa delle Chiese Orientali in Attuazione del CCEO,” in Il Codice delle Chiese Orientali: La Storia, Le Legislazioni Particolari, Le Prospettive Ecu­ meniche, ed. Pontificio Consiglio per i Testi Legislativi (Rome: Libreria Editrice Vaticana, 2011) 137–155; 35.  Not all Eastern Catholic Churches fit the criteria regarding sui iuris status established in CCEO c. 27. Therefore, it is erroneous to equate the terms “Eastern Catholic Churches” and “Churches sui iuris.” For example, it would seem that the Italo-Abanian / Italo-Greek Church (identified as Chiesa Bizantina Cattolica in Italia in the Annuario Pontificio per l’Anno 2013 [Vatican City State: Libreria Editrice Vaticana, 2013] 1139) with two eparchies and a monastery sui iuris is not a Church sui iuris. See Lorenzo Lorusso, “Status Giuridico della Chiesa ItaloAlbanese,” in Diritto Particolare nel Sistema del CCEO: Aspetti teoretici e produzione normativa

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graduated, with the patriarchal / major archiepiscopal enjoying the highest degree of authority, the metropolitan with a more restricted degree of ­self-governance and the miscellaneous churches with little self-governing authority. A brief examination of the legislative processes in these churches will illustrate this graduation. Patriarchal / Major Archiepiscopal Churches

While neither Orientalium Ecclesiarum36 nor the Eastern Code itself determines whether the patriarch or the synod of bishops is the superior authority, the Eastern Code allocates governance powers as follows. The synod of bishops of the patriarchal church is competent to enact particular laws for the patriarchal Church,37 to act as a tribunal,38 and to elect the patriarch, bishops, and candidates for office.39 The patriarch is generally confined to administrative authority.40 Patriarchal and major archiepiscopal churches41 enjoy the highest degree of self-governing authority among the Eastern Catholic Churches; such an autonomy is manifested in the legislative power of the synod of bishops, which is competent to make laws for the entire patriarchal Church—not only in those matters relegated to delle Chiese orietnale cattholiche, ed. Šimon Marinčák (Košice: Centrum spirituality Východ, 2007) [hereafter Diritto Particolare] 416. It should be noted that CCEO c. 1 establishes that the Eastern Code concerns “all and only the Eastern Catholic Churches” and does not make reference to their canonical (i.e., sui iuris) status. Therefore, the Eastern Code regulates the lives of all Eastern Catholic Churches, including those whose status is unclear. 36.  See OE 9; Tanner, 2: 903: “The patriarch with their synods make up a higher tribunal for all matters concerning the patriarchate [ . . . ].” 37.  CCEO c. 110 §1: “The synod of bishops of the patriarchal Church is exclusively competent to make laws for the entire patriarchal Church that obtain force according to the norm of can. 150 §§2 and 3.” 38.  CCEO c. 110 §2: “The synod of bishops of the patriarchal Church is a tribunal according to the norm of can. 1062.” 39.  CCEO c. 110 §3: “The synod of bishops of the patriarchal Church conducts the election of the patriarch, of bishops and of candidates for offices mentioned in can. 149.” 40.  CCEO c. 110 §4: “The synod of bishops of the patriarchal Church is not competent for administrative acts unless, for certain acts, the patriarch determines otherwise or common law reserves some acts to the synod, with due regard for the canons that require the consent of the synod of bishops of the patriarchal Church.” Depending on how one construes the act of promulgation of a law, one could also claim that the patriarch also participates in the legislative process. 41.  While this study will generally refer to the institutions and governance of the Eastern Catholic patriarchal churches, it should be noted that what is stated about the patriarchal churches holds also for the major archiepiscopal churches in virtue of CCEO c. 152.

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it by the Eastern Code, but any laws it deems beneficial for the life of the patriarchal Church.42 The synod of bishops is comprised of all and solely the ordained bishops of the patriarchal Church.43 The Eastern Code makes the general provision that all bishops have a deliberative vote in the synod, but also provides that particular law can restrict the deliberative votes of titular bishops and bishops constituted outside the territory of the patriarchal Church except in the case of elections.44 Such a provision is consonant with the arrangement that the force of disciplinary laws is restricted to the patriarchal territory; in the case of bishops constituted outside the territory of the patriarchal church, it is not appropriate that they could vote on a law which would have no effect on them. In certain cases, the nature of the law might require the approval of Roman Pontiff or Apostolic See to take effect. Otherwise, the patriarch is competent to promulgate the law45 according to the manner and time determined by the synod of bishops.46 Metropolitan Churches47

Instead of a synod of bishops, the metropolitan Churches sui iuris have a council of hierarchs that assists the metropolitan in the governance of the metropolitan Church.48 Like that of the patriarch / major archbishop and synod of bishops of the patriarchal and major archiepiscopal Churches, the power of the metropolitan and council of hierarchs is restricted to a

42.  See CCEO c. 119 §1 and OE 5. 43. CCEO c. 102 §1: “All and solely ordained bishops of the patriarchal Church wherever they are constituted, excluding those mentioned in can. 953, §1 or those who are punished by canonical penalties mentioned in cc. 1433 and 1434, must be convoked to the synod of bishops of the patriarchal Church.” 44.  CCEO c. 102 §2: “With regard to eparchial bishops constituted outside the territorial boundaries of the patriarchal Church and titular bishops, particular law can restrict their deliberative vote, remaining intact the canons concerning the election of the patriarch, bishops and candidates for office mentioned in can. 149.” 45.  CCEO c. 112 §1: “The promulgation of laws and the publication of decisions of the synod of bishops of the patriarchal Church is the competence of the patriarch.” 46.  CCEO c. 111 §1: “The synod of bishops of the patriarchal Church establishes the manner and time of promulgation of laws and the publication of decisions.” 47.  See Federico Marti, “The Legislative Power of the Council of Hierarchs in the Metropolitan Church Sui Iuris,” Folia Canonica 13–14 (2010–2011) [hereafter Marti] 71–84. 48. CCEO c. 155 §1: “A metropolitan Church sui iuris is presided over by a metropolitan of a determined see who has been appointed by the Roman Pontiff and is assisted by a council of hierarchs in accord with the norm of law.”

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defined territory.49 All and solely the ordained bishops of the metropolitan Church are members of the council of hierarchs; with the approval of the majority of the members, bishops from other Churches sui iuris can be invited to participate as guests.50 The arrangements for voting capacity are inverse to that for the synod of bishops: the Eastern Code grants a deliberative vote only to the eparchial bishops; particular law can grant other bishops of the metropolitan Church sui iuris a deliberative vote.51 The council of hierarchs is competent to enact legislation,52 but the extent of the legislative authority is debated. Based on the phrase in CCEO canon 167 §1 (“in which common law remits the matter to the particular law of a Church sui iuris”), some hold that the possibilities for particular law is taxative, that is, restricted to those cases expressly mentioned in the CCEO.53 Others, including this writer, hold the position that the council of hierarchs possesses general competency like that of the synod of bishops. CCEO canon 167 §1 includes the phrase “with due regard for the canons in which the power of the council of hierarchs to enact laws and norms is expressly treated.” Moreover, CCEO canon 16954 states that the “council of hierarchs is to see that the pastoral needs of the Christian faithful are provided for.” While the canon does not expressly mention legislation, one can reasonably include the enactment of particular law as one of the ways of providing for pastoral needs.55 49.  CCEO c. 157 §2: “The power of the metropolitan and the council of hierarchs is exercised validly only within the territorial boundaries of the metropolitan Church sui iuris.” 50. CCEO c. 164 §1: “All and only the ordained bishops of the metropolitan Church sui iuris, wherever they are constituted, must be called to the council of hierarchs, except those mentioned in can. 953, §1 or those who have been punished with the canonical penalties mentioned in cc. 1433 and 1434. Bishops of another Church sui iuris can be invited as guests only if the majority of the members of the council of hierarchs agrees.” 51. CCEO c. 164 §2: “Eparchial bishops and coadjutor bishops have a deliberative vote in the council of hierarchs; the other bishops of the metropolitan Church sui iuris can have this vote if this is expressly established in particular law.” 52. CCEO c. 167 §1: “With due regard for the canons in which the power of the council of hierarchs to enact laws and norms is expressly treated, this council can also enact them in cases in which common law remits the matter to the particular law of a Church sui iuris.” 53.  See Marti, 73–74. 54. CCEO c. 169: “The council of hierarchs is to see that the pastoral needs of the Christian faithful are provided for; in these matters it can determine what seems opportune to promote the growth of faith, to foster common pastoral action, to regulate the morals, to observe their own rite and ecclesiastical discipline.” 55.  See Pablo Gefaell, “La Capacità Legislativa delle Chiese Orientali in Attuazione del CCEO,” in Il Codice delle Chiese Orientali: La Storia, Le Legislazioni Particolari, Le Prospettive

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The limitations on the legislative authority of the metropolitan Church sui iuris become evident at the stage of promulgation. Prior to promulgating validly the enactments of the council of hierarchs, the metropolitan must have obtained notification of reception of the enactments by the Apostolic See.56 Practically speaking, the metropolitan Church sui iuris must obtain the approval of the Apostolic See before it can enact any particular law. Miscellaneous Churches

Three canons of Chapter 2 of Title 6 canons treat the miscellaneous Churches sui iuris. CCEO canon 17657 treats the legislative competency of these Churches and establishes that the competent legislative authority is the hierarch, who needs the consent of the Apostolic See.

Particular Law58

CCEO canon 1493 §2 defines the term ius particulare by stating what it is not:

Ecumeniche, ed. Pontificio Consiglio per i Testi Legislativi (Rome: Libreria Editrice Vaticana, 2011) 142. 56. CCEO c. 167 §2: “The metropolitan is to inform the Apostolic See as soon as possible of the laws and norms enacted by the council of hierarchs. Laws and norms cannot be validly promulgated before the metropolitan has written notification from the Apostolic See of the reception of the acts of the council. The metropolitan is also to inform the Apostolic See of other acts of the council of hierarchs.” 57. CCEO c. 176: “If common law relegates something to particular law or to the higher administrative authority of a Church sui iuris, the competent authority in these Churches is the hierarch who presides over it in accordance with the norm of law; however, he needs the consent of the Apostolic See, unless it is expressly stated otherwise.” 58.  For more on the nature of particular law as articulated in the CCEO, see Kuriakose Bharanikulangara, Particular Law of the Eastern Catholic Churches, Maronite Rite Series IV (New York: Saint Maron Publications, 1996) [hereafter Bharanikulangara, Particular Law]; Idem, “Particular Law of the Oriental Catholic Churches: An Analysis Based on Codex Canonum Eccle­ siarum Orientalium (CCEO),” Journal of St. Thomas Christians 23 (April-December 2012) 83–93; Orazio Condorelli, “La dialettica tra diritto comune e diritti particolari nell’ordinamento della Chiesa, con particolare riferimento all’esperienza storica delle Chiese orientali,” Diritto Par­ ticolari, 263–322; George Nedungatt, The Spirit of the Eastern Code (Rome: Centre for Indian and Inter-religious Studies, 1993) 200–228; Ivan Žužek, “Qualche nota circa lo ius particulare nel Codex Canonum Ecclesiarum Orientalium,” in Ivan Žužek, Understanding the Eastern Code, Kanonika 8 (Rome: Pontificio Istituto Orientale, 1997) 354–366.

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However, under the name “particular law” come all laws, legitimate customs, statutes and other norms of law, which are neither common to the entire Church nor to all the Eastern Churches.59

Ius particulare is common neither to the entire Church nor all the Eastern Churches. One can conclude that ius particulare is the law that pertains to one or several (but not all) Eastern Catholic Churches or to a part of any Eastern Catholic Church. This can include entities or groupings such as metropolitan provinces, eparchies, jurisdictions inside or outside the territory of the patriarchal church, synods of bishops, councils of hierarchs, permanent synods, patriarchal assemblies, consultative councils at various levels, religious institutes and seminaries. The Eastern Code speaks of various kinds of particular law: Ius particu­ lare; Ius particulare Ecclesiae sui iuris; Ius particulare Ecclesiae patriarchalis; Ius particulare Ecclesiae Metropolitanae sui iuris; Ius particulare in “ceteris” Eccle­ siis sui iuris. These terms do not exhaust the cases in which the Eastern Code relegates a matter to particular law. Conforming to the provisions of CCEO canon 1493 §2, particular law can take the form of “laws, legitimate, customs, statutes and norms.” A canon can also relegate a matter to particular law without using any of these terms.60 Lastly, the legislative bodies of the Eastern Churches sui iuris are not constrained to legislate in matters relegated to them by the Eastern Code. In accord with Orienta­ lium Ecclesiarum n. 5 (expressed in CCEO cc. 110 §1; 167 §1; 169) these bodies possess general legislative power. Provided legislative competence has not been withheld in a certain matter,61 they can enact particular law they deem beneficial for the community.62

59.  “Nomine vero iuris particularis veniunt omnes leges, legitimae consuetudines, sta­ tuta aliaeque iuris normae, quae nec universae Ecclesiae nec omnibus Ecclesiis orientalibus communes sunt.” 60.  Examples include CCEO c. 56 (the manner of exercising patriarchal power); c. 111 §1 (the time and manner of promulgation of synodal laws and decisions); c. 112 §2 (observance of secrecy in the synod of bishops). 61. See, for example, CCEO c. 764, which states that particular law cannot establish impediments for receiving or exercising sacre orders. 62.  This is not carte blanche. See CCEO cc. 150 §2 and 985 §2.

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Enacted by Supreme Authority

Particular law is not only enacted by the Churches sui iuris, but also can be enacted for one or several Churches sui iuris by the Apostolic See63 or the Roman Pontiff.64 Such laws are pontifical; therefore, no inferior authority is competent to legislate contrary to them nor can any authority except the Apostolic See or the Roman Pontiff abrogate or change these laws. Reserved to Synods of Bishops

Let us now examine those matters that the Eastern Code relegates either expressly or ex natura rei exclusively to the synod of bishops of the patriarchal church.65 The term ius particulare Ecclesiae patriarchalis designates those matters that can be enacted only by the synod of bishops of the patriarchal church.66 In certain cases the Eastern Code requires the approval of the supreme authority,67 the Roman Pontiff68 or the Apostolic See69 in order for an act of the synod of bishops to acquire the force of law. Although these laws were enacted by a synod of bishops and could therefore be designated as synodal, the true source of the force of the laws is the supreme authority which is solely competent to abrogate or change any of the provisions. Therefore, one might also consider these laws to be pontifical. In some cases, the Eastern Code simply uses the term ius particulare without further specification or does not even use the term ius particu­ lare. This lack of specification does not mean that the ius particulare can be

63.  CCEO cc. 29 §1; 30; 138; 385 §2; 554 §2; 572; 727; 758 §3; 1036 §1. In the case of legislation in the miscellaneous churches, the matter is relegated to the hierarch who presides in the Church sui iuris. However, according to the provisions of CCEO c. 176, he needs the consent of the Apostolic See. 64. CCEO cc. 159; 174; 182 §3; 322 §3. 65.  This is not an exhaustive list of what the synod of bishops is competent to legislate but indicates only those matters relegated exclusively to it by the Eastern Code. 66.  CCEO cc. 89 §2; 133 §1, 2°; 137; 220, 2°; 224 §3; 330 §1; 572; 585 §2; 621 §§1–3; 652 §2; 664 §1; 671 §§4–5; 727; 749; 760 §1; 1036 §2, 1°. 67. CCEO cc. 56 and 58. 68. CCEO cc. 78 §2 and 182 §3. 69.  CCEO cc. 138; 880 §3; 1036 §1; 1388; 1423 §1.

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enacted by any authority (e.g., an eparchial bishop in a patriarchal church); some matters are reserved to the synod of bishops ex natura rei.70 Reserved to Council of Hierarchs

With due regard for the need of recognitio from the Apostolic See, the council of hierarchs possesses the same general legislative competency as the synod of bishops (CCEO cc. 167 §1 and 169). The Eastern Code restricts certain matters to the council of hierarchs it does with the synod of bishops,71 Reserved to Superior Legislative Authority of a Church sui iuris

In certain cases, the Eastern Code relegates a matter to the particular law of a Church sui iuris. The PCCICOR explains it as follows: Si nota tuttavia che in molti canoni la specifica avviene ‘ex natura rei’ ed in virtù della norma espressa nel can. 981 §2 “a legislatore inferiore lex iuri superiori contraria valide ferri non potest.” In questi casi una esplicita specifica è di per sé superflua (p.e. l’espressione ‘nisi ius particulare aliud statuit’ nel can. 69, non può riferirsi se non allo ‘ius particulare’ stabilito dallo stesso Sinodo dei Vescovi oppore dalla Santa Sede). L’espressione ‘Ius particulare (propriae) Ecclesiae sui iuris’ esclude lo ‘ius particulare eparchiale’ ed ogni altro ‘ius’ inferiore. Stabilire questo ‘ius’ appartiene, oltre che alla Santa Sede, all’autorità legislative di ogni singola ‘Ecclesia siu iuris’ che è chiaramente conconscritta nei cann. 110 §1 (per le Chiese patriarcali e quelle achiepiscopali maggiori in virtù del can 152), 165 §1 (per le Chiese metropolitane ‘sui iuris’), 174 (per le ‘ceterae Ecclesiae sui iuris’).72

In doing so, it is entrusting the matter exclusively (with due regard for the competency of the supreme authority of the Church) to the synod of bishops for the patriarchal and major archiepiscopal churches (CCEO c. 110 §1), to the council of hierarchs for the metropolitan churches (CCEO c.

70.  CCEO cc. 56; 64; 65 §2; 70; 71 §1; 72 §1; 83 §1; 86 §1, 2°; 94; 102 §§2–3; 106 §2; 107; 111; 113; 115 §3; 122 §2; 127; 128, 2°; 138; 182 §1; 186 §1;206 §1; 357 §2; 384 §2; 496 §2; 499; 573 §2; 693; 898 §2; 1006; 1063 §4, 5°; 1423 §1. 71. CCEO cc. 164 §2; 166 §1; 330 §1; 585 §2; 621 §§1–3; 652 §2; 709 §2; 727; 760 §1. 72.  Nuntia 27 (1988) 32.

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167 §1) or to the hierarch who presides in a miscellaneous Church sui iuris (CCEO c. 174).73

Territorial Limitations on the Force of Particular Law

A significant factor in the governance arrangements of the Eastern Catholic Churches is that territorial boundaries are applied to each Church sui iuris.74 This was a hotly disputed issue throughout the codification process. However, it must be admitted that from the First Council of Nicaea (325),75 territorial boundaries were assigned to these Churches for the sake of preservation of good order. Emigration of Eastern faithful to all parts of the world calls for a re-consideration of the relationship of these faithful to the hierarchies in the patriarchal territory. However, abandonment of geographic criteria might give rise to chaos and conflict among the hierarchs from various Churches sui iuris According to CCEO canon 78 §2, the patriarch exercises power validly only within in the territory of the patriarchal church.76 Other acts of gov73. CCEO cc. 3; 194; 198; 199; 204 §3; 242; 247 §2; 263 §1; 265; 266, 1°; 277 §1; 284 §§2–3, 4°; 287 §2; 295; 294; 296 §1; 297 §2; 321 §2; 327; 365 §2; 377; 385 §2; 408 §2; 569; 664 §1; 666 §3; 670 §2; 671 §§4–5; 674 §2; 683; 697; 704; 707 §1; 708; 709; 710; 713 §2; 714 §1; 717; 719; 758 §3; 760 §1; 782 §1; 784; 792; 815; 838 §2; 867 §2; 880 §2; 882; 886; 910 §2; 937 §2; 1002; 1004; 1012 §2; 1013 §1; 1021; 1022 §2; 1084 §1, 4°; 1129 §1; 1340 §1; 1420 §2; 1518. 74.  In the cases of the patriarchal and major archiepiscopal churches, the territory of those churches is the region in which the rite of the respective church is observed and the patriarch or major archbishop has legitimately acquired the right to erect provinces, eparchies and exarchies (CCEO c. 146 §1). The modification of territorial boundaries or the resolution of doubts regarding boundaries of the patriarchal or major archiepiscopal church is the exclusive competence of the Roman Pontiff, upon receipt of a petition presented to him by the synod of bishops (CCEO c. 146 §2). CCEO c. 152 provides that what is stated in common law for the patriarchal churches is applicable also to the major archiepiscopal churches unless indicated otherwise or it is evident from the nature of the matter. In the case of the metropolitan church, it is the exclusive competence of the supreme authority of the Church to define the boundaries of this category of Churches sui iuris (CCEO c. 155 §2). 75.  See c. 6; Tanner 1: 9: “The ancient customs of Egypt, Libya and Pentapolis shall be maintained, according to which the bishop of Alexandria has authority over all these places, since a similar custom exists with reference to bishop of Rome. Similarly in Antioch and the other provinces the prerogatives of the churches are to be preserved.” 76. CCEO c. 78 §2: “The power of the patriarch is exercised validly only within the territorial boundaries of the patriarchal Church unless the nature of the matter or the common or particular law approved by the Roman Pontiff establishes otherwise.” See also CCEO c. 147: “Within the territorial boundaries of the patriarchal Church, the power of the patriarch and

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ernance not covered by the exceptions indicated in canon 78 §2 are invalid. This applies also to legislative activity of the synod; unless common law or particular law approved by the Roman Pontiff provides otherwise, the patriarch cannot validly promulgate laws for faithful outside the territory of the patriarchal church. Title 4, Chapter 8, “The Territory of a Patriarchal Church and the Power of the Patriarch and Synods Outside this Territory” (CCEO cc. 146–150) articulates the precise canonical arrangements for governance of those portions of the patriarchal churches outside the territory.77 The nature of laws enacted by the synod of bishops determines the geographic extent of their legal force. Liturgical laws have the force of law everywhere in the world; the force of disciplinary laws is restricted to the territory of the patriarchal Church.78 Unfortunately, the distinction between a liturgical law and a disciplinary law is not as self-evident as one might presume; for example, is the minimum age required for a sponsor on the occasion of baptism79 a liturgical law or a disciplinary law? Such an ambiguity can contribute to a lack of clarity regarding the force of law enacted by the synod of bishops.

Extraterritorial “Extension” of the Force of Particular Law

While the force of disciplinary particular laws is ipso iure restricted to the territory of the patriarchal church, the Eastern Code provides means to endow enactments of the synod of bishops with force outside the patriarchal territory. CCEO canon 150 §3 states: the synods is exercised not only over all Christian faithful who are ascribed to that Church, but also over others who do not have a local hierarch of their own Church sui iuris constituted in the same territory and, even if they remain ascribed in their own Church, are committed to the care of local hierarchs of that patriarchal Church with due regard for can. 916 §5.” 77.  The CCEO does not explicitly provide for extra-territorial governance for the metropolitan churches sui iuris or miscellaneous churches sui iuris. 78.  CCEO c. 150 §2: “Laws enacted by the synod of bishops of the patriarchal Church and promulgated by the patriarch, have the force of law everywhere in the world if they are liturgical laws. However, if they are disciplinary laws or in the case of other decisions of the synod, they have the force of law within the territorial boundaries of the patriarchal Church.” 79. CCEO c. 685 §2: “To assume licitly the role of sponsor, it is further required that the sponsor should be of the age required by particular law and lead a life in harmony with the faith and the function to be undertaken.”

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Eparchial bishops constituted outside the territorial boundaries of the patriarchal Church, who desire to do so, can attribute the force of law to disciplinary laws and other decisions of the synod which do not exceed their competence in their own eparchies; if, however, these laws or decisions are approved by the Apostolic See, they have the force of law everywhere in the world.80

Approval of the Apostolic See

One way to extend extra-territorially the force of law to synodal enactments laws is for the Apostolic See to approve them. Approval by the Apostolic See attributes the force of law to these laws everywhere in the world: si vero hae leges vel decisiones a Sede Apostolica approbatae sunt, ubique terrarum vim iuris habent (CCEO c. 150 §3). How does one categorize laws that are enacted by the synod of bishops and subsequently approved by the Apostolic See? Are such laws synodal laws or pontifical laws? Because the laws were enacted by the synod of bishops and promulgated by the patriarch, it might be accurate to categorize such laws as synodal in consideration of its authorship. Nevertheless, the approval of the Roman Pontiff or Apostolic See radically changes the nature of the laws. Once approval of the Roman Pontiff or Apostolic See is given to a law, its force is derived from the supreme authority of the Church so one could accurately construe it to be pontifical. CCEO canon 150 §3 states that a law approved by the Apostolic See has the force of law everywhere in the world (ubique terrarum). Although the law is already in force inside the patriarchal territory in virtue of the authority of the synod and patriarch, approval of the Apostolic See attributes the force of law to it throughout the patriarchal church—inside and outside the territory of the patriarchal church. Some would argue that the approval of the Apostolic See only extends the legal force of the synodal enactment extraterritorially, but if the intention of the legislator is to provide for a consistent canonical arrangement for the patriarchal church, it would seem that approval of a synodal enactment is for the entire patriarchal church, that is, inside and outside the territory. Therefore, even inside the territory of the patriarchal church, law enacted by the synod of bishops and subsequently approved by the Apostolic See is now endowed with 80.  The translation differs from that of the CCEC.

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pontifical authority. Such an arrangement consequently removes the matter from the competency of the synod of bishops, which is not competent derogate from or abrogate a law approved by the Roman Pontiff or Apostolic See.81 One must conclude that the approval and consequent extension of the synodal law effectively removes the matter from the competency of the synod of bishops, a diminishment of the self-governing authority of the eparchial bishop. Enactment by the Eparchial Bishop

CCEO canon 150 §3 provides another way for an enactment to be attributed with the force of law outside the patriarchal territory: Eparchial bishops constituted outside the territorial boundaries of the patriarchal Church, who desire to do so, can attribute the force of law to disciplinary laws and other decisions of the synod in their own eparchies, provided they do not exceed their competence; if, however, these laws or decisions are approved by the Apostolic See, they have the force of law everywhere in the world.

The eparchial bishop attributes the force of law to synodal legislation through promulgation.82 It is not accurate to refer to this promulgation as the “extension” of a law enacted by the synod of bishops. Rather, the eparchial bishop is given the permission to replicate certain laws of the synod of bishops. The question again arises, what kind of law is it? It cannot be categorized as synodal law since the author of the law is not the synod, but the eparchial bishop. Therefore, it is eparchial law, enjoying authority in the eparchy and susceptible to future derogation by himself or his successors. The provision contains a restrictive clause that generally seems to be overlooked: the eparchial bishop can attribute the force of law to those matters that do not exceed his competence (quae eorum competentiam non excedunt).83 Canon 150 §3 does not give the eparchial bishop carte blanche to replicate the laws of the synod in his own eparchy; he can attribute the force of law only in those matters within his competence to legislate. 81.  See CCEO c. 985 §2: “An inferior legislator cannot validly issue a law contrary to higher law.” 82.  See CCEO c. 1488: “Laws are established by promulgation.” 83.  Some might presume that this phrase refers only to the fact that eparchial bishops cannot attribute force of law contrary to enactments of the Roman Pontiff or the Apostolic See, implying the restrictions on married clergy. Such a presumption is unsupported.

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What are the limits of competence? The eparchial bishop cannot enact legislation that is ius particulare Ecclesiae patriarchalis because such competency belongs to the synod of bishops. Nor is the eparchial bishop competent to enact ius particulare Ecclesiae sui iuris, which is reserved to the Roman Pontiff,84 the supreme authority of the Church,85 the Apostolic See86 or the superior authorities of the Churches sui iuris.87 Further, an eparchial bishop cannot enact ius particulare that is reserved ex natura rei to the synod of bishops. Certain issues found in the 1996 Particular Law of the Maronite Church in accordance with the Code of Canons of the Eastern Churches (hereafter MPL) help illustrate the limitations of an eparchial bishop’s competence.88 CCEO canon 284 §3, 4º89 provides that a pastor is permanent in his office and is not to be appointed for a fixed period of time unless the particular law of his Church sui iuris permits it. By virtue of this provision, MPL article 2690 permits an eparchial bishop to appoint a pastor for a determined period of time. Since reference is made to particular law of the Church sui iuris (which the eparchial Bishop is not competent to enact), the eparchial Bishop is not competent to enact legislation that would allow for the appointment of a pastor for a determined period of time. The Apostolic See has not yet approved this norm, so its legal effect is restricted to the patriarchal territory. Therefore, a Maronite eparchial bishop outside the territory of the patriarchal church cannot appoint a pastor for a determined period of time.

84.  CCEO cc. 78 §2; 159; 182 §3. 85.  CCEO cc. 56 and 58. 86.  CCEO cc. 29 §1; 30; 554 §2; 888 §3; 1388. 87.  CCEO cc. 110 §1; 167 §1; 176. 88.  For further information about the particular law of the Maronite Church, see Jobe Abbass, “Updating the Particular Law of the Maronite Church,” in Il Codice delle Chiese Orien­ tali: La Storia, Le Legislazioni Particolari, Le Prospettive Ecumeniche, ed. Pontificio Consiglio per i Testi Legislativi (Vatican City: Libreria Editrice Vaticana, 2011) [hereafter Abbass, “Updating”] 173–193; Charbel Bousamra, The Particular Law of the Maronite Church. Analysis and Perspective (Rome: EDUSC, 2010) [hereafter Bousamra]. The author is indebted to the translation provided in Bousamra, 339–354. 89.  “The pastor is permanent in his office, therefore he is not to be appointed for a determined period of time unless the particular law of his Church sui iuris permits it.” 90.  “The pastor possesses stability in his office. However, he can be named for a fixed period of time determined by the eparchial bishop in accordance with can. 284 §3.”

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CCEO canon 247 §291 provides that particular law can permit the appointment of a married presbyter to the office of protosyncellus or syncellus. In conformity with this provision MPL article 19,92 states that par­ ticular law of the Church sui iuris can permit the appointment of a married presbyter as protosyncellus or syncellus. An eparchial bishop in the United States is not competent to enact such a law for his own eparchy because it is not within his competence to enact ius particulare Ecclesiae sui iuris. Further, appointment of married presbyters to office in the United States is contrary to special norms enacted by the Apostolic See.93 This arrangement for “extending” the force of law by promulgation by the eparchial Bishop has other weaknesses. Since it is eparchial law, it can be modified at any time either by the eparchial Bishop who promulgated it or any of his successors.

Ramifications of Territorial Restrictions

Given the territorial restrictions of the legal force of laws enacted by the synod of bishops (cf. CCEO c. 150 §2) and the possible approval of the synodal law by the Apostolic See or the possible replication of the synodal law by the eparchial bishop (cf. CCEO c. 150 §3), one must conclude that the Eastern Code foresees the existence of two legal systems in effect in each of the patriarchal churches. Such a dichotomy can have awkward effects. For example, MPL article 3994 significantly modifies the general provision of CCEO canon 35895 regarding ascription (incardination) of clerics by stating that by the reception of any of the three minor orders, i.e., cantor, 91.  “The protosyncellus and the syncelli are to be celibate presbyters, unless the particular law of their Church sui iuris has established otherwise; if possible, they should be from the clerics ascribed to the eparchy; they are to be not less than thirty years of age, have a doctorate, licentiate or expertise in some sacred science; be commendable for sound doctrine, uprightness, prudence and practical experience.” 92.  “The vicar general and the episcopal vicar must be celibate presbyters. In case of necessity, the latter may be a married priest.” 93.  Sacred Congregation for the Eastern Church, decree Qua sollerti, 23 December 1929: AAS 22 (1930) 99–105. 94.  “By reception of any of the minor orders a seminarian is enrolled in the eparchy.” 95.  “Through diaconal ordination, one is ascribed as a cleric to the eparchy for whose service he is ordained, unless in accord with the norm of particular law of his own Church sui iuris, he has already been ascribed to the same eparchy.”

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lector and subdeacon, one is ascribed in the eparchy. Such an arrangement is possible at the level of ius particulare Ecclesiae sui iuris; it exceeds the competence of the eparchial bishop to enact such law. Therefore, lacking approval of the Apostolic See, the Maronite Church now has two different “moments” of clerical ascription: ordination to minor orders inside the territory of the patriarchal church and ordination to the diaconate outside the territory of the patriarchal church. Another example is CCEO canon 377 regarding the obligation of clerics in major orders to celebrate the divine office, according to the particular law of their Church sui iuris.96 MPL article 4397 provides that clerics in major orders are obliged to pray the divine office in choir or privately. Lacking approval of the Apostolic See, there does not seem to be any particular law binding clerics outside the territory of the patriarchal church. Another scenario might be that the synod of bishops can enact particular law in a specific matter. Subsequently, an eparchial bishop can, if it is within his competence, enact the same provisions in his own eparchy. If the synod of bishops should change the law in the future, the eparchial bishop is not obliged to modify his own eparchial law.

A Proposal for Greater Clarity

There are some who will not share the conclusions drawn in this paper. Nevertheless, the study has at least demonstrated that the present canonical arrangements can give rise to confusion regarding the legal force of synodal enactments. Under the current provisions, the extraterritorial extension of the force of law is left to two authorities, one inferior (the eparchial bishop) and one superior (the Roman Pontiff or the Apostolic See) to the intermediate hierarchical structures. In the case of enactment of eparchial law on the part of the eparchial bishop, there are limitations as to what he might be willing to enact and even what he can enact. In the case of approval on

96.  “All clerics must celebrate the divine praises according to the particular law of their own Church sui iuris.” 97.  MPL art. 43 (cf. CCEO c. 377): “Clerics in major orders must celebrate the divine office in choir or privately.”

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the part of the Apostolic See, we have shown that the act of approval ultimately diminishes the self-governing authority of the patriarchal churches. Greater clarity in this matter can be achieved by eliminating the provision whereby the eparchial bishop can “replicate” the synodal laws in his own eparchy. To begin with, the provision is superfluous; the eparchial bishop already possesses legislative power98 and can, within his competence, promulgate a law that is identical, similar or even contrary to the disciplinary synodal laws that do not enjoy the force of law outside the territory of the patriarchal church. Disciplinary laws enacted by the synod of bishops have a certain moral weight, but the prohibition against enacting of a law contrary to superior law is not applicable since the synodal law is not in force in that place.99 The provision that allows the individual eparchial bishop to decide whether to enact synodal legislation is awkward and leads to an uneven (laws in force in some places and not in others) and unstable (laws enacted and possibly then revoked) system of laws. The intervention of the Apostolic See in giving force to synodal laws outside the territory of the patriarchal church is appropriate since such laws can have an impact on other Churches sui iuris and the Apostolic See is traditionally the supreme moderator in inter-ecclesial relations.100 However, perhaps approbatio is not an appropriate form for the intervention. Approval (approbatio)101 of a law, thereby giving it force everywhere in the world, is perhaps too strong an action. Perhaps the intervention of the Apostolic See could take the form of recognitio,102 that is, the Apostolic See 98.  CCEO c. 191 §1: “The eparchial bishop governs the eparchy entrusted to him with legislative, executive and judicial power.” 99.  For example, CCEO c. 331 §1 allows for particular law to permit students not called to the clerical state to be educated in a minor seminary; MPL art. 35 prohibits such students from boarding as internal students. An eparchial bishop can enact the same particular law in his eparchy or provide otherwise according to the provisions of the common law. 100.  All this presumes that the force of certain laws should extend beyond the territorial boundaries of the patriarchal church. 101.  Approbatio is defined as “the giving of one’s approval, approbation” (cf. P. G. W. Glare, Oxford Latin Dictionary [New York: Oxford University Press, 1983] [hereafter OLD] s.v. “approbatio”). 102.  Recognitio is translated as “formal examination, inspection, review” (OLD, s.v. “re­cognitio”). The CCEO calls for the review of: certain liturgical texts by the Apostolic See in order for the texts to be considered as approved (CCEO c. 657 §1); statutes of an association by the competent ecclesiastical authority in order for the association to be recognized in the Church (CCEO c. 573 §2). One could also argue that the receptio of the Apostolic See of laws enacted by the council of hierarchs (CCEO c. 167 §2) is also essentially a recognitio.

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would examine the law to determine if it is free from error and not detrimental to the communion of the Churches. Free from error and detriment, the Apostolic See could give recog­ nitio that would permit the patriarch to promulgate the law in a certain locale outside the patriarchal territory. Such a recognitio would provide a clear indication that the law is still synodal law. In giving this recognitio, the Apostolic See is not making a positive appraisal the law itself, nor would the recognitio have any effect on the law as it exists inside the territory of the patriarchal church. If the synod of bishops desires to change the law in the future, it would need to take into account that there is already a law promulgated elsewhere and will need to approach the Apostolic See to take measures to change or abrogate it.

Conclusion

When the process of the elaboration of the first common code for the Eastern Catholic Churches began in 1930, the drafters considered the achievement of a balance between the common patrimony of all the Eastern Churches and the unique rites of the individual churches would be greatest challenge. As the century unfolded, an even greater challenge emerged: the creation of governance structures for Churches with faithful dispersed throughout the world. Individual rites were to become even more complex as they were implanted in new cultures. The Second Vatican Council and the Eastern Code both grappled with the issues. If nothing else, this study will identify the weaknesses with the current arrangements.

In comparing the process of approbatio with that of recognitio (while not drawing a too clear-cut distinction), one might characterize approbatio as a positive affirmation of the legislation, while recognitio could be construed as a nihil obstat: “Recognitio, en cuanto concepto, significa el examen y fallo subsiguiente de que nada relative a la fe, las costumbres o la oportunidad es merecedor de censura” (cf. Javier Otaduy, Antonio Viana, and Joaquin Sedana, eds., Diccionario General de Derecho Canónico [Pamplona: Universidad de Navarra, 2012] s.v. “recognitio”).

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jobe abbass, ofm*

The Significance for the Latin Church of Eastern Canons 29–38 on Ascription Introduction

When the canons governing ascription in the Codex Iuris Canonici (CIC) are compared to those in the Codex Canonum Ecclesiarum Orientalium (CCEO), it is immediately evident that the norms in the latter are much more detailed. Indeed, while two Latin canons (111–112) are devoted to ascription to a Church sui iuris, there are ten Eastern canons (29–38) dedicated to the same subject.1 Although the Latin code regards only the Latin Church and the Eastern code principally governs the Eastern Catholic Churches, the two are not so separate and distinct as to be unrelated. The legislator, himself, meant to establish an interrelationship of the codes when he presented the new Eastern code to the twenty-eighth General Congregation of the Synod of Bishops on October 25, 1990. John Paul II indicated that he regarded CCEO, together with CIC and Pastor bonus to be integral parts of “one Corpus Iuris Canonici” in the universal Church.2 Even from the first Eastern canon, His Holiness effectively codified this interrelationship. * Professor, Faculty of Canon Law, Saint Paul University, Ottawa, Canada. 1.  The CIC canons, with their CCEO counterparts in parenthesis, are: 111 §1 (29 §1); 111 §3 (30, 588); 112 §1, 1° (32 §1); 112 §1, 2° (33); 112 §1, 3° (34); 112 §2 is unique to CIC. The CCEO canons, with their parallel CIC norms in parenthesis, are: 29 §1 (111 §1); 30 (111 §3); 32 §1 (112 §1, 1°); 33 (112 §1, 2°); 34 (112 §1, 3°). CCEO cc. 29 §2, 31, 35–38 are unique to the Eastern code. See Carl G. Fürst, Canones-Synopse zum Codex Iuris Canonici und Codex Canonum Ecclesiarum Orientalium (Freiburg-im-Breisgau: Herder, 1992) 4 and 118. 2.  AAS 83 (1991) 490. The pope stated: In presenting to this Assembly, so representative of the universal Church, the code which governs the common discipline of all the Eastern Catholic Churches, I regard it as an integral part of one Corpus Iuris Canonici. . . . ” Unless otherwise indicated, foreign language translations are the writer’s.

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Unlike CIC canon 1,3 CCEO canon 1 states: “The canons of this Code concern all and only the Eastern Catholic Churches, unless, with regard to relations with the Latin Church, it is expressly (expresse) established otherwise.”4 There are, of course, nine CCEO canons which expressly, that is, explicitly oblige the Latin Church.5 However, until recently, there was disagreement among canonists regarding the exact interpretation to be applied to expresse. A minority of canonical writers argued that, in using the term expresse, the legislator only intended the canons of the Eastern code to apply to the Latin Church when it is explicitly named. However, consistent with a classical rule of interpretation, according to which whatever is expressly (expresse) established in law can be indicated either explicitly or implicitly, a majority of writers maintained that canons of the Eastern code could also regard or oblige the Latin Church implicitly by way of the use of the expression “Church sui iuris,” which could refer to the Latin as well as the Eastern Catholic Churches sui iuris.6 Then, on December 8, 2011, by way of an official Explanatory Note concerning the interpretation to be given CCEO canon 1,the Pontifical Council for Legislative Texts essentially accepted the majority view. The Council stated: “Consequently, one must hold that the Latin Church is implicitly included by analogy each time that CCEO explicitly uses the term ‘Church sui iuris’ in the context of interecclesial relations.”7 Given the significance of the Pontifical Council’s Explanatory Note for future canonical interpretation, an English translation of the original Italian text is offered in the Appendix to this study.8 3. CIC c. 1 states: The canons of this Code regard only the Latin Church.” 4.  In this study, English translations for the CCEO canons are generally taken from Code of Canons of the Eastern Churches, Latin-English Edition (Washington: Canon Law Society of America, 2001). English translations for the canons of the Codex Iuris Canonici (CIC) are taken from Code of Canon Law, Latin-English Edition (Washington: Canon Law Society of America, 1999). 5.  The nine CCEO canons which explicitly regard the Latin Church are: CCEO cc. 37; 41; 207; 322; 432; 696 §§1–2; 830 §1; 916 §5; and 1465. 6.  For an outline of these minority and majority positions, see Jobe Abbass, “Transfer to Another Church Sui Iuris, Including the Latin Church (CCEO c. 32 §2),” The Jurist 72 (2012) 646–655 (=Abbass, “Transfer”). 7. See Communicationes 43 (2011) 315–316. 8.  For a commentary on the Pontifical Council’s official Explanatory Note, see Jobe Abbass, “The Explanatory Note regarding CCEO Canon 1: A Commentary,” Studia Canonica 46 (2012) 293–318.

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Even when Eastern norms do not contain the expression “Church sui iuris,” it would also seem that the implicit (expresse) interrelationship of the codes arises simply because of the nature of the matter (ex natura rei), for example, in the context of ascription or transfer from one Church sui iuris to another. Although the Explanatory Note does not peremptorily limit the ways in which Eastern norms can implicitly include also the Latin Church, it does not refer to a category of CCEO norms that implicitly oblige also the Latin Church ex natura rei. Still, the Explanatory Note would appear to be open to such a possibility in the context of interecclesial relations even though it does not specifically address this line of interpretative reasoning. In any event, while it could be argued that all the CCEO norms on ascription to be examined in this study expressly (implicitly) include the Latin Church ex natura rei, the same canons will be looked at mainly from the perspective of the interpretative rule established by the Pontifical Council regarding the use of the expression “Church sui iuris.” As all of the CCEO canons 29–28 on ascription contain the expression “Church sui iuris,” they will be analyzed to determine the extent to which the Eastern norms expressly intend to include or oblige the Latin Church. Also, the legislative history of these norms will be assessed, given the reported deliberations of the Pontificia Commissio Codici Iuris Canonici Orientalis Recognoscendo (PCCICOR), to determine if such an interpretation can be confirmed. Now, as this writer has argued for some time, the interrelationship of the Eastern and Latin codes is not exhausted by CCEO canon 1.9 CIC canon 17, and its counterpart CCEO canon 1499, effectively set up an interrelationship of the Latin and Eastern codes as complementary guides to canonical interpretation. Like CIC canon 17, CCEO canon 1499 states: “Laws must be understood according to the proper meaning of the words considered in their text and context. If the meaning remains doubtful and obscure, they must be understood according to the parallel passages, if there are such, to the purposes and circumstances of the law, and to the mind of the legislator.” While canon 18 of the 1917 Latin code limited recourse to “parallel passages of this (Latin) code,” CIC canon 17 and 9.  See Jobe Abbass, “The Interrelationship of the Latin and Eastern Codes,” The Jurist 58 (1998) 1–40 (=Abbass, “Interrelationship”) and Idem, “The Eastern Code at the Service of Interecclesial Communion,” CLSA Proceedings 68 (2006) 65–86.

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CCEO canon 1499 do not preclude making recourse to parallel texts of one or the other of the codes as an aid to canonical interpretation. Therefore, where the meaning of laws in one code remains doubtful, laws governing the same matters in the other code can serve as parallel passages to resolve ambiguities in interpretation. However, this interpretative rule does not intend, nor can it, condition or undermine the authority of the legislator, or those to whom he has granted the power, to interpret laws authentically (CIC c. 16 §1; CCEO c. 1498 §1).10 Yet another area for a potential interrelationship of the Latin and Eastern codes is evidenced by CIC canon 19. It states: “If a custom or an express prescript of universal or particular law is lacking in a certain matter, a case, unless it is penal, must be resolved in light of laws issued in similar matters (legibus latis in similibus), general principles of law applied with canonical equity, the jurisprudence and practice of the Roman Curia, and the common and constant opinion of learned persons.”11 Therefore, except in penal cases, where there is a lacuna in the Latin code, the case must be decided with reference to four sources, one of which is laws enacted in similar matters. It only seems to follow, then, that, where the Eastern code contains laws to govern similar matters in the Latin code, those Eastern norms could serve to fill legislative gaps in the Latin code. Indeed, since the legislator promulgated the Eastern code almost eight years after the Latin code, it may well be that he had certain lacunae in the Latin code in mind when he enacted the newer Eastern laws. Again, however, this interpretative norm can only be invoked in individual cases and the executive or judicial authority resolving the matter can in no way replace the authority of the legislator to intervene and remedy the lacunae definitively. Given the interrelationship of the codes established by these Eastern and Latin canons of the one Corpus Iuris Canonici of the Catholic Church, the aim of this study will be to indicate the significance, even for the Latin 10.  Like CIC c. 16 §1, CCEO c. 1498 §1 states: “The legislator authentically interprets laws as does the one to whom the same legislator has conferred the power of authentically interpreting.” 11.  The interrelationship of the codes is not established by CCEO c. 1501 since there is no reference to “laws issued in similar matters.” Regarding lacunae in the Eastern code, CCEO c. 1501 states: “If an express prescript of law is lacking in a certain matter, a case, unless it is penal, must be resolved according to the canons of the synods and the holy fathers, legitimate custom, the general principles of canon law applied with equity, ecclesiastical jurisprudence, and the common and constant canonical doctrine.”

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Church, of CCEO canons 29–38 on ascription and transfer to a Church sui iuris. After a brief introductory section, denoting the context and mindset of the pertinent study group within PCCICOR, each of the Eastern canons will be examined successively. A commentary on each norm will be offered in the light of CCEO canon 1 and, especially, the Pontifical Council’s Explanatory Note. Where applicable, reference to the interpretative rules contained in CIC canon 17 and 19 will also be incorporated into the commentaries.

CCEO Canons 29–38: Context and Mindset within PCCICOR

The task of revising the former Eastern norms on ascription was entrusted to the second study group of PCCICOR, the Coetus de Normis Generalibus, Ritibus, Personis physicis et moralis, Potestate ordinaria et delegata (Coetus de Ritibus). The study group, composed of sixteen members, met from January 19–31, 1976 to revise the pertinent norms contained in Cleri sanctitati (CS) canons 1–15.12 Although these norms had the title De Ritibus orien­ talibus, many of them in fact also applied to the Latin Church. CS canon 15 stated: “Clerics and the faithful of any rite, the Latin rite by no means excluded, are bound by the prescripts of canons 1 §2, 4, 5, 7, 10, 11 §2, and 13.” However, from the outset, the Coetus de Ritibus decided to suppress CS canon 15 since, as a general principle, the group did not want to establish norms for Latins in the Eastern code. Just as the members worked to prepare a revised draft of CS canons 1–15, they hoped at the time that the corresponding Latin commission would elaborate a revised schema of the same canons for the Latin Church. Still, the Coetus de Ritibus knew full well that their proposed norms on ascription and transfer among the various Churches of the whole Catholic Church would implicitly involve the Latin Church. Since the expression “Church sui iuris” had not yet entered into the formulation of the Eastern canons, one can only conclude that the study group believed the new Eastern norms on ascription would implicitly regard the Latin Church, as one of those various Churches, simply because of the nature of the matter (ex natura rei). The study group’s relator, Archimandrite Elias Jarawan, stated: 12.  Nuntia 3 (1976) 44–45.

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As for can. 15 of C.S., the consultors were all agreed on its suppression. Indeed, it appeared opportune to a majority of the consultors to avoid, everywhere that was possible, to give prescripts concerning Latins in the Eastern code. All these prescripts ought to be incorporated in the Latin code itself, those regarding ascription to the Latin Church as well as those concerning transfer from that great Church to an Eastern Church. It is evident that the canons concerning Rites are general, and also involve the Latin Church, but, in themselves, they find their place more naturally in the CICO (Codex Iuris Canonici Orientalis), inasmuch as it applies to the various Churches, while in the Latin code, valid only for the Latin Church, one can hope that the canons which are enumerated in C.S. 1–15, duly revised, will be introduced.13

Clearly, the Latin commission did not introduce such detailed norms, as is evident from only CIC canons 111–112. Now, given the mindset of the Eastern draftsmen that would avoid legislating for Latins regarding ascription and transfer from one Church to another, it is difficult to argue that CCEO canons 29–38 are Latin canons. Yet, as the Coetus de Ritibus indicated, the Eastern norms in this matter implicitly regard the Latin Church and that is true inasmuch as it is one of the twenty-four Catholic Churches united in the See of Rome. 1. Ascription of Children to a Church Sui Iuris (CCEO c. 29)

CCEO canon 29 governs the ascription of children up to fourteen years of age and is divided into two paragraphs: §1 establishes a general rule regarding children presented for baptism by their parents, while §2 concerns specific cases of children of an unwed mother, of unknown parents or of non-baptized parents. CCEO canon 29 §1 parallels CIC canon 111 §1 but the norms do not mutually correspond. CIC canon 111 §1 states: “Through the reception of baptism, the child of parents who belong to the Latin Church is enrolled in it, or, if one or the other does not belong to it, both parents have chosen by mutual agreement to have the offspring baptized in the Latin Church. If there is no mutual agreement, however, the child is enrolled in the ritual Church to which the father belongs.” In particular, while Eastern canon 29 §1 foresees that a child can be ascribed to the Church sui iuris of his or her mother if both parents agree, it has 13.  Nuntia 3 (1976) 52–53.

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been argued that Latin canon 111 §1 does not seem to allow for the same in the case of the Eastern Catholic mother.14 Indeed, as will be seen from the Eastern canon’s iter within PCCICOR, more was expressed and written on this point than perhaps any other subject regarding the Eastern norms on ascription. In general, CCEO canon 29 §1 stipulates that a child under fourteen is ascribed by virtue of baptism to the Church sui iuris of the father. However, if only the mother is Catholic or if both parents agree in requesting it (si ambo parentes concordi voluntate petunt), the child can be ascribed to the Church of the mother. As will be seen, the insertion of this clause was consistently opposed within PCCICOR by Easterners who feared the diminishment, if not the disappearance, of the Eastern Catholics Churches sui iuris especially in the diaspora. To temper this fear, the norm makes an exception by way of particular law to provide special dispositions other than the general rule. CCEO canon 29 §1 states: A son or daughter who has not yet completed fourteen years of age is ascribed by virtue of baptism to the Church sui iuris to which his or her Catholic father is ascribed; or if only the mother is Catholic, or if both parents are of the same mind in requesting it, to the Church sui iuris of the mother, without prejudice to particular law enacted by the Apostolic See.

Within PCCICOR, a first draft of this Eastern norm was proposed by the Coetus de Ritibus in its revision of CS canon 6, which stated: “Among the different rites, a person belongs to that one by whose ceremonies he was legitimately baptized.” The study group wanted to make clear that ascription is decided not by baptism but, rather, by the parents’ membership in a particular Church. Accordingly, the proposed draft stated: “By baptism 14.  See: John P. McIntyre, “Rite,” in New Commentary on the Code of Canon Law, eds. John P. Beal et al. (New York, N.Y./Mahwah, N.J: Paulist Press, 2000) 151. The author states: “The first paragraph of the canon (111) presents a restrictive norm. Suppose we find a Latin father and an Eastern mother. If both parents agree, can the child be baptized in the Eastern rite? The canon does not permit this. If they both agree, it must be in the Latin Church.” See also: George Nedungatt, “Churches sui iuris and Rites,” in A Guide to the Eastern Code: A Commentary on the Code of Canons of the Eastern Churches, ed. George Nedungatt (Rome: Pontifical Oriental Institute, 2002) 119, note 43 (=Nedungatt, “Churches and Rites”). The author states: “The corresponding CIC c. 111 §1 allows the parents to agree to choose the Latin Church for their children at baptism, if one of the parents does not belong to it. The Latin Church can happen to be the “ritual Church” (Church sui iuris) of the mother or father, but, according to the wording of the canon, they cannot agree to choose the Eastern Church sui iuris of the mother but only of the father.”

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itself, one is ascribed to the particular Church of the father (patris); if however only the mother is Catholic, to the Church of the mother.”15 Since some consultors wanted to add, after patris, the words vel si ambo parentes consentiant, matris, the clause was added tentatively so that, as canon 10 §1 of the 1984 Schema canonum de constitutione hierarchica Ecclesiarum ori­ entalium (1984 Schema), the norm now stated: “By baptism itself, one is ascribed to the Church of the father; if however only the mother is Catholic (or both parents consent), to the Church of the mother.”16 During the denua recognitio of the 1984 Schema, canon 10 §1 was the subject of intense criticism on account of the insertion of the clause vel si ambo parentes consentiant. It was argued that permitting a child to be ascribed to the Church of the mother is against Eastern tradition, according to which a child is to be ascribed to the Church of the father. Then, the consultors maintained that, by allowing a child to be ascribed to the mother’s Church, and they clearly intended the Latin Church especially in the diaspora, it would lead to the weakening and diminishment of the Eastern Catholic Churches. An excerpt from the proceedings of PCCICOR shows the extent to which the Latin Church was implicitly involved in the remarks made concerning canon 10 §1. They state: 1) Five consultative bodies declared themselves against the insertion of the clause “si ambo parentes consentiant” in the canon, emphasizing the fact that it is contrary to Eastern traditions, to the laws of the personal statutes in force in the East, to the mentality of the Eastern faithful and because it would lead to a weakening of the vitality and to an impoverishment of the Eastern Churches present in Western territories. 2) Three consultative bodies proposed a differentiated discipline for the East and the West, with the aim of protecting “the Eastern Churches that are a minority in a Latin area, or in a territory in which several Latin dioceses exist and operate, exercising a considerable influence on Easterners, Catholic and Orthodox.” . . . . 3) A Latin episcopal conference, wishing in any case to favour the existence and blossoming of an Eastern Church in its territory, proposed that a possibility be opened up for a “lex particularis,” different from that established in §1 or in cann. 111 and 112 of CIC.17 15.  Nuntia 3 (1976) 49 (c. 7 §1). 16.  Nuntia 19 (1984) 22 (c. 10 §1). 17.  Nuntia 22 (1986) 24–25 (c. 10 §1).

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Essentially, there was a choice to be made either in favour of the prevailing Eastern tradition to ascribe a child to the Church of the father or in favour of the equal right of the father and mother to decide on the Church to which their child would be ascribed. The proceedings state: “On the table was the difficult choice between giving precedence to the primary rights of the parents, putting the husband and wife on the same level in this matter, and what is consistent with Eastern traditions and a rooted mentality, and perhaps, required for safeguarding the Eastern Churches.”18 After several days of lively debate, the experts entrusted with the denua recognitio of the 1984 Schema could not come to a consensus regarding the insertion of the clause vel si ambo parentes consentiant. However, the secretariat indicated that a solution could be found if, while keeping that clause, the clause salvo iure particulari a Sede Apostolica statuto was added. The experts agreed (8 in favour, 2 against, 1 abstention: 11 present) and canon 10 §1 now stated: “By baptism itself, one is ascribed to the Church to which the father is ascribed; if however, only the mother is Catholic or both parents agree in requesting it, the Church to which the mother belongs, without prejudice to particular law established by the Apostolic See.”19 As amended, canon 10 §1 subsequently became canon 28 §1of the 1986 Schema Codicis Iuris Canonici Orientalis (1986 SCICO).20 After the members of PCCICOR made their observations to the entire schema of the future code, the Coetus de expensione observationum was entrusted with the review and revision. Regarding SCICO canon 28 §1, a first observation noted how the norm differed from CIC canon 111 §1with respect to the possible ascription of a child to the Church of his or her Eastern Catholic mother. With no explanation, the Coetus simply replied that the same possibility exists also in the Latin canon. The observation, together with the study group’s response, stated: If the canon is compared with CIC can. 111, we note that CIC does not open the possibility of a transfer to an Eastern rite, while the Eastern Schema allows the possibility of a transfer to the Latin rite, if the mother, for example, is Latin. Indeed, in the case of a ritual difference between the two

18.  Nuntia 22 (1986) 26 (c. 10 §1). 19.  Nuntia 22 (1986) 27 (c. 10 §1). 20.  Nuntia 24–25 (1987) 5 (c. 28 §1).

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parents, the child will always be able to be baptized in an Eastern rite given that one of the two parents belongs to it. Response: In CIC 111, there is the same possibility.21

At the same time, as was the case during the denua recognitio of the 1984 Schema, members of PCCICOR objected to the clause “or, if the parents agree requesting it,” because it is contrary to Eastern tradition and since it would inevitably lead to the diminishment of the Eastern Catholic Churches especially in the diaspora. Even if the Latin Church was never named explicitly in the canon, one can almost certainly conclude from the observations that the Latin Church figured as a main protagonist in the context of the Eastern norm’s discussion and the remarks that implied the impoverishment of the Eastern Catholic Churches would inevitably occur at the hands of another Church. The reported proceedings list the following reasons for the members’ objections: 1) We absolutely refute the present text that gives the two spouses the right to ascribe the child to the rite of the mother. It is contrary to Eastern tradition. Moreover, in countries of the West, such easiness could, in the long run, lead to the suppression of our Church (1 member). 2) According to Eastern tradition, a child baptized in the Catholic or Orthodox Church is ascribed, even in civil registries, to the rite of the father. Once of age, he or she can ascribe themselves, servatis de iure servandis, to another rite. Can. 28 and can. 29 are fatal to our Eastern Churches. “They will condemn them, one day, in the West, to disappearance. (1 member). 3) In a definitive way, the clause will contribute to make the number of members of the Eastern Catholic Churches decrease, because the parents will opt for that Church which is geographically closer and more convenient for them. 4) This freedom will lack little to generate, at the heart of the home, discord and tension. The mother could try to impose her will on the husband and

21.  Nuntia 28 (1989) 20 (c. 28 §1). While CIC c. 111 §1 is certainly not explicit, it could be implied that the ascription to the Latin Church is only one of the options open to the parents and that ascription to the Eastern Church of the mother is not excluded. See Dimitri Salachas, “L’appartenenza giuridica dei fedeli a una Chiesa orientale sui iuris o alla Chiesa latina,” Perio­ dica 83 (1994) 27. The author states: “The Coetus de expensione observationum replied that ‘there is the same possibility in CIC,’ which is true, since CIC c. 111 §1 does not seem to exclude that the parents of different rites (Latin and Eastern) can mutually agree to choose that the children be baptized in the Eastern Church, to which one of the two spouses belongs.”

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the Church to which the mother belongs could find an opening to pressure her to obtain ascription of the child to the Church to which she belongs. It seems wiser to opt for the Church of the father, a decision that is more consistent with the Eastern spirit. Law aims at the general good of the community and not to favour one community at the expense of another. If freedom is granted in this way to parents to decide on the rite of their children, would it not be necessary, then, to recognize the right of children once of age to choose the Church to which they want to belong? As for the particular law that we want to safeguard, namely, “without prejudice to the particular law enacted by the Apostolic See,” it seems that it would not resolve eventual controversies and would also give rise to abuses (1 member). 5) According to the age-old tradition of the Eastern Churches and especially according to the mentality of the faithful, in marriage the wife always follows the rite of the husband (1 member).

Since the Coetus de expensione observationum saw no difference in these observations from those that prior study groups had considered, the group decided to confirm the previous decisions. The Coetus stated: “The proposals have been at the centre of the deliberations of prior Coetus. Their work, described in Nuntia 22, p. 24, can only be confirmed since the equality of the parents’ rights is a self-evident fundamental principle. In particular situations, the final clause provides sufficiently.”22 Before the Eastern code was promulgated, members of PCCICOR met for its second plenary assembly in Rome from November 3–14, 1988. There were thirty-six members in attendance.23 Already on November 5th, ten members presented a motion to re-examine three canons, including SCICO canon 28. In proposing that a child must always follow the rite of the father, the members stated regarding the contested SCICO canon 28 §1: “The draft of these canons not only does not defend the flourishing of the Eastern Churches, but it will become a source of permanent 22.  For the members’ observations and this response of the Coetus de expensione obser­ vationum, see Nuntia 28 (1989) 20–21 (c. 28 §1). As a result of another member’s observation, however, the Coetus did change the beginning of SCICO canon 28 §1, which read “By baptism itself, one is ascribed to the Church to which the father is ascribed.” The amendment was made to take into account the Eastern norm (now CCEO c. 30) which allows those who are fourteen years old to choose the Church of ascription. Therefore, the Coetus modified SCICO canon 28 §1 to begin as it does in the promulgated CCEO canon 29 §1. See Nuntia 28 (1989) 21 (c. 28 §1). 23.  Nuntia 29 (1989) 24–25.

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dangers—especially in Western regions—to their survival.”24 Obviously, the same issues were at play as had been made known to the previous study groups. As a result of the animated discussion that took place over several days, a majority of the members of PCCICOR voted in favour of supressing the clause aut, si ambo parentes concordi voluntate petunt in SCICO canon 28 §1.25 No further changes were made to the canon before the Schema novissimum was presented to the Holy Father on January 28, 1989. However, as part of some “last changes” made to the draft, the Holy Father himself decided to re-insert the clause aut si ambo parentes concordi voluntate petunt before the canon was promulgated as CCEO canon 29 §1.26 Given the iter of CCEO canon 29 §1, it is abundantly clear that the Latin Church is implied in its text and the context of the interritual matter it governs. If the Latin Church is not already implied by the nature of the matter, the Explanatory Note only confirms such a conclusion. Indeed, at times within PCCICOR, the Latin Church appears to be the only other Church sui iuris consultors and members of PCCICOR were worried about as they argued to safeguard Eastern traditions and to protect the Eastern Catholic Churches from inevitable impoverishment. Notwithstanding the importance of these things, the legislator decided to allow ascription to the Church of the mother if the parents mutually agree. In this way, the legislator has meant to underscore in CCEO canon 29 §1 the fundamental equality of spouses in making the choice regarding their child’s ascription. Now, some would argue that the same is foreseen, but apparently only for the Latin mother, in CIC canon 111 §1. If the legislator really wanted the provisions of the codes to be mutually aligned, should CIC canon 111 §1 not be interpreted also to allow a child to be ascribed to the Church of an Eastern mother? Although such an interpretation could be implied, an authentic interpretation of CIC canon 111 §1 would be helpful here as a doubt has been raised in that specific context. Moreover, CCEO canon 29 §1 is an Eastern norm and, as seen from the outset, the draftsmen did not want to legislate directly for Latins in the area of ascription. However, it is clear that, in an interecclesial marriage (Latin-Eastern), an Eastern mother could now invoke CCEO canon 29 §1 to have her child 24.  Nuntia 29 (1989) 36. 25.  Nuntia 29 (1989) 40. 26.  Nuntia 31 (1990) 38 (c. 28 §1).

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ascribed to her Eastern Church if her husband agrees. Then, given the aids to canonical interpretation in CIC canons 17 and 19, it could also be argued that, as a later norm established for similar circumstances, CCEO canon 29 §1 does clarify the doubt and otherwise fill the legislative gap in CIC canon 111 §1. Therefore, in accord with CCEO canon 29 §1, a child who is not yet fourteen years old is to be ascribed to the Church sui iuris of his or her father. Being an Eastern norm, the reference to “Church sui iuris” here intends one of the Eastern Churches. If only the mother is Catholic, the child is to be ascribed to the Church sui iuris of the mother. Here, again, “Church sui iuris” means Eastern Catholic Church. However, where the Catholic parents mutually agree, they can opt to ascribe their child to the Church sui iuris of the mother. Since this option presupposes an interecclesial marriage, the expression “Church sui iuris” implicitly intends either another of the Eastern Catholic Churches or even the Latin Church. The latter possibility is what caused so much debate among the consultors and members of PCCICOR. However, with the clause salvo iure particulari a Sede Apostolica statuto, the legislator has allowed for particular law (ius spe­ ciale and ad tempus) that could be established to handle circumstantiated perils to Eastern Catholic traditions or Churches caused by the provisions of CCEO canon 29 §1.27 With regard to CCEO canon 29 §2, its provisions are both new and unique to the Eastern legislation. They establish: If, however, a person who has not yet completed fourteen years of age: 1° is born of an unwed mother, he or she is ascribed to the Church sui iuris to which the mother belongs; 2° is born of unknown parents, he or she is ascribed to the Church to which belong those to whose care he or she has been legitimately entrusted; if, however, it is a case of an adoptive father and mother, §1 is to be applied; 3° is born of non-baptized parents, he or she is ascribed to the Church sui iuris to which belongs the one who has undertaken his or her education in the Catholic faith.

27.  In his discourse presenting the Eastern code, John Paul II indicated that he would be happy to consider such a particular law (ius speciale and ad tempus) should the circumstances warrant it. See AAS 83 (1991) 492.

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Within PCCICOR, the Coetus de Ritibus prepared a different first draft of this norm. Canon 7 §2 of the proposed norms stated: “A child born after the father’s death and an illegitimate child, unless acknowledged publically by the father, belongs to the Church of the mother; however, deserted and abandoned children are ascribed to the Church of the adoptive parents or guardians or, in their absence, to the Church of the Hierarch to whom those entrusted with their care are subject.”28 The identical formulation became canon 10 §2 of the 1984 Schema.29 During the denua recognitio of canon 10 §2, consultative bodies made a number of redactional observations which the secretariat of PCCICOR considered and then proposed a new formulation. The expert study group agreed “to accept the observations regarding §2, whose text is simplified along the lines proposed by the secretariat.” Canon 10 §2 now stated: “A child born of an unwed mother is ascribed to the Church to which the mother belongs; a child born of unknown parents is ascribed to the Church to which belong those to whose care he or she has been legitimately entrusted; if, however, it is a case of an adoptive mother and father, §1 is applied.”30 Canon 10 §2 subsequently became SCICO canon 28 §2.31 When the 1986 Schema was reviewed by the members of PCCICOR, the Coetus de expensione observationum reformulated SCICO canon 28 §2 into three numbers. The added third number had been SCICO canon 29 §2 and was more logically incorporated here. As reformulated, SCICO canon 28 §2 was already identical to the promulgated CCEO canon 29 §2.32 To offer a commentary on CCEO canon 29 §2, it constitutes a part of Eastern law that, barring an authoritative intervention on the part of the legislator, does not regard the Latin Church directly unless, in individual cases, the Eastern norms are invoked to fill legislative gaps regarding the

28.  Nuntia 3 (1976) 49–50 (c. 7 §2). Regarding this provisional norm, the study group stated: “We discussed a lot so as to know to which particular Church children would belong who were born in an Eastern region, but raised by missionaries or religious of the Latin rite. To underline the importance of the local Church, the group added the last phrase: ‘or to the Church of the hierarch to whom those who are taking care of those children are subject’.” 29.  Nuntia 19 (1984) 22 (c. 10 §2). 30.  Nuntia 22 (1986) 25–27 (c. 10 §2). 31.  Nuntia 24–25 (1987) 5 (c. 28 §2). 32.  Nuntia 28 (1989) 22 (c. 28 §1).

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same matters in the Latin Church (CIC c. 19).33 That does not exclude, however, that CCEO canon 29 §2 can implicitly involve the Latin Church. One presumes that the unwed mother, to whom CCEO canon 29 §2, 1° is addressed, is Eastern and therefore that her Church would be one of the Eastern Catholic Churches. However, besides the Eastern Catholic Churches, the Latin Church can be implied by the expression “Church sui iuris” in either numbers 2 or 3 of CCEO canon 29 §2. To protect the local Eastern Church, the Coetus de Ritibus had proposed to have children born of unknown parents, but raised by Latin missionaries or religious, ascribed to the Church of the Eastern hierarch to whom they were subject. Since their formulation of the norm never survived within PCCICOR, it follows that children born of unknown or non-baptized parents, but raised in an Eastern region by missionaries, religious or other faithful of the Latin Church, would be ascribed to the Latin Church. Evidently, that would be so even if the children were baptized according to an Eastern rite. This interpretation is also confirmed by the Coetus de expensione observationum in the context of an observation made regarding SCICO canon 29 §2 (now CCEO c. 29 §2, 3°). One member of PCCICOR inquired: “We wonder if, when the educator in the Catholic faith is of the Latin rite, the newly baptized must be ascribed tout seul to the Latin rite.” To this question, the expert study group simply responded: “It is obvious.”34 To sum up, then, while the context of the CCEO canon 29 §2 certainly foresees ascription in most cases to an Eastern Catholic Church sui iuris, it does not exclude ascription to the Latin Church in the other cases mentioned. 2. Ascription of Persons Who Are at Least 14 Years Old (CCEO c. 30)

Regarding the ascription of anyone who has completed fourteen years of age, both the Eastern and Latin codes correspond in establishing the general rule that the person is free to choose any Church sui iuris to which he or she is ascribed by virtue of baptism. Like CIC canon 111 §3, CCEO canon 30 provides:

33.  In support of this argument, that is, filling the legislative gaps in the Latin code that are covered by CCEO c. 29 §2, see also Carl G. Fürst, “Interdipendenza del diritto canonico latino ed orientale,” in Il Diritto Canonico Orientale nell’ordinamento ecclesiale, ed. Kuriakose Bharanikulangara (Vatican City: Libreria Editrice Vaticana, 1995) 30 (= Fürst, “Interdipendenza”). 34.  Nuntia 28 (1989) 24 (c. 29 §2).

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Anyone to be baptized who has completed the fourteenth year of age can freely select any Church sui iuris in which he or she is ascribed by virtue of baptism received in the same Church, with due regard for particular law established by the Apostolic See.

Within PCCICOR, the Coetus de Ritibus proposed the first draft of this norm as provisional canon 12. It stated: “Non-Christians receiving baptism can choose any particular Church.” The Relator provided the following rationale: This is substantially can. 12 of C.S., but presented in a different formulation. . . . The problem was raised regarding non-Christians who come to the Catholic faith thanks to the preaching of Latin missionaries in Eastern territories. In principle, the new Christians are free to choose the Church to which they will belong. However, practically, are they not under the influence of those on whom they are dependent for their belonging to the faith? One would normally find that they choose to belong to the Church of these missionaries. Still, is it not more normal and more in the ecumenical spirit that these new Christians be incorporated as members of their local Eastern Catholic Church? To allow them full liberty to choose a Church other than the local Church, does that not uproot them from their culture and their own tradition? To reconcile this freedom of choice of a particular Church with what would normally be done, certain consultors had proposed adding, at the end of the canon, an exhortation addressed to these new Christians to choose the Eastern particular Church in the majority in the region where they live. The study group deemed that it is up to missionaries themselves to direct the free choice of these new Catholic Christians towards the local Eastern particular Church in the majority in the region.35

As a result, the Coetus proposed a text addressed to missionaries and sent it to another study group that was dealing with canons regarding the evangelization of peoples. In fact, the text would become part of CCEO canon 588.36 Almost identical to the promulgated text, it read: “However, care should be taken lest anything should be recommended that might prevent their ascription in the Church more appropriate to their culture.”37 35.  Nuntia 3 (1976) 51–52 (c. 12). 36.  Nuntia 3 (1976) 52 (c. 12). 37. See Nuntia 17 (1983) 13 (c. 7 §2).

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As for provisional canon 12, it became canon 15 of the 1984 Schema, which read: “Non-Christians receiving baptism can choose any Church sui iuris.”38 During the denua recognitio of the 1984 Schema, consultative bodies proposed that the formulation of canon 12 be replaced with that of CIC canon 111 §2 (now CIC c. 111 §3). The expert study group agreed so that canon 15 now read: “Anyone to be baptized who has completed the fourteenth year of age can freely choose any Church sui iuris to which he or she is also ascribed by virtue of baptism.” Canon 15 subsequently became SCICO canon 29 §1.39 Among the observations received from members of PCCICOR regarding the 1986 Schema, only one concerned SCICO canon 29 §1. The member noted that its formulation could be improved so as to avoid the possibility that a person could be baptized in one Church only to choose to be ascribed in another. The Coetus de expensione observationum agreed by replacing the words “to which he or she is also ascribed by virtue of baptism” with “to which he or she is ascribed by virtue of baptism received in that same Church.”40 At the second plenary assembly of PCCICOR, the motion that ten members had made to require a child to follow the rite of the father also included a motion to reconsider the age of fourteen for the choice of a rite. In certain Middle Eastern countries, that disposition would run counter to the civil law (personal statutes), which permit such a choice only when one reaches the age of majority. Eventually, to resolve this question, a member proposed that the clause salvo iure particulari a Sede Apostolica statuto be added at the end of SCICO canon 29 §1 in order to overcome the problem raised by the age limit.41 A majority of the members of PCCICOR voted in favour of the proposal and no further amendments were made before the Eastern norm was promulgated as CCEO canon 30. When CCEO canon 30 and CIC canon 111 §3 are taken together, it is clear that they establish the same general rule for the entire Catholic Church. Anyone to be baptized who is fourteen years of age can freely select the Church sui iuris, Eastern or Latin, to which he or she is to be ascribed by virtue of baptism received in that same Church. The exception clause in the Eastern canon was added ultimately to accommodate certain 38.  Nuntia 19 (1984) 22 (c. 15). 39.  Nuntia 24–25 (1987) 5 (c. 29 §1). 40.  Nuntia 28 (1989) 24 (c. 29 §1). 41.  Nuntia 28 (1989) 46–47.

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Eastern regions where civil law requires a higher age limit. The only interpretative difficulty in this area arises, not on account of CCEO canon 30, but because of the other Eastern canon related to it. Characteristic of the Eastern code, CCEO canon 588 states: Catechumens are free to be ascribed to any Church sui iuris, in accord with the norm of can. 30; however, care should be taken (caveatur) lest anything should be recommended that might prevent their ascription in the Church sui iuris more appropriate to their culture.

Since CCEO canon 588 is an Eastern canon, one has to presume that it is addressed only to the Eastern Catholic Churches. However, given the evident interecclesial context and the Explanatory Note, it is clear that the expression “Church sui iuris” also includes the Latin Church. Therefore, when dealing with catechumens, authorities of one Eastern Catholic Church must abide by CCEO canon 588 in not recommending anything that might prevent their ascription to another Eastern or even the Latin Church. However, does CCEO canon 588 qualify CIC canon 111 §3 just as it does CCEO canon 30? Eastern canon 588 makes no reference to CIC canon 111 §3 nor does it seem to be addressed to Latin authorities. Yet, as mentioned above, the Coetus de Ritibus proposed the draft of CCEO canon 588 mainly because of Latin missionaries in Eastern territories. Then, during the denua recognitio of the same draft, a consultative body proposed that the caveatur clause be replaced with the following, more positive formulation: “However, it is recommended that a catechumen be ascribed to the rite that is more appropriate to his or her culture.” The expert study group replied: “This is not accepted and we remain in line with what is referred to in the Praenotanda to the schema, p. 5: namely, it regards an ‘admonition made to missionaries of any rite to safeguard fundamental human rights.’”42 That would seem to imply that missionaries of any rite, including the Latin rite, are bound by CCEO canon 588. However, the unique Eastern canon 588 is not addressed to the Latin Church nor does it oblige it expressly. Without the intervention of the legislator to apply CCEO canon 588 directly also to the Latin Church, the Eastern norm could still be

42.  Nuntia 17 (1983) 13 (c. 7 §2).

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invoked in individual cases, by way of CIC canon 19, to fill the Latin code’s legislative gap in the same context of choosing one’s Church of ascription. 3. Delict of Inducing Someone to Transfer to Another Church Sui Iuris (CCEO c. 31)

Eastern canon 31 basically repeats CS canon 7, which stated: “No one is to presume to induce in any way any faithful to assume another rite.” According to CS canon 15, that norm also obliged Latins. As mentioned earlier, the Coetus de Ritibus was deliberate in not proposing ascription norms for the Latin Church. Given that the Latin code has no parallel norm, CCEO canon 31 is unique to the Eastern code. It establishes: “No one is to presume to induce in any way the Christian faithful to transfer to another Church sui iuris.” Does the canon nevertheless bind the Latin faithful and does it do so because of the expression “Church sui iuris” or for some other reason? To answer these questions, a review of the canon’s legislative history within PCCICOR is a helpful, first step. The Coetus de Ritibus proposed the first draft of this Eastern norm as canon 6 among its provisional canons regarding the Eastern rites. The study group’s relator stated: “Respect for the prescript addressed to each of the faithful to preserve his/her own rite obliges him/her, as a consequence, not to incite someone to abandon his/ her rite in order to adopt another. The group believed it good to repeat canon 7 of CS here, retaining it as is. . . .”43 Canon 6 became canon 22 of the 1984 Schema.44 During the denua recognitio of the 1984 Schema, the expert study group stated: “The fact that this norm from the law in force (can. 7 of CS) has been retained in the schema has encountered favorable judgment on the part of many and received a particular placet.” At the same time, however, the experts modified the norm’s wording to state: “No one is to presume to induce in any way the Christian faithful to transfer to another Church sui iuris.”45 Amended canon 22 was already identical to the promulgated CCEO canon 31.

43.  Nuntia 3 (1976) 48 (c. 6). 44.  Nuntia 19 (1984) 24 (c. 22). 45.  Nuntia 22 (1986) 37 (c. 22).

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To comment on CCEO canon 31, it is a unique norm that is certainly binding on Eastern Catholics. To give one example in illustration of the prescript, no Maronite Catholic is to induce another Catholic, of the Melkite or even the Latin Church, to transfer to the Maronite Church. To apply the sense and meaning of the Explanatory Note, the Latin Church is implicitly involved, by analogy, as one of the Churches sui iuris. However, in the case of CCEO canon 31, the Eastern norm also expressly obliges the Latin faithful by virtue of CCEO canon 1465, that establishes the penal sanction and explicitly names the Latin Church with respect to any violation of the delict mentioned in CCEO canon 31. Eastern canon 1465 states: A person who, ascribed to any Church sui iuris, including the Latin Church, and exercising an office, a ministry or another function in the Church, has presumed to induce any member of the Christian faithful whatsoever to transfer to another Church sui iuris contrary to can. 31, is to be punished with an appropriate penalty.

Therefore, while CCEO canon 31 does not bind Latin Catholics in and of itself or because it contains the expression “Church sui iuris,” it does oblige Latin Catholics because of CCEO canon 1465, which explicitly refers to persons of “any Church sui iuris, etiam Ecclesiae latinae.” Clearly, it effectively includes Latins among those persons who could have violated CCEO canon 31. For example, then, no Latin Catholic is to induce another Catholic, of the Maronite or Melkite Churches sui iuris, to transfer to the Latin Church. 4. Transfer to Another Church Sui Iuris (CCEO c. 32)

Both the Eastern and Latin codes establish the general rule that, without the permission of the Roman Apostolic See, no one can transfer to another Church sui iuris. Although CIC canon 112 §1, 1° makes no explicit mention of validity, the permission is a true licentia and only after one will have obtained it (obtinuerit) will the transfer occur.46 If there were still any doubt, one would only need to have recourse, by way of CIC canon 17, 46.  Cf. Michel Thériault, “Canonical Questions Brought about by the Presence of Eastern Catholics in Latin Areas in the Light of the Codex Canonum Ecclesiarum Orientalium,” Ius Ecclesiae 3 (1991) 212. The author stated: “It seems, prima facie, that Latins can transfer illicitly but validly to an Eastern Catholic Church without the licentia of the Holy See, but that con­ sensus of the Holy See is required ad validitatem in the case of Eastern Catholics who wish to transfer to another Eastern Catholic Church or to the Latin Church.”

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to the parallel text in the later Eastern norm which explicitly speaks of validity.47 Parallel to Latin canon 112 §1, 1°, CCEO canon 32 §1 states: “No one can validly transfer to another Church sui iuris without the consent of the Apostolic See.” Given that the codes establish mutually corresponding norms, the transfer among the Churches sui iuris, for which the Holy See’s consent is necessary, must include the Latin Church. It is evident from the nature of the matter and the Explanatory Note only affirms such an interpretation. The only problem regarding the meaning to be given the expression “Church sui iuris” arose in connection with §2 of Eastern canon 32.48 It states: “In the case of Christian faithful of an eparchy of a certain Church sui iuris who petitions to transfer to another Church sui iuris which has its own eparchy in the same territory, this consent of the Apostolic See is presumed, provided that the eparchial bishops of both eparchies consent to the transfer in writing.” As no norm parallel to CCEO canon 32 §2 was contained in CIC canon 112, the Secretariat of State issued a special rescript ex audientia Sanctissimi dated November 26, 1992. The rescript stated: According to canon 112 §1, 1° of the Code of Canon law, anyone is forbidden, after receiving baptism, from being ascribed to another ritual Church sui iuris unless consent for it is given by the Apostolic See. Concerning this, having accepted the opinion of the Pontifical Council for Interpretation of Legislative Texts, the Supreme Pontiff John Paul II has established that consent of that kind can be presumed whenever the Christian faithful of the Latin Church have petitioned for the transfer to another ritual Church sui iuris, which has an eparchy in the same territory, provided the diocesan bishops of both dioceses consent to it in writing.49

Since these Eastern and Latin norms effectively appeared to be fully reciprocal, a majority of canonists argued that, for transfers to be valid and the Holy See’s consent presumed, Latins can transfer to an Eastern 47.  See Fürst, “Interdipendenza,” 29; and Péter Szabó, “L’ascrizione dei fedeli orientali alle Chiese sui iuris. Lettura dello ius vigens nella diaspora,” in Cristiani orientali e pastori latini, ed. Pablo Gefaell (Milan: Giuffrè Editore, 2012) 193. Szabó states: “For the majority of canonists, this doubt (regarding CIC c. 112, §1, 1°) has been overcome with the entry into force of CCEO can. 32 §1, in which it is expressly said that the intervention of the competent authority is a condition for the validity of the transfer. In this way, the Eastern norm would function as an implicit, authentic interpretation.” 48.  For a study of this entire question, see Abbass, “Transfer,” 641–665. 49.  AAS 85 (1993) 81.

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Church and Easterners can transfer to another Church sui iuris, including the Latin Church, if the Churches have dioceses (eparchies) in the same territory and the bishops concerned consent in writing.50 However, in 1993, Marco Brogi, who was then Undersecretary of the Congregation for Eastern Churches, argued that, while the rescript allowed for transfers from the Latin to an Eastern Catholic Church sui iuris, a Latin bishop who intends to receive an Easterner who wants to transfer to the Latin Church could not invoke it.51 Stressing the autonomous nature of each code, Brogi would not interpret any Eastern norm to concern the Latin Church unless it were explicitly named. On the basis of this restrictive interpretation, CCEO canon 32 §2 could only be invoked in cases of Easterners transferring from one Eastern Church to another Eastern Church. Consequently, anyone wishing to transfer validly from an Eastern Catholic Church to the Latin Church would still need to petition the Holy See. For many years, this has been the position and the practice followed at the Congregation for Eastern Churches. Given the Pontifical Council’s Explanatory Note, this practice may well change but, before any worthwhile commentary regarding CCEO canon 32 §2 can be made, a review of its legislative history is indispensable. Within PCCICOR, the Coetus de Ritibus proposed the first draft of Eastern canon 32, to replace CS canon 8, and it appeared as canon 8 of the 1976 provisional canons on the Eastern rites.52 Draft canon 8 stated: 50.  See Dimitrios Salachas, “Problematiche interrituali nei due Codici orientale e latino,” Apollinaris 67 (1994) 644; Fürst, “Interdipendenza,” 30–31; Jobe Abbass, Two Codes in Comparison (Rome: Pontificio Istituto Orientale, 2007) 287; Idem, “Interrelationship,” 18; Idem, “CCEO and CIC in Comparison,” in A Guide to the Eastern Code: A Commentary on the Code of Canons of the Eastern Churches, ed. George Nedungatt (Rome: Pontificio Istituto Orientale, 2002) 890– 891; Nedungatt, “Churches and Rites,” 121–122; and Lorenzo Lorusso, Gli orientali cattolici e I pastori latini: Problematiche e norme canoniche (Rome: Pontificio Istituto Orientale, 2003) 72–73. 51.  Marco Brogi, “Licenza presunta della Santa Sede per il cambiamento di Chiesa sui iuris,” Revista Española de Derecho Cánonico 50 (1993) 665–666. The author states: “As for the terminology, that used in CCEO is all Eastern: ‘ecclesia sui iuris’, ‘eparchia’, ‘episcopi eparchialis’. However, the terminology of the Rescript is twofold: Latin when it refers to the Latin Church—‘Ecclesiam ritualem sui iuris’, ‘dioecesis’, ‘episcopi dioecesani’—and eastern (‘eparchia’) when it refers to the Church ‘ad quem’, which obviously cannot be other than Eastern, and it is rather this precise detail that dispels what had appeared to me to be a minor uncertainty in the text: it indicates, in fact, that the relative pronoun ‘quae’ refers not to the nearby ‘Ecclesia latina’ but to the more distant ‘Ecclesia ritualis sui iuris’, which is necessarily Eastern.” 52.  CS c. 8 stated: “Without the consent of the Apostolic See, no one can validly transfer to another rite or, after a legitimate transfer, return to the former.”

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§1. No one can validly transfer to another particular Church without the consent of the Apostolic See. §2. However, the consent of the Apostolic See is presumed, if the Hierarchs (Heads) of the Churches from which and to which the transfer is made, for a grave reason, consent in writing.53

Subsequently, draft canon 8 appeared as canon 11 of the 1984 Schema.54 The only change in the formulation was that “Church sui iuris” replaced the expression “particular Church.”55 During the denua recognitio of the 1984 Schema, four consultative bodies proposed that the transfer cases in which the consent of the Holy See is presumed ought to be handled by way of a petition for the consent of the two bishops concerned rather than the heads of each Church sui iuris. One other consultative body simply requested the omission of §2 of canon 11 because “it would open the door to innumerable abuses.” To these observations, the special study group replied: The study group has left §1 unchanged. After a careful examination in three rounds, §2 has been limited only to cases in which it is a question of two eparchial bishops of a different rite, who have jurisdiction in the same territory. Indeed, in other cases, §2 cannot be applied because it would entail for the Easterner, who wishes to transfer to another rite, the rather disconcerting necessity of obtaining a written consent from an eparchial bishop to whom he is subject and who does not belong to the same Church sui iuris (e.g. an Easterner, subject to a Latin bishop, who wishes to transfer to another Eastern Church). Given all this and to avoid any ambiguity, the text of §2 has been redacted as follows, keeping in mind that a “licentia praesumpta” is a real “licentia” and that §1 is, therefore, observed. §2 is the following: §2. Attamen in casu christifidelis eparchiae alicuius Ecclesiae sui iuris, qui transire petit ad aliam Ecclesiam sui iuris, pro qua in eodem territorio propria eparchia con­ stituta est, haec licentia Sedis Apostolicae praesumitur, dummodo Episcopi epar­ chiales utriusque eparchiae ad transitum scripto consentiunt.56

53.  Nuntia 3 (1976) 50 (c. 8). 54.  Nuntia 19 (1984) 22 (c. 11). 55. By a vote of 6 in favor, 5 against and 2 abstentions, PCCICOR’s Coetus centralis effected this change “pro bono pacis,” since the expression “particular Church” was used in the West to mean diocese. See the Praenotanda to the 1984 Schema in Nuntia 19 (1984) 5. 56.  Nuntia 22 (1986) 27–28 (c. 11).

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As a result, except for minor redactional changes to the text, canon 11 §2 became SCICO canon 30 §2.57 When the 1986 SCICO was sent to members of PCCICOR for their observations, two members stated that SCICO canon 30 §2 seemed unnecessary. Two reasons were stated: 1) The change of rite must be granted only in exceptional cases and for truly serious reasons; otherwise, in the present social circumstances, it is gravely prejudicial to the faithful of the Eastern Churches who are not very numerous and dispersed among the faithful of other rites. (1 member). 2) If a faithful is permitted to be ascribed to another Church, simply because his or her Church is unable to take care of him or her, that will obstruct the development of this Church. The “Big brother” mentality of some Latin bishops could even suffocate (stifle) some Eastern Churches. (1 member).

The Coetus de expensione observationum replied: “These are questions belonging to the executive power; regarding the proponents’ pastoral concern, the ‘Episcopus a quo’ (the bishop of the Church from which the faithful is transferring) makes provision there.”58 As a result, SCICO canon 30 §2 went unchanged and, without any further redactional amendments either by PCCICOR or the legislator, the norm was promulgated as CCEO canon 32 §2. Given this legislative history, a commentary can now be offered regarding CCEO canon 32 §2 and its correct interpretation especially in the light of the Pontifical Council’s Explanatory Note. In the test applied to determine whether or not the norm also implicitly regards the Latin Church, the norm’s text and context must be considered in accord with CCEO canon 1499. First, the norm does contain the expression “Church sui iuris” and, among the Catholic Churches to which an Easterner might petition to transfer, the Latin Church is one, as it is a Church sui iuris. The Explanatory Note also confirms this interpretation by analogy. Secondly, CCEO canon 32 §2 is part of a chapter of norms concerning ascription, which by their very nature (ex ipsa rei natura) concern juridical relations with the different Catholic Churches sui iuris. The context, then, also meets the test for implicitly involving the Latin Church. Finally, if a doubt were to remain after examining the norm’s text and context, the purpose of the law and the mind of the legislator could be considered in accord 57.  Nuntia 24–25 (1987) 5 (c. 30 §2). 58.  For these two motions and the Coetus’ response, see Nuntia 28 (1989) 24–25 (c. 30 §2).

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with CCEO canon 1499. In an application of the principle of subsidiarity, the purpose of CCEO canon 32 §2 is to allow for valid transfers from an Eastern Church to another Church sui iuris without the intervention of the Holy See. Assessing the mind of the legislator is not difficult here as the tenor of the Explanatory Note undoubtedly supports including the Latin Church as another of the Churches sui iuris to which an Easterner might petition to transfer. In addition, the reported proceedings of PCCICOR are of some help in determining the mens legislatoris as they report what the Eastern draftsmen essentially intended when formulating the Eastern norm. True, the legislative history of CCEO canon 32 §2 provides no explicit evidence that the expression “Church sui iuris” meant also to include the Latin Church. However, as George Nedungatt has stated, this fact may well have been taken for granted by study group II since, in elaborating such a norm, the members would hardly have conceived of finding anywhere in the world that overlapping jurisdictions do not involve the Latin Church.59 Moreover, it is obvious from the observations made by the members of PCCICOR during the review of the 1986 SCICO that the Latin Church still figured among their concerns, whether because of the alleged “big brother” mentality of some bishops of the Latin Church or because of the risk of diminishment transfers to it posed for the Eastern Churches. To apply this interpretation, then, to a concrete case, let us suppose that an Eastern Catholic, who belongs to the Maronite Church and lives in Montréal, wishes to transfer to the Latin Church. According to CCEO canon 32 §2, the transfer would be valid and the consent of the Holy See presumed if the Easterner petitioned the Maronite and Latin bishops in Montréal and they consented in writing. A question might arise in the case of a Maronite, who lives in Vancouver, and wishes to transfer to the Latin 59. Nedungatt, “Churches and Rites,” 121–122. The author writes: “But is the Latin Church included here among the Churches sui iuris? Opinions are divided. The inclusion of the Latin Church was taken for granted when the motion about overlapping jurisdiction was proposed in the PCCICOR Study Group—indeed, there is very little place on earth where the Latin Church has no territorial jurisdiction. But §2 does not contain the usual formula etiam Ecclesiae latinae. This omission gave rise to a dubium iuris. The question had to await a rescript of the Secretariat of State, ex audientia Sanctissimi, dated 26 November 1992. But, curiously enough, in this rescript there is no reference to CCEO c. 32 §1 but only to CIC c. 112 §1, 1°. However, the whole idea and phraseology is of CCEO, like Isaac hearing Jacob’s voice and feeling Esau’s hands. The rescript speaks explicitly only of the transfer from the Latin Church, and not to it, but this latter must be interpreted to be included from analogy.”

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Church. The only Maronite bishop in Canada is resident in Montréal but he has jurisdiction over all Maronite faithful in the country. Because CCEO canon 32 §2 requires that both eparchies be in the same territory, does it mean the territory must coincide exactly? Neither the canon nor the Explanatory Note addresses this question. However, to insist that the territories correspond exactly, would render the Eastern norm mostly inapplicable since a majority of the Eastern Catholic jurisdictions in Canada and the United States, at least, extend over more than one diocesan territory. Therefore, in both cases, the consent in writing of the Maronite and the corresponding Latin bishop would be sufficient for the Easterner to transfer validly to the Latin Church. Nor should the risk of diminishment be a concern just because the Holy See’s consent is not required since, as the Coetus de expensione observationum indicated during the review of the 1986 SCICO, it is up to the Maronite bishop, if he deems it necessary, not to consent to the transfer. 5. Transfer of the Wife to the Husband’s Church Sui Iuris (CCEO c. 33)

CIC canon 112 §1, 2° foresees that, at the celebration of or during marriage, either spouse can transfer to the ritual Church sui iuris of the other spouse.60 At variance with the Latin norm, CCEO canon 33 only allows for the transfer of the wife to the husband’s Church sui iuris in these circumstances. The Eastern norm basically repeats CS canon 9 and reflects the Eastern tradition that a wife follows the rite of her husband. CCEO canon 33 states: A wife is free to transfer to the Church sui iuris of the husband in the celebration of or during the marriage; when the marriage has ended, she can freely return to the original Church sui iuris.

As in the case of CCEO canon 29, the legislative history of CCEO canon 33 is particularly helpful in determining whether or not the Latin Church is included in the norm’s first use of the expression “Church sui

60. CIC c. 112 §1, 2° states: “After the reception of baptism, the following are enrolled in another ritual Church sui iuris: a spouse who, at the time of or during marriage, has declared that he or she is transferring to the ritual Church sui iuris of the other spouse; when the marriage has ended, however, the person can freely return to the Latin Church.”

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iuris.”61 Within PCCICOR, the Coetus de Ritibus proposed a first draft of the Eastern norm which essentially repeated CS canon 9.62 The provisional norm became canon 12 of the 1984 Schema.63 However, the Eastern norm now followed the Latin formulation of CIC canon 112 §1, 2°, allowing the spouses the equal right to transfer. During the denua recognitio of the 1984 Schema, four consultative bodies argued for a return to the original draft, that repeated CS canon 9, but, after a rather long debate, the members voted in favour of keeping the text as formulated in the 1984 Schema. As they had done in the draft of CCEO canon 29 §1, they also added the clause nisi ius particulare a Sede Apostolica statum aliud fert. As amended, canon 12 now stated: “A spouse is free to transfer to the Church of the other spouse at the time of the marriage or during it, unless particular law established by the Apostolic See provides otherwise; but when the marriage has ended that spouse can freely return to the original Church.”64 Canon 12 subsequently became SCICO canon 31.65 Practically all the observations made by members of PCCICOR with regard to this canon, requested a return to the norm in CS, by replacing the word coniugi with mulieri. The following reasons, together with the negative response of the Coetus de expensione observationum, are reported: 1) It is better to establish, first of all, a restrictive norm (excluding the vir) as in CS can. 13 and then indicate the way for other possibilities established by the Holy See with a ius particulare. 2) The same danger referred to regarding can. 28 (CCEO c. 29) could repeat itself in this case, with the same combination of tension and dissension in the family. These causes of friction could surpass the family circle itself and poison the good relations that must prevail among the different Churches. We add that it would be the rather little Churches to suffer because of this freedom and to lose definitively in number and quality. Therefore, it seems to me wiser to close this door and adopt the old canon.

61.  Of course, if it were a Latin wife who, after the marriage, returned to her original Church, she would, in any event, follow CIC c. 112 §1, 2°. 62.  Nuntia 3 (1976) 50 (c. 9). 63.  Nuntia 19 (1984) 22 (c. 12). 64.  For these developments during the denua recognitio of canon 12, see Nuntia 22 (1986) 28–30 (c.12). 65.  Nuntia 24–25 (1987) 6 (c. 31).

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3) We must avoid the danger that Easterners living in Western regions become absorbed, after a brief time, by the Latin faithful. Response: It is necessary to respect, as much in the East as in the West, the more fundamental rights of the spouses.66

At the second plenary assembly of PCCICOR, the same motion that ten members had made to require a child to follow the rite of the father also included a request to re-examine SCICO canon 31 because, as the motion stated: “The rite of the husband, on the occasion of marriage, must not be changed.”67 Once again, the animated discussion extended over six days (November 5–10, 1988). As in the case of SCICO canon 28 §1, which allowed for ascription of a child to the Church of the mother, the discussion around SCICO canon 31, allowing a husband to transfer to the Church of his wife, insisted that these norms were contrary to Eastern traditions and that they threatened the survival of the Eastern Catholic Churches especially in the diaspora. On the other hand, it was argued that the canons merely recognized more fundamental human rights in the equality of the spouses.68 In the end, a majority of the PCCICOR members voted in favour to amend SCICO canon 31 and effectively return to the ius vigens in CS canon 9. The new text stated: “A wife is free to transfer to the Church of the husband in the celebration of or during the marriage; when the marriage has ended, she can freely return to the original Church.” Except for the addition of sui iuris after each mention of “Church,”69 the canon remained unchanged and the legislator promulgated it as CCEO canon 33. According to CCEO canon 33, unlike CIC canon 112 §1, 2°, only a wife has the legal right to transfer to the Church sui iuris of her husband in the celebration of or during the marriage.70 Evidently, the argument that claimed giving the Eastern husband that right represented a threat to the survival of the Eastern Catholic Churches and was contrary to their 66.  Nuntia 28 (1989) 25–26 (c. 31). 67.  Nuntia 29 (1989) 36. 68.  For these observations, see Nuntia 29 (1989) 44–45. 69.  These changes were made by the Coetus de coordinatione after the second plenary assembly of PCCICOR but are not noted in Nuntia 27 (1988) 81. See, instead, Ivan Žužek, Modifiche dello Schema Codicis Iuris Canonici Orientalis al testo definitivo del Codex Canonum Ecclesiarum Orientalium (Rome: Pontificium Institutum Orientalium Studiorum, 1992) 7. 70.  However, as mentioned in regards to CCEO canon 32, an Eastern husband who wishes to transfer validly to the Latin Church of his wife can either petition the Roman See or obtain the written consent of the Eastern and Latin bishops in the same territory.

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traditions won out over the argument in favour of the equality rights of the spouses. However, since the opposite result was reached in CCEO canon 29 §1, it cannot be argued that the legislator intended in any way to diminish the fundamental right of equality between spouses. What is clear from the legislative history of CCEO canon 33 is that consultors and members of PCCICOR specifically had the Latin Church in their sights when criticizing the formulation that would have extended the right also to an Eastern husband. Especially in the diaspora, given the numerical superiority of the Latin Church, they feared an eventual impoverishment of the Eastern Catholic Churches. That fear was added to the concern for maintaining the Eastern tradition everywhere that the wife follow the rite of her husband. Given these things, if it is not already evident from the nature of the matter, the first reference to Church sui iuris in CCEO canon 33 expressly intends the Latin Church. This is clear not only from its text and context of interecclesial relations but it is also implicitly confirmed by the Pontifical Council’s Explanatory Note. 6. Parents’ Transfer: Resulting Ascription of Children (CCEO c. 34)

Regarding parents’ transfer to another Church sui iuris, CCEO canon 34 considers three cases: i) both Catholic parents transfer; ii) the Catholic spouse in a mixed marriage transfers; and iii) one of the Catholic spouses transfers. In the first two cases, the children under fourteen are ascribed to the same Church sui iuris to which the parents have transferred. In the third case, the children are ascribed to the other Church sui iuris only if both parents consent. Upon completion of the fourteenth year of age, in all three cases, the children can return to the original Church sui iuris. While CIC canon 112 §1, 3° is the parallel for the Latin Church, it does not seem to have contemplated the third case.71 If one argues that the same case is covered by the Latin norm, since the parent will have obtained permission of the Holy See to transfer under §1, 1°, then that constitutes a difference between the two codes because the children will be ascribed to the 71. CIC c. 112 §1, 3° states: “After the reception of baptism, the following are enrolled in another ritual Church sui iuris: before the completion of the fourteenth year of age, the children of those mentioned in nn. 1 and 2, as well as in a mixed marriage, the children of the Catholic party who has legitimately transferred to another ritual Church; on completion of their fourteenth year, however, they can return to the Latin Church.”

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other Church sui iuris without requiring the consent of both parents.72 In any event, to resolve this doubt or, by way of CIC canon 19, to fill a legislative gap in the Latin code regarding this third case, recourse could be made in individual cases to CCEO canon 34. It states: If the parents, or the Catholic spouse in the case of a mixed marriage, transfer to another Church sui iuris, children who have not completed fourteen years of age, by the law itself are ascribed to the same Church; if, however, in a marriage between Catholics, only one parent transfers to another Church sui iuris, the children transfer only if both parents have given consent. Upon completion of the fourteenth year of age, the children can return to the original Church sui iuris.

To the extent that the Eastern and Latin norms in this matter correspond, one can presume that, just as CIC canon 112 §1, 3° contemplates transfer to another ritual (Eastern) Catholic Church sui iuris, CCEO canon 34 also foresees transfer to the Latin or another Eastern Catholic Church sui iuris. An examination of the latter’s iter within PCCICOR helps to determine if such an interpretation is in any way erroneous. Apart from a consideration of the very nature of the matter, does the expression “Church sui iuris” in CCEO canon 34 also imply the Latin Church? Within PCCICOR, a first draft of CCEO canon 34 was introduced by the Coetus de Ritibus and based upon a different formulation of the prior CS canon 10. Canon 10 of the 1976 provisional canons on ascription stated: “If the father, or the Catholic mother in a mixed marriage, legitimately transfer to another particular Church, young children transfer by the law itself to the same Church; however, other children of minor age can transfer, if they themselves wish.” Provisional canon 10 became canon 13 of the 1984 Schema.73 During the denua recognitio of the 1984 Schema, following the objection of some consultative bodies to the clause allowing minors to change rites, the expert study group sent the canon for further study. The experts reported 72.  As a practical example, consider two Latin parents. One has received permission from the Holy See to transfer to the Melkite Church (c. 112 §1, 1°). According to c. 112 §1, 3°, the children would also be ascribed to the Melkite Church, apparently, without the consent of the other parent. 73.  Nuntia 19 (1984) 22 (c. 13).

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that, despite the reluctance of some of the consultors, a reformulated text of the norm with the contested clause was subsequently approved because it was proper to CIC canon 112 §1, 3°, from which they did not want to differ substantially.74 It was this approved reformulation that contained the third case in which only one of the Catholic spouses transfers. Except for a slight reformulation of the Latin text, the norm subsequently appeared as SCICO canon 32.75 The canon was not the subject of any further changes or reported observations before being promulgated as CCEO canon 34. On the basis of the iter of CCEO canon 34, surely nothing appears to exclude that the transfer to another “Church sui iuris” could also imply the Latin Church. In fact, since the expert study group wanted no substantial difference with CIC canon 112 §1, 3°, it would even seem that they aimed at having the Eastern norm as its complement. Therefore, to take some concrete examples, if both Maronite parents, or the Maronite spouse married to a Protestant, obtained consent in accord with CCEO canon 32 §1 or §2 to transfer to the Latin Church, their children under fourteen would also be ascribed to the Latin Church. Now, in the third scenario not covered by the Latin code, if one of the two Maronites obtains consent to transfer to the Latin Church, then the children under fourteen will be ascribed to the Latin Church only if the other Maronite parent consents. In these cases, when the children turn fourteen, they can return to the Maronite Church. 7. Ascription to a Church Sui Iuris of Non-Catholics Becoming Catholic (CCEO c. 35)

CCEO canon 35 stipulates that non-Catholics coming into full communion with the See of Rome are to be ascribed to the Church sui iuris of the same rite to which they belong. This Eastern norm is literally based upon OE 4.76 As part of a conciliar decree, the force of this prescript applies in 74. See Nuntia 22 (1986) 31 (c. 13). 75.  Nuntia 24–25 (1987) 6 (c. 32). 76.  OE 4 states: “Each and every Catholic as well as baptized members of any non-Catholic Church should keep (retineant), follow (colant) and as far as possible observe (observent) their own rite everywhere in the world, without prejudice to the right of recourse to the Apostolic See in cases of persons, communities or regions.” For this translation, see Norman Tanner, ed., Decrees of the Ecumenical Councils, 2 vols. (London/Washington: Sheed & Ward/ Georgetown University Press, 1990) 2: 901.

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the Latin Church even though it has not been incorporated into the Latin code. Unique to the Eastern code, then, CCEO canon 35 states: Baptized non-Catholics coming into full communion with the Catholic Church should retain (retineant) and practice (colant) their own rite and should observe (observent) it everywhere in the world as much as humanly possible. Thus, they are to be ascribed to the Church sui iuris of the same rite with due regard for the right of approaching the Apostolic See in special cases of persons, communities or regions.

To determine whether or not the expression “Church sui iuris” implicitly involves the Latin Church in CCEO canon 35, an examination of its iter within PCCICOR is particularly helpful. Its first draft was proposed by the Coetus de Ritibus as canon 11 of the 1976 provisional canons on ascription. The study group intended to replace the former CS canon 11 §1, which stated: “Baptized non-Catholics of an Eastern rite, who are admitted to the Catholic Church, can embrace the rite they wish (ritum quem maluerint amplecti possunt); however, choosing so that they retain their own rite.” The Coetus’ relator stated: The text of the canon differs substantially from that of C.S. c. 11, and affirms the norm in O.E. 4, which makes it an obligation for baptized non-Catholics to preserve their rite. Therefore, they will be ascribed to the particular Catholic Church of their own rite, with due regard for the right of recourse to the Apostolic See in particular cases regarding persons, communities or regions. The exhortation to preserve their own rite, contained in C.S., becomes an obligation here. The wording of the text is that of O.E. 4. To avoid pronouncing on the question of validity or liceity, which O.E. leaves doubtful, the group preferred putting in the new text “are ascribed.”77

As a result, provisional canon 11 stated: Baptized non-Catholics of any Church or Community coming to the fullness of catholic communion, are ascribed to the Church of their own rite, with due regard for recourse to the Apostolic See in particular cases regarding persons, communities or regions. 77.  Nuntia 3 (1976) 51 (c. 11).

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Provisional canon 11 became canon 14 of the 1984 Schema.78 During the denua recognitio of the 1984 Schema, one consultative body proposed that the norm be prescribed for validity while eleven other consultative bodies proposed that the norm specify that it is only for liceity. To this proposal, the experts replied: “Although it is agreed that the canon is ad liceitatem, that is nevertheless not specified in order to adhere more to the conciliar text and because, in this regard, the general norms are sufficient concerning the interpretation of canons (Schema De normis can. 131 [now CCEO c. 1495] = CIC can. 10).”79 After the expert study group reformulated so as to adhere even more closely to the conciliar text, canon 14 was substantially similar to the promulgated text. The norm only underwent minor changes in the Latin text when it subsequently appeared as SCICO canon 33.80 Although no further changes were made to the norm before promulgation as CCEO canon 35, members of PCCICOR specifically dealt with the norm during its second plenary assembly. A motion made by five members focused on Protestant communities and asked for a clarification. Given the norm’s prescript, the Latin Church was obviously in play but some members argued that Protestants should be free to choose any Church sui iuris and they proposed that a second paragraph be added to the canon to that effect. The motion of November 5, 1988 stated: If it is the desire of the PCCICOR to maintain the position taken in Orien­ talium Ecclesiarum, a clarification should be made regarding the Protestant communities. If the validity of the orders of these communities is not recognized, can they be said to follow a “rite”? This is especially true regarding many of the groups which are not “mainstream” Protestant.81 78.  Nuntia 19 (1984) 22 (c. 14). A note to canon 14 indicates that an equal number of consultors had proposed that, instead of “are ascribed,” the norm state “can only validly be ascribed to the Church of their own rite. 79.  Among the other proposals made, one argued that Protestants in the West should not be obliged to follow the conciliar text but, rather, should be free to choose for their ascription any Church sui iuris. The study group stated: “In that regard, it was highlighted in the study group that the Council was entirely explicit in wishing to abolish the rule ritum quem maluerint amplecti possunt (CS can. 11) and that, quoad baptizatos acatholicos, without distinction, establishing modo positivo the observantia ritus pro omnibus et ubique terrarum.” For all the proposals made during the denua recognitio of canon 14, see Nuntia 22 (1986) 31–32 (c. 14). 80.  Nuntia 24–25 (1987) 6 (c. 33). 81.  Nuntia 29 (1989) 48 (c. 33).

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In the debate that followed, one member “also pointed out the case of the Anglican Protestants that wanted to become Catholics of Eastern rite. According to the provisions of can. 33, that would not be possible. He underlined the necessity of favouring this type of conversions and giving greater room for the liberty of choice of rite, with the addition of a §2 to the canon.” At one point in the debate, the secretary of PCCICOR, Ivan Žužek, “stressed that the question regarding can. 33 was much debated at the Council, that it had been explicit in the matter. Now, one could not make something re-enter, so to say, per fenestram what the Council had left outside the door. Canon 33 was a conciliar text and it could not be changed.” In the end, the members of PCCICOR voted (25 in favour, 2 against) to retain canon 33 as it appeared in SCICO. Given the legislative history of CCEO canon 35, it should be clear that the expression “Church sui iuris” also implies the Latin Church. That was evident not only during the denua recognitio but, especially, at the second plenary assembly of PCCICOR when members effectively proposed that Protestants becoming Catholics be free to choose for their ascription any Eastern Catholic Church sui iuris instead of the Latin Church as prescribed by OE 4, and CCEO canon 35 that repeats it literally. To the extent that the iter of Eastern canon 35 further clarifies the meaning of OE 4 and fills a legislative gap in the Latin code, recourse can also be made, in individual cases, to CCEO canon 35 for guidance in resolving questions of ascription of baptized non-Catholics coming into full communion. While CCEO canon 35 is not ad validitatem, it nevertheless establishes an obligation according to the mind of the Council and the Eastern draftsmen. To give some practical examples, then, Greek Orthodox faithful coming into full communion with the Catholic Church are to be ascribed to the Greek Catholic Church while Russian Orthodox coming into full communion with Rome are to be ascribed to the Russian Catholic Church. On the other hand, Protestants of the Anglican Communion joining the Catholic Church are to be ascribed to the Latin Church just as Lutherans are since their ritual origin is more directly tied to the Latin Church. 8. Process for Transfer to Another Church Sui Iuris (CCEO c. 36)

Regarding transfers to another Church sui iuris, CCEO canon 36 prescribes the formalities required for these transfers to take effect. The transfers

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include those made in accord with CCEO canon 32, either with the consent of the Holy See or the consent of the bishops concerned, as well as CCEO canon 33, which grants an Eastern Catholic wife the right to transfer to the Church sui iuris of her husband in the celebration of or during their marriage.82 Unique to the Eastern code, CCEO canon 36 states: Every transfer to another Church sui iuris takes effect at the moment a declaration is made before the local hierarch of the same Church or the proper pastor or a priest delegated by either of them and two witnesses, unless the rescript of the Apostolic See provides otherwise.

As concluded above in relation to CCEO canons 32 and 33, such transfers implicitly involve the Latin Church as a possibility in these circumstances. Therefore, unless the legislative history of CCEO canon 36 excludes that possibility, it only seems logical to find that the transfer formalities are to be followed not only when an Easterner transfers to another Eastern Catholic Church sui iuris but, also, when he or she transfers to the Latin Church. Within PCCICOR, the Coetus de Ritibus first presented the norm as canon 13 §1 of the 1976 provisional canons on ascription. Besides the transfer cases referred to in CS canon 13, the study group also intended the norm to cover the ascription of baptized non-Catholics coming into full communion with the Catholic Church (CCEO c. 35). Canon 13 §1 stated: “Unless the rescript of the Apostolic See provides otherwise, ascription to a Church which is not done by baptism itself (ascriptio quae non fit ipso baptismo), or transfer to another particular Church takes effect from the moment of the declaration made before the Hierarch of the same Church, or the proper pastor, or a priest delegated by either of them and two witnesses, except the transfer which, after the wife’s written declaration is sent beforehand, is made at the beginning of a marriage.” Provisional canon 13 §1 became canon 16 §1 of the 1984 Schema.83 During the denua recognitio of canon 16 §1, six consultative bodies asked that 82. CCEO c. 36 replaces CS canon 13 §1, which stated: “Unless the rescript of the Apostolic See establishes otherwise, transfer to another rite takes effect from the moment of the declaration made before the proper Hierarch of the new rite or the pastor or a priest delegated by either of them and two witnesses, except a transfer which, after the wife’s written declaration is sent beforehand, is made at the beginning of a marriage.” 83.  Nuntia 19 (1984) 23 (c. 16 §1).

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the words vel eo durante (or during it) be added to §1 so as to be consistent with the formula in the draft to CCEO canon 33, allowing the wife to transfer at the celebration of or during the marriage. Another consultative body proposed that the declaration of transfer be done in writing. After having considered these motions carefully, the expert study group replied: After a careful examination of the canon and these proposals, the study group considered it essential that every transitus ad aliam Ecclesiam sui iuris ought to have a clear juridical limit a quo and, therefore, that at least a formal declaratio oralis mentioned in §1 is always necessary. Spouses who effect the transitus during the marriage should not be exempt from that nor should those who do it in matrimonio ineundo. On this basis, the study group simplified the wording of the canon, eliminating from it the inconsistency of the distinction between the ascriptio quae non fit ipso baptismo and the transitus, specifying in the canon that is a question of Hierarcha loci and placing at the end of §1 the clause regarding the ius speciale defined in the rescripta Sedis Apostolicae.84

As a result, canon 16 §1 now stated: “The transfer to another Church sui iuris takes effect at the moment of a declaration made before the local hierarch of the same Church sui iuris, or the proper pastor or a priest delegated by either of them and two witnesses, unless the rescript of the Apostolic See provides otherwise.” Canon 16 §1 later became SCICO canon 35, which was practically identical to the promulgated CCEO canon 36.85 Only one subsequent change was made to the Eastern norm. This change was effected ex officio by the Coetus de expensione observationum following an observation that had been made in the context of reviewing the draft to CCEO canon 33. That observation pointed out that CS canon 13 had exempted a wife from its oral declaration rule if she sent in a written declaration beforehand that, at the beginning of the marriage, she intended to transfer to the Church of the husband.86 Since the Eastern draftsmen’s stated intention was to oblige all those transferring to another Church sui iuris to make at least an oral

84.  Nuntia 22 (1986) 33–34 (c. 16 §1). 85.  Nuntia 24–25 (1987) 6 (c. 35). 86.  Nuntia 28 (1989) 26 (c. 31).

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declaration, the Coetus de expensione observationum added the word Omnis to the beginning of the Eastern norm to qualify transitus.87 Consistent with the interpretation made earlier regarding CCEO canons 32 and 33, nothing in the legislative history of the related CCEO canon 36 excludes the Latin Church from being implied among the Churches sui iuris to which the Eastern Catholic faithful might choose to transfer. Therefore, unless the Holy See’s rescript provides otherwise in the case of those transferring to another Church sui iuris in accord with CCEO canon 32 §1, Eastern faithful who transfer to another Eastern, or even the Latin Church, either with the consent of the Roman See or the bishops concerned (CCEO c. 32 §§1 and 2), are obliged to make at least an oral declaration before the local hierarch, the proper pastor or another priest delegated by either of them and two witnesses. Similarly, an Eastern wife transferring, in accord with CCEO canon 33, to the Eastern Church sui iuris, or Latin Church, of her husband is bound by the same formalities for the transfer to take effect. By way of his motu proprio De Concordia inter Codices (September 15, 2016), Pope Francis established corresponding norms for the Latin Church in CIC canon 112 §3. 9. Registering Ascription/Transfer to Another Church Sui Iuris (CCEO c. 37)

With respect to recording ascription to a Church sui iuris or transfer to another Church sui iuris, CCEO canon 37 establishes a rule that evidently applies to the Latin Church. Being one of the nine CCEO canons that explicitly name the Latin Church, there is no need to examine the iter of Eastern canon 37 to determine whether or not the canon also expressly obliges the Latin Church. Unique to the Eastern code, CCEO canon 37 states:88 Every ascription to a Church sui iuris or transfer to another Church sui iuris is to be recorded in the baptismal register of the parish where the baptism was celebrated, even if it is a parish of the Latin Church. However, if this is not possible, the recording is to be done in another document which is to be 87.  Nuntia 28 (1989) 28 (c. 35). 88.  In accord with the motu proprio De Concordia inter Codices, the canon’s requirement to record one’s ascription to a Church sui iuris in the baptismal register has also been added to CIC canons 112 §3 and 535 §2.

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preserved in the parish archives of the proper pastor of the Church sui iuris to which the ascription was made.

The requirement to record one’s ascription to a Church sui iuris in the baptismal register is not contained in CIC canon 535 §2, which states: “In the baptismal register are also to be noted those things which pertain to the canonical status of the Christian faithful by reason of marriage, without prejudice to the prescript of can. 1133, of adoption, of the reception of sacred orders, of perpetual profession made in a religious institute, and of change of rite. These notations are always to be noted on a baptismal certificate.” Similarly, the requirement to record one’s ascription to a Church sui iuris is not mentioned in CIC canon 877 §1, which states: “The pastor of the place where the baptism is celebrated must carefully and without delay record in the baptismal register the names of the baptized, with mention made of the minister, parents, sponsors, witnesses, if any, the place and date of the conferral of the baptism, and the date and place of birth.” Given that the requirement to record one’s ascription in the baptismal register applies also to Latin parishes where a baptism is celebrated, CCEO canon 37 takes on particular importance in the context of interecclesial marriages. Suppose that a Maronite father and Latin mother ask for baptism for their son in the Latin parish they are attending in Vancouver, Canada. Both CCEO canon 29 §1 and CIC canon 111 §1 agree that the child could either be ascribed to the Maronite Church or, if the parents agree, to the Latin Church. In either case, CCEO canon 37 establishes, as a general rule, that his ascription is to be recorded in the baptismal register of the Latin parish. However, the Eastern norm further states that, if this is not possible, then the recording is to be done in another document which is to be preserved in the parish archives of the proper pastor of the Church sui iuris to which the ascription was made. Presumably this would apply if, for some reason, the child’s ascription to the Maronite Church could not be recorded in the baptismal register since it is hard to conceive of an impossibility to record the child’s ascription to the Latin Church in the Latin parish’s baptismal register after just being baptized there. In recording the child’s ascription to the Maronite Church, therefore, it would be done in another document and sent to be preserved in the parish archives of the Maronite father’s proper pastor. As there is no Maronite parish

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in Vancouver, his proper pastor is designated by the Maronite bishop of Montréal in accord with CCEO canon 916 §4.89 10. Easterners Entrusted to Hierarch/Pastor of Another Church Sui Iuris (CCEO c. 38)

A long established principle in canon law states that Eastern Catholics remain ascribed to their Church sui iuris even if they are subject to a hierarch or pastor of another Church, not excluding the Latin Church. Based upon the 1894 apostolic letter of Leo XIII, Orientalium dignitas (n. IX) and repeated in CS canon 14, the principle is stated in CCEO canon 38. Unique to the Eastern code, CCEO canon 38 provides: “Christian faithful of Eastern Churches, even if committed to the care of a hierarch or pastor of another Church sui iuris, nevertheless remain ascribed in their own Church sui iuris.” Within PCCICOR, the Coetus de Ritibus proposed a first draft of this norm as canon 14 of the 1976 provisional canons on ascription. Canon 14 stated: “Eastern faithful (Fideles orientales), even if entrusted to the care of a hierarch or a pastor of a different particular Church, nevertheless remain ascribed to their own Church.” The study group stated: “The text of the canon is substantially the same as that of C.S. 14. The wording “legitimately subject” of C.S. can. 14 has been replaced with the term “entrusted”, which underscores the fundamental belonging of the Eastern faithful to their own particular Eastern Church.”90 Provisional canon 14 became canon 17 of the 1984 Schema. There, the expression “particular Church” was replaced with “Church sui iuris.”91 During the denua recognitio of the 1984 Schema, the secretariat of PCCICOR noted that an objection had been raised concerning the Coetus’ substitution of the term subiecti with the wording curae commissi since the latter “would not indicate the true jurisdiction that the local bishop exercises over the christifideles mentioned in the canon.” However, the expert study group 89. CCEO c. 916 §4 states: “If there is no pastor for the Christian faithful of a certain Church sui iuris, the eparchial bishop for those same faithful is to designate the pastor of another Church sui iuris, who is to assume their care as their proper pastor, with the consent, however, of the eparchial bishop of the pastor to be designated.” 90.  Nuntia 3 (1976) 52 (c. 14). 91.  Nuntia 19 (1984) 23 (c. 17).

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did not agree, maintaining that commissi was preferable to subiecti. As a result, no essential change was made to the norm; only the word Fideles was replaced with Christifideles at the beginning of the canon.92 Canon 17 subsequently appeared as SCICO canon 37, which was, except for one later redactional change, already identical to CCEO canon 38.93 Certainly, CCEO canon 38 is an Eastern norm regarding ascription and nothing in the iter of the canon hints in any way that it is also a Latin norm on ascription. Nevertheless, in the canon’s first use of the expression “Church sui iuris,” the Latin Church is implicitly involved. This is true because Eastern Catholics can be entrusted to the care of a Latin bishop as CCEO canon 916 §5 makes clear. Another of the nine Eastern canons which regards the Latin Church explicitly, Eastern canon 916 §5 states: In places where not even an exarchy has been erected for the Christian faithful of a certain Church sui iuris, the local hierarch of another Church sui iuris, even the Latin Church, is to be considered as the proper hierarch of these faithful, with due regard for can. 101. If, however, there are several hierarchs, that one whom the Apostolic See has designated is to be considered as their proper hierarch or, if it concerns the Christian faithful of a certain patriarchal Church, the one whom the patriarch has designated with the assent of the Apostolic See.

Furthermore, CCEO canon 916 §4 also implies that Eastern Catholics can conceivably be entrusted to the care of a pastor of a Latin parish as their proper pastor. To illustrate the meaning of CCEO canon 38, then, even if Coptic Catholics in Vancouver, Canada, may be subject, according to CCEO canon 916 §5, to the Latin bishop since there is no Coptic Catholic hierarchy established there, these faithful nevertheless remain ascribed to the Coptic Catholic Church. Then, even if Maronite Catholics in Vancouver, Canada, may be entrusted, in accord with CCEO canon 916 §4, to the pastor of a Latin parish since there is no Maronite parish there, the Maronites remain ascribed to the Maronite Catholic Church. 92.  Nuntia 22 (1986) 34–35 (c. 17). 93.  Nuntia 24–25 (1987) 6 (c. 37). For the redactional change, see Nuntia 27 (1988) 37 (c. 37).

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Conclusion

Based upon the Holy See’s official Explanatory Note regarding CCEO canon 1 in which the Pontifical Council for Legislative Texts indicated that “the Latin Church is implicitly included by analogy each time that CCEO explicitly uses the term ‘Church sui iuris’ in the context of interecclesial relations,” this paper studied CCEO canons 29–38 on ascription to determine the extent to which these Eastern canons expressly intend to regard or oblige even the Latin Church. Since all of CCEO canons 29–38 contain the expression “Church sui iuris,” the study examined the canons in the light of the Explanatory Note and with the help of their legislative history as reported in Nuntia. By way of CCEO canon 1, the legislator implicitly set up an interrelationship of the Eastern and Latin codes and the authoritative conclusion reached in the Explanatory Note assuredly confirms it. Admitted this interrelationship each time the Eastern code uses the expression “Church sui iuris” in the context of interecclesial relations, where else in CCEO might this interrelationship of the codes be established? Besides CCEO canons which encourage interecclesial collaboration or Eastern norms which, because of the nature of the matter, necessarily include the Latin Church, this study also referred to other CCEO canons which effectively create a complementary interrelationship of the codes. In cases where the meaning of Latin canons remains doubtful, it was argued that, by way of CIC canon 17, recourse can be made to parallel passages in the Eastern code as an aid to resolving those ambiguities. Also, if legislative gaps are evident in the Latin code, CIC canon 19 can be invoked and those lacunae filled, in individual cases, with Eastern laws made in similar matters (legibus latis in similibus). Where applicable, the interpretative rules in CIC canons 17 and 19 were applied in the commentaries offered here regarding CCEO canons 29–38. Of course, the application of these aids to canonical interpretation do not intend to replace or undermine the authority of the legislator or those to whom he has granted the power to interpret laws authentically (CIC c. 16).

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As canonical science continues to define and shape the one body of canon law of the universal Church, it would seem that a knowledge of the Latin code, together with the Eastern code, and their interrelationship in that one body will become indispensable. Hopefully, this study of just the one area of ascription in CCEO canons 29–38 will help to make these Eastern norms better known while, at the same time, highlighting the significance, even for the Latin Church, of the Eastern code, an integral, yet separate, part of the one Corpus Iuris Canonici of the Catholic Church.

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APPENDI X

Explanatory Note regarding CCEO canon 1

For some years, the Pontifical Council for Legislative Texts, with the help of a broad group of Consultors, has steadily conducted work to harmonize the normative provisions of the CIC and the CCEO, that more immediately affect ordinary pastoral activity, in keeping with what has emerged from the experience of these years. One of the arguments examined has regarded CCEO canon 1and, concretely, the meaning that, in the above-mentioned canon and in the entire discipline of the Eastern code, the term expresse has, a question that in a recurring way affects numerous situations of pastoral importance considered by CCEO. The working Commission of the Pontifical Council has begun an in depth study of the theme in question, checking the contexts in which the canons of CCEO use the term expresse with regard to relations among the various Churches sui iuris and looking to verify if the Legislator intended in those situations to include also the Latin Church. Although, for other matters currently being studied, this Pontifical Council intends to present some legislative changes to the Legislator, regarding the significance of the term expresse in CCEO canon 1, however, following the proposals of the working Commission, we have considered it sufficient to compose an Explanatory Note, which gives an official explanation of it without, on the other hand, having to make recourse to an authentic Interpretation.

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Regarding the theme in question, there has not been complete unanimity among scholars. As is known, in the proceedings of the Eastern codification, it was decided that the cases in which the Latin Church remains bound by the norms of CCEO are to be absolutely peremptory (Nuntia 22, p. 22, cfr. also ibid., p. 13).94 This imposes a strict criterion in considering if an Eastern norm expressly includes the Latin Church. In this sense, some authors have affirmed that the Latin Church is included only when it is “explicitly” named by the norms of CCEO. However, the majority of authors believe that the express mention of the Latin Church in the canons can occur both in an “explicit” and an “implicit” way, when that follows reasonably from the context in which the norm is placed. Indeed, the term expresse would only be opposed to tacite, while an express mention could be made both in an explicit and an implicit way. According to this distinction, that appears reasonably confirmed by the normative provisions of CCEO, besides the canons in which the Latin Church is “explicitly” named, there are also other canons of the same code in which it is included “implicitly”, if one takes into account the text and context of the norm, as CCEO canon 1499 requires. It is therefore necessary to begin with the expressions contained in the norm to be interpreted and with the context in which it is found to determine if the Latin Church is implicitly included in it or not. This is the case, for example, of the CCEO norms that concern juridical relations with the various Churches of the one Catholic Church. Consequently, one must hold that the Latin Church is implicitly included by analogy each time that CCEO explicitly uses the term “Church sui iuris” in the context of interecclesial relations. We say “by analogy” keeping in mind that the characteristics of the Latin Church, though not coinciding completely with those of the Church sui iuris described in 94.  This writer had argued, after a complete examination of the iter of CCEO c. 1, that the draftsmen intended only to exclude peremptorily the possibility that the same canon be interpreted to mean that it applied to the Orthodox. While the relevant study group did agree upon a less extensive application of the Eastern code to the Latin Church than had previously been proposed, the group intended to oblige the Latin Church in many canons where no explicit mention of it was made and, by way of canon 1, it only meant to confirm the necessary connection between the two codes in the ever more frequent cases of interecclesial relations. See Jobe Abbass, “CCEO canon 1 and Absolving Eastern Catholics in the Latin Church,” Studia Canonica 46 (2012) 79–83.

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canons 27 and 28 §1 of CCEO, are nevertheless, in this regard, substantially similar.95 Vatican City, 8 December 2011. Francesco Coccopalmerio President Juan Ignacio Arrieta Secretary

95.  Certainly, while the Latin Church is a Church sui iuris, it cannot be likened entirely to the juridical figure of an Eastern Catholic Church sui iuris. Ivan Žužek made this quite evident even before the 1990 promulgation of the Eastern code. He stated: “It is not out of place to note here, regarding the Latin Church, itself also an ‘Ecclesia ritualis sui iuris” as is obvious from CIC canons 111 and 112, that its nature is such that it is beyond the juridical figures (patriarchal, major archiepiscopal and metropolitan Churches sui iuris) outlined above, even if among the Roman Pontiff’s titles there is the one of ‘patriarch’.” See Ivan Žužek, “Le ‘Ecclesiae sui iuris’ nella revisione del diritto canonico,” in Vaticano II, bilancio e prospettive venticinque anni dopo (1962–1987), ed. R. Latourelle (Assisi: Gregorian University Press, 1987) 2: 878.

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kenneth pennington*

The Biography of Gratian, the Father of Canon Law

Who was Gratian? asked John T. Noonan Jr. at the beginning of his classic essay on the biography of the Father of Canon Law. He continued:1 That Gratian was the author of the Concordia discordantium canonum; that he was a teacher at Bologna; that he was a monk; and that he was a Camaldolese are assertions made by all twentieth-century historians of canon law. That he was dead by 1159 is also often added as a fact, that his school was at the monastery of Saints Felix and Nabor is sometimes stated as certain or probable, and that he was born at Ficulle near Carraria or at Chiusi is occasionally noted as likely. An authoritative history adds that he was probably educated as a monk at Classe in Ravenna. From these statements, meager as they are, a distinct picture emerges of a scholar, bound to a particular monastic tradition, and circumscribed by particular places and dates.

At the end of his essay and after a vigorous use of Ockham’s razor, Noonan concluded that:2

* Kelly-Quinn Professor of Ecclesiastical and Legal History Emeritus, School of Canon Law, The Catholic University of America, Washington, DC. 1.  “Gratian Slept Here: The Changing Identity of the Father of the Study of Canon Law,” Traditio 35 (1979) 145–172 at 145. Noonan also wrote a very insightful essay about Causa 29 in which Gratian introduced the principle “error of person,” a concept that is still an important norm in canonical marriage law (Codex iuris canonici c.1097 § 1), see “The Catholic Law School—A.D.1150,” The Catholic University Law Review 47 (1998) 1189–1205. 2.  Ibid., 172.

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we have reason to believe that Gratian composed and commented upon a substantial portion of the Concordia. In such composition and commentary he revealed himself to be a teacher with theological knowledge and interests and a lawyer’s point of view. He worked in Bologna in the 1130s and 1140s. Beyond these conclusions, we have unverified hearsay, palpable legend, and the silent figure in the shadows of S. Marco.

Since John Noonan’s superb historical detective work using the standard tools of criticism with admirable dexterity, we have added some very important, undoubted facts to Gratian’s biography. After Anders Winroth’s splendid discovery of an earlier recension of Gratian’s Decretum in the 1990’s and the work of other scholars inspired by his discovery, we can also state with absolute certainty that he compiled and commented on the Decretum in stages.3 For that reason in this essay I shall abandon the terminology of “Gratian I” and “Gratian II.” Referring to the stages of the Decretum as “Gratian I” and “Gratian II” gives a misleading picture of uniformity in how the Decretum evolved. Gratian and later jurists who taught and used the book never thought of it as a fixed text. They added canons to it at all stages of its evolution. In this essay I will use the terms pre-Vulgate and Vulgate to refer to Gratian’s great law book. By Vulgate I mean the text that became the basic, introductory canon law text sometime around 1140, without the numerous “paleae” added later in the twelfth century.4 The research on the pre-Vulgate manuscripts has been enormously interesting and, not surprisingly, has created areas of disagreement about aspects of Gratian’s life, work and teaching. These scholarly debates have given birth to a fruitful and vigorous exploration into the teaching and development of law in the first half of the twelfth century.5 The issues 3.  Anders Winroth, The Making of Gratian’s Decretum, Cambridge Studies in Medieval Life and Thought, Fourth Series 49 (Cambridge: Cambridge University Press, 2000). See Melodie H. Eichbauer, “Gratian’s Decretum and the Changing Historiographical Landscape,” His­ tory Compass 11/12 (2013) 1111–1125 for the most recent discussion of the historiographic problems discussed in the recent literature with a rich bibliography. The most recent biography of Gratian is Orazio Condorelli, “Graziano,” Dizionario dei giuristi italiani (XII–XX secolo), ed. Italo Birocchi, Ennio Cortese, Antonello Mattone and Marco Nicola Miletti, 2 vols. (Bologna: Mulino, 2013) 1: 1058–1061. 4.  Peter Landau, “Gratian and the Decretum Gratiani,” in The History of Canon Law in the Classical Period, 11401234, ed. Wilfried Hartmann and Ken Pennington (Washington, D.C.: Catholic University Press, 2008) 47–48. 5.  Anders Winroth, “The Teaching of Law in the Twelfth Century,” in Law and Learn­ ing in the Middle Ages: Proceedings of the Second Carlsberg Academy Conference on Medieval Legal

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are many. Perhaps the most important is the lack of consensus about how long Gratian worked on the Decretum and how long he taught. That will be the focus of this essay. To further complicate the story of Gratian, Winroth has argued that there were two Gratians. The first Gratian compiled the pre-Vulgate Decre­ tum that Winroth discovered; a second “Gratian”—persona incognita— doubled the size of the Vulgate Decretum during the 1140’s. There is very little evidence for his conjecture.6 He was compelled to create a second Gratian because he had shrunk Gratian’s teaching career to only a few years. I will examine his reasons for doing so below. My main argument for not accepting the theory that there were two Gratians is quite simple. It is difficult to imagine that if a Gratian compiled the pre-Vulgate Decre­ tum, and another person doubled the size from ca. 2000 canons to ca. 4000, the first generation of jurists after Gratian would have not noticed or not known about the second Gratian’s work and blithely attributed what was History 2005, ed. Helle Vogt and Mia Münster-Swendsen (Copenhagen: DJØF Publishing, 2006) 41–62 has argued that the teaching of Roman and canon law did not begin until the 1130s. I have presented evidence that Roman law cited in court cases and was taught much earlier, probably as early as the traditional dates for the beginnings of the law school in Bologna, ca. 1075–1100; see Pennington, “The ‘Big Bang’: Roman Law in the Early Twelfth-Century,” Rivista internazionale di diritto comune 18 (2007) 43–70, my essays “The Beginning of Roman Law Jurisprudence and Teaching in the Twelfth Century: The Authenticae, “ Rivista internazio­ nale di diritto comune 22 (2012) 35–53 and “Roman Law at the Papal Curia in the Early Twelfth Century,” in Canon Law, Religion, and Politics: Liber Amicorum Robert Somerville, ed. Uta-Renate Blumenthal, Anders Winroth, and Peter Landau (Washington, DC: The Catholic University Press of America, 2012) 233–252. 6.  His main argument is that the Vulgate Decretum is not as well organized as the preVulgate. As I have pointed out in other examples of jurists expanding their texts, their methodology of revising texts inevitably leads to a lack of clear argumentation, see my essays “An Earlier Recension of Hostiensis’s Lectura on the Decretals,” Bulletin of Medieval Canon Law 17 (1987) 77–90, “Johannes Andreae’s Additiones to the Decretals of Gregory IX,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Kanonistische Abteilung 74 (1988) 328–347, and “Panormitanus’s Lectura on the Decretals of Gregory IX,” in Fälschungen im Mittelalter: Interna­ tionaler Kongreß der Monumenta Germaniae Historica München, 16.–19. September 1986: Gefälschte Rechtstexte: Der bestrafte Fälscher. Schriften der Monumenta Germaniae Historica 33.1–6, 6 vols. (Hannover: Hahnsche Buchhandlung, 1988) 2: 363–373. He has also argued that Gratian changed his mind, see Anders Winroth, “Neither Free nor Slave: Theology and Law in Gratian’s Thoughts on the Definition of Marriage and Unfree Persons,” in Medieval Foundations of the Western Legal Tradition: A Tribute to Kenneth Pennington (Washington, D.C.: Catholic University of America Press, 2006) 97–109, in his treatment of the marriage of unfree persons. I do not find his argument convincing. There are many changes in emphasis and topics as the Decretum evolved. These changes are not proof that someone else made them, e.g. Gratian’s treatment of Jews, Pennington, “The Law’s Violence against Medieval and Early Modern Jews,” Rivista internazionale di diritto comune 23 (2013) 23–44.

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now a massive work to just “Gratian.” Further, as we shall see, the additional canons were not added in one fell swoop, but over time. Gratian may have had an atelier of assistants, but it seems unlikely that another completely unknown person would step in to complete the Vulgate Decre­ tum with not only many canons but also dicta which all the later jurists recognized as Gratian’s. The main reason that Winroth created a second “Gratian” is because of a text that is found in all the pre-Vulgate manuscripts. At D.63 d.p.c.34 Gratian cited a papal conciliar canon. The passage is contained in all preVulgate manuscripts and also in the Vulgate Decretum:7 Nunc autem sicut electio summi pontificis non a cardinalibus tantum, immo eta ab aliis religiosis clericisb auctoritate Nicolai papae est facienda, sicc episcoporum electiod non a canonicis tantum, sete ab aliis religiosis clericis, sicut in generalif synodog Innocentii pape Romeh habita constitutum est.i a

et] etiam PFdBcAa BiFsMeMlMzPd b uiris uel clericis BiPd c sic] ita et PFdBcAa BiFsMeMzPd, ita Ml d lectio Biac e set] set etiam PBcAa BiFsMeMlMzPd set etiamac, immo etiampc Fd f gnālaac, gnālaspc Fd g studio add. ante synodo Biac g Roma Me hconstitutum est] add. ait enim: Obeuntibus sane episcopis . . . add. Aa in textu, add. Bc in marg.

In translation: Now, however, just as the election of the supreme pontiff is not made only by the cardinals but by other religious clerics, as was established by Pope Nicholas II’s authority, so too not only canons of the cathedral chapter but also other religious clergy participate in the election of bishops as was established in the general synod of Pope Innocent held in Rome.

Gratian’s comment is the last datable text in the pre-Vulgate manuscripts. Pope Innocent II was the bishop of Rome from 1130 to 1143. If one 7.  I base the transcription on St. Gall, Stiftsbibliothek 673 (Sg), pp. 25–26, which I have collated with Paris, Bibliothèque nationale de France nov. acq. lat. 1761 (P), fol. 65va, Florence, Biblioteca nazionale centrale Conventi soppressi A.1.402 (Fd), fol. 12va., Barcelona, Arxiu de la Corona d’Aragó, Santa Maria de Ripoll 78 (Bc), fol. 76rb, and Admont, Stiftsbibliothek, fol. 72v of the pre-Vulgate manuscripts, and with these very early Vulgate manuscripts: Biberach, Spitalarchiv B 3515 (Bi), fol. 57vb, Bremen, Universitätsbibliothek a.142 (Br), fol. sine numero, Florence, Biblioteca Laurenziana Santa Croce Plut 1 sin. 1 (Fs), fol. 64r, Mainz, Stadtbibliothek II.204 (Mz), fol. 44vb, Munich, Staatsbibliothek Clm 13004 (Me), fol. 78ra and Clm 28161 (Ml), fol. 53v, Paris, Bibliothèque nationale de France lat. 3884–1 (Pf ), fol. 78ra, 14317, fol. 52va– vb (Pd). Fs may be the earliest Vulgate text of Gratian’s Vulgate. I have not recorded minor scribal errors here and in the text of Obeuntibus below.

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is convinced, as Winroth and others are, that this text can refer only to c.28 of the Second Lateran Council then one is faced with an almost intractable problem.8 In the pre-Vulgate manuscripts this text is the only one that can be dated after ca. 1125. That fact, if true, would raise the question what was Gratian doing between ca. 1125 and 1139; or to put the question differently, why would Gratian have compiled a collection of canon law in the late 1130s that ignored all the conciliar legislation and papal decretals after ca. 1125; or to add further complexity, why would Gratian add this reference in 1139 to a recent council and not add the text of the canon; or even more puzzling, why did he not refer to other canons of that singularly important council in his pre-Vulgate Decretum(s)? In a recent article Atria Larson has attempted to provide a possible answer to some of those questions by arguing that since late eleventh- and early twelfth-century councils generally, and Innocent II’s councils in particular, repeated canons of previous councils almost word for word, one might explore the possibility that Innocent held a council in Rome before 1139 and that is the council to which Gratian referred.9 Larson went on to present evidence that Innocent did hold a council in Rome in 1133 and that council might be the one that Gratian cited. Since the canons of this council are not preserved, her conjecture cannot be considered conclusive evidence. Nonetheless, if correct, it would explain what Gratian was doing in the 1120s and early 1130s: teaching canon law in Bologna and working on his textbook. He did not finish the pre-Vulgate Decretum ca. 1140 but rather ca. 1133. Three of the pre-Vulgate manuscripts added the text and a rubric to c.28. The Florence and Barcelona manuscripts placed it in the margins of their main texts. Florence also had it in the supplementary appendix at the back of the manuscript. It is striking and important that the marginal and supplemental texts of the canon in Florence are clearly from two different textual traditions and must have been added at different times. The Admont manuscript incorporated it into the body of Gratian’s text:10 8. Winroth, Making of Gratian’s Decretum 137. 9.  Atria A. Larson, “Early Stages of Gratian’s Decretum and the Second Lateran Council: A Reconsideration,” Bulletin of Medieval Canon Law 27 (2007) 21–56 at 37–39. 10.  Fd is the base text that is collated with AaBc, the manuscripts listed in n.4, and with the text in Conciliorum oecumenicorum generaliumque decreta, ed. Thomas Izbicki (Vol. 2.1; Turnhout: Brepols, 2013) 113=COGD2, omits “Ait enim” of Gratian’s dictum. The new edition did

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Sicut in generali sinodo Innocentii papae Romae habita constitutum est. Ait enim: Absque religiosorum uirorum consilio canonici maioris ecclesie episcopum non eli­ gant.a Obeuntibusb sane episcopis quoniamc ultra tresd menses uacare ecclesiame sanctorum patrum prohibent sanctionesf sub anathemateg interdicimus, nech canonici de sede episcopalii ab electione episcoporum excludant religiosos uiros, set eorum consilio honesta et idonea personaj in episcopum eligatur.k Quod sil exclusism religiosis electio facta fueritn, quod absque eorum consensuo et coniuentiap factum fuerit, irritum habeaturq et uacuum. Collated: Fdin marg. Fdin suppl. AaBcin marg.BiCdFsMeMzPdPfSa a

Absque—non eligant Fdin suppl.BcCdBiMeMzPdPfSa, om. Fd in marg. Aa b Abeuntibus Fdac, in suppl.BcMzpcPf cqūo Aa d tres om. Aaac, add. super lin. iii. Aapc e ecclesias COGD2 f prohibent patrum sanctiones tr. COGD2 anathematis uinculo CdFsMzPd h ne Aapc, ne Fdin suppl.BiCdFsMeMzPdPfSa COGD2 i episcoporum Fdin suppl. jhonestam et idoneam personam Fdin suppl. CdMeMlMz k eligant Fdin suppl.BcCdMeMlMz l si om. Aaac m exclusis] eisdem add. COGD2 nfacta fuerit] fuerit celebrata COGD2, legi non potest Fd in marg., fuerit Fs, fuerit facta tr. Pf oconsensu eorum tr. Mz p coniuentia Aa : continentia Fd in marg., covenienti Saac, conuenientia Fdin suppl.BcBiCdFsMeMlMzPfSapc COGD2, conniuentia Pd, var. in apparatu COGD2 q habeant Fs

In translation:11 Indeed he says: Without the counsel of religious men the canons of the major church may not elect a bishop. Since the decrees of the holy fathers prohibit a church to be left vacant for more than three months, we forbid that under anathema and also that the canons of the episcopal see may not exclude religious men from the election of bishops. Rather with their counsel may an honest and worthy person be elected bishop. But if an election is carried out that excludes those religious men, because it was made without

not introduce any signifiant changes into the text. The COGD2’s reading of “conuenientia,” which generally means a meeting, seems less likely than the reading in Aa, which means “consent.” “Coniuentia” can be found in many twelfth century sources in contexts in which it means “consent.” 11.  Translation based on Norman Tanner’s in Decrees of the Ecumenical Councils, 1: Nicaea I-Lateran V, 2: Trent-Vatican II, 2 Volumes (London-Washington, D.C.: Sheed & Ward and Georgetown University Press, 1990) *203, with minor changes.

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their consent and agreement, the election shall be held to be invalid and vacated.

Although the manuscript tradition of the Second Lateran Council is rich, there has not yet been a critical edition of the canons. The text in Aa, Bc and Fd, in other words, cannot provide a proof of its origin by comparing it to any current printed edition. Nonetheless, one significant variant in this canon gives pause. Gratian’s text has “facta fuerit” whereas all twenty manuscripts containing this canon from Lateran II that Martin Brett has collated have the reading “fuerit celebrata.” “Celebrare” is the verb that one would expect in a papal conciliar decree. The other textual evidence is the word “consensus” in the tradition of Gratian manuscripts instead of “assensus,” which is juridically more precise. These two pieces of textual evidence are not, however, conclusive proof that Gratian’s source for this text was not the Lateran II decrees, but it does introduce a modicum of doubt.12 What one may more confidently say is that the text in the three preVulgate manuscripts provides further evidence that Gratian “tweaked” his pre-Vulgate Decretum after it began to circulate. Of the three preVulgate manuscripts, Florence, Barcelona, and Admont, in which the text of Obeuntibus is present, in Florence and Barcelona it is a marginal addition. In Admont, however, it is inserted into the body of the Decretum. That does not prove that the inserted text is from Lateran II or from an earlier council, but it does lead one to the conclusion that the canons added later to the Vulgate Decretum circulated in stages and were not received at other centers for the study of law at one time. The evidence for that last statement is contained in the texts, margins and appendices of pre-Vulgate manuscripts. They provide textual evidence that the Vulgate canons were not copied into pre-Vulgate manuscripts from complete Vulgate texts.13

12.  My thanks to Professor Brett for providing me with his preliminary edition of c.28. I am currently working on an “edition” of the canons attributed to Pope Innocent II in all the early Gratian manuscripts which will be published shortly. The results to date have provided evidence that none of the canons may be attributed to Lateran II. 13.  Contrary to Winroth, Making of Gratian’s Decretum 130–133: “The first recension of the Decretum was not a living text. It was a finished product which its author considered ready to be circulated . . . I know of no manuscript (beyond Aa) which contains a version of the Decre­ tum that is longer than the first recension but shorter than the second and that could be an intermediate stage.” However, as Melodie Harris Eichbauer has demonstrated if the canons

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There is further evidence in the pre-Vulgate manuscripts that Gratian probably never conceived of his work as a definitively finished product. In the Paris (P), Florence (Fd) and the Barcelona (Bc) manuscripts Distinctions 100 and 101 are missing and the canons of D.99 after c.1.14 In Fd additional texts are inserted by a later hand. However, the scribe of Fd’s main text may have known more Distinctions were coming because he ended D.99 c.1 with the notation “§ d.c. (Distinction 100).” The scribe of Admont (Aa) included pre-Vulgate Distinctions 100–101 in the main text. Barcelona added them on an inserted folia. The only conclusion that can be drawn from this textual evidence is that these manuscripts reflect slightly different stages of a pre-Vulgate text that circulated over a wide geographical area. There was a pre-Vulgate Decretum circulating with 99 Distinctions and 36 Causae. This version reached Northern France (P) and the Iberian peninsula (Bc). Scribes in Italy learned of two new Distinctions (Fd), left space for them with a notation and added them later. In Bc the revisions of the text were handled differently. Originally, the text omitted D.100– 101 completely. A folio was inserted into the manuscript at a later time, and D.100–101 of the Vulgate text were included in their entirety.15 The Admont scribe had an expanded pre-Vulgate Decretum at hand and incorporated parts of D.100–101 into the text. (Aa fol. 92v–93r). The scribe, however, excluded most of the Vulgate text.16 How much time would have elapsed for these different stages of the text to have circulated to Northern and Western Europe? Again, the evidence does not provide us with any clues beyond the text itself. One may added to Fd, Bc, and Aa were entered into the body of a new Decretum it would not equal a Vulgate text. 14.  Paris, Bibliothèque Nationale de France nov. acq. lat. 1761 (P), fol. 83v, Florence, Biblioteca nazionale centrale Conventi soppressi A.1.402 (Fd), fol. 18vb–19ra. Fd added the omitted texts in a hand that is similar to the other marginalia and textual corrections in the manuscript. The hand of the main text ended on fol. 18vb with the notation: “§ d.c.”, i.e. “distinctio centum”, which may indicate that the scribe knew that additional text would be made available. The scribe left room for the additional text. In P, the scribe left room after the last words of D.99 c.1. but the space would not have been sufficient for D.100 and 101. Winroth, Making of Gratian’s Decretum 204, overlooked those omissions in his analysis. In Bc the missing texts are added on a new folio. 15.  There was not enough room on folio 98r–98v for the entire text. The scribe squeezed D.100 d.p.c.8 to D.101 c.1 into the left hand margin of 98v. On the inserted leaves in Bc see Melodie H. Eichbauer, “From the First to the Second Recension: The Progressive Evolution of the Decretum,” Bulletin of Medieval Canon Law 29 (2011–2012) 119–167 at 126–127. 16.  Admont also added D.99 c.4, 5, and D.101 c.1 to the main text of the Decretum.

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say, however, that the geographical spread of the manuscripts alone would dictate that the time for these texts to circulate could not have been less than a few years before they reached the Northern France and the Iberian peninsula. What was Gratian doing during those years? I would say: teaching and expanding his text in Bologna. More can be said about the stages evident in pre-Vulgate texts. Melodie Harris Eichbauer has done a careful study of the canons that were added to the margins and to appendices in the Florence and Admont manuscripts and to the margins of Barcelona.17 Winroth had concluded that these canons must have been taken from Vulgate exemplars of Gratian’s text.18 I was puzzled from the beginning why a jurist, institution, or scribe would go to the trouble of creating an updated text that would have been so difficult to use. Eichbauer’s study revealed that the appendices could not have been drawn from a Vulgate text. The proof is in the numbers and in the fact that they were added by different scribes at different times. As it is, neither Admont nor Florence have all the canons that Gratian added when he compiled his Vulgate text.19 The numbers are not small: Admont omits 87 canons and Florence 62 from the Vulgate.20 Significantly, the omitted canons are different in each manuscript. If one puts the numbers a little differently, between the two manuscripts ca. 117 canons are missing from the Vulgate text. In percentage, ca. 8% of the Vulgate’s canons are not included in the margins or the appendices of these two manuscripts. These numerous omissions could not be attributed to sloppy, careless scribes. There are just too many missing canons. These numbers are the evidence for Eichbauer’s conclusion that the canons added to the preVulgate texts in Paris, Florence, Barcelona and Admont must have been done in stages and over a period of time. Her evidence also points to Gratian’s having circulated a large bulk of the additions in one fell swoop but then having updated these additions afterwards. There is one last powerful piece of evidence that militates against pushing the date of the Vulgate Decretum too far in the 1140’s: the Second 17.  Eichbauer, “From the First to the Second Recension,” 119–167 especially her conclusions 150–152. 18.  Ibid. 123 and n.12 and n. 9 above. 19.  Not taking the evidence of the Barcelona manuscript into account, which would not alter the picture substantially. 20.  Eichbauer, “From the First to the Second Recension,” 145.

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Lateran canons. Eichbauer’s research has convinced me that Gratian did not add the canons of the Second Lateran Council in a flurry of last minute additions as scholars have previously believed. Gérard Fransen more than fifty years ago had argued that the Second Lateran’s canons were hasty and last minute additions to the Decretum. At first glance some of them, but not all, seem as if they were added without carefully integrating them into the flow of Gratian’s arguments. In his study of the rubrics or summaries of the canons, Titus Lenherr found textual evidence that supported Fransen’s conjecture.21 He charted the textual variants in the summaries and saw that they varied more frequently than was usual in Decretum manuscripts. The pre-Vulgate manuscripts have confirmed that the canons were added only to the later stages of Gratian’s text. However, they were not added at the last minute. Almost all of the canons attributed to Lateran II are in the margins or the appendices of the Florence and Admont manuscripts. The Florence manuscript, which is the earliest of the four preVulgate manuscripts discovered by Winroth, omitted two canons attributed to Pope Innocent II completely.22 One of those canons is also not to be found in Admont. The remaining canons were added to the appendices or to the margins of the pre-Vulgate manuscripts. One canon that was added to the appendix and the margin of Florence came from two different textual traditions, i.e. the text in the margin is different from the text in the supplement.23 This is good evidence that the canons attributed to Lateran II were not added to the pre-Vulgate manuscripts at one time. Consequently, they cannot be texts that Gratian added in a final, rushed effort to complete the Vulgate as Lenherr has argued. An even larger question looms over Innocent II’s canons. Are they all, in fact, canons from Lateran II? In the Vulgate Decretum modern scholars, but not Gratian, have attributed 15 canons (out of 30 promulgated by Lateran II). Their attributions are problematic for several reasons. Canon 28 (D.63 c.35) was from the beginning identified as a canon promulgated by Innocent II in Rome but not as having been promulgated in the Lateran. 21.  Gérard Fransen, “La date du Decret de Gratien,” Revue d’histoire écclésiastique 51 (1956) 521–531; Titus Lenherr, “Die Summarien zu den Texten des 2. Laterankonzils von 1139 in Gratians Dekret,” Archiv für katholisches Kirchenrecht 150 (1981) 528–551. 22.  D.90 c.11 and C.21 q.2 c.5, which is also omitted by Admont. 23.  D.63 c.35, Fd fol. 12va and fol. 113va.

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Without an explicit attribution, as Atria Larson has argued, one cannot be absolutely sure it belonged to the council of 1139. I have already demonstrated above that the text of Gratian’s Canon 28 has significant variants not in the manuscripts of the Lateran II’s canon 28 outside the tradition of Gratian’s Decretum. Another canon in the Vulgate Decretum combined canons 18, 19, and 20 of the Second Lateran Council (C.23 q.8 c.32) and is identified only as having been taken from “a universal council under Innocent II,” which cannot be attributed to Lateran II with any certainty.24 As Larson has demonstrated in detail the adjective “universalis” when attached to synod or council did not mean automatically what we mean today by an ecumenical council. A “concilium” called by the pope and having participants of different nationalities could be termed “universale.”25 All the other canons that scholars have attributed to the Second Lateran Council have the inscription of “Innocentius II” and nothing more. Their inscriptions bear no indication that they are conciliar canons promulgated at the Lateran II or at any other council. To be sure, their texts are very close to the canons that we have accepted as products of the Second Lateran. But many of them differ significantly from the texts of Lateran II. The common repetition of wording that is characteristic of conciliar canons in this era and the lack of an explicit inscription to Lateran II in all the canons makes an attribution to the council of 1139 problematic. As Martin Brett has explained to me “there can be no argument about the extremely close resemblance between most of the canons attributed to Innocent’s councils at Clermont, Reims, Pisa and the Lateran,” which can make attributions to a particular council difficult.26 At the very least we should be cautious, therefore, about attributing some or all of these canons to the Second Lateran Council. If they are not Lateran II canons but drawn from other councils over which Innocent II presided during his pontificate, it would resolve a number of dating issues that have plagued the study of Gratian’s teaching career and 24.  Canons 18, 19, 20 combined into one: C.23 q.8 c.32: “De incendariis quoque Innocentius secundus in uniuersali concilio generaliter constituit dicens.” Clm 13004, fol. 228rb and 28161, fol. 195ra have the same reading. In the Biberach manuscript and Salzberg, Stiftsbibliothek a.xi.9 the canon is part of Gratian’s dictum and is not separated from it. The edition of the canons (see note 12) has provided more evidence for evidence for the conclusion that Gratian took these canons of Pope Innocent II from non-Lateran II sources. 25.  Larson, “Early Stages of the Decretum,” 27–34. 26.  In an email on January 14, 2014.

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his life. However, much more work has to be done on this problem before we could come to a more firm conclusion—if a firm conclusion will be possible. A preliminary edition of the canons attributed to Innocent II in the early Gratian manuscripts must be constructed from the best Vulgate manuscripts and then the results compared to Martin Brett’s edition. This task is already well underway. There is an intriguing rubric to in a very early Italian Vulgate manuscript, Florence, Biblioteca Laurenziana Plut. 1 sin. 1 that casts doubt on one text’s having been taken directly from a text of Lateran II. The rubric to C.17 q.4 c.17 that might be an edited version of Lateran II’s c.15 reads “Item ex libris Innocentii pape ii.”27 I have not found another early Vulgate manuscript with that rubric. Without a stronger textual tradition I would be reluctant to conjecture what it means. Literally, the text asserts that his canon can be found in a book of Innocent II’s legislation. It does not attribute the canon to Lateran II. As I have already made clear, however, no other rubric to the canons identifies the canons as being from Lateran II. Did Gratian know a manuscript with a collection of Innocent’s legislation and took all his Innocentian canons from it? It is a tempting hypothesis but for now goes beyond the evidence. I have postponed a discussion of the St. Gall Stiftsbibliothek 673 until now. I wanted to present the evidence for Gratian’s long teaching career in Bologna from the pre-Vulgate manuscripts of which Gratian’s authorship is not questioned. Scholarly opinion is unanimous that Gratian compiled the collections preserved in the pre-Vulgate manuscripts that we have discussed to this point.28 If the St. Gall text could be proven to be a version of a stage that preceded the text of the Admont, Barcelona, Florence, and Paris manuscripts, there could be little question that Gratian taught in Bologna for a long time. No scholar questions the fact that if St. Gall were an abbreviation, it is an abbreviation of pre-Vulgate Decretum, not the Vulgate text. I have written previously that if an abbreviator shortened Gratian’s text from those manuscripts he was almost impossibly clever. He left no undisputable fingerprints. The very few places where one may argue about whether he nodded off while doing his cutting are debatable. 27.  Fs fol. 205rb. 28. Winroth, Making of Gratian’s Decretum, 175–196.

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John Noonan and many other scholars have recognized for a very long time that Gratian’s causae (cases) are wonderful teaching tools and were Gratian’s stroke of genius.29 If it were a version of an UrGratian, the St. Gall manuscript would be proof that Gratian began to teach using cases and developed a Socratic case law teaching methodology. He was the Christopher Columbus Langdell of the twelfth century. There is no question that his Decretum became a very popular text because of the causae. Its immediate acceptance as a “liber legalis” (textbook) that took its place alongside Justinian’s Roman law codification in the schools all over Europe was not because the first part of the Decretum, the distinctions, offered exciting and compellingly teachable material. It was his causae that won Gratian his unique place in the history of canon law. Before the discovery of the St. Gall manuscript one could have conjectured that he had begun teaching with the causae. In this context one cannot be too surprised that St. Gall exists. The St. Gall manuscript is not, however, a pristine UrGratian. From Causa 27 to 36, the text of the manuscript received significant interpolations and editing by unknown hands, probably not by Gratian’s. Nonetheless, Causa prima to Causa 23 (causae 24–26 are missing) must have corresponded fairly closely to an UrGratian (remembering, however, that there is some evidence that stages preceded the St. Gall text as well).30 The additions of Roman law authenticae in the margins and glosses indicate that the manuscript was used in the classroom at a significant law school (Bologna?) and not one on the periphery.31 The authenticae would not have been known to teachers of canon law outside Italy in the 1130’s. Just as Rolan29.  John T. Noonan, Jr. “Catholic Law School – A.D. 1150,” The Catholic University Law Review 47 (1998) 1189–1205 at 1201: “The study of law was, at least in part, the study of hypotheticals, with the power of hypotheticals to select and isolate significant legal issues and the weakness of hypotheticals that they lack the rich concreteness, the true mind binding complexity, of real cases. The hypotheticals were the basis for questions that opened up substantial areas of law in a penetrating way. The questions also turned out to be convenient pegs on which to hang a variety of authorities.” 30.  Melodie Harris Eicbauer’s careful study of the rubrics in the St. Gall manuscript demonstrate that they were not the work of an abbreviator and that additional causae were probably added over time to the book, see “St. Gall Stiftsbibliothek 673 and the Early Redactions of Gratian’s Decretum,” Bulletin of Medieval Canon Law 27 (2007) 105–39. 31.  Pennington, “Big Bang,” 63–66. See also José Miguel Viejo-Ximénez, “Las Novellae de la tradición canónica occidential y del decreto de Graciano,” in Novellae constitutiones: L’ul­ tima legislazione di Giustiniano tra Oriente e Occidente, da Triboniano a Savigny: Atti del Convegno Internazionale, Teramo, 30–31 ottobre 2009, ed. Luca Loschiavo, Giovanna Mancini and Cristina

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dus, a commentator on the Decretum in the 1150’s, had, it seems, only used the causae to teach his students, so too did the early Gratian.32 Where was the St. Gall manuscript produced and used? Scholars who have examined the illuminated initials have concluded that they were done in Central or Northeastern Italy in the second half of the twelfth century. The script is certainly older than that. I would date it to the middle of the twelfth century at the latest. Its provenance is Italian. The combination of its carefully prepared script and its elaborate—and quite beautiful—illuminations is proof that it was the product of a sophisticated scriptorium in Northern Italy.33 Only one piece of evidence seriously calls into doubt St. Gall’s being derived from an UrGratian.34 Causa 2 in St. Gall and Causa 1 in all the other recensions of Gratian’s text dealt with the issue of simony. The case he presented was complicated to say the least. I will give it in each of the versions beginning with St. Gall:35 A certain man gave his son to a monastery and, as demanded by the abbot, rendered a payment of ten pounds. The son was ignorant of this because of his age. The boy matured. He quickly became a priest. The suffragan bishops selected him to become a fellow bishop on his merits. Finally, his father

Vano, Università Degli Studi Di Teramo, Collana della Facoltà di Giurisprudenza 20; (Napoli: Edizioni Scientifische Italiane, 2011) 206–277. 32. See the flawed edition, Rolandus (Papst Alexander III. [Magister Rolandus, Orlando Bandinella male]), Summa magistri Rolandi, mit Anhang incerti auctoris qua­ estiones, ed. Friedrich Thaner (Innsbruck: 1874, reprinted Aalen, Scientia Verlag, 1962); see Pennington, “The Decretists: The Italian School,” in The History of Canon Law in the Classical Period, 11401234: From Gratian to the Decretals of Pope Gregory IX, History of Medieval Canon Law (Washington, D.C.: The Catholic University of America Press, 2008) 131–135. 33.  Marina Bernasconi Reusser, “Considerazioni sulla datazione e attribuzione del Decre­ tum Gratiani Cod. Sang. 673: Un manoscritto di origine italiana in terra nordalpina,” in Schau­ kasten Stiftsbibliothek St. Galler: Abscheidsgabe für Stiftsbibliothekar Ernst Tremp, ed. Franziska Schnoor, Karl Schmuki and Silvia Frigg (St. Gallen: Verlag am Klosterhof St. Gallen, 2013) 142–147. 34.  Eichbauer, “Gratian’s Decretum,” 1113–1114 summarizes the various arguments on both sides of the issue very well with detailed bibliographical references. 35.  St. Gall, Stiftsbibliothek 673, p.28–29: “Obtulit quidam filium suum cenobio qui exactione abbatis motus x. libras monasterio soluit. Ipso tamen filio propter etatem hoc ignorante. Creuit puer. De hinc ad sacerdotium conuolauit. Suffragantibus meritis in ępiscopum est assumptus. Tandem obsequio ac precibus paternis intercedentibus pecuniam quoque ex consiliariis archiępiscopi cuidam data consecratur electus, oblatę pecunię paterni obsequi penitus ignarus. Ac per hoc tempore procedente quosdam gratis, non nullos etiam per pecuniam ordinauit; qui tandem accusatus et conuictus, contrariam sibi sententiam reportauit.”

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interceded with his consent and prayers to his election and also money gave to a member of the archbishop’s household; he was consecrated bishop without knowing of his father’s consent and of his gifts of money. As time passed he ordained some clerics for free and others for money. Consequently, he was accused and convicted . He suffered the judgment that condemned him.

In the other pre-Vulgate and Vulgate versions presented a more nuanced and detailed story:36 A certain man had a son whom he gave to a very wealthy monastery. The abbot and the brothers demanded ten pounds to take his son. His son, because of his age, did not know about the money. The boy grew and with the passing of time and with a succession of offices, he came of age and was ordained a priest. Finally, he was elected bishop by the suffragan bishops because of his talents. His father gave his consent and prayers to his election and also money to a member of the archbishop’s household; he was consecrated bishop without knowing of his father’s consent and of his gifts of money. In the passing of time, he ordained several priests for money and to others he gave the sacerdotal benediction for free. Finally, he was accused and convicted at the archiepiscopal court. He accepted his judgment of damnation.

A comparison of the two texts makes it difficult to imagine that the pre-Vulgate text in St. Gall is an abbreviation of the pre-Vulgate text in the other manuscripts. The pre-Vulgate hypothetical incorporated specific facts into the case that are left out or remain ambiguous in St. Gall. The pre-Vulgate’s monastery was wealthy. It practiced simony in spite of its wealth. After his ordination, the boy received other clerical offices on his merits, one presumes, and not simoniacally. In contrast, the St. Gall case 36.  Paris, Bibliothèque Nationale de France nov. acq. lat. 1761, fol. 83vb–84ra and Paris, Munich, Staatsbibliothek Clm 13004, fol. 97ra: “Quidam habens filium obtulit eum ditissimo cenobio exactus (ab add. Me) abbate et fratribus x. libras soluit ut filius susciperetur (recipe­ retur Me), ipso tamen beneficio ętatis hoc ignorante. Creuit puer et per incrementa temporum et officiorum ad virilem etatem et sacerdotii gradum peruenit. Exinde suffragantibus meritis in episcopum eligitur, interveniente obsequio et paternis precibus data quoque pecunia cuidam ex consiliariis archiepiscopi consecratur iste in antistitem nescius paterni obsequii et oblate pecunie. Procedente vero tempore nonnullos per pecuniam ordinauit, quibusdam uero gratis benedictionem sacerdotalem dedit, tandem apud metropolitanum suum accusatus et conuictus sententiam in se damnationis accepit.” An edition of this version of Gratian’s Decretum is being prepared under the leadership of Anders Winroth.

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suggests that the boy became a priest inappropriately quickly (convolare = to fly). The description of the court’s decision in St. Gall (contraria sententia) could be interpreted to imply that the bishop lived with a decision that was not in accord with his own views of his actions. In the other preVulgate hypothetical the bishop accepts his fate. These differences do not suggest an abbreviator to me. They suggest a reworking by Gratian. Gratian then listed seven questions that he wished to consider which are almost the same in all the versions of the text. Number six was the question whose text created a problem of interpretation: “Sixth Whether those who were ordained by him in the past without knowledge of his simony must be deposed?”37 There was only one text in the entire corpus of canon law that could answer that question: two canons that Pope Urban II had promulgated at the Council of Piacenza in 1095. To answer Question six, Gratian presented the two Piacenza canons as one canon in the St. Gall manuscript.38 The logical place for the canon was in question six. That is exactly where it is in the St. Gall manuscript:39 If those, he said, who were ordained by simoniacs but not simoniacally can be proven that when they were ordained to have not known the were simoniacs, then they will be considered as Catholics in the Church, and we will sustain those ordinations mercifully, if their laudable lives endorse them. Who, however, knowingly is consecrated by simoniacs, rather one 37.  St. Gall, Stiftsbibliothek 673, p. 29: “Sexta: An illi qui ab eo iam symoniaco igoranter sunt ordinati abici debeant.” The later versions add “aut non” to the end of the question. 38.  Robert Somerville, Pope Urban II’s Council of Piacenza: March 1–7, 1095 (Oxford: Oxford University Press, 2011) prints an edition of the canons, pp. 91–92, and a discussion of the canons pp. 104–111, with information about the canonical collections that included these texts. 39.  St. Gall, Stiftsbibliothek, 673, p. 41b. The text is slightly different from the pre-Vulgate and Vulgate, which are closer to the conciliar canons (C.1 q.1 c.108): Si qui, inquit, a symoniacis non symoniace ordinantur, siquidem probari potuerint se, cum ordinaretur, nescisse eos symoniacos esse, et tunc pro catholicis habebantur in ęcclesia, talium ordinationes misericorditer sustinemus, si tamen eos laudabilis uita commendat. [Qui uero scienter se a symoniacis consecrari immo execrari permiserint, eorum consecrationem omnino irritam esse decernimus.] Urban II, Council of Piacenza, c.3 and [c.4]: Collectio X partium, fol. 76r, where the chapters are separated. Collectio 3 librorum 2.8.11 in medio. 9L 3.5.1. The additional “inquit” is found in other Urban texts. It is one other small bit of textual evidence that Sg cannot be an abbreviation; for references to the pope in the third person, see Robert Somerville, Pope Urban II, The Collectio Britannica, and the Council of Melfi (1089) (Oxford: Oxford University Press, 1996) CB 8, 11, 17, 28, 44. Most importantly, Gratian included another canon attributed to Urban, Duae sunt, that also uses “inquit” in its incipit, which I have discussed in “Gratian, Causa 19, and the Birth of Canonical Jurisprudence,” “Panta rei”: Studi dedicati a Manlio Bellomo, ed. Orazio Condorelli (Roma: Il Cigno, 2004) 4.339–355 at 344.

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would say execrated, we declare that their consecration is completely invalid.

In the transition from the St. Gall Decretum to the manuscripts in Florence, Paris, Barcelona, and Admont, Gratian added 15 canons to Question one between c.90 and c.113. One of those canons was decretal of Pope Nicholas II in which the pope distinguished between several types of simoniacal ordinations: simoniacs ordained simoniacally by simoniacs, simoniacs ordained by non-simoniacs, and simoniacs ordained by simoniacs but not simoniacally. Nicholas did not, however, cover all the possible permutations, the most important being the legal issue of ignorance. Gratian had already applied the principle of ignorance to marriage law in St. Gall Causa 26 (=29). As he considered Nicholas’ decretal Gratian must have thought, “what about the cleric, as in my hypothetical, who was ignorant that the prelate was simoniacal? Or a cleric as in my hypothetical who did not know that someone was paying for his ordination?” He must have also considered the issue that his raising the question of ignorance in Question one and not leaving it for Question six disturbed the organization that he had created for Causa one. In Question one his question had been: “Is it a sin to buy spiritual things?”40 In spite of whatever reservations he may have had, Gratian moved Urban’s conciliar canon from Question six to Question one and placed it after Nicholas’ decretal. As Gratian remarked in the dictum he wrote before the canon:41 But these clerics must be understood as being those who are ordained by simoniacal prelates, whom they did not know were simoniacal. The decretal makes these simoniacs, but not guilty of a crime, yet < having> an ordination of a simoniac. Concerning these clerics Pope Urban stated .

Moving a canon is unique in the textual tradition of the Decretum. Causa one Question one is the only place in the Decretum in any of its versions where Gratian moved a text significantly. We may think with some justification that he could have placed Nicholas’ decretal in question six. 40.  C.1 d.a.c.1: “Hic primum queritur an sit peccatum emere spiritualia?” 41.  C.1 q.1 d.a.c.108: “Sed hoc intelligendum est de his qui ordinantur a simoniacis, quos ignorabant esse symoniacos. Hos facit simoniacos non reatus criminis, sed ordinatio symoniaci. De quibus Urbanus papa ait.”

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Question one was already ungainly long. His moving Urban’s canons did not improve his argument or the organization of Causa one. Nevertheless, he moved Urban’s text. Gratian then reworked his introductory dictum to Question six in his later versions of the Decretum to read:42 What indeed ought to be done concerning those who unknowing are ordained by simoniacs, which is asked in the sixth question, is found above in the chapter of Urban that begins: “Si qui a simoniacis non simoniace ordinati sunt.”

Previously in the St. Gall manuscript Gratian had introduced the Piacenza canons with a dictum, and it is this dictum that has created problems of interpretation and the conviction of some that St. Gall is an abbreviation:43 Quid autem de his fieri debeat qui ignoranter a symoniacis ordinati sunt, quod quidem sexto loco quesitum est supra in capitulo Urbani dictum est quod, quia forte ibi quantum ad negotium pertinebat integre poni non fuit necessarium, in presenti ad evidentiam in medium adducamus.

In translation: What moreover ought to be done with those clerics who unknowingly are ordained by simoniacs, which is asked in the sixth question, in the chapter of Urban that has been cited above, but indeed, because it was not necessary to place the entire text there as far as it pertained to the issue, I bring it forward here.

Winroth and others have interpreted Gratian’s dictum at the beginning of Question six as being proof of St. Gall’s being an abbreviation.44 They assume that the abbreviator fell asleep and forgot that he had omit42.  C.1 q.6 d.a.c.1, Paris BNF nov. acq. lat. 1761, fol. 102va, Florence, B.N. Con. Sopp. A.1.402, fol. 25rb: “Quida uerob de his fieri debeat qui ignoranter a simoniacis ordinati suntc, quod sexto loco quesitum est suprad in capitulo uidelicet Vrbani quod sic incipit, Si quie a simoniacis non simoniace ordinati sunt requiratur.” a Quodac Fd b igiturac, autempc Fd c nunc autem add. Fdac d quod—supra om. Fdac e quispc Fd 43.  St. Gall Stiftsbibliothek, 673, p. 41, C.1 q.6 d.a.c.1: “Quid autem de his fieri debeat qui ignoranter a symoniacis ordinati sunt, quod quidem sexto loco quesitum est supra in capitulo Urbani dictum est quod, quia forte ibi quantum ad negotium pertinebat integre poni non fuit necessarium, in presenti ad evidentiam in medium adducamus.” 44.  See Anders Winroth, “Recent Work on the Making of Gratian’s Decretum,” Bulletin of Medieval Canon Law 26 (2006) 1–29 at 20–21.

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ted Pope Nicholas’ canon and also that he had eliminated Urban’s canons immediately after Nicholas’. With that assumption, Winroth is quite right that the reference is puzzling and, if he had interpreted the passage correctly, could be a solid proof that St. Gall is an abbreviation. However, the compiler of the St. Gall text was quite wide awake. What Winroth overlooked was that Gratian had, in fact, cited Urban’s canon “supra” in Question four of St. Gall and in all the subsequent versions of the Decretum. That is the place Gratian referred to in his dictum before Question six in St. Gall. He was not citing a now non-existent text in the first question. He alerted his readers that he could have put the Urban’s canon in Question four but did not. In his dictum in question four he had written:45 Again, if someone is excused from having been ordained unknowingly by a simoniac, just as he can be excused who is ordained simoniacally but unknowingly.

In the later versions of the Decretum Gratian clarified that the dictum referred to Urban’s canon that was now placed in Question one with an inserted added phrase:46 Again, if someone is excused from having been ordained unknowingly by a simoniac, as seen above in Urban’s canon , he can also be excused who is ordained simoniacally but unknowingly.

Once Gratian’s dictum before Question six in the St. Gall manuscript is understood to refer to his dictum in Question four, the use of this passage as being a proof that St. Gall is an abbreviation cannot be sustained. An abbreviator did not nod; Gratian was practicing a methodology he used in all the versions of his Decretum: referring to canons in other parts of his work with their first few words or as here with a short reference to a canon’s content. The other arguments for and against St. Gall’s being an abbreviation rest upon small textual variants that cannot come close to being a full proof. A number of scholars, including me, have made textual arguments taken from Gratian’s dicta in St. Gall. Some are more persuasive than 45.  Sg p.38, C.1 q.4 d.p.c.10: “Item si excusatur qui a symoniaco ordinatur ignoranter et utique iste excusari potest qui per ignorantiam symoniace ordinatur.” 46.  Gratian, C.1 q.4 d.p.c.10, P fol. 100va, Fd fol. 24v: “Item si excusatur qui ignoranter a simoniaco ordinatur, ut supra in capitulo Urbani legitur, et iste excusandus est qui per ignorantiam symoniace ordinatur.”

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others. None of them makes a full proof for either opinion.47 As I have stated above, I believe that the textual anomalies in St. Gall in Causae 27–36 of Gratian’s text cannot be used as evidence of an abbreviation because I believe the text is a redaction with interpolations.48 A significant piece of evidence for my conviction about St. Gall’s being an early pre-Vulgate version of Gratian’s Decretum and not an abbreviation are the four authenticae that are added to the margins of the manuscript. Two of them Gratian included into the text of the Decretum in later recensions. Two of them he did not. Gratian did not add them; someone else did. Whoever added these authenticae to the margins of St. Gall knew Roman law very well and was using the manuscript to teach canon law in a center where others were teaching Roman law. Such a person, I have argued, would not have been teaching with an abbreviation.49 Anders Winroth noticed, as many other scholars have, that Gratian cited the Bible frequently in his dicta. He chose canons with many biblical citations as well. Winroth drew attention to the fact that Gratian cited the Pseudo-Paul Pastoral Epistles to Timothy and Titus when he analyzed clerical discipline in Distinctions 25–49. That Gratian would have turned to these epistles was inevitable. Any medieval author who discussed clerical behavior and norms of rectitude would have thought immediately of the Pastoral Epistles. The canons Gratian compiled for those distinctions cited them many times more than Gratian did. Winroth concludes his discussion about Gratian’s use of the Pastoral Epistles with the statement:50 Gratian’s use of St. Paul for his organization is, incidentally, a well-nigh irrefutable argument against the idea that the text of the Decretum known from the infamous manuscript St. Gall, Stiftsbibliothek 673 would be the earliest version of Gratian’s work . . . This manuscript makes a hash of that 47.  Causa 29 (Sg 26) has a particularly interesting set of textual variants that suggest that St. Gall is not an abbreviation; see José Miguel Viejo-Ximénez , “Non omnis error consensum euacuat: La C. 26 de los Exserpta de Sankt Gallen (Sg),” in Iustitia et iudicium: Studi di diritto matrimoniale e processuale canonico in onore di Antoni Stankiewicz, ed. Janusz Kowal and Joaquín Llobell (Vatican City: Libreria Editrice Vaticana, 2010) 617–641, especially his conclusion at 630–631. 48.  One of the texts is a canon of Pope Innocent II, commonly attributed to Lateran II. If it is not a Lateran II canon, then it would be possible that St. Gall is Gratian’s work. 49.  See Pennington, “Big Bang,” 64 and “Beginning of Roman Law Jurisprudence,” 35–53. 50.  Anders Winroth, “Where Gratian Slept: The Life and Death of the Father of Canon Law,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Kanonistische Abteilung 99 (2013) 105– 128 at 110.

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organization, cutting most references to the Epistle to Timothy, while allowing a few to stand, orphaned and barely intelligible.

Like black truffles, irrefutable arguments are hard to find in scholarly debates. There are two very good reasons for thinking that Winroth’s conclusions can be questioned. The first objection is that the Pseudo-Pauline epistles do not provide an “organization” or an “organizing principle” for Gratian’s distinctions in the ordinary sense of those terms. He does not follow the epistles exactly as they discussed clerical discipline line by line or chapter by chapter. He skips around in the epistles, quoting them and taking whichever ideas he found useful for the issues he was discussing. He also cited other texts in the Pauline epistles in his analysis of clerical rectitude. If there is no organization or organizing principle in his use of the Pastoral Epistles, it cannot be violated. The second objection, and much more weighty, is that comparing the Distinctions to Causa prima in St. Gall is to compare two different literary genres. In Causa prima Gratian created a hypothetical, asked a series of questions, and presented texts that pertained to his case. He presented an hypothetical in which a student had a concubine, a subdeacon had a wife, and after this sorry history became a priest and then a bishop. In St. Gall Gratian did not focus on “what are the virtues a cleric should have?” In the Distinctions, he did. When he refashioned that material, the wingspan of his subject matter was much wider. In Causa prima of St. Gall Gratian explored clerical sexual norms, and how they might affect a prelate’s status; in the later distinctions that grew out of Causa prima he dealt with a much broader set of issues touching on clerical discipline and what characteristics a good cleric should possess. The difference is not trivial. It is an entirely different project. To compare the two is to compare tuber melanosporum (black truffles) to agaricus bisporus (button mushrooms). To combine the two is not good gastronomy or scholarly methodology. Timothy and Titus have not much to say about clerical sexual behavior covered in Causa prima of St. Gall; they have a lot to say about the topics covered in the Distinctions. Finally, Winroth’s conclusion sidesteps another question about St. Gall that I raised ten years ago; if St. Gall is an abbreviation, why did the abbreviator ignore the Tractatus de legibus D. 1–20 and Distinctions 80–101? Or why did the abbreviator cut out Causae 24–26 and 28? If the abbreviator went to the trouble of transforming the Distinctions 27–79 into Causa

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prima, and if he was using the text to teach, chopping out the Tractatus de legibus is strange. A good reason for deleting the causae is also difficult to find. It is an old principle of humanistic scholarship that the easiest and simplest explanation for textual changes is usually the most compelling. To my mind, when Gratian decided that the issue of clerical marriage and sexual behavior had been resolved by conciliar legislation of Lateran I, and and Innocent II’s councils, especially Pisa in 1135, he set to work dismantling Causa prima.51 He quite logically put together his distinctions on clerical discipline before his first Causa.52 To imagine an abbreviator taking the Distinctions between 27 and 79, omitting half the canons, and creating a coherent causa is to my mind not only a much difficilior task, but also raises the question why did he do it? If one argues that the abbreviator created Causa prima, one ought to give reasons why he thought there was a need for that Causa. Was there any longer a need for a causa with the issues of Causa prima? Gratian certainly did not think so when he finished the Vulgate Decretum. No causa of the Vulgate focuses on the problems Gratian broached in Causa prima. In the end, what can we conclude from the manuscript evidence that remains from the early versions of Gratian’s Decretum? He taught many years in Bologna and had many students. Some of them began to gloss and comment on his magnum opus.53 The glossators began their work very early. The primitive set of glosses contained in all the early manuscripts of the Decretum, pre-Vulgate and Vulgate, with its citations to Burchard of Worms’ Decretum and the Lombarda are undoubtedly of Italian origin.54 Nonetheless, they circulated in the margins of Gratian’s text following it wherever it went. John T. Noonan wrote his conclusion without the benefit of what we know today about Master Gratian. It is still a pretty good biographical summary: Gratian “revealed himself to be a teacher with theological knowledge and interests and a lawyer’s point of view. He worked in Bologna in 51.  Lateran II c.7 has been cited as the definitive statement on clerical marriage, but it repeats the prohibition that Innocent II promulgated at Pisa in 1135, c.4 or c.1; see Robert Somerville, “The Council of Pisa: A Re-Examination of the Evidence for the Canons,” Specu­ lum 45 (1970) 98–114 at 103–106, the canon as it appears in different manuscripts. 52.  Pennington, “Gratian, Causa 19,” 351–353. 53.  Winroth’s latest conjecture is that Gratian may have taught for only one or two years, “Gratian Slept Here,” 125–126. 54.  This is not to say that this earliest set of glosses was a coherent and uniform text. The manuscripts prove that without a doubt.

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the 1130s and 1140s.”55 I would tweak his conclusion only with “also the 1120s.” In my reading of the causae and thinking about the changes he made in the different versions of his book, I have been impressed by how Gratian developed and expanded his analysis of the problems posed by the hypotheticals he created. One could conclude, as I have, that he could not have done that work and thought through so many different legal issues in a few years of teaching. “Horror vacui” is a metaphor that that applies to almost any field of study. If we do not know what we wish we could know, we search for evidence to fill in the void of our ignorance. Noonan proved quite persuasively that the “horror vacui” created a rich tapestry of illusory knowledge about Gratian during the twelfth and thirteen centuries. Twenty-firstcentury scholars have taken up the search to know more about Gratian. It is a worthy quest. Anders Winroth has endorsed two medieval conjectures that have been recently put forward by other scholars: that Gratian was a bishop of Chiusi and that he participated in a Venetian court case in 1143. Both of these conjectures would mean that Gratian lived until ca. 1145. Winroth has done more to revive and invigorate the study of Gratian’s Decretum than anyone else in the last 200 years. Not surprisingly he cares about Gratian and thinks often about this man who did so much to launch European jurisprudence. Although I may not agree with all of his conclusions or conjectures about Gratian, I must emphasize that Winroth’s work has opened new vistas and perspectives for thinking about Gratian the teacher, the jurist, and the man. A few disagreements do not undermine or diminish his achievement. Winroth has been convinced by an argument first advanced by Francesco Reali that Gratian became the bishop of Chiusi at the end of his life. Medieval authors also thought Gratian had been the bishop of Chiusi.56 Reali noticed that a necrology of the Cathedral Chapter of Siena contained a notice that a Gratian from Chiusi who was also a bishop had died sometime in the middle of the twelfth century.57 Reali made the assumption that this Gratian was not only from Chiusi but had been

55.  Noonan, “Gratian Slept Here,” 172. 56.  Larson, “Early Stages of the Decretum,” 54–55 57.  Francesco Reali, “Magister Gratianus e le origini del diritto civile Europeo,” Graziano da Chiusi e la sua opera: Alle origini del diritto comune europeo, ed. F. Reali, Pubblicazioni del Centro Studi Magister Gratianus, 1 (Chiusi: Edizioni Luì, 2009) 17–130, especially 98–101.

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bishop of Chiusi. Winroth has embraced Reali’s discovery and used it as evidence of Gratian’s fate in the 1140s. There is, in fact, as Noonan had already conceded, very early evidence for Gratian’s having been a bishop. Rudolf Weigand printed an introductory gloss or prologue that precedes eight Decretum manuscripts.58 In three of them, the text states that Gratian divided the Decretum into two parts, i.e. that the last part on sacraments, De consecratione, was not yet part of the Decretum; the other five manuscripts change the two parts to three.59 All five manuscripts that contain “three parts” are later copies of the Decretum. The reading of the three manuscript witnesses for this passage is some evidence that the gloss was written very shortly after the Vulgate version of the Decretum left Gratian’s desk in Bologna without the third part, De consecratione.60 The scribe of possibly the oldest of these three manuscripts, Paris, Bibliothèque nationale de France lat. 3884–I, entered the text on the folio preceding the beginning of the Decretum.61 We cannot know with certainty whether this short prologue was an attempt to introduce the Decretum to readers or an introduction to the primitive set of glosses in the margins of the manuscript or both:62 58.  Rudolf Weigand, “Frühe Kanonisten und ihre Karriere in der Kirche,” Zeitschrift der Savigny Stiftung für Rechtsgeschichte, Kanonistische Abteilung 76 (1990) 135–155 at 152–153. 59.  Winroth, “Gratian Slept Here,” 115–116 wrote: “Perhaps this means that this glossator wrote before the second recension with its three parts circulated, in which case it would be very early testimony, say from the 1140s, more or less contemporary with Gratian.” He did not, however, take the passage as solid evidence because he mistakenly thought only one manuscript had the “duas” reading. Further, because he believes that Pf is the only witness, he states that “One Parisian law professor” told his students that Gratian was a bishop. From our discussion, it should be clear that the text is not the product of one French canonist. 60.  Eichbauer, “Gratian’s Decretum,” 1112–1113. 61.  The other two manuscripts containing the earliest version of this gloss according to Weigand are Gent, Bibliotheek der Rijksuniversiteit 55 and Trier, Stadtbibliothek 906 (1141). 62.  fol. 15v: Written in red ink, rubric style, “In nomine domini nostri Ihesu Christi. Prima pars incipit de iure scripto et non scripto et quod cui preponatur et legum auctoritatibus et clericorum electione siue dispensatione. Concordia discordantium canonum. Ac primum de iure constitutionis et nature. Concordantia discordantium canonum iuxta determinationem Gratiani episcopi que in duas partes divisa. Prima pars constat centum et una distinctione, licet xl.maix.na (Trier has 48) incompetens uideatur. Secunda uero causis xxx.vi. ubi notandum est nonnulla esse intercisa capitula atque ita digesta prout diuersis causis uisum est expidiri (sic) que quidem cum alibi repperiris integra supplere his seu continuare tanquam id scriptoris uicio contigisset. Similiter etiam cum alias grecorum conciliorum translationes inueneris, eas sufficere tibi credens de qua huic operi sunt sumpta congruentia capitula miscere uel uariare translationum seriem non presumas.”

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In the name of our Lord Jesus Christ. The first part of the Decretum begins with a discussion of written and non-written law. It treats the authority of law, the election of clerics and their dispensation. The Concord of discordant canons. In the beginning a treatment of the ius of constitutions and of nature.63 The Concord of Discordant Canons which Bishop Gratian organized into two parts. The first part contains 101 Distinctions, although Distinction 49 (48) seems incomplete. The second part contains 36 causae and you must note that several canons are edited64 and are arranged in various causae so that if indeed you wish to see the entire canon, in another place; you may not presume to fill them in or to continue as if this was the the result of scribal error. Similarly even when you find other translations of Greek councils, you should consider those reliable which are inserted into this work. You should not presume to mix similar chapters or change a row of translations.

The text is not without its intriguing ambiguities. The first line is a standard introduction to a medieval works, but not, as far as I know, to Gratian. Weigand did not include this line of text in his edition. If it does occur in the other manuscripts, that would be a stronger piece of evidence that it is part of a prologue introducing the glosses, not to Gratian’s text. The second sentence is a summary of the subject matter of distinctions 1–101. That too might be part of the prologue to the glosses. The Italicized text is taken from a different tradition that one finds at the beginning of quite a few twelfth-century Gratian manuscripts. The scribe must have had two different texts in front of him and combined them. The remainder, that I have taken from the Paris manuscript and which Weigand calls the early version, called the readers’ attention to three textual matters. The first is that Distinction 49 (or 48) is not complete. The second is a warning Another early manuscript, Heiligenkreuz, Stiftsbibliothek 44, fol. 8v, began with the text “In nomine—siue dispensatione (in a slightly garbled form)” but omits the rest. 63.  The italicized text is in a rubricated style of capital letters and is a common rubric at the beginning of the early Decretum with small variations, e.g. Biberach, Spitalarchiv B.3515, fol. 10r, Köln, Dombibliothek 127, fol 9r, Mainz, Stadtbibliothek II.204, fol. 2r, Salzburg, Stiftsbibliothek a.xi.9, fol 11r. 64.  Shortening and editing canons and decretals, the omitted parts they called” intercisiones” became standard editorial practices of the canonists from Gratian to Raymond de Peñafort. See my essay, “The French Recension of Compilatio tertia,” Bulletin of Medieval Canon Law 5 (1975) 53–71 at 60–63 for examples.

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that the reader should not be concerned if other texts, presumably in other collections, were different. Gratian had edited them to suit his purpose. Finally, the Greek councils that Gratian inserted into the Decretum should be respected. Gratian, he implied, made good choices. I lean towards thinking the text is a prologue to the primitive and sparse but significant glosses in Paris, BNF 3884–I and II. Weigand had studied manuscripts with these glosses for years and called them part of the “First Composition” of glosses when he worked out his categorization of early glosses to Gratian.65 He did not mention in his work that this layer of glosses, which is found in almost all the early glossed Gratian manuscripts, including the pre-Vulgate Barcelona and Admont manuscripts, included many references to canons in Burchard of Worms’ Decretum and in the Lombarda.66 No other pre-Gratian canonical collection received as much attention from the early canonists in the margins of Decretum manuscripts as Burchard of Worms’ Decretum. Their function has not yet been studied. Were they to supplement, support, or contradict Gratian’s choices of sources? Some were later incorporated into the Vulgate Decretum as “paleae.” The citations to Burchard disappear from the margins after ca. 1200. The citations to Lombard law are not as frequent.67 Citations of the Lombarda are not common in Italian Roman law manuscripts and have not been noticed before in canonistic texts.68 Weigand had already con65.  Die Glossen zum ‘Dekret’ Gratians: Studien zu den frühen Glossen und Glossenkompositio­ nem. Studia Gratiana 26–27 (Rome: Libreria Ateneo Salesiano, 1991) and a compact version of his magnum opus in English, “The Development of the Glossa ordinaria to Gratian’s Decre­ tum,” in The History of Canon Law in the Classical Period, 55–97. 66.  All the early manuscripts of the Vulgate with glosses listed in note above, contain Burchard and Lombarda citations. The form of citation is .e.g. Pf, fol. 45v: B. xix. Si quis uexatus (Burchard 19.93) in the margin opposite D.33 c.3. In this case, the canon in Burchard dictated ten years penance for clerics who were possessed by demons. If they were freed from demons, they could resume their clerical duties. Gratian’s text stipulated one year freedom from demons. Sometimes the scribes confused the B with D. D.33 c.3 occurs only in the Vulgate Decretum. 67.  Cited as Lombar. or Lom. de decimis, l.iii. (Lombarda 3.3.3) in Pf fol. 195r in the margin opposite C12. q.2 c.26, which is only in the Vulgate Decretum. The text in the Decretum instructs bishops how they should divide tithes; the c.3 in the Lombarda is a general admonition to do so, which is followed by c.4 with more detailed instructions. The Lombarda citations are primarily found in the causae. 68. See Glosse preaccursiane alle Istituzioni: Strato Azzoniano Libro primo and Libro secondo, ed. Severino Caprioli, Victor Crescenzi, Giovanni Diurni, Paolo Ari and Piergiorgio Peruzzi, 2 vols. Fonti per la Storia d’Italia 107 and Antiquitates 14 (Roma: Nella Sede dell’Istutito, 1984– 2004) in which not a single gloss to the Lombarda is recorded; see also my “The Beginning of

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cluded that the “First Composition” was very early, not later than 1150, perhaps earlier. Its presence is a good test for the date of a manuscript. No canonist would have needed or wanted these glosses after ca.1150. This layer of glosses also can provide evidence of its origins: Italy. Although Paris, BNF 3884–I and II are written and illuminated in Northern France, it is difficult to think of many reasons why a Northern French jurist would be interested in Lombard law. These allegations to the Lombarda would have been of interest and use to canonists in Northern and Southern Italy and make it likely that the First Composition had its origins in the Italian schools.69 The presence of a version of this gloss that graces the margins of the Barcelona and Admont manuscripts is good evidence that the preVulgate Decretum circulated long enough for someone to have composed a gloss for it. If the pre-Vulgate manuscripts had a very short shelf life, no one would have bothered. There is one more puzzle in Paris, BNF lat. 3884–I. Carlos Larrainzar discovered that the front flyleaf was a folio from a pre-Vulgate version of Gratian’s Decretum.70 Jacqueline Rambaud had long been convinced of the manuscript’s significance, and Larrainzar’s discovery raises intriguing if unanswerable questions. The manuscript was produced in an important center. No expense was spared on its production. The text was divided into two volumes and provided with magnificent illuminations. One might presume that when the Vulgate text arrived, the owners of the preVulgate text decided to trash their old text and use the manuscript(s) for more mundane purposes, like flyleaves. If one could localize this manuscript and trace other manuscripts produced at the center, one might find more flyleaves of pre-Vulgate Gratians. One might guess that Paris, BNF 3884–I was produced in a major center in Northern Europe for the study of canon law and that the center had close ties to Bologna. Art historians have connected its illuminations to Paris or perhaps Sens. An important center in Paris would make sense.

Roman Law Jurisprudence and Teaching in the Twelfth Century: The Authenticae,” Rivista internazionale di diritto comune 22 (2012) 35–53 and my “The Constitutiones of King Roger II of Sicily in Vat. lat. 8782,” Rivista Internazionale di diritto comune 21 (2010) 35–54. 69.  Weigand, “Development of the Glossa ordinaria” did not venture an opinion on the origins of these glosses. 70. Winroth, Making Gratian’s Decretum, 32

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What does this information mean for Gratian’s biography? First, the glosses in Barcelona, Admont, Paris, BNF 3884 I and II and other manuscripts were not written in Northern Europe but originated in Italy. The French author of the prologue, not the glossator, who was writing close to 1140 thought that Gratian was a bishop. For obvious reasons he would have been in a position to know. The Decretum in its earlier forms was an immediate success all over Christian Europe. The oldest three manuscripts of the eight that contained the “prologue” discussed above identify Gratian as the compiler. Other manuscripts do as well.71 It is not accurate to say that Gratian was unknown or that the glossators did not mention his name. As Noonan illustrated in great detail, twelfth-century authors thought they knew many details about him.72 But was he bishop of Chiusi as Reali and now Winroth would like to believe?73 The passage about Gratian in the Siena necrology was written after an entry but on the same line as a notice of a certain Anslem. Anselm’s death is not dated. It reads: “Obit Anselmus subdiaconus et canonicus Sancti Martini Lucensis.” At the end of Anselm’s entry a later scribe added: “et Gratianus Clusinus episcopus.” Reali and Winroth date both hands to the twelfth-century, and I think they are right.74 Nonetheless, there are problems with their attribution. If one adheres to the rules of Latin syntax, 71.  E.g. Clm 13004, fol. 30r: “Hoc opus inscribitur de Concordia discordantium canonum quod a quodam Gratiano compositum in libros xxxvii. est distinctum.” This particular manuscript has long been recognized as an early witness. The author of this introduction did not know “De consecratione:” “Primus liber continet divisiones , diffinitiones, necnon et differentias legum tam secularium quam ęcclesticarum et quomodo uel a quibus uel quando sint institutę de electione quoque seu ordinatione clericorum. Secundus continet de scienter seu ignoranter a symoniacis ordinatis et de ordinationibus quę per pecuniam fiunt.” Admont, Stiftsbibliothek, fol. 8r has the same text. Carlos Larrainzar has discussed and edited the complete text in “Notas sobre las introducciones In prima parte agitur y Hoc opus inscribitur,” in Medieval Church Law and the Origins of the Western Legal Tradition: A Tribute to Kenneth Pen­ nington, ed. Wolfgang P. Müller and Mary E. Sommar (Washington DC: Catholic University Press of America, 2006) 134–153. These two manuscripts cannot be dated later than 1145–1150. If Gratian were unknown, it is puzzlingly how he might have been discovered to be the compiler of the Decretum. 72.  E.g. Johannes Faventinus’ rubric to his Summa ca. 1171, Klosterneuburg, Stiftsbibliothek fol. 1ra: “Incipit prefatio in Decreta magistri G a ,a magistri Jo Faventino canonice ac dilucide edita ex duabus summis Ruffini et Stephani utili artificiosoque excepta” and fol. 1vb: “Circa liber autem quem pre manibus gestamus hec attendenda sunt, scilicet que sit materia Gratiani in hoc opera, que ipsius intentio, que utilitas que causa operis, que distinctio libri, quis modus tractandi, quis titulus.” 73.  Reali, “Magister Gratianus,” 96–97 and Winroth, “Gratian Slept Here,” 115–124. 74.  Printed in Raccolta degli storici Italiani dal cinquecento al millecinquecento ordinata da L.A. Muratori, ed. Giosué Carducci, Vittorio Fiorini and Pietro Fedele, Rerum Italicarum Scriptores vol. 15, part 6 (Rome: 1931) 22.

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the text reads: “Gratian of Chiusi, bishop.” “Clusinus” cannot normally be applied to “Gratianus” and “episcopus” at the same time. If one can assume the scribe knew his Latin well, one can interpret the text as stating that Gratian from Chiusi was a bishop. Winroth asserts that it is Magister Gratian because the name is not common.75 That is not the case. He overlooked the fact that in the same necrology that has a modest number of names, there is another Gratian who is memorialized.76 The final problem with this entry in the Sienese necrology is that if this is the Gratian who compiled one of the most famous textbooks of the twelfth century and who taught canon law at Bologna for a long time, can we believe that he would have been given such a modest entry? It is much more modest than Anselm’s and many others in the necrology. Would the Sienese scribe have given him no title, no descriptive adjectives, and no clues that he was a person of European wide fame? In the end, after reviewing the evidence, I think John T. Noonan would have concluded that yes, Gratian was probably a bishop. When was he bishop? Difficult to say. Was he the bishop of Chiusi? The evidence, I think he would say, is inconclusive. Another Gratian appears in a Venetian court case that was held in 1143. The case concerned tithes, a subject on which Master Gratian had more than a little expertise. The case has been in print for several centuries. Noonan thought it possible that this Gratian could be Master Gratian, but he thought it was only possible, “even plausible,” but not certain. Recently, Gundula Grebner uncovered more evidence that would confirm Gratian’s presence in a Venetian courtroom and change Noonan’ plausible to certain.77 Winroth accepts Grebner’s argument. The issues of the case are only sparsely given, except that it concerned monks holding the rights to tithes. Grebner points out that Gratian dealt with that issue in his Decre­ tum at C.16 q.7. The judicial sentence was rendered with the concurrence of “consilio Patriarce Aquilejensis et episcopi Ferrariensis et magistri Walfredi et Graciani et Moysis et aliorum prudentum” (with the counsel of 75.  Winroth, “Gratian Slept Here,” 124: “The name is unusual enough, however, that we may conclude that it is likely.” 76.  Raccolta degli storici Italiani 17: “Obit presbyter Gratianus prius plebanus de Folliano et post canonicus Senensis honestus clericus et bene litteratus, anno Domini MCC.” We will meet two more Gratians in the Venetian sources below. 77.  Gundula Grebner, “Lay Patronate in Bologna in the First Half of the 12th Century: Regular Canons, Notaries and the Decretum,” in Europa und seine Regionen: 2000 Jahre Rechtge­ schichte, edd. Andreas Bauer and Karl H.L. Welker (Köln-Weimar-Wien: Böhlau, 2007) 107–122.

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the Patriarch of Aquilea, the bishop of Ferrara, Master Walfredus, Gratian, Moses, and other prudent men).78 Again, the question: can this be Master Gratian, the Father of Canon Law, the compiler, by this time, of a famous book? The hesitations are some of the same as they were for the necrology in Siena. Walfredus, the Roman lawyer, is given the title “magister.” Gratian is not. Gratian would have been in 1143 at the end of his life, having taught canon law at Bologna for almost ca. 25 years. Would he not have received at least some recognition of his contributions to Bolognese legal culture? I think so. Furthermore, there is another Gratian whom Noonan, Grebner, and Winroth did not know in the Venetian court records who participated in a case in 1150.79 In spite of having a cognomen in 1150, he may be the same Gratian who heard the 1143 proceedings—or another Gratian. In any case as in 1143 he heard the case with a master but is not given that title. It is also another piece of evidence that every Gratian is not Gratian. The man in Venice is someone who has, perhaps, training in canon law, but he is very likely not the Father of Canon Law. Noonan is right: after you strip away the myth and dubious evidence, Gratian is a shadowy figure. I think that Noonan would agree that Gratian was probably a bishop—but where and more importantly when? Was he a bishop-elect at the end of his life? He could not have been a bishop and teaching and compiling his text book while he was in Bologna. Another longstanding question about Gratian in the historiography has been whether he was more jurist or theologian.80 Recently, his theological learning has been fruitfully explored. We have known for a long time that Gratian incorporated sections of Alger of Liège’s De misericordia

78.  First printed by Flaminio Cornaro, Ecclesiae Venetae antiquis monumentis numc etiam primum editis illustratae ac in decades disributae (Vol. 1. Venice 1749) 378, August 31, 1143. 79.  A.D. 1150: “Gratianus Contarenus et Magister Lanfrancus de Brissia,” Codice diploma­ tico Padovano dall’anno 1101 alla pace di Costanza (25 giugno 1183), ed. Andrea Gloria, 2 vols. Monumenti storici della Reale Deputazione Veneta  di storia  patria, serie 1, vol. 4 and 6 (Venice: 1879–1881) 1: 390 n.535; Gloria prints the 1143 case on p. 313, no. 419. 80.  Stanley Chodorow, Christian Political Theory and Church Politics in the Mid-Twelfth Cen­ tury: The Ecclesiology of Gratian’s Decretum (Berkeley-Los Angeles-London 1972) 3–10 and Atria Larson, Master of Pennance: Gratian and the Development of Penitential Thought and Law in the Twelfth Century. Studies in Medieval and Early Modern Canon Law 11 (Washington, DC: The Catholic University of America Press, 2014) 10–12 and the essays cited in n. 82 below.

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et iustitia into his Decretum.81 Only one manuscript of Alger’s tract still exists South of the Alps, and only three remain in Northern Europe. How did Gratian learn about Alger’s De misericordia which did not have a broad dissemination? An obvious explanation might be that he studied theology in the North when he was young. José Viejo-Ximénez, Atria Larson, and John Wei have looked at the evidence that Gratian’s thought might have been shaped by theological schools of the North.82 There is now little doubt that Gratian’s thought and methodology were influenced by the schools of the North.83 Did he study there? That remains an open question. Was he shaped more by theology than by law? To that question I would agree with Noonan that he was primarily a jurist who knew a lot of theology. In the context of Gratian’s knowledge of theological works from Northern Europe, Stephen of Rouen’s evidence in the Draco normanni­ cus about Gratian’s connections to the curia of Pope Innocent II may be more important than has been recognized.84 In his poetical history of Normandy, Stephen placed Gratian at Innocent’s council held in Reims in 1131. Stephen finished his poem in the 1160’s but had been at Bec from ca. 1140. He must have known people who had been at the council. From the vocabulary he employed in the poem, Stephen had also sophisticated knowledge of legal studies. He cited all the libri legales of Roman law before he praised 81.  Robert Kretzschmar, Alger von Lüttichs Traktat “De misericordia et iustitia”: Ein kano­ nistischer Konkordanzversuch zus der Zeit des Investiturstreits: Untersuchungen und Edition. Quellen und Forschungen zum Recht im Mittelalter 2 (Sigmaringen: J. Thorbecke, 1985) 141–154, especially the table on 144–146. Gratian placed Alger’s texts and dicta in C.1 q.1, C.1 q.7, and C.2 q.7. 82.  José Miguel Viejo-Ximénez, “La relación del “Liber divinarum sententiarum” cum la “Concordia discordantium canon”,” in ‘Panta Rei’: Studi dedicati a Manlio Bellomo, ed. Orazio Condorelli, 5 vols. (Rome: Il Cigno, 2004) 5: 435–472; Atria Larson, “The Influence of the School of Laon on Gratian: The Usage of the Glossa ordinaria and Anselmian Sententie in De penitentia (Decretum C.33 q.3),” Mediaeval Studies 72 (2010) 197–244; John Wei, “Gratian and the School of Laon,” Traditio 64 (2009) 279–322 and Wei’s essays in Mediaeval Studies 73 (2011) 1–118 and 74 (2012) 1–50 and now his Gratian the Theologian. Studies in Medieval and Early Modern Canon Law 13 (Washington DC: The Catholic University of America Press, 2015). 83.  Christoph H.F. Meyer, Die Distinktionstechnik in der Kanonistik des 12. Jahrhunderts: Ein Beitrag zur Wissenschaftsgeschichte des Hochmittelalters. Mediaevalia Lovaniensia, Studia 29 (Leuven: Leuven University Press, 2000) 171–177 reviews the literature on the possible influences on Gratian’s methodology. 84.  Giuseppe Mazzanti, ‘Graziano e Rolando Bandinelli’, Studi di storia del diritto 2 (1999) 70–103, has been the first to give Stephen of Rouen’s evidence an extended hearing. Noonan thought the evidence was inconclusive, “Gratian Slept Here,” 158; Winroth, “Where Gratian Slept,” 113, rejected it.

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Gratian as the “Source of ecclesiastical ordinances and the quarry of all justice and law.” Without Gratian, Stephen writes, “no laws and no justice nor rights are valid.”85 The language he used to praise Gratian reveals that the poet had more than a superficial knowledge and interest in law. Most importantly, Gratian would not have been a part of Innocent’s entourage nor still in monastic dinner table conversations long after the council, if he had not already established himself as a major authority in canonical jurisprudence by 1131. As we have seen speculation without any or much evidence has dominated the debate about Gratian for the past ten years. I would like to exercise my right to speculate about Gratian too. If all my guesses and uncertainties in this essay about Gratian’s work and life were to be confirmed as fact, this is the story we might have (remembering that I label these remarks a conjectural novella): Gratian began teaching ca. 1125–1130 using a text that looked something like the St. Gall manuscript. He expanded his text ca. 1133–1135. He added ca. 1500 canons, including some canons from Innocent II’s conciliar legislation prior to Lateran II. They derived from Innocent’s other councils or letters. He had connections to Innocent II’s curia and entourage (with Haimeric?). By 1131 Gratian’s teaching and his Decretum had established his reputation North of the Alps. He attended Innocent II’s council at Reims, and his presence added luster to the proceedings. He became bishop of (pick a city, Chiusi?). Around 1135 Italian canonists (maybe even Gratian himself ?) provided a primitive set of glosses to his text that circulated in the earliest manuscripts. He composed a final 85.  Le dragon normand et autres poèmes d’Étienne de Rouen, ed. Henri Omont (Rouen 1884) 62: Ex Institutis quo legum summa tenetur, Legister replicat que sibi digna videt. In Digestorum totum se mergit abyssum . . . Codex ipsa ligat quod placet iste legit. Explicat edictis et solvit multa Novellis . . . Hinc fluvius torrens Gratianus ad alta redundat, Quo sine nil leges, nil iura valent, Fons decretorum, totius iuris abyssus, Luuminis ecclesie splendida stella micat.. More than just naming the books of Justinian’s codification, Stephen seems to allude to fundamental concepts of Roman law: “que sibi digna videt”, resonates with Cod. 1.14.4, “Digna vox maiestate regnantis legibus alligatum se principem profiteri” and “quod placet iste legit” with Dig. 1.4.1, “Quod principi placuit legis habet vigorem”. Legal terminology pulluates throughout the poem. It would merit further study.

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part of the Decretum on sacraments, De consecratione ca. 1140. This additional text is very unsophisticated in comparison to the rest of his work and very old-fashioned: it contains just one dictum and 405 texts. If Gratian compiled it, he could have done it quickly and without much thought or effort. Does this story fit the possible facts? Yes. Is it true? As I hope this essay suggests, some of these conjectures are more plausible than others. Let’s wait and see whether the scholarly world of Gratian’s followers reaches a consensus. It may take time. Gratian would move from the shadows to the brilliant and shadowless light of day only in the fourteenth century when Dante put him in Para­ diso Canto 10, 97–103: Questi che m’è a destra più vicino, frate e maestro fummi, ed esso Alberto è di Cologna, e io Thomas d’Aquino. Quell’altro fiammeggiare esce del riso di Grazian, che l’uno e l’altro foro aiutò sì che piace in paradiso. Those who are to my right were my brother and master, Albert from Cologne and I Thomas Aquinas. That other person with the light shining from his smile, is Gratian, whose contributions to the secular and the ecclesiastical courts has pleased Paradise.86

86.  Francesco Calasso, Medio evo del diritto, 1: Le fonti (Milano: Giuffrè Editore, 1954) 396 followed Ruffini and Brandelione in their conviction that Dante meant the internal and external forum in this passage. Dante’s son, Pierto Alighieri, thought his father meant the secular and ecclesiastical courts. Gratian did not just deal with ecclesiastical courts in his Decretum. I follow Pietro and thank Orazio Condorelli for this bibliographical information.

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roch pagé*

Can We Still Speak of the Principle of Subsidiarity in the Church?

About eighty years ago, in his encyclical letter Quadragesimo anno of May 15, 1931, Pope Pius XI noted that the natural object of any intervention of the State in social matters had, as its purpose, to assist the citizens, and not to destroy or absorb them. These were the preliminary words that would lead to the formulation of the principle of subsidiarity and the starting point of numerous studies which deal with subsidiarity with regard to its application in the Church.1 This present study is only one more effort to add a few ideas in view of helping in answering the question asked in the title. In an overview of the theological and canonical literature about the interpretation and application of subsidiarity in ecclesiology from 1957 * Judicial Vicar Canadian Appeal Tribunal, Ottawa; Adjunct Professor, School of Canon Law, The Catholic University of America, Washington, DC; former Dean, Faculty of Canon Law, St. Paul University, Ottawa, Canada. 1.  Among others, see: Germain Lesage, “Le principe de subsidiarité et l’état religieux,” Studia canonica 2 (1968) 99–123; René Metz, “La subsidiarité, principe régulateur des tensions dans l’Église,” Revue de droit canonique 22 (1972) 155–176; Franz-Xaver Kaufmann, “The Principle of Subsidiarity viewed by the Sociology of Organizations,” The Jurist 48 (1988) 275–291; Joaquin Losada, “Subsidiarity from an Ecclesiologist Point of View,” The Jurist 48 (1988) 350– 354; Joseph A. Komonchak, “Subsidiarity in the Church: State of the Question,” The Jurist 48 (1988) 298–349; Thomas J. Green, “Subsidiarity During the Code Revision Process,” The Jurist 48 (1988) 771–799; John G. Johnson, “Subsidiarity and the Synod of Bishops,” The Jurist 50 (1990) 488–524; R. Harrington, The Applicability of the Principle of Subsidiarity According to the Code of Canon Law (Ottawa, Saint Paul University, 1997); John J. Burkhard, “The Interpretation and Application of Subsidiarity in Ecclesiology: an Overview of the Theological and Canonical Literature,” The Jurist 58 (1998) 279–342; Roch Pagé, “The Principle of Subsidiarity Revisited,” CLSA Proceedings 64 (2002) 191–208.

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through 1995, Burkhard concludes by stating: “It would seem that there are as many understandings of the principle of subsidiarity as there are interpreters.”2 This is true as regards the interpretation of the principle of subsidiarity. But, what about its application in ecclesiology and accordingly in canon law? I would say that it depends not only on one’s interpretation one has of the principle, but on one’s understanding of the Church.

I. The Interpretation of the Principle of Subsidiarity

For those who are not convinced of the broad range of interpretations given to the principle of subsidiarity that led to a certain confusion, let me mention briefly some major steps in the understanding of its meaning when applied to the Church; we will return to some of them in a rather lengthy manner afterwards: — 1931: first formulation of the principle to be applied to the civil State, by Pope Pius XI; — 1946: first reference to the possibility of applying the principle to the Church by Pius XII; — 1961: John XXIII reminds us of the application of the principle of subsidiarity in the activities of the State; — Vatican II: the conciliar documents do not speak of subsidiarity as applied in the Church; — 1967: the application of subsidiarity is presented by the synod of bishops as one of the ten principles to guide the revision of the Code of Canon Law; — 1983: the Code of Canon Law contains no mention of the principle of subsidiarity; — 1985: the Fathers of the synod of bishops recommend to the Holy Father to examine the possibility of applying the principle of subsidiarity within the Church. The most surprising of those steps is the last one. In fact, twenty years after the Council and close to twenty years after the 1967 synod that accepted the principle of subsidiarity for the revision of the Code, the

2.  Burkhard, 331.

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Fathers of the extraordinary synod of bishops held in 1985 recommended “that a study be made to examine whether the principle of subsidiarity in use in human society can be applied to the Church and to what degree and in what sense such an application can and should be made.”3 One year later, Pope John Paul II highlighted this recommendation. It is even more surprising to read that some authors were certain that the principle of subsidiarity had been applied in the formulation of the 1983 Code. And yet, once again, three years after the promulgation of the Code, the legislator himself accepted the recommendation of the Extraordinary Synod to study whether the principle of subsidiarity should be applied in the Church. Therefore, the question remains: has the principle been applied in the Church since the time when Pius XII mentioned the possibility of applying it to the Church? Whatever answer is given to this question, it leads to another one: what is the notion of subsidiarity held by those who answer “yes” or “no”? Moreover, what is their notion of the Church? To examine these questions we must first consider the development of the recognition of subsidiarity in Church teaching. A. The Term “Subsidiarity”4

There seems to be a confusion as regards the meaning of the term “subsidiarity” itself. It derives from the Latin word subsidium, a military expression used to refer to a group of soldiers held in reserve to replace those who were tired. In other words, they were there to step into the battle in case of necessity, to be a support when needed. The term has since come to mean assistance. Although assistance usually comes from the outside, subsidium comes from within the ranks; a reserve force in case of necessity. It is important to recall the original meaning of this term. Etymologically, “to be subsidiary” means to take someone’s place. We will see that the principle of subsidiarity is applied when the role of each person, each institution, or each community is respected by the

3.  Synod of Bishops, “The Final Report,” Origins 15 (1985–1986) 449. For an interesting commentary on that recommendation, see Johnson, 513–522. 4.  Some of the ideas in this section and the following one are taken from Lesage, 99–123. See also: Metz, 155–176, and D. A. Bosnich, “The Principle of Subsidiarity in Catholic Social Thought,” Religion and Liberty 6 (1996) n. 4.

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higher level of authority. The higher level must not assume more than its proper role. As a matter of fact, the term “subsidiarity” refers to the one who offers assistance to a principal party, or to that which strengthens a principal party. The subsidiary is there to help, and is an accidental accessory when the principal agent is unable to assume alone some responsibilities. In its proper sense, then, subsidiarity is the term for being subsidiary. B. Initial Magisterial Statements Regarding the Role of Subsidiarity

We should not look to canon law for the development of Church usage of the term. Rather, its origins are to be found in the social doctrine of the Church, beginning with Leo XIII, in Rerum novarum of May 16, 1891, speaking of the intervention of the State when it was necessary to promote and protect the common good. He used the principles of distributive justice as a basis for his teaching. Without using the actual term, Leo XIII was preparing the way for Pius XI, who was the first one to mention and formulate it. As a matter of fact, Pope Pius XI, in Quadragesimo anno, noted that the natural object of any intervention of the State in social matters had as its purpose to assist the citizens, not to destroy or absorb them. It might be worthwhile to quote his text at length, since it is fundamental to our study. As history abundantly proves, it is true that on account of changed conditions many things which were done by small associations in former times cannot be done now save by large associations. Still, that most weighty principle, which cannot be set aside or changed, remains fixed and unshaken in social philosophy [that is to say]: just as it is gravely wrong to take from indi­ viduals what they can accomplish by their own initiative and industry and give it to the community, so also it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do. For every social activity ought of its very nature to furnish help to the members of the body social, and never destroy and absorb them (n. 79).

The Pope goes even further, and in a clearer manner, in the following paragraph of his encyclical: The supreme authority of the State ought, therefore, to let subordinate groups handle matters and concerns of lesser importance, which would

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otherwise dissipate its efforts greatly. Thereby the State will more freely, powerfully, and effectively do all those things that belong to it alone because it alone can be done to them: directing, watching, urging, restraining, as occasion requires and necessity demands. Therefore, those in power should be sure that the more perfectly a graduated order is kept among the various associations. In observance of the principle of “subsidiary function,” the stronger social authority and effectiveness will be, the happier and more prosperous the condition of the State (n. 80).

It is important to note that Pius XI makes no reference to the Church in this regard. It was Pius XII, in his allocution of February 20, 1946 to the new cardinals, who indirectly mentioned the possibility of applying the principle of subsidiarity in the Church, but without prejudice to its hierarchical organization. At the same time, he proclaimed what has come to be known as the superiority of the individual over the collectivity. John XXIII, in Mater et Magistra of May 15, 1961, reminded us that the activities of the State should not suppress the freedom of action of individuals. Rather, in virtue of the principle of subsidiarity, the State should favor and assist private initiatives in the economic sphere (No. 152). In other words, the State should not deprive individuals of what they can do by themselves.5 C. Vatican II

Quite surprisingly, Vatican II referred explicitly to the term subsidiarity only on three occasions: each time in a slightly different meaning, and never in an ecclesiological context, i.e. as being applied to the Church itself. In Gravissimum educationis (No. 3), the Council says that part of the State’s duty is to promote the education of youth. It fulfills this responsibility “by implementing the principle of subsidiarity and completing

5. Kaufmann, 279, notes that “The principle of subsidiarity is a concept within the social teaching of the Catholic Church. Everyone agrees that it was not explicitly formulated before the year 1931, when Pius authoritatively stated it in the encyclical Quadragesimo anno. Since then it has been confirmed by Pius XII, John XXIII, Paul VI, and John Paul II. The principle is presented as an element of natural law which, according to the Church’s social teaching, governs the social order.” Most interestingly, the same author underscores that “Several commentators on the question point out the importance of the political conditions surrounding the formulation of the principle of subsidiarity. Pope Pius XI (1922–1939) faced the growing threat of the totalitarianism of both fascist and communist governments.”

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the task of education, with attention to parental wishes, whenever the efforts of parents and of other groups are insufficient .”6 In the same document (No. 6), the Council again refers to subsidiarity when speaking of educational possibilities offered by the State: “It must keep in mind the principle of subsidiarity, so that no kind of school monopoly arises, for such a monopoly would militate against the native rights of the human person, the development and spread of culture itself, the peaceful association of citizens, and the pluralism which exists today in many societies.”7 Finally, the third reference to the principle is found in Gaudium et spes (No. 86). Speaking of the international community, the Fathers note that it “should regulate economic relations throughout the world so that they can unfold in such a way which is fair. In so doing, however, the community should honor the principle of subsidiarity.”8 If we examine these references closely, we can see that there are three distinct meanings that could be given to the term: — the intervention of the State should not deprive citizens of their natural rights; — appropriate decentralization should be fostered; — decisions should be taken at the most appropriate level. Therefore, the term has come to be used in reference to the State’s intervention when individual citizens are unable to provide for their personal needs and for those of persons immediately around them. In spite of that, because of the confusion arising from the different nuances given to the term, we still find today that the word is used in different meanings. This, of course, can lead to misunderstandings. D. The Code of Canon Law a) The 1967 Synod of Bishops

When the 1967 Synod of Bishops met to approve the principles guiding the revision of the Code of Canon Law, not surprisingly, one of the ten accepted guidelines concerned the principle of subsidiarity. However, if 6.  English translation from Walter Abbott, ed., The Documents of Vatican II (London: Chapman, 1966) 642. 7.  Ibid, 644. 8.  Ibid., 300.

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we look at the approved text, we note that there is still some confusion as to the understanding of the term.9 Without entering into too many details, we note that two different functions are assigned to the term: on the one hand it should provide for legislative unity in the Church and, on the other, “the principle of subsidiarity also has the function of defending the reasonableness or need especially of individual institutions to provide for their own advantage by particular law enacted by themselves as well as by a reasonable amount of autonomous executive power and authority.”10 The key to reconcile the two goals of the principle of subsidiarity lies in “the system of Canon Law [that] must be one unified system for the whole Church with regard to basic principles, with regard to the fundamental institutions of the Church, as also with regard to the description of the means proper to the Church for attaining its supernatural end.”11 “Unity” remains the word to be remembered when the time will come to answer the question raised in this presentation. Another point to note in the synodal document: the mention of “decentralization” when dealing with the function of subsidiarity. Speaking of tribunals, the document has a passage that can be of importance in interpreting the Code: “In regard to procedural law, grave doubts have arisen as to whether or not decentralization (as it is called) in this matter should be admitted to a greater extent than is now practiced—that is, so that decentralization would extend to autonomy of the regional and national tribunals.”12 Another application of unity is involved here. The reference to “decentralization” adds to the ambiguity we have found in the three Council passages quoted. We could also mention in passing that a similar principle was approved for the revision of the Oriental Code with some important nuances, most probably due to the fact that they are Churches sui juris. As a matter of fact, after mentioning that “the Oriental Churches have adhered to the principle 9.  See “Principia quae Codicis juris canonici recognitionem dirigant,” Communicationes 1 (1969) 77–85, esp. 80–82. For an English translation of this document, see “Principles Which Govern the Revision of the Code of Canon Law,” trans. R. Schoenbechler, OSB, in Readings,Cases, Materials in Canon Law. A Textbook for Ministerial Students, ed. Jordan F. Hite and Daniel J. Ward (Collegeville: Liturgical Press, 1990) 84–92, esp. 87–89. 10. Ibid. 11. Ibid. 12. Ibid.

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of subsidiarity all through the ages, even if without explicit reference to it,” the document is much more explicit than the Synodal document for the Latin Code as regards the meaning and application of the principle in stating: “That which the individual bishops are empowered to do in their respective dioceses should not be withdrawn from them. [ . . . ].” Moreover, “it must be borne in mind that, ordinarily, the bishop should not do that which others in his diocese are in a position to carry out; on the contrary, he should be careful to respect the legitimate competence of others, grant his cooperators the requisite faculties of which they are in need, and support the rightful initiatives both of individuals and of groups.”13 Without mentioning the word, this sounds like a warning against centralization. b) In the Code Itself

In general, there are three levels of decision-making in the Church, each with internal subdivisions: the Holy See, the Conference of Bishops, the diocesan bishop. These levels of authority can be considered as instances of application of the principle of subsidiarity. If the revised schema of Book VI comes into effect, a brand new instance of application of the principle will find its place: the Metropolitan. We must note here that the actual formulation of the principle of subsidiarity is not to be found in the Code. How then can we say that it has guided the canonists charged to prepare the drafts of the future Code? For Beyer, “the truly theological character of the principle of subsidiarity needs to be called into question [ . . . ]. And why did Vatican II avoid employing the principle of subsidiarity in its ecclesiological teaching, invoking it instead in contexts where general social theory was operative but not ecclesiological theory? Moreover, why does the recent 1983 Code of Canon Law also not employ the principle of subsidiarity as an ecclesiological principle even though the bishops of the 1967 synod called for its use in their fifth principle?” According to Beyer, the canonists charged with formulating the text were aware of the difficulties of the principle of subsidiarity when applied to the Church and hence avoided it.14

13.  The text of the Oriental Principles for revision can be found in Canon Law Digest 8: 29–39, esp. 34–35. 14.  Burkhard, 305.

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It would be useless to analyze the Code in the light of the application or not of the principle of subsidiarity without determining a clear cut definition of it. J. Krucina identified twenty interpretations of the principle of subsidiarity,15 and J. Komonchak pointed out nine elements which are commonly found in different studies on the issue.16 For our purpose, we stand on its formulation by Pius XI: “just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organization can do.” We will later come back to this formulation. c) Some Missed Occasions to Apply the Principle of Subsidiarity

I would just like to consider, among others, the conference of bishops and a possible new player, the Metropolitan, as intermediate levels of authority between the Holy See and the individual bishop, with regard to the application of subsidiarity as formulated by Pius XI. 1)

conferences of bishops

The relative newness of the numerous mentions of the conference of bishops in the Code can spontaneously lead to see them as applications of the principle of subsidiarity. I personally do not think they are. They have to be considered from two points of view. First, they can be seen as a decentralization of power from a higher authority rather than applications of the principle of subsidiarity. The second point of view is more important to me: to what extent is the legislative power granted to conferences of bishops not taken from the capacity of individual bishops, or even from the capacity of the bishops gathered in a particular council to perform those acts? Considering the letter and the spirit of the principle of subsidiarity, when a conference of bishops promulgates a general decree, should it not be first proven that an individual bishop could not legislate on the same matter in his own diocese? Only then, would the legislative action 15. See Gregory Bittner, “Tensions in Subsidiarity: Illustrations from the Diocesan Church,” CLSA Proceedings 65 (2003) 5, quoting Burkhard, 282. 16.  See Komonchak, 301–302.

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of the conference appear as subsidiary to individual bishops. Otherwise, conferences of bishops become means of uniformity in the discipline, if not a means of control or supervision of individual bishops, not to mention the necessity for the decrees to be recognized by the Holy See before being promulgated. As a matter of fact, while the Code allows conferences of bishops to enact decrees in those instances where the law provides for it, we also note that even a certain uniformity seems to be imposed on conferences with regard to their legislative activity. For example, in the United States, the decree of the conference of bishops applying canon 522 was corrected by the Congregation for Bishops so that the term of office of parish priests would be six years, which had not been in the text voted upon by the assembled bishops of the conference.17 If the decrees have to be the same everywhere, then one could ask whether the purpose of leaving decisions to the conferences is being fulfilled. This raises the question of the meaning of the recognitio, and accordingly, the scope of the legislative power of the episcopal conference. 2)

general absolution

Another example of the conference of bishops used as a means to preserve unity and at the same time as a means of control, concerns general sacramental absolution. The apostolic letter Misericordia Dei of Pope John Paul II, April 7, 2002,18 raises a number of serious issues in regard to the application of the principle of subsidiarity today. For instance, while a number of years ago, in urgent cases a confessor could determine whether the conditions necessary for imparting general absolution existed,19 this was then restricted in canon 961, § 2 to the diocesan bishop, “mindful of the criteria agreed with the other members of the Bishops’ Conference.” Misericordia Dei, however, considerably conditions the exercise of the faculty of the confessor, the power of the bishop as well as that of the conference. The document places them, at least indirectly, at the level

17.  See USCCB, Complementary Norms, February 28, 2002, canon 522. 18.  See text in Origins 32 (2002–2003) 13–16. 19. See Congregation for the Doctrine of the Faith, Normae pastorales circa absolutionem sacramentalem generali modo impertiendam, June 16, 1972: AAS 64 (1972) 511, n. III, as repeated in the Ordo Paenitentae, December 2, 1973, p. 21.

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of the Holy See with respect to the right of individual bishops. The text provides: Given the fundamental importance of full harmony among the bishops’ Conferences of the world in a matter so essential to the life of the Church, the various Conferences, observing canon 455 §2 of the Code of Canon Law, shall send as soon as possible to the Congregation for Divine Worship and the Discipline of the Sacraments the text of the norms which they intend to issue or update in the light of this motu proprio on the application of Canon 961. This will help to foster an even greater communion among the bishops of the Church as they encourage the faithful everywhere to draw abundantly from the fountains of divine mercy which flow unceasingly in the sacrament of reconciliation.

The document continues by asking that each bishop inform his Conference whether or not cases of grave necessity have occurred in his diocese. The Conference, in turn, will then inform the Holy See about the situation. It is interesting to see how what was probably one of the only new approaches to the sacrament of penance that was really working—since it usually drew the faithful by the hundreds, even in the thousands—is being withdrawn, and the decisions centralized at the level of the Holy See. Time will tell how these provisions will be applied. 3)

penal trials

The document of the Congregation for the Doctrine of the Faith of May 18, 2001, followed by several documents to implement the new norms on the handling of certain grave offenses, takes away from the diocesan bishops the right to implement penal law on their own. In a sense, the document, by requiring that the Ordinary indicate to the Congregation that a case is to be processed and await particular “instructions,” while appearing as a means to protect the right of clerics, seriously restricts a bishop’s coercive power and centralizes a good portion of it at a higher level. Moreover, the proposed revision of Book VI on Sanctions in the Church provides that if the Ordinary “takes the view that a perpetual penalty should be imposed, for the validity of the decree, it is required that he obtain the prior consent of the Metropolitan [ . . . ].” (can. 1720, §2).20 20.  “If, however, he takes the view that a perpetual penalty should be imposed, for the validity of the decree it is required that he obtain the prior consent of the Metropolitan, or, if

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This would have to be observed before sending the file to the Holy See according to can. 1342, §2 which will also be revised to permit that even perpetual penalties might be imposed by administrative means. When, however, it is a case of a perpetual penalty removing a capacity (see for example the revised can. 1336, §5) or dismissal, the decree would have to be confirmed by the Apostolic See.21 Especially as regards the necessity to request and receive, for validity, the consent of the Metropolitan, would this be an application of the principle of subsidiarity at a new level? It depends, once again, on the notion one has of the said principle. E. One Forgotten Aspect of the Principle of Subsidiarity

When the two motu proprios Pastorale munus and De episcoporum muneri­ bus were promulgated in 1963 and 1966, granting diocesan bishops a broad faculty to dispense in virtue of their office and no longer as a delegation by the Pope through quinquennial faculties, I do not remember hearing or reading at that time that this was an application of the principle of subsidiarity, even if Pope Pius XII had already mentioned the possibility to apply it in the Church. I do not remember either to have heard or read that the reservation of many other faculties by the Pope was subsidiary to the power of diocesan bishops. As a matter of fact, the reservation of a faculty or of an act to himself by the pope means that he takes away from the function of the bishop a part of the power that belongs to him in virtue of his ordination. When those reserved faculties are given back to bishops, how can we say that this is an application of subsidiarity? It is rather a clear case of decentralization. On the opposite side, should we say that the faculties that remain reserved to the Holy See are an application of the principle of subsidiarity or a remaining centralization? So far, I have referred a few times to different possible notions of the principle of subsidiarity. I believe that among the formulations made in so many studies on the topic, the clearest one is presented by Metz.22

it concerns the Metropolitan, of the most senior suffragan, or in other cases, of the Ordinary deputed for this purpose by the Holy See; all these must study the case with the help of two consultors.” 21. “A decree by which a perpetual penalty of incapacity or dismissal is imposed or declared, to take effect, is to be confirmed by a decree of the Apostolic See.” 22.  See Metz, 155–176.

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For him, subsidiarity must be considered under a negative and a positive aspect. It is worthwhile quoting this distinction at length: a) Negatively, the principle of subsidiarity requires that a society not fulfill those functions that an individual is able to accomplish, or that a hierarchically superior institution not carry out those functions that a hierarchically inferior one could accomplish. The principle is usually considered in this light. b) Positively, the principle of subsidiarity is applied when an individual member of the faithful or a small community, or even a hierarchically inferior institution cannot adequately accomplish certain tasks, or when these tasks are beyond their capacity. In this case, the community allows the individual to blossom forth, or the larger community intervenes in order to provide for the smaller one, or the higher institution provides for the hierarchically inferior one. This would be an instance of being subsidiary in the etymological sense of the term.23

In my opinion, the positive aspect of the principle of subsidiarity is the neglected and forgotten one. And yet, at the same time, it is the aspect that should concern us the most. Too often, and for too long, decentralization and the principle of subsidiarity have been confused. For example, one could consider that most of the tasks entrusted to the conferences of bishops by the Holy See are applications of the principle of subsidiarity. But as underscored earlier, one must go further and ask whether the tasks which have been entrusted to the conference could not be adequately accomplished by the diocesan bishop or even by the bishops of the ecclesiastical province or, why not, by a particular council? If a task could be fulfilled only by the conference of bishops, then it would be an application of the principle of subsidiarity under both its negative and positive aspects: the function would be exercised at the appropriate level. It may sound strange to say this, but I wonder if there is not at the present time a tendency to abuse the principle of subsidiarity under its positive aspect, i.e., under the aspect of substitution or replacement of juridical competence. Suffice it to mention a few examples, some of which have been referred to earlier:

23.  Ibid., 159.

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i) The term of office of a parish priest. We mentioned earlier the decree voted by the United States Conference of Catholic Bishops applying canon 522 which was corrected by the Holy See so that the term of office would be six years as it is elsewhere. So the Holy See intervened in the decision-making power of the episcopal conference which the conference possesses in virtue of the law itself, and thus, one can say that it applied the principle of subsidiarity under its positive aspect in something that ought to remain the domain of local jurisdiction. Was the conference then act to preserve unity or uniformity? ii) The diocesan synod. The Code prescribes that the declaration and decrees of a diocesan synod are to be communicated to the Metropolitan as well as to the conference of bishops. Yet, neither has real jurisdiction over the diocese. This prescription can be understood only as fulfilling a desire for unity and perhaps as aiding a future receptio by other dioceses in the same territory. The fact that the 1997 instruction on diocesan synods24 requires that also the synodal documentation be transmitted to the Holy See constitutes not only a new norm, but, in my opinion, an infringement of the principle of subsidiarity. We should examine such a decision of the Holy See, like others, to see if it is founded on the incapacity of the diocese to adapt its pastoral plan and its legislation to its particular situation, or whether it is founded on the desire for unity or perhaps whether it is nothing more than a means for the Holy See to exercise vigilance. iii) English translation of the Roman Missal. The publication of the English translation of the Roman Missal was not received with great enthusiasm and unanimity in the Anglophone parts of the Church. One can ask if the purpose of a univocal translation, which is undoubtedly unity, has not been put in the shadow to the profit of uniformity? Moreover, if one says that this was an application of subsidiarity in the positive sense, one has to prove that the translation of the Roman Missal could not have been processed by a conference of bishops or a group of conferences of bishops of the same language and culture. For example, the English translation of the Code of Canon Law was prepared by The Canon Law Society of Great Britain and Ireland in 24. See Congregation for Bishops—Congregation for Evangelization of Peoples, “Instruction on Diocesan Synods,” July 8, 1997: Origins (1997–1998) 324–331.

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association with The Canon Law Society of Australia and New Zealand and The Canadian Canon Law Society. It was approved by eight different Episcopal Conferences in accordance with the norms issued by the Cardinal Secretary of State on 28 January 1983. It is noteworthy that a few months before the publication of the translation, the apostolic constitution Anglicanorum coetibus granted the personal Ordinariate for former Anglicans “the faculty to celebrate the Holy Eucharist [ . . . ] according to the liturgical books proper to the Anglican tradition, which have been approved by the Holy See so as to maintain the liturgical, spiritual and pastoral traditions of the Anglican Communion within the Catholic Church, as a precious gift nourishing the faith of the members of the Ordinariate and as a treasure to be shared.”25 A similar reason could have been brought to support slightly different English translations corresponding to the particular culture of some peoples. iv) General absolution. One more word concerning the new norms of Misericordia Dei which require that each diocesan bishop inform his episcopal conference if cases of grave necessity exist in his diocese and that the conference, in turn must inform the Holy See of the situation in its territory. The conference is clearly used as a level between individual bishops and the Holy See. And yet, six months before the promulgation of the motu proprio, Cardinal Ratzinger stated the following which would lead one to conclude the contrary: The bishop must have the courage to decide and judge with authority in this struggle for the Gospel. If the bishops take hold of their mission as judges in matters of faith and doctrine, the desired decentralization will be realized automatically. It is obvious that the episcopal conference must help the bishop through a good doctrinal commission and with unanimity in the struggle for the faith. But familiarity with the subtleties of modern theology is not necessary for the bishop decisionmaking. The bishop does not decide on the questions of specialists; he decides on the recognition of baptismal faith, the foundation of every theology.26 25.  Pope Benedict XVI, apostolic constitution Anglicanorum coetibus, November 4, 2009: Origins 39 (2009) 389. 26.  Cardinal Joseph Ratzinger, “Returning with Clarity to the Jesus of the Gospels,” October 6, 2001: Origins 31 (2001–2002) 453.

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Episcopal conferences are not a theological level between the episcopal college and its members. Thus, the conference of bishops should not become a vehicle for supervising diocesan bishops nor a means of control between the Holy See and diocesan bishops.

II. Hierarchical Structure of the Church

As mentioned at the beginning of this presentation, Pope Pius XI was the first to mention and apply the principle of subsidiarity to the social organization. We have also seen the historical context that prevailed at that time. We cannot say that he gave a very clear definition or a description of the principle. What is clear, though, is that Pius XI, speaking of “the supreme authority of the State [that] ought to let subordinate groups handle matters and concerns of lesser importance,” was addressing a situation particular to the structure of a hierarchical society in a singular social context as mentioned earlier.27 We also mentioned that Pius XII was the first who briefly referred to the principle of subsidiarity as being possibly applied to the Church, but without prejudice to its hierarchical organization. He never returned to this door he had opened. Therefore, he never exposed the limits to be imposed to the application of the principle of subsidiarity because of the Church’s hierarchical organization. In fact, when would the hierarchical organization of the Church be jeopardized if we were to apply the principle of subsidiarity? What are the criteria according to which an application of the principle will or not cause prejudice to the structure of the Church? This is most probably the source of the confusion as regards the application of the principle within the Church. Who can say that the principle of subsidiarity has been truly applied in the Code of Canon Law when one thinks that the Fathers of the 1985 synod recommended “that a study be made to examine whether the principle of subsidiarity in use in human society can be applied to the Church and to what degree and in what sense such an application can and should be made”?

27.  See above, footnote 5.

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Since “the principle of subsidiarity is a principle of social philosophy and not of ecclesiology,”28 its application cannot be but by analogy. As in any analogy, there are similarities and differences between two terms. As a visible society, even canonically hierarchical, the Church may see no prejudice in the application of the principle. But as founded by Jesus to be a sacrament of unity, and therefore in virtue of its divine origin, there is a deep difference that constitutes a limit to the application of the principle in its life. The point is that the border line is not always clearly defined. Given that the principle of subsidiarity is a principle of social philosophy, the point of view of a sociologist may be of a great importance here. Speaking of centralizing tendencies proper to any hierarchical organization, Kaufmann says that those tendencies “also operate in the Catholic Church. The violations of the principle of subsidiarity which result from them [the tendencies] are hidden in the case of the Catholic Church by the idea of a sacramental hierarchy. In my opinion, he adds, one of the most important tasks of ecclesiology is to distinguish more clearly between the essentially hierarchical functions of the Church, which arise from its sacramental order and those which are only accidentally hierarchical and arise from its administrative order.29 It would be most interesting to deepen that question. For example, in what category would an ecclesiologist—and why not a canonist—classify conferences of bishops and the Roman Curia? A study would most probably lead to establishing some criteria or limits to the application of the principle. Applying subsidiarity in essentially hierarchical functions of the Church would certainly be creating a prejudice as mentioned by Pius XII. But what if it is applied in accidentally hierarchical functions? Subsidiarity is an essential element in the functioning of the European Union as in any federation. The Union has been created by its parts, which paid special attention to preserve their identity in giving very precise functions to the community at any level of decision. The European Parliament cannot decide to intervene in a domain in which the competence belongs to a member of the Union. But the universal Church is not a federation of particular Churches which would have been at the origin of the universal Church. This raises 28.  Jean Hamer, reported in Burkhard, 302. 29.  Kaufmann, 288–289.

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the question to know what Church was founded in Jerusalem on the day of Pentecost? This is far from being a trivial question for our study. As a matter of fact, on May 29, 1992, Cardinal Ratzinger addressed this issue in a Letter to the bishops of the Catholic Church on some aspects of the Church understood as communion.30 For him, quoting Lumen gentium, n.23, b), the universal Church is indeed the Body of the Churches. Hence it is possible to apply the concept of communion in analogous fashion to the union existing among particular Churches, and to see the universal Church as a Communion of Churches.”31 After explaining “the true meaning of the analogical application of the term communion to particular Churches taken as a whole,” Ratzinger concludes: “For this reason, the universal Church cannot be conceived as the sum of the particular Churches, or as a federation of particular Churches.32 It is not the result of the communion of the Churches, but, in its essential mystery, it is a reality ontologically and temporally prior to every individual particular Church.”33 There is no doubt for him that the Church founded in Jerusalem on the day of Pentecost is the Church universal of which local Churches are particular expressions. In my opinion, then, this is the deepest reason why the principle of subsidiarity, if applied in the Church, is applied only in analogous fashion. Even so, there must be some objective criteria for its eventual application. Is it even possible to determine some of them? Would it even suffice “to distinguish more clearly between the essentially hierarchical functions of the Church, which arise from its sacramental order and those which are only accidentally hierarchical and arise from its administrative order” as mentioned above? I do not think so, since the criterion that could never be overlooked will always be and remain unity within the communion. Still according to Ratzinger, quoting Lumen gentium, n. 23, a): “Of the unity of the Episcopate, as also of the unity of the entire Church, the Roman Pontiff, as successor of Peter, is a perpetual and visible source and foundation.”34 30.  Communionis notio, in Origins, 22 (1992) 108–112. 31.  Letter, n. 8, p. 109. 32.  John Paul II, Address to the Bishops of the United States of America, September 16, 1987, n. 3, in Insegnamenti di Giovanni Paolo II, X/3 (1987) 555. 33.  Letter, n. 9, p. 109. 34.  Letter, n. 12, p. 110.

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Therefore, the decision to apply or not the principle of subsidiarity will rest on the head of the college and of the Church universal.

Conclusion

My conclusion will be very short. In fact, it will consist of two parts: my answer to the question asked in the title of this presentation and a wish. My answer to the question: Can we still speak of the principle of subsidiarity in the Church? Given my understanding of the principle as formulated by Pope Pius XI, the huge number of interpretations given to it, the confusion remaining between decentralization and subsidiarity like between the possible interference of the reservations by the Pope and the exercise of their sacred power granted to bishops by their consecration,35 I must say “no” to the question. We cannot speak of the principle of subsidiarity in the Church. And if one agrees with another interpretation of the principle, whatever it may be, one should not forget that it applies in an analogous fashion with its application in the civil society, since it is first a principle of social philosophy. My wish is simply that one day, the recommendation made by the extraordinary synod of bishops of 1985 be realized and that the mandate be given to the International theological commission, for example, to examine whether the principle of subsidiarity in use in human society can be applied to the Church and to what degree and in what sense such an application can and should be made.

35.  See canon 375, § 2.

T H E C AT H O L I C U N I V E R S I T Y O F A M E R I C A

james a. coriden*

Canon Law as if the Holy Spirit Mattered I. Introduction

A) A Word of Appreciation for the Work of Thomas J. Green

Thomas J. Green, a presbyter of the Diocese of Bridgeport, is, and has been for many years, one of the leading canonists in the United States. It is a welcome privilege to be asked to contribute to this festschrift in his honor. He is both a long-time colleague and cherished friend. Dr. Green has served on the faculty of the School of Canon Law of The Catholic University of America for thirty years, during which time he has helped to form many of today’s canonists. His extensive writings cover a wide range of canonical areas and institutes related to both the Latin and Eastern codes. He has labored tirelessly in the canonical vineyard, and our church is in his debt. B) The Call of Pope Benedict XVI and Archbishop Coccopalmario for Changes in the Codes

In a discourse on the occasion of the twenty-fifth anniversary of the promulgation of the Latin Code of Canon Law Pope Benedict XVI spoke of the need for changes in the code. He talked of the need to abrogate some antiquated norms, to modify those in need of correction, to interpret

* Emeritus Professor, Washington Theological Union, Washington, DC.

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some that are doubtful, and to fill some possible lacunae legis in the present code.1 In pursuit of this papal initiative Archbishop Francesco Coccopalmerio, President of the Pontifical Council on Legal Texts, wrote to the Canon Law Society of America in October 2008, inviting its collaboration in this task of code revision.2 The purpose of this contribution to the festschrift is to suggest that there exist several serious lacunae legis in both the Latin and Eastern codes with the regard to the presence and activity of the Holy Spirit in the life of the church. More specifically, the point of this writing is to illustrate the difference such additions would make in the way Catholic Christians act. Attention to the Spirit in the codes would make a difference, would really matter. C) Pope Francis and the Work of the Holy Spirit

Indeed, there is some hope that Pope Francis might be open to such code amendments regarding the Holy Spirit, given his own words on the work and power of the Spirit in a talk he gave just before Pentecost last year: Today I want to focus on the action that the Holy Spirit accomplishes in guiding the Church and each one of us to the Truth. Jesus said to his disciples: the Holy Spirit, “he will guide you to all truth” ( Jn 16:13), . . . It is the Holy Spirit, the gift of the Risen Christ, that helps us recognize the Truth. What is then the action of the Holy Spirit in our lives and in the life of the Church to guide us to the Truth? First of all, remind and imprint on the hearts of believers the words that Jesus said, and precisely through these words, God’s law . . . is inscribed in our hearts and becomes within us a principle of evaluation in our choices and of guidance in our daily actions, it becomes a principle of life. . . . The Holy Spirit, then, as Jesus promises, guides us “into all truth” ( Jn 13:16) he leads us not only to an encounter with Jesus, the fullness of Truth, but guides us “into” the Truth, that is, he helps us into a deeper communion 1.  Discourse to the Convegno de Studi on the occasion of the XXV anniversary of the promulgation of the Code of Canon Law, January 25, 2008. La Legge Canonica nella Vita della Chiesa. Indagine e Prospettive nel Segno del Recente Magistero Pontificio (Vatican City: Libreria Editrice Vaticana, 2008) 14. The pope’s issuance of the motu proprio Omnium in mentem (October 26, 2009) on the unrelated subjects of clarifying the nature of the diaconate (c. 1008, 1009) and abrogating the exception to canon 11 by eliminating the possibility of leaving the church by a formal act (cc. 1086, 1117, 1124) is an example of the kind of modifications that he had in mind. 2.  CLSA Proceedings 70 (2008) 490.

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with Jesus himself, gifting us knowledge of the things of God. We cannot achieve this on our own strengths. If God does not enlighten us interiorly, our being Christians will be superficial. The Tradition of the Church affirms that the Spirit of Truth acts in our hearts, provoking that “sense of faith” (sensus fidei) through which, as the Second Vatican Council affirms, the People of God, under the guidance of the Magisterium, adheres unwaveringly to the faith given once and for all to the saints ( Ju 3), penetrates it more deeply with right thinking, and applies it more fully in its life (LG 12).3

D) The Objective of this Contribution

The main point here is to argue for the explicit acknowledgement in the Latin and Eastern codes of the Holy Spirit’s presence, influence, and activity in the life of the church. The insertion of multiple references to the Spirit in relevant and appropriate canons of the codes is a matter of ­consciousness-raising, of making the ministers and members of God’s people aware of and alert to the actions of the Holy Spirit in the life of the church. One of the purposes of laws is the ongoing education of the community. By constantly reminding everyone of the values and standards of the community, laws help to form and strengthen communities, and they create expectations in the leaders and members alike. The canons of our codes do that for our church. In reference to the Holy Spirit our present codes are seriously deficient. Their relative silence about the influence and action of the Spirit, that are well grounded in our theology, gives the impression that the Holy Spirit is absent or doesn’t matter. This author has written elsewhere about the larger issue of the Holy Spirit and church governance;4 here the narrow point is to demonstrate, by means of several canonical illustrations, that naming the Holy Spirit really does matter. 3.  Vatican Radio translation of talk to general audience, May 15, 2013, The Catholic World Report. 4.  “The Holy Spirit and Canon Law: An Exploration,” CLSA Proceedings 58 (1996) 134–147; “Discernment of the Spirit,” in Canon Law As Ministry: Freedom and Good Order for the Church (New York: Paulist Press, 2000) 91–95; “Actions of the Holy Spirit in the Church,” in Ius Eccle­ siarum, Vehiculum Caritatis: Atti del simposio internazionale per il decennale dell’entrata in vigore del Codex Canonum Ecclesiarum Orientalium. (Proceedings of the International Symposium on the tenth anniversary of the Code of Canons of the Eastern Churches. Vatican City, November 19–23, 2001.) (Vatican City: Libreria Editrice Vaticana, 2004) 693–702; “The Holy Spirit and Church Governance,” The Jurist 66 (2006) 339–373; “Holy Spirit and Church Governance,” New Theology Review 20 (2007) 29–37.

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E) Theological Deficiency Regarding the Holy Spirit

Theologians have long lamented a “pneumatological deficit” in the Catholic tradition, especially in comparison with a well-explored and thoroughly debated Christology. The reasons for this underdeveloped theology of the Spirit are many and varied,5 but central among them are the adversarial relationships with various “enthusiastic” groups throughout history, from the Montanists in the second century to the Pentecostals in the twentieth, the tragic separation of the Western and Eastern churches in the eleventh century, and the Protestant Reformation in the sixteenth. All of these negative encounters caused the Catholic Church to react with emphasis on institutional and sacramental authority grounded on Christ, Peter, the apostles, and the bishops, to the relative neglect of the Spirit and the charismatic elements in the church. The “deficit” began to be made up by theological advances in the late nineteenth and mid-twentieth centuries, and great gains were made at the Second Vatican Council whose documents cited the Holy Spirit over two hundred and fifty times. Pneumatology developed substantially, so that the mission of the Spirit is now recognized alongside and inseparably joined to the mission of Christ in the history of our salvation. F) Canonical Neglect of the Holy Spirit

It is not surprising that the Holy Spirit was mentioned only once in the 1917 code (c. 1322 §1 on the church’s duties regarding the deposit of faith). The newly adopted style of legal codification did not lend itself to theological explanations, only terse, abstract statements of positive law. However, what is astounding is that the 1983 Latin code, composed after the well-developed pneumatology of the Second Vatican Council, is nearly silent on the Sprit. There are only seven random mentions: cc. 369 and 375 on dioceses and bishops, 573 §1 and 605 on religious life, 747 §1 on the teaching function, 879 on confirmation, and 206 §1 on catechumens. The gifts of the Spirit, charismata, are omitted entirely. Compared to the hundreds of conciliar references to the Spirit, this is a mere murmur.6 5.  For a larger treatment of the reasons for the “deficit,” see “The Holy Spirit and Church Governance,” The Jurist, o.c., 351–353. 6.  For one attempt to itemize the ecclesial roles and interventions of the Spirit from the Council documents, see ibid., 342–351.

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The Eastern code of 1990 does better on references to the Holy Spirit, as should be expected, but not much better: cc. 9 §1 on catechumens, 177 §1 on eparchies, 323 §1 and 743 on the ordained, 329 §1.1 on vocations, 346.1 on ministerial formation, 410 and 571 on religious life, 584 §1 on the missionary effort, 595 §1 on the teaching function, 667 on the sacraments, 675 on baptism, 692 on chrismation, 698 on the Eucharist, 718 on penance, 902 on ecumenism, 1506 §1 on custom, and 381 §3 on lay charisms. Although far more satisfying in attributions to the Spirit than the Western code, this list is not nearly an ample articulation of the Spirit’s actions in the churches.7 What difference does it make? Why does it matter that the Holy Spirit is ignored, relatively speaking, in the churches’ codes of canons? The remainder of this essay is devoted to illustrations drawn from within the canons of the reasons why more fully referencing the Spirit will really matter.

II. Instances in Which Explicit References to the Holy Spirit Are Necessary and Would Matter

A) Church and Communion 1) Church: A Definitional Reference To Its “Enspirited” Nature Is Needed

The first and most salient place in Canon Law for an assertion of the Holy Spirit’s role is in the nature and structure of the church. The Holy Spirit is the soul of the church, yet there is no indication of that theological reality in either of the codes. Imagine a description of the human person without any reference to a soul or enlivening principle. It is unthinkable because it would be grossly inadequate and misleading. This analogy, that the Holy Spirit animates the Body of Christ, the church, giving it life and growth, has been stated frequently and authoritatively. It stems, of course, from the role of the Spirit in Matthew’s description of the birth of Jesus,8 and was affirmed in the creed of the First Council of Constantinople (a. 381): “We believe in . . . the Spirit, the holy, the

7.  For a discussion of the recognition of the Spirit in the CCEO, see “Actions of the Holy Spirit in the Church,” 693–702. 8.  Mt 1, 18 & 20.

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lordly, the life-giving one.”9 It was used by Augustine, John Chrysostom, Didymus of Alexandria, and Thomas Aquinas.10 Three recent popes reiterated that the Holy Spirit is the soul of the church: Leo XIII, Pius XII, and John Paul II.11 The Second Vatican council twice affirmed this same teaching, in its dogmatic constitution on the church and in its decree on the missionary activity of the church.12 Lumen gentium went so far as to compare the visible structures of the church to the human nature of Christ as an instrument of salvation: It is . . . by no mean analogy that it [the church] is likened to the mystery of the Word incarnate. For just as the assumed nature [of Christ] serves the divine Word as a living instrument of salvation, . . . in a similar way the social structure (socialis compago) of the church serves the Spirit of Christ who vivifies the church towards the growth of the body.13

The relationship of the Spirit to the church is compared by analogy to the union of the human and divine natures in the Incarnate Word, Jesus Christ. Yves Congar cautioned that the church is not a single substantial entity made up of the body of believers and the Spirit as its soul. It is not another hypostatic union, that union of the human and divine natures in the person of Jesus Christ that is unique. The relationship of Spirit to church is functional rather than ontological: the Holy Spirit plays in the church the part played in the body by the soul.14 As such, the Spirit is the vital source of the church’s life and activities. If such is the intimate connection between the Holy Spirit and the church, functionally soul and body, why is this not stated or at least inferred in the initial canons of the codes, for example in canons 204 and 205 of CIC, and canons 7 and 8 of CCEO where the church is first described? The 9.  Decrees of the Ecumenical Councils, ed. Norman Tanner (Washington: Georgetown University Press, 1990) 1: 24. (Hereafter Tanner.) 10.  Sources in footnote 8 of LG 7 (Tanner, 2: 854). 11.  “Let it suffice to state that, as Christ is the Head of the Church, so is the Holy Spirit her soul.” Divinum Illud (1897) 26; quoted in Mystici Corporis (1943) 57; “. . . the teaching of this [Second Vatican] council is essentially ‘pneumatological’: It is permeated by the truth about the Holy Spirit as the soul of the church.” Dominum et vivificantem (1986) 26. 12.  LG 8, Tanner, 854, and AG 4, Tanner, 2: 1013. 13.  LG 8, Tanner, 2: 854. The “social structure” is identified earlier in the paragraph with the church here on earth, “a visible structure, a community of faith, hope, and love, . . .” See also AA 29, Tanner, 2: 998. 14.  Yves Congar, I Believe In the Holy Spirit. Vol. II: “He Is Lord and Giver of Life.” (New York: Crossroad, 2004) 19.

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relationship was explicitly declared at the beginning of the code revision process. The Pontifical Commission for the Revision of the Code of Canon Law began its work as the Second Vatican Council drew to a close in November, 1965. At that time Pope Paul VI suggested that the Commission explore the possibility of constructing a common and fundamental code containing the constitutive law of the church, a constitutional design on which both the Latin and Eastern codes would be built. The Commission set to work on this unprecedented task, and, over the span of the following fifteen years, produced four successive drafts of a “Fundamental Law of the Church” (Lex Ecclesiae Fundamentalis). The first drafts bore the strong influences of the Council’s theology.15 On the issue of the Holy Spirit and the church, the initial draft named the Holy Spirit three times in its brief introductory statement, and four times in its first canon on “the nature, purpose, and structure of the church.” It was impossible to miss the powerful and pervasive role of the Spirit in the life of the church. As this constitutional project continued there were complaints that parts of it read more like a theological treatise than a legal text. This caused the Commission to reduce its theological content and emphasize its juridical nature. Still, the final draft (of 1980) included two references to the new people of God being called together by the Holy Spirit, and the churches gathered together in the Holy Spirit (in canons 1 and 2).16 Those first canons on the church clearly indicated that the Spirit was present and active within it. In 1981 this entire constitutional project was abandoned. After a special consultation, Pope John Paul II decided not to promulgate the text (giving no public explanation), but to insert large numbers of its canons into the texts of the Latin and Eastern codes which were still in preparation.17 In that process all mention of the Holy Spirit was eliminated from those early references to the church.

15.  Pontificia Commissio Codicis Iuris Canonici Recognoscendo, Schema Legis Ecclesiae Fundamentalis cum Relatione (Typis Polyglottis Vaticanis, 1969) 5–7. 16.  Pont. Comm. Cod. Iuris Can. Recog., Lex Ecclesiae Fundamentalis seu Ecclesiae Catholi­ cae Universae Lex Canonica Fundamentalis (Rome: April 24, 1980) 4–7. 17.  On the whole “Fundamental Law” enterprise, see Daniel Cenalmor Palanca, La Ley Fundamental de la Iglesía: Historia y Análisis de un Proyecto Legislativo (Pamplona: Ediciones Universidad de Navarra, 1991).

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One result of this odd and unpredictable journey was the erasure of mentions of the Holy Spirit and the Spirit’s influence on the church, thus dimming our consciousness of the enlivening divine power, the very soul of the church. 2) The Spirit Is the Source and Seal of Church’s Unity and Communion, Including Parish Communion

Canon 205 of CIC 83 and canon 8 of CCEO 90 both define “full communion” (plena communio) with the Catholic Church on the earth in terms of “those baptized persons who are joined with Christ in its visible structure by the bonds of the profession of faith, the sacraments and ecclesiastical governance.” The source for these canons is the dogmatic constitution on the church (LG 14), but that text, when it speaks of the elements of full incorporation, names first of all “those who possess the Spirit of Christ” (Spiritum Christi habentes) and lists the bond of communion in addition to the bonds of faith, sacraments, and governance. Communion is the proper work of the Spirit.18 The first two drafts of the “Fundamental Law of the Church” (Lex Ecclesiae Fundamentalis) contained a canon (n. 7) that included this notion of possession of the Spirit of Christ as well as the explicit mention of the element of communio. But that canon was omitted from the later drafts of the Lex and from the 1983 code. The action of the Holy Spirit in gathering and unifying the Christian faithful was eliminated from these definitional canons. The Holy Spirit is the source and seal of the church’s unity and cohesion, the principle of that multifold reality called communio or koinonia. The Spirit unites the church in fellowship (in communione) and in ministry.19 For this finally God sent the Spirit of his Son, the Lord and giver of life, who is for the whole church and for each and every one of the faithful the principle of union and unity in the teaching of the apostles, in 18.  “They are fully incorporated into the society of the church who, possessing the Spirit of Christ, accept its whole structure and all the means of salvation that have been established within it, and within its visible framework are united with Christ, who governs it through the supreme pontiff and the bishops, by the bonds of profession of faith, the sacraments, ecclesiastical governance and communion.” LG 14, Tanner, 2: 860. (Italics added.) 19.  LG 4, Tanner, 2: 850.

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communion, in the breaking of the bread and in prayers. . . . For all the faithful scattered throughout the world are in communion with the rest in the Holy Spirit . . . 20

“Communion” names the graced connection of the baptized to the Triune God and to one another. It is the profound and mysterious bond of unity that is manifested in common faith, sacraments, authority, and even financial assistance. Communion is of the very essence of church, and it comes from the Holy Spirit. But in the churches’ codes of rules the Holy Spirit as the source and strength of communion has been hidden, is not even mentioned. Some have said that the codes, as juridical texts, only deal with the visible, the measurable, and therefore the Holy Spirit should not be mentioned as the source of the church’s communion. But many other invisible and immeasurable realities, for instance, the heavenly Christ, faith, and grace, are mentioned many times in the codes. The church is fully realized in its local communities, most frequently called parishes. The Vatican Council spoke most eloquently of them: “This church of Christ is truly present in all lawful local congregations of the faithful which, united to their shepherds, are themselves called churches in the new Testament. For in their own locality these are the new people called by God in the holy Spirit and with full conviction (see 1 Th 1, 5).”21 When the Latin code sets forth the duties of parish pastors it speaks of their need to promote “parish communion,” and, at the same time, to be sure that their people see themselves as part of the diocesan and universal communions.22 But there is no mention of the Spirit as the source and guarantor of all three levels or degrees of this profound reality of communion. Many pastors work very hard at promoting a community identity and spirit in their parishes. They encourage active liturgical participation and foster all manner of educational and social programs and activities. But some of them may do so without a consciousness that the Holy Spirit is the primary factor in “community building.” The unity and the cohesion 20.  LG 13, Tanner, 2: 859. “It is the holy Spirit, dwelling in those who believe and filling and ruling over the church as a whole, who brings about that wonderful communion of the faithful.” UR 2, Tanner, 2: 909. 21.  LG 26, Tanner, 870. 22.  CIC c. 529 §2.

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of the community—its ecclesial communion—comes from the Spirit, and should be explicitly sought from the Spirit. This is not to infer that the various forms of parish organizations and activities are unimportant or misguided, they are not. Such ongoing efforts and events are the vital signs of congregational life. But it is necessary to recognize the soul of the community beneath them all, the Holy Spirit, is the vital force enlivening it, the radical source of its communion.23 3) Custom Is the Product of the Spirit Acting in the Ecclesial Body

Custom is the continuous and uncontested practice of a church community which can, after its observance for a long time (e.g., thirty years), obtain the force of law. That is, the community’s practice in a given matter can become obligatory after it has been observed for a length of time. Custom was one of the earliest sources of canonical regulations, long before the church had evolved clear legislative authorities, and custom remains one of the few sources of change and flexibility in the canonical system. The rules governing the canonical institute of custom are almost identical in the Latin and Eastern codes,24 with one major exception. The Eastern code contains a theological rationale for the practices of a Christian community becoming the obligatory norms for that community, a rationale that is entirely absent from the Latin code. CCEO canon 1506 §1: “A custom of the Christian community, insofar as it corresponds to the action of the Holy Spirit in the ecclesial body, can obtain the force of law.”25 In other words, the community, conscious of the Spirit’s presence and activity within it, creates appropriate norms for itself through its actual behavior that can become obligatory. The process echoes the words and convictions of the “council of Jerusalem” recorded in Acts 15, 28: “It is the decision of 23.  In this context of parish congregations, namely, LG 26, CD 30 and PO 7–9, CIC c. 529 §2, and CCEO c. 289 §3, the terms “communion” and “community” are virtually interchangeable, the first with a theological inflection and the second with a sociological emphasis. 24.  Confer CIC cc. 23–28 and CCEO cc. 1506–1509. 25.  In the canon’s explanatory clause “quatenus actuositati Spiritus Sancti in corpore ecclesi­ ali respondet” quatenus should be translated as “since” or “seeing that” rather than “insofar as” which carries the meaning “to the extent that it corresponds to the action of the Holy Spirit.” The clause points confidently to the power and activity of the Spirit in the community’s life, not to the mere possibility that some practice should be examined to determine whether or not it is the result of the Spirit’s action.

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the holy Spirit and of us not to place on you any burdens beyond these necessities, . . .” Both codes stipulate that customs can arise only from communities “at least capable of receiving law.”26 Most commentators on the modern codes indicate that canonically established parishes meet that description, and hence are capable of inducing canonical customs that are the work of the Holy Spirit. B) Deliberative and Consultative Bodies within the Church

Luke’s dramatic account in the 15th chapter of Acts tells of the solution of “the Gentile problem” by means of a church assembly, often referred to as the “Council of Jerusalem.” The apostles and elders and other members of the church gathered together, engaged in much debate and personal testimony, and came to a judgment which they described as “the decision of the holy Spirit and of us.” The assembly was conscious that they and the Spirit were united in the agreement they reached. This narrative has served as a paradigm for problem-solving, decision-making, and policyformation within the Christian church for centuries. Currently both canonical codes, Latin and Eastern, provide for conciliar or synodal structures at the various expressions of the church’s existence: Latin: parish pastoral councils and finance councils, diocesan synods, pastoral councils, presbyteral councils, colleges of consultors, finance councils, provincial councils, national plenary councils, and conferences of bishops, universal ecumenical councils and synods of bishops; Eastern: parish pastoral and financial councils, eparchial assemblies, pastoral and presbyteral councils, colleges of consultors, finance councils, patriarchal synods of bishops, assemblies, universal ecumenical councils. [The chapters and councils, both general and provincial, within religious institutes are parallel structures.] These organizational structures vary widely in their purpose and authority, from the purely advisory to the formally legislative, in their size and scope (some are one-time events while others reconvene often), and in their actual existence or frequency of use, some are vitally active while others are nearly forgotten relics of former times.

26.  CIC c. 25, CCEO c. 1507 §1.

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What matters is the theological reality of these organs in the ecclesial context. They are not simply governmental structures for popular participation like civic committees, town meetings, city councils, state legislatures, or national parliaments. Nor are such bodies only for the purpose of giving access to wider wisdom, avoiding mistakes or impetuous choices, and allowing greater transparency. They have an underlying reality, in the realm of faith, that relates to the Holy Spirit, just as was the case in the “Council of Jerusalem.” These conciliar and participative structures are a principal avenue of access to the Holy Spirit by means of the Spirit’s gifts to their individual participants, and by means of the dynamic interaction that transpires within them. These consultative and deliberative bodies also reveal the “sense of the faith” which is sustained by the Holy Spirit. The universal body of the faithful . . . cannot be mistaken in belief. It displays this particular quality through a supernatural sense of the faith in the whole people when . . . it expresses the consent of all in matters of faith and morals. Through this sense of faith which is aroused and sustained by the Spirit of truth, the people of God, under the guidance of the sacred magisterium to which is it faithfully obedient, receives no longer the words of human beings, but truly the word of God (1 Thes 2, 13); it adheres indefectibly to “the faith which was once for all delivered to the saints” ( Ju 3); it penetrates more deeply into that same faith through right judgment and applies it more fully to life.27

Pope Francis recently drew attention to the church’s witness to the world as the function of the entire people of God who possess the “sense of the faith” through the gift of the Holy Spirit. This witness belongs to the entire people of God, who are a people of prophets. Through the gift of the Holy Spirit, the members of the church possess the “sense of the faith.” It is a kind of “spiritual instinct” that allows them to sentire cum ecclesia and to discern what conforms to the apostolic faith and to the spirit of the Gospel.28

In addition to bringing their sense of the faith to bear on the church’s witness to the world, those engaged in the work of the church’s 27.  LG 12, Tanner, 858. 28.  Address to the International Theological Commission, December 6, 2013: Origins 43/31 ( January 9, 2014) 519.

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consultative bodies observe the signs of the times, with the assistance of the Holy Spirit. It is for God’s people as a whole, with the help of the Holy Spirit, and especially for pastors and theologians, to listen to the various voices of our day, discerning them and interpreting them, and to evaluate them in the light of the divine word, so that the revealed truth can be increasingly appropriated, better understood and more suitably expressed.29

Now, the startling reality is that the Holy Spirit is not mentioned in either of the codes in relation to any of these consultative or deliberative bodies. The canons rarely speak of the Spirit, only seven times in the Latin code and seventeen times in the Eastern code, but none of these references occur in relationship to these organs of group participation. In other words the codes give no indication that these consultative and deliberative events are encounters with the Holy Spirit, listening posts for the Spirit’s guidance, as in the Book of Revelation, “Whoever has ears to hear ought to hear what the Spirit says to the churches” (Rev 2, 7 et passim). Not to have the Spirit associated with these ecclesial instruments of consultation/ participation in the canons which describe and regulate them is a glaring omission, one which risks that those who lead or belong to the groups might fail to appreciate the most profound aspect of the ecclesial activity in which they are engaged.30 Explicit references to the Holy Spirit in the very canons which govern these structures would heighten consciousness of their theological purpose in those who direct their deliberations as well as in the members of the groups. Imagine how much more powerful in terms of consciousness-raising would be a prayer addressed to the Holy Spirit at the beginning of every meeting of such groups. Such a prayer, “Adsumus, Domine Sancte Spiritus”

29.  GS 44, Tanner, 1098. 30.  A positive example of such an association of the Holy Spirit and one of these consultative structures is found in reference to presbyteral councils in Congregation for Bishops, Directory for the Pastoral Ministry of Bishops (Vatican City: Libreria Editrice Vaticana, 2004) 199, n. 182: the council “provides a suitable forum for developing an overall perspective on the situation of the diocese, for discerning the promptings of the Holy Spirit as expressed through people of groups, for exchanging ideas and experiences and for determining clear objectives for the exercise of various diocesan ministries . . .”

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was recited by the council fathers at the outset of every session of the Second Vatican Council and it commissions: We stand before you, Holy Spirit, conscious of our sinfulness, but aware that we gather in your name. Come to us, remain with us, and enlighten our hearts. Give us light and strength to know your will, to make it our own, and to live it in our lives. Guide us by your wisdom, support us by your power, for you are God, sharing the glory of Father and Son. You desire justice for all: enable us to uphold the rights of others; do not allow us to be misled by ignorance or corrupted by fear or favor. Unite us to yourself in the bond of love and keep us faithful to all that is true. As we gather in your name may we temper justice with love, so that all our decisions may be pleasing to you, and earn the reward promised to good and faithful servants. Amen.31

31.  Acta Synodalia Sacrosancti Concilii Oecumenici Vaticani Secundi, vol. I, part I, 159. En­glish translation in The Documents of Vatican II, ed. Walter Abbott (New York: Crossroads, 1989) xxii. The prayer is attributed to Isidore of Seville (c. 560–636) and has been used in councils since the seventh century.

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C) Christian Faithful Share in the Munera Christi by the Anointing of the Spirit

The Spirit apportions gifts to each person individually as the Spirit wills, and among the faithful of every rank the Spirit distributes special graces by which they are rendered fit and ready to undertake the various tasks and offices which help the renewal and building up of the church according to Paul’s word: “To each is given the manifestation of the Spirit for the common good” (1 Cor 12, 7). “These charismatic gifts, whether they be very outstanding or simpler and more widely diffused, are to be accepted with thanksgiving and consolation, since they are primarily suited to and useful for the needs of the church.”32 Through receiving these gifts of grace (charismata), however unspectacular, every one of the faithful has the right and duty to exercise them in the church and in the world for the good of humanity and for the building up of the church. They do this in the freedom of the Spirit who “blows where he wills” ( Jn 3, 8) and, at the same time, in communion with the fellowship in Christ, especially with his pastors, whose part it is to judge about their true nature and ordered use, not indeed so as to extinguish the Spirit but in order to test everything and to hold on to what is good (see 1 Thes 5, 12, 19, 21).33

In the course of salvation history Christ called together a people which would be bound together in the Spirit, would be the new people of God. Believers in Christ have been born again through the word of the living God, of water and the Holy Spirit. “This people has been given the dignity and the freedom of the sons and daughters of God, in whose hearts the Holy Spirit dwells as in a temple.”34 This same people of God is to be spread throughout the world and through every age, so that his children should at last be gathered into one. For this God sent his Son that he might be head of the new and universal people of the children of God. “For this finally God sent the Spirit of his Son, the lord and giver of life, who is for the whole church and for each and every one of the faithful the principle of union and of unity in the teaching of the apostles, in communion, in the breaking of bread and in 32.  LG 12, Tanner, 858. 33.  AA 3, Tanner, 2: 983. 34.  LG 9, Tanner, 2: 856.

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prayers (see Acts 2, 42).”35 “Laypeople, sharing in the priestly, prophetic and kingly offices of Christ, play their part in the whole mission of the people of God in the church and in the world.”36 “The apostolate is carried on through the faith, hope and charity which the holy Spirit pours out in the hearts of all members of the church.”37 Both canonical codes, Latin and Eastern, contain a foundational canon which defines “the Christian faithful.” These canons are cornerstones of the canonical construct, yet they make no mention of the Holy Spirit: The Christian faithful are those who, incorporated as they are into Christ through baptism, are constituted as the people of God; and so, participating in their own way in the priestly, prophetic and royal functions of Christ, they are called, each according to his or her condition, to exercise the mission which God has entrusted to the Church to fulfill in the world.38

These canons are frequently quoted and used to identify those who belong to the people of God, are fully members of the Church, sharers in the munera Christi, and co-responsible for the Church’s mission to the world. They are fundamental statements of identity of the Christian faithful, yet they contain no reference to the Holy Spirit, the source and sustenance of their empowerment, even through the Spirit is cited in several of the conciliar sources for the canons (noted above).39 The failure to mention the Holy Spirit in these key canons gives rise to a distorted and incomplete image of the Christian faithful. It cries out for correction. D) The Church’s Ministers Are to Discern and Foster the Charisms of the Laity

Not only do the Christian faithful receive gifts (charismata) in abundance from the Holy Spirit, but they have the right and duty to exercise those gifts in the church and in the world.40 They are to make them known and to use them for the benefit of their communities and neighbors. More35.  LG 13, Tanner, 2: 859. 36.  AA 2, Tanner, 2: 982. 37.  AA 3, Tanner, 2: 983. 38. CCEO c. 7 §1; CIC c. 204. (The only difference between the two canons is the adverb “utpote” in the CIC version.) 39.  The canonical counterpart to this canon in the earliest version (1969) of the Lex Eccle­ siae Fundamentalis included three references to the Holy Spirit (c. 1; pp. 6 & 7). 40. AA 3, Tanner, 2: 983.

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over the church’s ministers, bishops, priests, deacons, and lay ecclesial ministers, are to discern those gifts and help promote their exercise. Priests should sincerely acknowledge and promote the standing of laity and their proper role in the church’s mission. They should readily listen to lay people . . . They are to test the spirits to see whether they are of God, discern with a sense of faith the manifold gifts (charismata), both exalted and ordinary, that the laity have, acknowledge them gladly and foster them with care. . . . They should, then, confidently entrust responsibilities to the laity in the service of the church, giving them scope and freedom for action, and indeed inviting them when appropriate to take up works on their own initiative.41

The canons of the codes which draw attention to the ministers’ role in encouraging lay participation and initiative do not mention that it is a matter of discerning the gifts of the Holy Spirit.42 The content and context of these modest canonical rules carry none of the sense of the classic Pauline text on the discernment of spiritual gifts: There are different kinds of spiritual gifts (charismata) but the same Spirit, there are different forms of service but the same Lord; there are different workings but the same God who produces all of them in everyone. To each individual the manifestation of the Spirit is given for some benefit. To one is given through the Spirit the expression of wisdom . . . But one and the same Spirit produces all of these, distributing them individually to each as he wishes. (1 Cor 12, 4–11)

If the canons bore some reference to the discernment and promotion of the gifts of the Spirit, it would change the Spirit-sensibility of all involved. This is not to imply that all ecclesial staffing and volunteer recruitment can be reduced to a matter of spiritual discernment. Ordinary human ability, talent, education, and experience will always be part of the personnel equation. But consideration of the gifts of the Spirit should be an explicit element today as in the first century.

41.  PO 9, Tanner, 2: 1054. See also LG 37. 42.  For example, CIC cc. 230, 529 §2, 594 §2, and CCEO c. 403 §2.

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E) The Church Safeguards and Expounds Revealed Truth, Guided by the Spirit

In contrast to the foregoing examples wherein the church’s theological teaching affirms the presence and action of the Holy Spirit, while those actions are completely ignored in its canonical codes, the Spirit does receive mention in relation to the church’s teaching function. In both codes the lead canon on teaching declares the Church’s role in reference to the deposit of faith, namely to safeguard revealed truth, investigate it, proclaim and expound it, is carried on “with the assistance of the Holy Spirit.”43 This acknowledgement of the Spirit’s help is entirely fitting and proper and in keeping with the sources for the canons. However, in regard to the Church’s teaching function the role of the Spirit of truth is far more pervasive than indicated in the single lead canon, and should be recognized as such. Jesus himself, in his farewell discourse, spoke of the Spirit’s role. “I will ask the Father, and he will give you another Advocate to be with you always, the Spirit of truth which the world cannot accept because it neither sees or knows it. But you know it, because it remains with you, and will be in you. . . . The Advocate, the holy Spirit that the Father with send in my name—he will teach you everything and remind you of all that I told you” ( Jn 14, 16–26). The Vatican Council assured us that the Holy Spirit continues to carry out that promise: The Holy Spirit is active, making the living voice of the gospel ring out in the church, and through it in the world, leading those who believe, into the whole truth, and making the message of Christ dwell in them in all its richness (see Col 3, 16).”44

The Spirit of truth arouses and sustains in the faithful a sense of faith, they truly receive the word of God, adhere to it indefectibly, penetrate it more deeply through right judgment, and apply it more fully to life.45 The Spirit dwells in the church and in the hearts of the faithful as in a temple,

43.  CCEO c. 595 §1 and CIC c. 747 §1. 44.  DV 8, Tanner, 2: 974. 45.  LG 12, Tanner, 2: 858.

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the Spirit prays in them and bears witness to their adoption as children, and leads the church into all truth (see Jn 16, 13).46 The entire panoply of ecclesial activities that attempt to fulfill the church’s teaching mission—evangelization, preaching, catechetical instruction, schools, colleges, universities, publications, and communications media—are regulated by the canons of the codes. Their pages of rules should resound with reminders that the Holy Spirit, the Spirit of truth, is the source and sustenance of their efforts. Those thousands of the faithful who are dedicated to these teaching apostolates deserve to know in whose name they speak. F) The Holy Spirit Continually Sanctifies the Church

On the day of Pentecost the Holy Spirit was sent to sanctify the church continually so that believers would have through Christ access to the Father in one Spirit. This is the Spirit of life, the fountain of water springing up to eternal life ( Jn 4. 14), through whom the Father restores to life humankind that was dead through sin.47 The Spirit itself bears witness with our spirit that we are children of God, and if children, then heirs, heirs of God and joint heirs with Christ. . . . the Spirit too comes to the aid of our weakness; for we do not know how to pray as we ought, but the Spirit itself intercedes, with inexpressible groanings. . . . intercedes for the holy ones according to God’s will (Rom 8, 14–16, 26–28).

Christ loved the church and delivered himself up to sanctify it, and bestowed on it the gift of the Holy Spirit to the glory of God. This holiness of the church is shown continuously in those fruits of grace which the Spirit produces in the faithful. It is expressed in many different ways in the lives of those who strive for charity and are a source of edification for others. Jesus preached holiness of life to his disciples. To all of them he sent the Holy Spirit to inspire them from within to love God with all their heart, all their soul, all their mind, and with all their strength (Mk 12, 30), and to love one another even as he loved them ( Jn 13, 34).48

46.  LG 4, Tanner, 2: 850–851. 47.  LG 4, Tanner, 2: 850. 48.  LG 39, 40, Tanner, 2: 880.

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The baptized, through their regeneration and anointing of the Holy Spirit, are consecrated as a spiritual dwelling and a holy priesthood, so that through all the activities of their Christian lives they may offer spiritual sacrifices, and declare the powers of him who called them out of darkness into his marvelous light. Therefore, all the disciples of Christ, persevering in prayer and praising God together, are to present themselves as a living sacrifice, holy and pleasing to God.49 The Catholic tradition gives special emphasis to the sacraments as instruments of sanctification. It is by the power of the Holy Spirit that Christ sanctifies his people through the sacraments. The Holy Spirit is received in baptism. In confirmation (or chrismation with holy myron) the faithful are enriched by a special strength of the Holy Spirit.50 Eucharistic celebrations are perpetuated by the power of the Holy Spirit.51 In the sacrament of penance sinners are led internally by the Holy Spirit to turn back to God and receive forgiveness. Sacred ministers are constituted as such through sacramental ordination by the working of the Holy Spirit. Married partners are consecrated by the sacrament of matrimony and imbued with the Spirit of Christ who fills their lives with faith, hope, and love.52 In summary, the Holy Spirit is a major player, the principal power, in carrying out every phase and facet of the church’s munus sanctificandi. Hence it is nothing short of astonishing to find that in the Latin code there is only one passing mention53 of the Holy Spirit in the entirety of Book IV, The Sanctifying Function of the Church (cc. 834–1253). The record of the Eastern code is much better in this regard, six references to the Spirit in Title XVI, Divine Worship and Especially the Sacraments (cc. 667–895).54 Still, in relation to the presence and power of the Spirit stated strongly in our official theology, it is startling to find so few references to the Spirit in the canonical regulations of this vital portion of the church’s life. These canons are frequently referred to, and their silence on the involvement of 49.  LG 10, Tanner, 2: 856–857. 50.  LG 11, Tanner, 2: 857. 51.  See Eucharistic prayers II and III. 52.  GS 48, Tanner, 2: 1101. 53.  In the description of the sacrament of confirmation, c. 879. 54. CCEO cc. 667, through the sacraments Christ sanctifies people by the power of the Holy Spirit, 675 §1, baptism, 692, chrismation, 698, last supper perpetuated by the power of the Holy Spirit, 718, penance, 743, ordination.

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the Holy Spirit in the church’s striving for holiness can cause us to ignore that involvement. It amounts to a distortion of a reality of our faith. G) The Church Calls Upon the Holy Spirit to Guide It in Judging in Accord with Truth and Justice

One final, small example of an explicit acknowledgement of the Holy Spirit in the church’s canonical activity is suggested by a unique requirement in the Latin code Book VII, Processes. Canon 1609.3 in Part II, The Contentious Trial, in Title VII, the Pronouncements of the Judge, directs that, when a collegiate tribunal is convened to reach its decision, the judges are to invoke “the Divine Name” before presenting their individual conclusions. This provision was not included in the 1917 code’s corresponding canon (c. 1871 §3) or in the Eastern code (CCEO c. 1292 §3). While this rule directly obliges only the judges of a college of judges at the time of their decisive conference, the logic of this obligation to pray before giving judgment would suggest that all bishops (or other ordinaries), judges, assessors, and consultors, when deciding cases should call for divine guidance before making their final decision. For instance, it would seem entirely appropriate in the preliminary investigation of the penal process (c. 1718), and in the procedures for the removal or transfer of pastors (cc. 1742, 1745, 1750). The purpose of this prayerful preface to making a solemn judgment is more than seeking objectivity or avoiding prejudices. It is to invoke God’s help in making a true and fair decision. What could be more suitable for such a purpose than calling explicitly on the Holy Spirit, the Spirit of truth?55 In his farewell discourse to his disciples Jesus repeatedly spoke of “the Spirit of truth” whom he would send to them from the Father. When he comes the Spirit of truth “will guide you to all truth” ( Jn 16, 13; also Jn 14, 17 and 15, 26). The “truth” to which Jesus referred was primarily the truth about Jesus and his saving mission from the Father (“. . . he will testify to me.”) But the church has long called upon the Holy Spirit as a source for the truths about faith and many other related matters. To call upon the Spirit of truth in the procedures of ecclesial discerning, such as tribunal 55.  Some ecclesiastical tribunals, including the Roman Rota, employ the prayer to the Holy Spirit used by the Council fathers (cited above).

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decisions, would once again, give conscious awareness of the presence and action of the Holy Spirit in the church, and of our constant need of it. “I will not leave you orphans.” We are not alone.

Conclusion

These few examples of canonical silence or understatement about the role of the Holy Spirit in the life of the church demonstrate the need for canonists to take a fresh look at how the Spirit infuses the lives of the Christian faithful. In addition, these illustrations show the alarming imbalance between the churches’ official teaching on the Holy Spirit—based on the New Testament, ancient tradition, contemporary theology, and the documents of the Second Vatican Council—and its canonical texts. This short study offers some ideas for correcting that imbalance. The reasons why the mentions of the Spirit were so often deleted during the post-conciliar code revision process remains a mystery. Could it have been fear or at least wariness regarding the Holy Spirit on the part of the canonists who reworked the codes? It is a question that requires further study. What is at stake is the charismatic element of the church. When the actions of the Holy Spirit are not openly acknowledged in the canonical codes, they are diminished in the consciousness of all who consult and use these key regulative documents. It begins to seem as though the Holy Spirit does not really matter.

T H E C AT H O L I C U N I V E R S I T Y O F A M E R I C A

Tabula gratulatoria Rev. Jobe Abbass, OFM, Ottawa, Canada

Rev. Christopher Begg, The Catholic University of America

Dr. Andrew Abela, The Catholic University of America

Most Rev. Msgr. Kenneth Boccafola, Islandia, NY

Edward C. Andercheck, Chesapeake Beach, MD

Rev. Msgr. J. Brian Bransfield, Washington, DC

Rev. Msgr. Charles V. Antonicelli, Washington, DC

Sister Marie Breitenbeck, OP, Atlanta, GA

Very Rev. Christopher R. Armstrong, Washington, DC

Rev. Phillip J. Brown, PSS, Baltimore, MD

Paul Barber, London, England

Rev. Jeffrey Cabral, Fall River, MA

Sister Nancy Bauer, OSB, The Catholic University of America

Most Rev. Frank J. Caggiano, Bridgeport, CT

Rev. Anthony E. Bawyn, Seattle, WA Dr. John P. Beal, The Catholic University of America

Rev. Brain Capuano, Petersburg, VA Rev. Anthony J. Carbone, Latrobe, PA

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Rev. Msgr. Michael Clay, The Catholic University of America Brother Timothy Coldwell, FSC, Washington, DC Tribunal of the Diocese of Columbus, Columbus, OH Rev. Patrick Cooney, OSB, St. Meinrad, IN Rev. James A. Coriden, Washington, DC Rev. Paul D. Counce, Baton Rouge, LA Rev. Msgr. J. James Cuneo, Bridgeport, CT Rev. Msgr. Anthony Czarnecki, Worcester, MA Tribunal of the Catholic Diocese of Dallas, Dallas, TX Rev. Brendan Daly, Auckland, New Zealand Dr. William L. Daniel, The Catholic University of America

Rev. Jamin Scott David, Morganza, LA Zabrina Decker, Greenfield, WI Most Reverend Robert Deeley, Portland, ME Nicole Delaney, Phoenix, AZ Rev. Louis L. DeNinno, Pittsburgh, PA Jane P. Devlin, Dedham, MA Rev. Jack Dickinson, South Berwick, ME Rev. Joseph G. Diermeier, Marathon, WI Rev. Msgr. George E. Dobes, Arlington, VA Rev. James I. Donlon, Glenmont, NY Sean T. Doyle, North Wales, PA Rev. J. Scott Duarte, Richmond, VA

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Most Reverend Brian Dunn, Antigonish, NS, Canada

Rev. Andrew Hart, Little Rock, AR

Rev. Msgr. Fred C. Easton, Bloomington, IN

Rev. Jonathan Hemelt, New Orleans, LA

Sister Sharon A. Euart, RSM, Silver Spring, MD

Catholic Diocese of Honolulu, Honolulu, HI

Chorbishop John D. Faris, Utica, NY

Rev. David G. Howard, Cincinnati, OH

Rev. Msgr. Thomas P. Feeney, Corpus Christi, TX

Rev. Monte J. Hoyles, Toledo, OH

Deacon Michael P. Forbes, Austin, TX

Rev. Joseph F. Jaskierny, Sugar Grove, IL

John P. Gargan, Dallas, TX

Rev. Msgr. Ronny E. Jenkins, The Catholic University of America

John Garvey, The Catholic University of America Rev. Robert Geisinger, SJ, Rome, Italy Dr. Chad Glendinning, Ottawa, Canada Rev. Paul L. Golden, CM, Denver, CO Rev. Alan M. Guanella, La Crosse, WI

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Rev. Saju Joseph, San Jose, CA T. Wehrle Memorial Library, Pontifical College Josephinum, Columbus, OH Rev. Michael P. Joyce, CM, Perryville, MO Rita Ferko Joyce, Pittsburgh, PA

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Rev. Robert J. Kaslyn, SJ, The Catholic University of America Rev. Shane L. Kirby, Jermyn, PA Rev. John Chrysostom Kozlowski, O.P., Washington, DC

Sister Sandra Makowski, SSMN, Charleston, SC Rev. Anthony Malone, Auckland, New Zealand Rev. Msgr. Tomas M Marin, Coral Gables, FL

Matthew Kuettel, Saint Paul, MN

Dr. Kurt Martens, The Catholic University of America

Chantal Labreche, Ottawa, Canada

Valere Nkouaya Mbandji, Ottawa, Canada

Rev. Eric P. Leyble, Thibodaux, LA

Rev. Ghenghan B. Mbinkar, Falls Church, VA

Grace-Ann Lewis, The Catholic University of America

Deacon Bo McAllister, Little Rock, AR

Rev. John List, Lexington, KY David P. Long, The Catholic University of America Rev. Douglas J. Lucia, Ogdensburg, NY Rev. Sarath Maddineni, C.SS.R., Ottawa, Canada

Sister Rose McDermott, SSJ, Trenton, NJ Rev. Michael McGavigan, Washington, DC Rev. Msgr. Paul McPartlan, The Catholic University of America Dr. Nelson H. Minnich, The Catholic University of America

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Charles Molineaux, McLean, VA

Rev. William M. Quinlan, Stamford, CT

Rev. Matthew J. Morelli, Blairsville, PA

Margaret Ramsden, SFCC, Orange, CA

Very Reverend Mark Morozowich, The Catholic University of America

Rev. Msgr. John A. Renken, Ottawa, Canada

Rev. Francis G. Morrisey, OMI, Ottawa, Canada Rev. Michael Tsoka Mumba, Washington, DC Rev. Msgr. Robert W. Oliver, Rome, Italy Rev. Peter J. Okafor, Oakland, CA

Very Rev. Kenneth A. Riley, Kansas City-St. Joseph, MO Sue Rivett, Adelaide, Australia Rev. John W. Robertson, Helena, MT Sister Carolyn A. Roeber, OP, Seattle, WA

Rev. Lokwiya Kalisto Ben Omwony, Newark, NJ

Dr. Michael Root, The Catholic University of America

Rev. Msgr. Roch Pagé, Ottawa, Canada

Rev. Cyprian Rosen, OFMCap, Wilmington, DE

Dr. Kenneth Pennington, The Catholic University of America

Magdalen Ross, Shelton, CT

Brother James Peterson, OFM Cap., Boston, MA Rev. John Putnam, Charlotte, NC

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Rev. Marvin Samiano, Honolulu, HI Kelly Schaffer, Toledo, OH

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Sofia Seguel, Hyattsville, MD

Rev. L.Q. Tran, Beaumont, TX

Rev. Sean O. Sheridan, TOR, Steubenville, OH

Rev. Gregory G. Trawick, Cadiz, KY

Deacon J. Douglas Sinchak, Mobile, AL

Rev. Msgr. Robert Trisco, The Catholic University of America

Sister Rosemary Smith, SC, Atlanta, GA Rev. Msgr. Michael A. Souckar, Coral Springs, FL Jeffrey M. Staab, Ruther Glen, VA Judith M. Stegman, Washington, DC Christopher Siuzdak, Portland, ME Very Rev. Jaroslaw Z. Skrzypek, New Madrid, MO Rev. W. Becket Soule, Columbus, OH Rev. Raymond Studzinski, OSB, The Catholic University of America

Rev. Daniel J. Ulishney, Connellsville, PA Rev. Paul R. Valdez, Marina, CA Rev. Khoi Vu, Silver Spring, MD Katharine Weber, Mobile, AL Rev. Msgr. Gregory C. Wielunski, Miami Shores, FL Rev. Patrick J. Winslow, Charlotte, NC His Eminence Donald Cardinal Wuerl, Washington, DC Rev. Msgr. Dariusz J. Zielonka, Monroe, CT

Post-script This Festschrift to mark the eightieth birthday of our dear colleague, Monsignor Thomas J. Green, was prepared with his consent and knowledge. As preparations for the publication neared completion, the sad news reached us that Monsignor Green had passed away on Saturday, April 28, 2018, just a few months before celebrating his eightieth birthday on August 10, 2018. All involved in the project agreed that the Festschrift would be published as planned, without any changes, except for this brief note to acknowledge the passing of our esteemed colleague and friend. We trust that Tom, looking from the window of the Father’s house, appreciates this tribute to him. The weekend after Tom passed, one of his former students, Kelly Schaffer, drew an amazing portrait of him. We are blessed she graciously granted permission to reproduce the drawing in this volume.