§6.00
Canon Mahoney needs little introduction to
English-speaking clergy anywhere. For over
twenty years he answered almost every
question submitted to the Clergy Review, not
only in matters moral and canonical, a wide
enough field in themselves, but on points ol
liturgy, rubrics, and even church music.
His readers soon learned to trust him, and
with good reason. Genuinely humble in
his estimate of his own authority, he was
indefatigable in seeking and verifying the
opinions of others, patient in checking them
against the sources and the facts, and pru
dent in drawing his conclusions. The result
was that few writers of his kind carried
greater authority', either at home or abroad.
His answers were well informed, nicely
balanced, reliable.
Two selections of these
answers have already been published, in
1944 and 1948, under the title Questions and
Answers.
In Priests'
Problems, a selection
of those which he wrote between these
dates and his death, in 19^4, is presented in
easily accessible form.
Within its orderly
framework the book houses a wide variety
of topics.
It caters not only for priests
who want a prompt answer to an immediate
problem arising out of the confessional or
parish work, but also for those who prefer
to revise their theology in this indirect
and practical fashion, rather than in in
digestible slabs from their dog-eared text
books.
This is a book one can pick up for
a quarter-of-an-hour’s profitable reading or
settle down to for hours of solid study.
It
has the added distinction of being edited by
Fr McReavy of Ushaw College. As Canon
Mahoney’s successor on the Clergy Review he
brings to this task the identical qualities which
imparted such authority to the previous
collections.
—
Canon Mahoney needs lit
English-speaking clergy at
twenty years he answc
question submitted to th
only in matters moral anc
enough field in themselv
liturgy, rubrics, and e
His readers soon learne
with good reason.
G<
his estimate of his owj
indefatigable in seeking
opinions of others, path
against the sources and
dent in drawing his con
was that few writers
greater authority, eithe
His answers were w<
balanced, reliable.
Ίλ
answers have already
1944 and 1948, under
Answers.
In Priests’
of those which he ’
dates and his death, ii
easily accessible form
framework the book
of topics.
It caters
who want a prompt a
problem arising out
parish work, but alsc
to revise their the
and practical fashio
digestible slabs Iron
books. This is a be
a quarter-of-an-hour
settle down to for I
has the added distil
Fr McReavy of Ush
Mahoney’s successo
brings to this task th
imparted such au
collections.
PRIESTS’ PROBLEMS
Being answers to a large variety of
questions on points of moral, canonical,
liturgical and rubrical interest
By
the late
CANON E. J. MAHONEY, D.D.
Selected and edited by
REV. L. L. McREAVY. J.C.D., M.A.
BENZIGER BROTHERS, INC.
NEW YORK · CHICAGO · CINCINNATI · BOSTON · SAN FRANCISCO
Canon Mahone)
English-speaking
twenty years 1
question submit
NIHIL OBSTAT: JOANNES Μ. T. BARTON, 8.T.D., L.S.S.
CENSOR DEPVTATVS
mprimatvr: e. morrogh bernard
VICARIVS GENERALIS
WECTMONASTERH : DIE XI JVNII MCMLVII
only in matters
enough field in
liturgy, rubrics
His readers soo
with good rcas
his estimate of
indefatigable in
opinions of othi
against the soui
dent in drawing
was that few v
greater authority
His answers w
balanced, reliab
answe rs have
1944 and 1948,
dnswers. In Pi
of those whicl
dates and his d<
easily accessible
framework the
of topics.
It
who want a pre
problem arising
parish work, bi
to revise thei
and practical
digestible slabs
books.
This ii
a quarter-ol-an-
settle down to
has the added <
Er McReavy of
Mahoney’s succ
brings to this tas
imparted such
collections.
First published 1958
Second impression 1959
Third impression i960
© 1958 Burns Oates and Washbourne Ltd., London
Printed in Great Britain
EDITOR’S NOTE
For twenty-two years, the late Canon Mahoney’s monthly replies
to moral, canonical, rubrical and liturgical questions, sent in by the
clergy, were a most valuable and popular feature of The Clergy
Review, and twice, in response to widespread demand, he published
a selection of them in book-form. The first volume, published in
1944 and entitled Questions and Answers: The Sacraments, dealt
exclusively with questions relating to this one subject, whereas the
second, published in 1948 with the subtitle Precepts, comprised replies
on all the other subjects on which his expert opinion had been
sought. Meanwhile his oracular ministr}’· to the clergy continued
unabated, so that, when he died on 7 January, 1954, he left behind
him more than enough fresh answers to fill a further volume. It was
eventually suggested that these also should be sifted and classified for
publication in a readily accessible form. That is the purpose of this
present volume which, while avoiding useless repetition of points
adequately elucidated in the first tw’o volumes, covers the whole
range of topics with which they were together concerned.
In selecting and editing the answers here comprised, I have tried
to interpret the wishes of the esteemed author, making such correc
tions as were required by subsequent developments, and adding
occasional notes to answers which I felt that he would probably
have modified or supplemented. The answers have been arranged
more or less in the order of the Code of Canon Law, because it
provides a logical and familiar framework of division. To facilitate
easy consultation, there is not only a complete and classified list
of answers in the Table of Contents, but also a Code index (for
those who begin their quest by consulting the text of the law) and
an alphabetical index of topics. Thirty-seven of these answers date
from the period 1945“19475 being concerned with sacramental
topics, they fell outside the scope of the author’s second volume. All
the rest were composed between 1948 and his death.
L. L. McReavy
Ushaw College, Durham
8 February, 1957
V
Canon Maho)
English-speak
twenty years
question subi
only in matte
enough field
liturgy, rubr
His readers s
with good r·
his estimate
indefatigable
opinions of o
against the sc
dent in drawi
was that few
greater authoi
His answers
balanced, rel
answers have
1944 and 194
<4n$H'crs.
In
of those wh
dates and his
easily accessil
framework tl
of topics,
h
who want a [
problem arisi
parish work,
to revise th
digestible sla
books.
This
settle down t
has the addec
Fr McReavy <
Mahoney’s su
brings to this i
imparted sue
collections.
ABBREVIATIONS
A.A.S. = Ada Apostolicae Sedis. Commentarium Officiale. (Romae,
Typis Polyglottis Vaticanis.)
Addit, et Variat. = The section at the beginning of the current
Missale Romanuni entitled “Additiones et Variationes in Rubricis
Missalis”.
Apollinaris = Apollinaris, Commentarium luris Canonici. (Romae,
Pontificium Institutum Utriusque luris, Piazza S. Apollinare,
49·)
Bouscaren, Digest = The Canon Law Digest. Officially published
Documents Affecting the Code of Canon Law. 3 volumes. By
T. Lincoln Bouscaren. (Bruce Publishing Company, Mil
waukee, U.S.A.)
Caerem. Epp. = Cacrcmoniale Episcoporum. (Marietti, 1935.)
Clementine Instruction = Instructio Clementina pro Expositione SSmi
Sacramenti Occasione XL Horarum (1731). Printed with
annotations in Vol. IV of Decreta Authentica S.R.C. English
translation by Rev. J. O’Connell. (Bums Oates, 1927.)
Code Commission = Pontificia Commissio ad Codicis Canones Authen
tice Interpretandos.
Collât. Brugen.— Collationes Brugenscs. (Seminarium Episcopale,
Bruges.)
De Defectibus = Introductory section of Missale Romanum entitled “De
Defectibus in Celebratione Missarum Occurrentibus*’.
Dcnz. = Enchiridion Symbolorum Definitionum et Declarationum De Rebus
Fidei et Morum. By H. Denzinger. (Herder.)
Diet. Droit Canon. = Dictionnaire de Droit Canonique. (Paris, Lctouzcy
et Ané.)
Diet. Théol. = Dictionnaire de Théologie Catholique. (Paris, Lctouzev et
Ane.)
E.T.L. = Ephemerides Theologicae Lovanienses. (18 Rue de Récollets,
Louvain.)
Fontes = Codicis luris Canonici Fontes. Vols. I-VIII. (Rome, Typis
Polyglottis Vaticanis, 1926-39.)
Ius Pontificium=Ius Pontificium seu Ephemerides Romanae ad
Canonicas Disciplinas Spectantes. (Romae, Via Montcsclva 3.)
jV./r.S. =Nedcrlandsche Katholiekc Stcmmcn. (Zwolle, J. M. W.,
Flanders.)
•·
vu
Canon Mahor
•··
V1U
English-speak
twenty years
question subr
only in mattci
enough field
liturgy, rubr
His readers s
with good r<
his estimate
indefatigable
opinions of o
against the sc
dent in drawi
was that few
greater autho)
His answers
balanced, rel
answers have
1944 and 194
/Innvcn.
In
of those wh
dates and his
easily accessi
framework tl
of topics.
1
who want a [
problem aris
parish work,
to revise tl
and practica
digestible sic
books.
Thi.·
a quarter-of-.
settle down
has the ad de
Fr McReavy
Mahoney’s st
brings to this
imparted su
collections.
Abbreviations
Ordo Administrandi — Ordo Administrandi Sacramenta. ... ex Rituali
Romano Extractus Nonnullis Adiectis cx Antiquo Rituali
Anglicano. (Burns Oates, 1915.)
Periodical Periodica de Re Morali Canonica Liturgica. (Romae, Univ.
Gregoriana.)
Enchiridion Indulgentiarum = Enchiridion Indulgentiarum: Preces et Pia
Opera In Favorem Omnium Christifidelium vel Quorundam
Coetuum Personarum Indulgentiis Ditata et Opportune Re
cognita. (Typis Polyglottis Vaticanis, 1952.)
Propaganda = Sacra Congregatio de Propaganda Fide.
QÎ..P. — Questions Liturgiques et Paroissiales. (Abbaye du Mont César,
Louvain.)
Rit. Celebr. Miss.= Introductory’ section of Missale Romanum, en
titled “Ritus Servandus in Celebratione Missae”.
Rituale Romanum. References are to the editio typica authorised by
Pope Pius XII and published in 1952. (Typis Polyglottis
Vaticanis.)
Ritus Servandus = Ri tus Servandus in Solemni Expositione et Benedictione
Sanctissimi Sacramenti. (Burns Oates.)
Rubricae Generales = Introductory section of Missale Romanum, entitled
“Rubricae Generales Missalis”,
S.C.Conc. = Sacra Congregatio Concilii.
S.C.Consist. = Sacra Congregatio Consistorialis.
S.C.Indulg. — Sacra Congregatio Indulgentiis Sacrisque Reliquiis
Praeposita.
S.C.Relig. = Sacra Congregatio de Religiosis.
S.C.Sacram. = Sacra Congregatio de Disciplina Sacramentorum.
S.Ojf. = Suprema Sacra Congregatio Sancti Officii.
S.Poenit. = Sacra Poenitentiaria Apostolica.
S.R.C. = Sacra Congregatio Sacrorum Rituum. The numeral refers
to its Decreta Authentica, Vols. I-VI. (Typis Polyglottis Vaticanis,
1898-1927.)
Sylloge = Syllogc Praecipuorum Documentorum Recentium Summorum Pontif
icum, etc. Ad Usum Missionariorum. (Typis Polyglottis
Vaticanis, 1939.)
Theol. Moralis = Manual of Moral Theology variously entitled
Compendium, Institutiones, Summa, Summula, or Manuale.
Westm.—Decreta Quattuor Conciliorum Provincialium Westmonasleriensium
1852-1873. (Burns Oates, out of print.) Translation, “The
Synods in English”, by Rev. R. E. Guy, O.S.B. (Stratford-onAvon, 1886.)
TABLE OF CONTENTS
Pa&
264
267
269
271
272
274
275
276
279
XVIII. MARRIAGE---- FORM AND CANONICAL EFFECTS
207.
208.
209.
210.
211.
212.
213.
214.
215.
216.
217.
218.
219.
220.
221.
222.
223.
224.
Marriage Delegation and Registration
.
.
.281
Competent Priest in Mixed Marriages
.
.
. 282
Organ at Mixed Marriages
..... 283
Parish Priest of Non-Catholic Bride .... 284
Civil Marriage in the Circumstances of Canon 1098 . 286
Marriage before Witnesses Only
.... 287
Marriage before Witnesses Only: Religious Rite .
. 289
“Baptised in the Catholic Church”
.
.
. 289
Canonical Form: Meaning of “Convert” .
.
*291
Dispensing Lapsed Catholics from the Form
.
. 293
Exemption from the Form: “Ab Acatholicis Nati”
. 295
Converts and the Nuptial Blessing
.... 297
Marriage Registration in Church of Baptism
.
. 298
Registration of “ Sanatio ”
..... 299
Marriage of Conscience to Save Pension .
.
. 300
Legitimacy from Putative Marriage .
.
.
.301
Legitimacy by Subsequent Marriage .... 304
Legitimacy by Subsequent Marriage : Registration
. 305
XIX. MARRIAGE DISSOLUTION AND CO N V A L ID ATI Ο N
225.
226.
227.
228.
229.
230.
231.
232.
233·
Pauline Privilege: Catechumen Interrogated
Pauline Privilege: Converts’ Marriages
.
Pauline Privilege Inoperative (I)
Pauline Privilege Inoperative (II)
.
·
Dissolution of Marriage “In Favorem Fidei”
Ordinary’s Permission lor Civil Divorce
.
Revalidation: Presence of Registrar ·
·
Marriage Preliminaries before “Sanatio” .
Confession before Executing a “Sanatio
.
.
·
.
-
·
·
·
·
·
.
.
·
.
.
·
307
3°8
3°9
311
311
3^3
3*5
3!5
3’7
Canon
Engl is!
xvi
twenty
questic
onlv
in
J
enougl
liturgy
His re
Table of Contents
XX. USE OF MARRIAGE
Question
234. Papal Teaching on the Infertile Period
235. Publicising Knowledge of Sterile Period
236. NoIdin’s Opinion on Sterile Period .
237. “Amplexus Reservatus”: Holy Office Admonition
319
321
322
323
with i
his est
indefa*
opinio
against
dent ii
was tl
greatc
His a)
balane
answe
«944
/inrwc/
of th·
dates
easily
frame
of to
who '
XXL CHURCHES, ALTARS, SACRED FURNISHINGS
238. Fast on the Day Preceding Consecration of Church
239. Blessing of Provisional Church ....
240. Consecration of a Community Chapel
241. Corner-Stone of New Church ....
242. Memorial Tablets in Churches ....
243. Royalties on Church Music
....
244. Piety Stalls within a Church ....
245. Situation of Domestic Oratory ....
246. Fixed Portable Altar
.....
247. Number of Altar Steps .....
248. Form of Altar Crucifix .....
249. The “Sixes” Candlesticks
....
250. Credence Table
......
251. “Sedilia”............................................................
252. Tabernacle “Curtain” .....
253. Tabernacle Key
......
254. Chalice Consecrated by Use
....
255. Blessing of Vestments: Delegation of Curate
probl·
paris!·
to r<
and
digest
book;
XXII. FUNERALS
256.
257.
258.
259.
260.
a qua
settle
has tl
Fr M
Mahc
bring
impa
colic
325
326
328
329
33°
332
334
335
335
336
337
33θ
339
34θ
341
342
344
345
Burial at Sea
.
.
.
.
Dissident-Orthodox Funeral
Funeral Rites by a Deacon
Use of Holy Water in Funeral Rites .
Funeral Pall .
.
.
.
.
347
348
349
35θ
352
XXIII. SUNDAYS, FEASTS AND FASTS
261.
262.
263.
264.
Obligation of Attending Evening Mass
Mass Precept and Semi-Public Oratory
Sunday Mass in Domestic Chapel
Servile Work on Holy Days
•
353
355
35θ
358
Table of Contents
Question
265. Repeated Violations of Fast and Abstinence
266. Christmas Eve Fast
.
.
.
.
267. Women Aged Fifty and Fasting Law
Kvii
^Qge
' 36o
’ 36i
‘ 362
XXIV. DIVINE WORSHIP
268.
26g.
270.
271.
272.
273.
274.
275.
276.
277.
278.
279.
280.
281.
282.
283.
284.
285.
286.
287.
288.
289.
290.
291.
292.
293.
Public Prayers and Devotions .
Partially Approved Litanies
Chain Prayers
....
“Five Wounds” Rosary .
Hatless Women in Churches
Genuflexions .....
Exposition : Number of Watchers
Perpetual Adoration
Functions at the Altar of Exposition .
Exposition: Vernacular Prayers and Hymns
Preaching During Exposition
Benediction During Exposition .
Pyx Benediction after Mass
Benediction: Candles on Side Altars
Eucharistic Benediction a Priestly Blessing?
October Devotions
Liturgical Coronation of Lady Statue
Coronation of Lady Statue in May .
Enthronement of the Sacred Heart
Parochial Vespers ....
Structure of Prime ....
“Benedicite” in the Blessing Formula
Origins of “Dies Irae”
“Ut Queant Laxis”
Septuagesima
....
Authentic Text of Pius X on Church Music
•
•
•
’
•
‘
364
365
367
367
369
37o
•
37i
'
‘
•
'
‘
’
’
■
•
•
'
•
•
•
•
•
•
•
•
372
374
375
376
377
378
379
380
381
382
383
384
385
387
388
389
391
392
394
XXV. JOINT WORSHIP OR ACTION WITH NON-CATHOLICS
294.
295.
296.
297.
298.
299.
300.
Prayer with Non-Catholics
..... 395
Reception of Sacraments from Non-Catholic Minister . 397
Problems in Non-Catholic Schools .... 399
Assistance of Non-Catholics at Our Functions
.
.401
Sending for Non-Catholic Minister .
.
.
.401
Spiritism
........ 4°4
Civil Relations with Communist Governments
. 405
Canon M.-
English-sp
xviii
twenty y
question s
only in m.
enough fi<
liturgy, t
His rende
Table of Contents
XXVI. ECCLESIASTICAL CENSORSHIP
Question
page
301. Censorship of Parish Magazines
.... 407
302. Non-Catholic Religious Translations .... 407
303. Broadcasting by Secular Clergy
.... 408
304. “Imprimatur” Unpublished ..... 409
with goo
his cstim
XXVII. JUDICIAL PROCESSES
indef.itiga
opinions
against tl
dent in d
was that
greater at
His answ
balanced,
answers
i 944 and
Λ ns wen.
305. Deprival of Parish .
.
.
.
.
.
.411
306. Delay in Mamage Tribunal’s Functioning .
.
.412
307. Aggrieved Petitioner’s Remedy in Marriage Causes
. 413
308. Rogatory Commission Procedure
.
.
.
.414
309. Rogatory Commission : Evidence without Notary
. 416
310. “Coniux Inhabilis ad Accusandum Matrimonium” . 417
311. Marriage Nullity : the Guilty Party .
.
.
.418
312. Impediment of Crime and Nullity Process .
.
. 420
313. Marriage Causes of Non-Catholics .
.
.
.421
3’4- Proof of Non-Consummation of Marriage
.
.
. 422
315· Marriage Causes: Summary Process .... 423
of those
dates ant
easily ac<
fra me wo
of topic
who war
problem
parish w
to revis
and pra
digestibl
books.
a quarte
settle de
has the .
Fr McR
Mahone
brings t<
imparte
collecti»
XXVIII. CRIMES AND PENALTIES
Absolution from Reserved Censure .... 426
Censure “Ab Homine” ...... 427
Ignorance of Reservation of Censure .
.
.
. 428
Fear Excusing from Censure ..... 429
Absolution from Censure: “Iniunctis de lure Iniungendis”..........................................................................431
321. Absolution of Sin Reserved “ Propter Censuram”
. 432
322. Absolution from Heresy in Danger of Death
.
. 434
323. Reconciliation of Convert: Variations in a Prayer
. 436
324. Exclusion of Deceased Non-Catholics from Public Suf
frages
......................................................................... 437
325. The “Pertinacity” of Heretics...................................440
326. Sponsorship at Heretical Baptism : Any Penalty ?.
. 44 τ
327. Proof of Absolution from Censure ....
442
328. Absolution from the Censure of Canon 2363
.
. 444
329. Meaning of “Superiores” in Canon 2363 .
.
. 446
330. Major Orders : Civil Marriage
.... 4 48
3^6.
317.
318.
319*
320.
Table of Contents
χίχ
XXIX. SUNDRY MORAL QUESTIONS
Question
page
331. Suicide : Secret Sendee Agents .
.
.
.
. 451
332. Euthanasia: Papal Pronouncements .... 453
333. Papal Teaching on Lcucotomy ..... 454
334. Restitution for Grave Damage ..... 456
335. Mental Restriction under Oath.
.... 456
CODE INDEX
........................................................................................................................459
SUBJECT INDEX
............................................................................4θ3
Canon Ma
English-sp
twenty y<
question s
only in m;
enough fu
liturgy, r
H is rea de
with goo
his estim
indefàtiga
opinions
against tl
dent in d
was that
greater ai
His ansv
balanced
answers
1944 anc
A nswers.
of those
dates am
easily ac
framewc
of topic
who wai
problem
parish v»
to revi:
and pn
digestib
books.
a quart·
settle d
has the
Fr McF
Mahon*
brings t
impart*
collect
I. SOME GENERAL PRINCIPLES OF
CANON LAW
I. COUNSELS IN THE CODE
Is it rightly held that all the canons of the Code are, in some sense or other,
“laws” binding in conscience? If not, why are they included in what is
commonly referred to as a Code of Canon Law? Civil codifications appear to
be restricted to enactments which are of binding force.
i. It requires no very profound acquaintance with the Code to
discern that many of the canons are not precepts in the strict sense
but merely counsels or directive rules and suggestions. This is
evident from the words occasionally used such as suadendum in
canon 859, §3, which urges the faithful to make their Easter com
munion in their own parish, or in canon 864, §2, which recommends
Viaticum even though Holy Communion had already been received
the same day ; or such words as optandum, as in canon 1345, which
affirms the desirability of a short sermon at every Mass on Sundays
and holy days. Often in the same canon statements are found which
are respectively precepts in the strict sense, or permissions to do
certain things, or merely counsels. Thus Canon 530 reads: Ҥi.
Omnes religiosi Superiores districte vetantur. ... §2. Non tamen
prohibentur subditi quominus libere ac ultro aperire animum suum
Superioribus valeant; imo expedit ut ipsi filiali cum fiducia Sup
eriores adeant. . . .” Sometimes a word which is something less than
a precept in meaning causes difficulty of interpretation, as for
example curandum.1
ii. This characteristic is not something peculiar to the Code but
is found in previous collections and in the Corpus luris. The explana
tion given by Suarez seems quite adequate:
. . nomine legis
interdum comprehendi totam dispositionem, seu providentiam
legislatoris circa gubernationem subditorum, et sic ad illum pertinent
non tantum praecepta dare, sed etiam consilia de iis quae meliora
sunt. ... In hoc ergo sensu non male dixit illa Glossa legem non
tantum praecipere, sed etiam consulere, quamvis re vera id non
faciat formalitcr, ut lex, sed concomitanter. Addo praeterea, quando
lex consulit unum, effectus sequitur alius, nimirum, ut illud opus
quod consulitur iurc prohiberi non possit, nec tanquam malum
1 Fcrrcres, Casus, 1, §83.
1
Canon Ma
English-sp
twenty
y
question s
only in m.
enough fit
liturgy, i
His reach
2
Priests' Problems
Q. 2
refutari, ct quoad hoc dici potest illa retinere vim legis, et obligare.”1
The concluding words arc the best explanation of a canon such as
530 quoted above. Unless the law permitted subjects to open their
consciences to superiors, the definite prohibition against superiors
inducing their subjects to do so would almost certainly be interpreted
by some to mean that it was inadvisable for subjects to act in this
way.
with goo
his estim
2. PROMULGATION OF PAPAL LAWS
indefatig;
Are we allowed, and if allowed are we bound, to accept the directions of
the Holy See before being informed of them by local Ordinaries? Two recent
documents illustrate the query: (a) the new rules on the Eucharistic fast;
(/>) the dispensation from abstinence on 1 Aiay, 1953.
opinions
against tl
dent in d
was that
greater a
His ansv
balanced
answers
1944 an<
/InjH’cri.
of those
dates an
easily ac
framcwc
of topi<
who wa
problen
parish v
to revi
and pr
digesti!
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Canon 8, §1 : Leges instituuntur, cum promulgantur.
Canon 9: Leges ab Apostolica Sede latae promulgantur per
editionem in Actorum Apostolicae Sedis commentario officiali, nisi
in casibus particularibus alius promulgandi modus fuerit prae
scriptus; ct vim suam exserunt tantum expictis tribus mensibus a
die qui Actorum numero appositus est, nisi ex natura rei illico ligent
aut in ipsa lege brevior vel longior vacatio specialiter et expresse
fuerit statuta.
i. Promulgation is the publication of a law, in the name and
authority of the legislator, and is not to be confused with its diffusion,
notification or divulgation, which means that it has been brought
to the notice of individuals within the community for which the
law has been promulgated. The diffusion is quite often effected,
especially in the case of important laws, by an official communica
tion from the local Ordinary, either in a diocesan journal or by
postal circular, methods which offer as much certainty as can be
expected in human affairs. It is an error, nevertheless, to maintain
that no papal law is effective until its notification by the local
Ordinary, the error of confusing promulgation with notification;
and a still more grievous error to maintain that, to have any validity
as laws, papal enactments require the consent of local Ordinaries or
of the civil ruler.
Notification that a papal law has been promulgated may also
reach us through other channels, far less certain and reliable than
a communication from local Ordinaries, and among these methods
the Press, both religious and secular, holds a most prominent place.
This kind of notification is less certain and reliable because it
1 De Legibus, I, xiv, 11 ; Γιϊ«, Vol. VI, p. 58.
Q. 2
Some General Principles of Canon Law
3
may have been picked up by radio with all the hazards of the pro
cess; or translated into the vernacular with resultant changes of
meaning; or printed with such haste as to make reasonable accuracy
unlikely. Thus, many journals wrongly announced in 1946 that the
assistant priests of a parish could confirm the dying, and at the
beginning of 1953 the description of the sick who could benefit
by the new rules scarcely made sense in some versions. Though a
correct answer to the above query is not easy to formulate, we
suggest the following: an individual is allowed in matters which are
favourable to accept notification of a papal enactment from a re
putable newspaper without waiting for a communication from the
Ordinary ; in matters which add to his obligations an individual
may likewise accept information from the Press, but he is not
bound to do so, and may elect to await notification from the local
Ordinary or from some other quite certain channel. To justify these
different reactions to news of papal enactments, according to their
favourable or unfavourable character, would mean adventuring
into the realm of probabilism which we decline to do; instead, the
answer suggested will be applied to the instances cited.
ii. The Constitution Christus Dominus, which appeared first in
L'Osservatore Romano, 11 January, 1953, was promised for promul
gation in A.A.S., 16 January, 1953, and was therefore notified as an
important piece of news before promulgation. The two texts of the
Instruction were not identical in many particulars, and some Press
versions in English made from that in L’Osservatore contained error.
In some dioceses, such as Lancaster, the Latin text from LOsservatore
was sent by the Ordinary to the clergy; elsewhere the Ordinary
notified the clergy in due course of its provisions and instructed
them to inform the laity; in all these instances the Constitution
promulgated 16 January was notified officially and was certainly
binding from the time of notification. For the generality of the
faithful its provisions were favourable and could be used from
16 January by all who relied merely on a Press notification. For
some classes such as nurses, and for some countries such as France,
its provisions were to some extent unfavourable : the persons affec
ted were entitled to continue the use of their induits until certain
notification of the Constitution reached them and they could know
with certainty that their induits had been withdrawn. Moreover,
though promulgation was promised for 16 January, the number of
the A.A.S. containing it reached most people in these parts early
in February. The wisdom of the three months’ interval of canon 9
is obvious, and it is exceptional for it to be dispensed with, as
happened on this occasion.
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iii. The relaxation of Friday abstinence on 1 May, 1953 was not
a law but an administrative decree which, after appearing in the
Press, was printed in A.A.S., dated 27 April, 1953. It was a favourable
enactment and was acted upon quite rightly by all who happened
to see it in reputable newspapers. In a matter of minor consequence
and applying only to this year, there was no need to be scrupulous
about verifying the texts: in fact, if one waited till seeing it in
A.A.S., even assuming its appearance on 27 April, 1953, the informa
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3.
WHICH LEGAL INTERPRETATIONS ARE RETROSPECTIVE?
Unless the legislator expressly declares that he wills his interpretation or
legal decision to be retrospective, how is one to know whether it is so or not?
The matter is of importance for deciding on the validity of acts performed
before an authentic legal interpretation is given.
Canon 10 : Leges respiciunt futura, non praeterita, nisi nominatim
in eis de praeteritis caveatur.
Canon 17, §2: Interpretatio authentica, per modum legis ex
hibita, eandem vim habet ac lex ipsa ; et si verba legis in se certa
declaret tantum, promulgatione non eget et valet retrorsum; si
legem coarctet vel extendat aut dubiam explicet, non retrahitur et
debet promulgari.
i. The question arises quite often in decisions of the Code Com
mission interpreting some canon of the Code, and the distinction in
canon 17, §2, between an interpretation which is “declarativa” and
one which is “explicativa” chiefly arises when, subsequent to some
authentic interpretation, the commentators arc not agreed whether
it solved a doubt, in which case it is not retrospective, or whether
it merely declared some point which was already in itself certain
from the words of the existing law, in which case it is retrospective.
The interpretation is declarative when its effect is that people who
did not understand the law before understand it now ; it is explan
atory when its effect is to bring to light something which before
was obscure.1
ii. The difference between these two notions is often very illdefined, and we are recommended to consult the commentators in
order to discover whether some point or application of a law is
doubtful, because if it is some will then hold one view and others the
exact opposite. But it may happen that a respectable number of
commentators are themselves in agreement that a law is doubtful,
1 Cicognani, Canon Law, p. 602.
Some General Principles of Canon Law
Q. 4
5
or they may even agree that a given interpretation of the Code
Commission is the resolution of a doubt, and yet these views may
prove to be wrong. Thus, the interpretation given 20 July, 1929,
deciding that the exception in the latter part of canon 10991 applied
even to the child of a mixed marriage, contradicted the common
teaching of practically all the canonists,2 therefore it seemed that
the Commission’s interpretation was at least the solution of a doubt.
On the contrary, the reply of 25 July, 1931, stated that the previous
interpretation was declarative.3
iii. Since one cannot with confidence rely on the commentators
for discovering whether an interpretation is declarative or not, the
remedy is for the legislator to state clearly what lus will is in the
matter, as happened in the Commission’s reply, 25 July, 1931. The
same applies to the question of local laws which may or may not
affect travellers : the commentators often disagree in deciding
whether such laws have or do not have a relation to public order,
which is the criterion in canon 14, §2, for discovering whether
travellers are bound by them or not. The remedy for the uncertainty
is for die legislator to state drat travellers must obey the law, as the
Malines Provincial Council (1937) docs in n. 176, which includes
travellers in the prohibition against clerics frequenting theatres.4
4.
INTERPRETATION OF CONCILIAR LAWS
On the theory of interpreting laws, does the individual Ordinary enjoy the
right °f authentically interpretingfor his diocese the superior law of a Provincial
Council ?
Canon 17, §1: Leges authentice interpretatur legislator eiusve
successor et is cui potestas interpretandi fuerit ab eisdem commissa.
§2. Interpretatio authentica, per modum legis exhibita, eandem
vim habet ac lex ipsa. . . .
§3. Data autem per modum sententiae iudicialis aut rescripti in
re peculiari, vim legis non habet et ligat tantum personas atque
efficit res pro quibus data est.
Canon 291, §2: Decreta Concilii plenarii et provincialis promul
gata obligant in suo cuiusque territorio universo, nec Ordinarii
locorum ab iisdem dispensare possunt, nisi in casibus particularibus
et iusta de causa.
1 Observe that this “comma” is now deleted from the Code: Afotu Proprio,
i August, 1948 ; The Clergy Review, 1948, XXX, p. 341.
2 Jus Pontificium, 1929, p. 195: “communem jurisperitorum interpretationem
funditus subvertit”; for the names cf. Apollinaris, 1930, p. 303.
3 Periodica, 1932, p. 45.
4 The Clergy Review, 1946, XXVI, p. 266.
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Priests' Problems
Q. 4
S.C.C., 19 February, 1921; A.A.S., 1921, XIII, p. 228: Ex
ploratum hodie apud omnes est ad potestatem legislativam Epis
coporum pertinere ut legibus suis quasi perficiant quod ius com
mune reliquerit minus definitum et sancitum, ita ut nihil ab ipsis
contra ius commune vel eius directionem statui possit.
i. “Unde ius prodiit, interpretatio quoque procedat” is an
ancient canonical axiom, which clearly excludes the possibility of
an authentic interpretation issuing from an ecclesiastical authority
other than that which made the law. Toso is the only canonist we
have discovered who appears to teach the contrary : “Eodem modo,
quo R.P. cunctas ecclesiasticas leges, Ordinarii locorum, singillatim
aut una simul, leges a se latas authentice interpretantur, sive
singillatim tulerint (in Synodo dioccsano vel extra Synodum), sive
coniunctim in Concilio plenario aut provinciali.”1 This is incorrect,
in so far as the individual episcopal interpretation is of a higher,
e.g. a provincial, law, unless the writer’s words arc to be understood
in the sense explained below, ii, (d). For if the interpretation is
authentic it has the force of law, and would accordingly bind
wherever the provincial law binds, including places outside the
jurisdiction of the individual Bishop, a consequence which is
clearly untenable; unless of course the Bishop has been lawfully
appointed to give an authentic interpretation, as sometimes happens
with conciliar legislation, in much the same way as the Code Com
mission has been appointed for the laws of the Code, “cui uni ius
erit Codicis canones authentice interpretandi”.2
ii. Provided, however, that it is not thought to extend to an
authentic interpretation as defined in canon 17, §2, the episcopal
power relating to conciliar legislation, limited to subjects within
his jurisdiction, is very considerable, and may be summarised as
follows :
(а) He may, from canon 291, §2, dispense the conciliar law in
individual cases and for a just reason.3
(б) He may, from canon 17, §3, give a judicial decision which
interprets the law for an individual case; or he may let it be known
that his decision on any individual case will be according to this
interpretation of the conciliai* law. It follows, as Brys correctly
states: “Ipsis (singulis Episcopis) tantum competit jus (concilii
provincialis) interpretandi authentice in casibus particularibus,
quia ipsorum curae est commissa potestas applicandi in judicio.”4
(c) He may, also, on the usual principles of customary law,
1 Commentaria Minora, p. 56.
2 Motu Proprio, 15 ScptcmlxT, 1917, printed at the beginning of the Code.
3 The Clergy Review, 1943, XXIII, p. 279.
* Compendium, I, §229.
Q. 5
Sonic General Principles of Canon Law
7
authentically declare and sanction for his diocese the existence of a
custom contrary to the higher law.1
() He may, finally, provided nothing is enacted which is
manifestly contrary to conciliar legislation, solve doubts existing
therein by making diocesan laws: “Praeterea poterunt Or
dinarii ... si id exigat gubernationis necessitas, dubia dirimere, non
quidem per modum authenticae interpretationis legis conciliaris,
sed per modum legis dioccsanac, quam semper ferre possunt ad
boni communis exigentiam, dum certo contraria non fuerit legibus
conciliatibus.”2
Examples of the use of this episcopal power in one or odier of the
ways above indicated would be, for example, decisions given on the
meaning of “spectaculum in publicis theatris” of IV Westm., xi, 9,
or of “aedificia . . . nec non alia ad ecclesiam pertinentia” of
I Westm., xxv, 4, or “famulae . . . sint provectioris aetatis” of
I Westm., xxiv, 4.
5.
THE CLAUSE “ AD MENTEM ”
Where can one find a full explanation of the various clauses which the
Roman Congregations arc accustomed to use in their replies, e.g., “et amplius ”
“in decisis”? In particular I seek an explanation of the clause “ad mentem”,
The point is explained by the more voluminous canonists in their
commentaries on Rescripts, canon 36-62, c.g. Van Hove, De
Rescriptis, §86. The fullest description known to us is in Dictionnaire de
Théologie Catholique, s.v. “Clauses Apostoliques”, II, col. 19-42. by
Dr Ortolan.
The commonest reply is “affirmative” or “negative” with
nothing further. The Congregations represent the Pope, the supreme
legislator, who is under no obligation to give reasons for any law
or decision made. Nor docs it follow that an affirmative reply is to be
taken as endorsing the reasons alleged in a petition, or as accepting
the arguments used by the advocates or others who may have been
employed by a Congregation in studying the question.
Occasionally, however, it seems good to a Congregation to
elucidate the reply, whether affirmative or negative, and this is
done by giving the explanation after the words “mens est” or “ad
mentem” or “iuxta modum”. Quite frequently the “ad mentem”
clause is for the private instruction of the petitioner and does not
appear in the printed collections. The reason for this is given in a
1 Ryan, Principles of Episcopal Jurisdiction, p. 135, quoting Rota! decisions.
2 Michiels, Nonnae, 1949, I, p. 5°4> quoting Rodrigo, De Legibus, n. 380.
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Priests' Problems
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useful note on the clause “ad mentem”, contained on p. 397 of the
Acts and Decrees First Maynooth Synod (1900): “Non raro,
publicata affirmativa vel negativa responsione, tamen mens remanet
secreta, quando nempe haec non attingit meritum quaestionis, sed
potius aequitatem aut prudentiam exeeutionis, seu aliud facti
peculiare adiunctum; imo aliquando nulla datur responsio, sed
tantum decernitur ‘ad vel iuxta mentem’.”
Frequently, nevertheless, the “ad mentem” clause is published,
and a good example may be seen in the reply S.R.C., 4 August, 1922,
n. 4375» on the Dialogue Mass,1 which gave the “ad mentem”
without any affirmative or negative reply.
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6. CHANCELLOR AND DISPENSATIONS
A priest, after his petition for a dispensation was refused by the chancellor,
succeeded in obtaining it from the bishop, without ment ioning the chancellor's
refusal. Is this episcopal grant invalid from canon 44., §2 ?
Canon 11 : Irritantes aut inhabilitantes eae tantum leges habendae
sunt, quibus aut actum esse nullum aut inhabilem esse personam
expresse vel aequivalenter statuitur.
Canon 19: Leges quae poenam statuunt, aut liberum iurium
exercitium coarctant, aut exceptionem a lege continent, strictae
subsunt interpretationi.
Canon 44, §2 : Gratia a Vicario Generali denegata et postea,
nulla facta huius mentione, ab Episcopo impetrata, invalida est. . . .
i. If the chancellor, using his native function of canon 372, was
simply recording and transmitting a decision of the vicar general,
the subsequent dispensation obtained from the bishop is clearly
invalid from canon 44, §2, unless the episcopal dispensation was
granted motu proprio, as some commentators note.2 Frequently, how
ever, especially in small dioceses, the chancellor is given delegated
jurisdiction for dispensing certain impediments within the limits
permitted by the law,3 and he may even use these delegated powers
more widely than the vicar general uses his ordinary powers. The
system is open to some objections but it is, in given circumstances,
a reasonable arrangement, especially when the chancellor is also
the bishop’s secretary. The point to observe is that, unlike the vicar
general, the chancellor enjoys no jurisdiction from his office, and
the powers which are convenicndy given to him could equally be
delegated by the bishop to any other priest.
1 The Clergy Review, 1941, XX, p. 454.
3 Coronata, Institutiones, I, §63 ; Maroto, Institutiones, §285.
3 The Clergy Review, 1948, XXIX, p. 183.
Q. 6
Some General Principles of Canon Law
9
ii. Some arc of the opinion that the rule of canon 44, §2, applies
also to a refusal by the chancellor,1 since the reasons for the rule in
the case of a vicar general are similar in the case of a chancellor.
We cannot agree that this is so except, perhaps, where the bishop
has made this provision expressly in delegating the chancellor. In
the common law it seems to us, from canons 11 and 19, that the
restriction on the bishop’s power of validly issuing a dispensation
must be limited to the case of the vicar general provided for in
canon 44, §2. Within the limits fixed by die law the vicar general
as an Ordinary forms, as it were, one person or one tribunal with
the bishop of the diocese, which is the reason usually given for the
rule of canon 44, §2 ; but this notion cannot be extended, it seems,
to die bishop’s delegate, even when he is the chancellor, for as such
he enjoys no ordinary jurisdiction at all, and there is nothing to
prevent die bishop delegating any number of persons. There is,
within its legal limits, between die jurisdiction of the vicar general
and that of die bishop, a certain equality which is wholly lacking in
the bishop’s delegate. Hence, owing to the superiority in power of
die Roman pontiff, a dispensation refused by any Ordinary is
validly granted by the Pope even diough the first refusal is not
mentioned.2
An argument in favour of the view we are rejecting might be
drawn from die practice of Vicars and Prefects Apostolic, who are
denied a vicar general yet may appoint a delegate enjoying all the
powers of a vicar general.3 The commentators usually apply to this
“delegate” die rule of canon 44, §2.4 Except diat the “delegate”
is not called a “vicar general”, he enjoys all die prerogatives
granted by die Code to the vicar general, including necessarily that
contained in canon 44, §2. The only adequate reply to this contention
is diat the “Vicarius Delegatus” of missionary countries, who is the
equivalent of “Vicarius Generalis” in other places, enjoys ordinary
jurisdiction because it is attached to an office; his title “Delegatus”
which has occasioned certain difficulties6 does not mean that he
enjoys merely delegated jurisdiction, for the practice of appointing
a delegate “ad universitatem causarum” was common on die
missions before the letter from Propaganda, 8 December, 1919,
authorised for die missions a “Vicarius Delegatus” with all the
prerogatives of a “Vicarius Generalis” in other places. The faculties
which a diocesan residential bishop may give to the chancellor are
1 The Jurist, 1949, p. 417.
2 Cicognani, Canon Law, p. 720.
3 Propaganda, 8 December, 1919; Bouscaren, Digest, I, p. 144.
4 Michicls, Normae, II, p. 387; Paycn, De Matrimonio, I, §760; Berutti, Institu
tiones, I, §99.
6 Apollinaris, 1933, p. 196.
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Priests' Problems
10
Q. 7
always delegated and arc never due to the office of chancellor as
such.
To sum up the opinion we have defended: Canon 44, §2, estab
lishes an exception to the free exercise of a bishop’s power, and must
be strictly interpreted as applying only to refusal on the part of one
who as the bishop’s alter ego enjoys ordinary jurisdiction; the
exception cannot be applied to the bishop’s delegate who enjoys
only delegated jurisdiction.
This is not to say that silence about the first refusal is to be com
mended ; on the contrary, respect both for the delegated chancellor
and the delegating bishop requires a mention of the refusal.
7.
INADEQUATE CANONICAL CAUSE FOR DISPENSATION
In forwarding petitions for dispensations from marriage impediments we all
know that the reason really is that the parlies are in love with each other.
Knowing this to be insufficient as a canonical reason, others are added such as
“periculum matrimonii civilis”. Suppose, however, that this alleged cause is
not a true one, and nevertheless a dispensation from difference of worship is
thereby obtainedfrom the Ordinary, is the marriage valid? If not, what should
one do about it?
Canon 81 : A generalibus Ecclesiae legibus Ordinarii infra
Romanum Pontificem dispensare nequeunt, ne in casu quidem
peculiari, nisi haec potestas eisdem fuerit explicite vel implicite
concessa.. ..
Canon 84, §1 : A lege ecclesiastica ne dispensetur sine iusta et
rationabili causa, habita ratione gravitatis legis a qua dispensatur;
alias dispensatio ab inferiore data illicita et invalida est.
§2: Dispensatio in dubio de sufficientia causae licite petitur et
potest licite et valide concedi.
i. The dispensation, and therefore the marriage, is invalid if
granted by an episcopal curia without a canonical cause. Local
Ordinaries enjoy either from the common law in emergencies or by
papal induit the faculty of dispensing certain impediments provided
a just cause exists, and it is altogether wrong for a priest to get
scrupulous about the validity of these curial acts. Both from canon
84, §2, which sanctions doubtfully sufficient causes, and from the
rule of canon 1014 declaring marriage to enjoy the favour of law
in matters relating to the validity of the contract, it should normally
be taken for granted that marriages contracted with a curial dis
pensation are valid; moreover, it is an ancient principle that any
juridical act, such as granting a dispensation, must usually be
Q. y
Some General Principles of Canon Law
regarded as validly performed, and the law should be interpreted
as widely as possible in order to sustain the validity of these acts
In cases such as that outlined in the question, one could without
much difficulty decide that, when people are very much in love,
there is always some danger of a civil marriage if a dispensation is
refused. It is the rarest thing for a marriage contracted with a
dispensation to be subsequently declared invalid ow-ing to the
insufficiency of the canonical cause.
ii. But, though rare, it can happen. Λ good example exists in a
Rotal decision, 3 March, 1942,1 which declared the invalidity of a
marriage contracted with a dispensation from difference of worship
issued by the Paris Curia.2 Incredible though it may appear, the
only cause alleged was that the parties were in love: “In petitione
dispensationis a parocho sponsorum ad Curiam Parisiensem missa
tamquam unicum motivum dispensandi adducitur ‘Amour’. At
‘amor’ contrahentium neque ab ullo elencho causarum canonic
arum neque ab ullo Auctore agnoscitur uti causa canonica dis
pensandi. . . . Curia autem Parisiensis contenta erat illa causa, nam
absque ulla inquisitione, a tergo petitionis scribens imploratam
dispensationem concessit. ... Si Praelati infra Romanum Pontificem
super impedimento disparitatis cultus, in quo Ecclesia tam aegre
dispensare solet, dispensare valerent ob merum ‘amorem’, verum
vel putatum, contrahentium, tota legislatio Ecclesiae quoad hanc
rem tanti momenti in irritum redderetur: hoc autem Ecclesia
nunquam admittere potest neque admittit.”
iii. In the above case outlined in the question, we think that
nothing need be done for the reasons given in (i). The marriage
should be presumed valid, and the question about the validity of
the dispensation should be left dormant, unless the marriage becomes
wrecked and it appears advisable to seek a declaration of nullity :
we think it would not succeed.
Before the event, however, when sending petitions for dispensation
from diriment impediments, the priest should put more than one
canonical cause,3 if such exist ; when “periculum matrimonii civilis”
is doubtful, he should state so in the petition; if it is not merely
doubtful but non-existent, and no other canonical cause can be
presented, it is theoretically possible for the Holy See, not for the
local Ordinary, to grant a valid dispensation without one. We have
1 R.D., 1942, XXXIV, p. 123.
2 The decision was reversed 14 January, 1951 ; A.A.S., 1951, XLIII, p. 316, vii.
3 Ordinaries sometimes refuse to accept “periculum matrimonii civilis” without
any additional cause, e.g. Glasgow, Synod IV, 1946, n. 166; they are well within
their right, since they arc not bound to use the faculties granted by the Holy See,
and it is well known that this particular cause is often lightly alleged.
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no experience of this ever happening in practice, but it is always
open to the petitioners and to the priest acting for them, to request
the Ordinary to seek dispensation from the Holy See for whatever
reasons can be alleged, even though they are not included in the
books and in the lists as just canonical causes.
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Q. 8
8. PLURALITY OF QUASI-DOMICILE
Is it possible for a person to have more than one quasi-domicile ?
Canon 92, §1. Domicilium acquiritur commoratione in aliqua
paroecia . . . quae commoratio vel coniuncta sit cum animo ibi
perpetuo manendi, si nihil inde avocet, vel sit protracta ad
decennium completum.
§2. Quasi-domicilium acquiritur commoratione uti supra, quae
vel coniuncta sit cum animo ibi manendi saltem ad maiorem anni
partem, si nihil inde avocet, vel sit reapse protracta ad maiorem
anni partem.
There has always been some unwillingness on the part of lawyers
to admit simultaneous plurality even of domicile, since this would
seem to be almost a recognition of bi-location. The civil law in most
places preserves the principle of one domicile for purposes of social
security, such as voting, but even so the conditions of modern life
have imposed exceptions. The canon law considers not so much the
locality as the relations of a person to the locality, and is more
concerned with personal individual rights than with social security ;
this tendency, which may be called “pcrsonalist”, logically led to
the recognition, in canon law, of a plurality of domicile, and we find
the law codified accordingly under the title De Personis.1
The conditions for acquiring a quasi-domicile are less strict than
for a domicile, but the effects of both, one or two matters apart,
are identical,2 and one would expect to find, once the notion of
quasi-domicile became established, that the notion of a plural quasidomicile would also be admitted. Pre-code writers, however, whilst
recognising the possibility of a legal quasi-domicile existing together
with a voluntary one, would not admit the existence of a plural
voluntary quasi-domicile,3 for the criterion “greater part of the
year” seemed inapplicable to two places, since the choice of the
second appeared to terminate the first. There arc post-Codc com
mentators who retain this outlook, but a large number of them,
1 La Théorie du Domicile et l’Equité Canonique, Lcfèbvrc in E.T.L., 1046 η » » <
2 The Clergy Reciew, 1945, XXV, p. 51g.
» · 4.
3 E.g. d’Annibale, Theol. Moralis, I, §84, n. 23.
Q_. g
Some General Principles of Canon Law
13
if not the majority, have no difficulty in accepting plurality even
of voluntary quasi-domicile. One quotation will suffice both for
establishing this point and as a summary of the whole situation:
“Plura quasi-domicilia in iure decretalium fere communi auctorum
sententia non admittebantur. Post Codicem tamen nulla est ratio,
ob quam quasi-domicilium necessarium cum alio quasi-domicilio
libero simul non existant; unanimiter hoc admittunt auctores,
iis exceptis qui immerito ipsam existentiam quasi-domicilii necessarii
negant. . . . Neque est dubium quasi-domicilium, per animum
manendi acquisitum, cum alio, quod sine animo, per solam pro
tractam commorationem acquiritur simul adesse posse; etiam hic
consentiunt auctores . . . Dubium solum movebatur a P. Vermeersch, quem secutus est P. Vidal, an possit quasi-domicilium,
quod per animum ultra semestre manendi acquiritur, simul cum
alio quasi-domicilio, eodem modo acquisito subsistere. Praedicti auctores
respondent negative, asserendo per animum alibi ultra semestre
manendi, primum quasi-domicilium solutum esse; nos, cum P.
Maroto, censemus in tali casu primum quasi domicilium non
solvi. . . . Censemus ergo duo quasi-domicilia, per animum ultra
semestre in loco manendi acquisita, simul persistere posse.”1
The reason for this view, which we think correct, is in canon 95 :
“Domicilium et quasi-domicilium amittitur discessione a loco cum
animo non revertendi . . .” which teste Maroto2 was finally chosen by
the redactors in place of the suggested reading: “quasi-domicilium
autem amittitur quoque discessione a loco per sex menses completos,
non obstante revertendi animo”. This reading represented, it
appears, the pre-Code interpretation, since it was then held that
the contrary action of a protracted absence terminated a quasidomicilium, and extinguished, as it were, the intention of returning.
The law of the Code excludes this interpretation and recognises the
same principle for terminating both domicile and quasi-domicile.
Accordingly, a person studying in Rome, for example, acquires
there a quasi-domicile immediately on arriving ; if he has to go to
Naples for six months and a day to recuperate after a serious illness,
intending nevertheless to return to Rome when well, he acquires a
second quasi-domicile immediately on arriving at Naples.
9. INTERNAL NON-S A CR AMENT A L FORUM
It would help one to understand the meaning of this forum if an unqualified
affirmative answer could be given to the following question: may a confessor,
1 Vindex in Jus Pontificium, 1926, VI, p. 51. Cf. also in the same sense E.T.L.
loc. cit.
2 Institutiones, I, §413.
Cam
Priests' Problems
Q.
Engl
14
twci
in using his faculties for dispensing a marriage impediment or absolving from
censure, provided the penitent is willing to give his name outside the confes
sional, secure that the confessor's dispensation or absolution is operative in the
internal non-sacramental forum ?
ques
only
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with
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dent
was
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date
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pari:
to 1
and
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bool
a qt
scttl
has 1
Fr h
Mah
brin
imp.
coll.
Canon 202, §2 : Potestas collata pro foro interno exerceri potest
etiam in foro interno extra-sacramentali, nisi sacramentalc exigatur.
§3: Si forum, pro quo potestas data est, expressum non fuerit,
potestas intelligitur concessa pro utroque foro, nisi ex ipsa rei natura
aliud constet.
Canon 1047: Nisi aliud ferat S. Poenitcntiariae rescriptum, dis
pensatio in foro interno non sacramentali concessa super im
pedimento occulto, adnotetur in libro diligenter in secreto Curiae
archivo de quo in can. 379 asservando, nec alia dispensatio pro foro
externo est necessaria, etsi postea occultum impedimentum pub
licum evaserit; sed est necessaria, si dispensatio concessa fuerat in
foro interno sacramentali. Cf. can. 991, §4, for a similar rule about
irregularity.
Canon 2251 : Si absolutio censurae detur in foro . . . interno,
absolutus, remoto scandalo, potest uti talem se habere etiam in
actibus fori externi ; sed, nisi concessio absolutionis probetur aut
saltem legitime praesumatur in foro externo, censura potest a
Superioribus fori externi, quibus reus parere debet, urgeri, donec
absolutio in eodem foro habita fuerit.
Λη affirmative answer cannot be given to the above question,
since the jurisdiction of a confessor qua talis is usually limited to the
sacramental forum in which everything transacted is subject to the
most inviolable law of secrecy. We say qua talis because in given
circumstances the common law docs extend his jurisdiction beyond
the confessional, e.g. the confessor of canon 1044 may, in the
absence of the parish priest, automatically become the “alius
sacerdos” of canon 1098; or a confessor absolving a person in
danger of death may enjoy wider jurisdiction from canon 882.1 In
such cases, and in these alone, the confessor may act as suggested
in the above question. In other cases, where his jurisdiction for the
internal sacramental forum is not amplified cither by the common
law or by induit, the most he can do, if he judges it expedient, is
to advise the penitent to approach the appropriate authority in
order to secure the effects of absolution or dispensation for the
internal non-sacramental forum, as described in canon 2251.
The procedure, including the limitations of simple confessors, is
illustrated by the rules which appear during Jubilees when it is the
i This docs not extend to the external forum. Code Commission, 28 Dec., 1927.
Q. io
Some General Principles of Canon Law
15
custom to give Jubilee confessors additional faculties over a limited
number of cases. In the Monita, η. I, issued by the Sacred Peniten
tiary1 for their guidance during 1950 we read : “Simplices confcssarii
his facultatibus in sacramentali confessione tantum uti possunt;
poenitentiam vero etiam in foro interno cxtra-sacramentali, dum
modo de peculiaribus facultatibus ne agatur pro quibus sacramcntalis confessio expresse requiratur.” The Monita of the 1925
Jubilee were more informative about the procedure to be observed
by Penitentiaries when absolving in the internal forum, even from
public censures : “. . . ad huius vero Officium poenitentem dirigant
cum suo de impertita a se censurae absolutione testimonio, in quo
quidem poenitentis nomen, cognomen, dioecesim et censuram, in
quam inciderat, publicam, cum plena cius venia, conscripserint.
Officium autem S. Poenitcntiariae poenitentem ad Ordinarium
remittet, tradito Rescripto, quo testificabitur illum fuisse a publica
eiusmodi censura in foro sacramentali absolutum, ut possit, ad can.
2251, haberi tamquam absolutus in foro externo. . . .”2
A similar procedure could be followed by a parish priest absolving,
in the circumstances of canon 1045, from an occult impediment of
consanguinity arising from illicit intercourse of the person’s forebears,
when for obvious reasons a dispensation cannot be sought in the
external forum, and for prudential reasons a dispensation in the
sacramental forum alone is judged unsafe and inexpedient. The
parish priest may dispense in the internal non-sacramental forum,
but the confessor qua talis may not, since his faculty is limited from
canon 1044 to sacramental confession.
In ascertaining the exact extent of faculties enjoyed, the preposi
tion “in” denotes the mode of their exercise, whereas “pro” denotes
their juridical effect. Whether their exercise is limited to the sacra
ment of Penance may often be discerned, as in the concluding words
of canon 1044, from the very explicit words employed ; or the same
may be implied from the context which refers to a confessor, not to
a priest, as in the pagella of diocesan faculties which is common in
this country, c.g. “Quo autem fructuosius Confcssarii munus
obeas, facultates sequentes in foro conscientiae exercendas tibi
tribuimus.”
IO. DELIBERATE USE OF “COMMON ERROR’’ JURISDICTION
In a certain church a number of visiting priests kneel in the church to make
their thanksgiving after Mass. Are they justified in hearing the confessions of
the faithful, when requested, even though they lack faculties in this or any
1 A.A.S., 1949, XLI, p. 513.
2 1924, XVI, p. 337, ad VI.
Ca
En4
Priests' Problems
tW.
16
qu<
other diocese, and even though there may be other priests available, properly
approved, who could easily be asked? The alleged justification is that people
in general think that all priests arc able to hear confessions anywhere.
onl
enc
liti
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aga
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and
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Fr .
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Q. io
Canon 209. In errore communi . . . iurisdictionem supplet
Ecclesia pro foro tum externo tum interno.
Canon 872. Praeter potestatem ordinis, ad validam peccatorum
absolutionem requiritur in ministro potestas iurisdictionis, sive
ordinaria sive delegata, in pocnitentem.
Canon 874. Iurisdictionem delegatam ad recipiendas confessiones
quorumlibet sive saecularium sive religiosorum confert sacerdotibus
tum saecularibus tum religiosis etiam exemptis Ordinarius loci in
quo confessiones excipiuntur. . . .
Canon 2366. Sacerdos qui sine necessaria iurisdictione prae
sumpserit sacramcntales confessiones audire est ipso facto suspensus
a divinis. . . .
The view which justifies hearing confessions in the above circum
stances is often followed in practice. We think unhesitatingly that
it is a wrong view, because it nullifies the principle requiring
jurisdiction, as well as holy orders, for the valid absolution of sin,
a principle which is dogmatic and not merely canonical.
Its origin, no doubt, is in the now generally accepted doctrine
that a “common error” title to jurisdiction can exist de hire, and
that the title is verified even when the priest using it is well aware
that he lacks any other title.1 The conditions in which “common
error” exists are in much dispute, but assuming that it does exist
every writer on the subject requires a grave reason to justify its
use knowingly, and this is clearly lacking in the case set out above.
There is considerable agreement that the censure is not incurred
if the confessor has a grave reason for hearing confessions on the
title of “common error”, and the commentators are often content
to leave it at that.2 Others imply, or expressly state, that the censure
is incurred if there is no grave reason,3 since the Church grants this
jurisdiction not in favour of the priest but of the faithful ; the con
fessor may not with impunity force the Church, as it were, to concede
this extraordinary kind of jurisdiction, unless a grave reason justifies
him.
The view, however, may be held with probability that knowingly
absolving in “common error” for merely a slight reason is not in
itself a grave sin.4 This really gets to the root of the matter, for if
1 The Clergy Review, 1946, XXVI, p. 432; 1941, XXI, p. 237.
2 Bcstc, Introductio, p. 985.
3 Chrétien, De Poenitentia, §§210, 224.
* Cappello, De Poenitentia (1946), §343; Iorio, Theol. Moralis (1947), III, §424.
Q. io
Some General Principles of Canon Law
17
it is not a grave sin it follows inevitably from canon 2242, §i, that
the censure is not incurred.
One can appreciate the theological or canonical gymnastics which
lead to this conclusion whilst, at the same time, condemning the
practice outlined. The priests in question are breaking the law, and
though in conscience they may hold themselves guiltless of grave
sin, the authorities of the external forum arc entitled to regard them
as censured if they so decide: the remedy for the delinquent con
fessor would then be either to seek absolution or to prove, to the
satisfaction of the external forum, that no penalty has been incurred.
Therefore, it is for the rector of the church, who may be aware that
these practices are going on therein, to direct the confessors that
they must cease, and he should have recourse to the local Ordinary
if his directions are not obeyed.
II. CLERICS AND PASTORS
II. DISCARDING CLERICAL DRESS
What is the obligation in conscience of always wearing clerical dress? Are
there any canonical sanctions attached to this law? I have in mind the position
of a priest who discards clerical attire during his annual holiday.
Canon 136, §1 : Omnes clerici decentem habitum ecclesiasticum,
secundum legitimas locorum consuetudines et Ordinarii loci
praescripta deferant. . . .
Canon 188.7: Ob tacitam renuntiationem ab ipso iure admissam
quaelibet officia vacant ipso facto et sine ulla declaratione, si
clericus : . . . Habitum ecclesiasticum propria auctoritate sine iusta
causa deposuerit, nec illum, ab Ordinario monitus, intra mensem
a monitione recepta resumpserit. (For minor clerics see also canon
ΐ3θ, §3·)
Canon 237g : . . . clerici autem maiores, salvo praescripto canon
188.7, ab ordinibus receptis suspendantur, et si ad vitae genus a
statu clericali alienum notorie transierint, nec, rursus moniti,
resipuerint, post tres menses ab hac ultima monitione deponantur.
S.C. Cone., 28 July, 1931; A.A.S., 1931, XXIII, p. 336:...
decentem habitum ecclesiasticum publice semper, non excepto
tempore vacationum aestivarum, deferant, habitum scilicet, quem
legitima consuetudo et Ordinarii loci praescriptum in propria
regione ordini clericali congruentem agnoverint.
i. In conscience the obligation of wearing clerical dress is a grave
one, that is to say its non-observance is a mortal sin, a conclusion
to be drawn from the grave penalties attached, and still more from
the purpose of the law. Its violation easily means, as the Sacred
Congregation notes, that the faithful will lose their respect for
the clergy^, and that the clergy will expose themselves to conduct
unbecoming their state and to the danger of abandoning it
altogether.
It is, nevertheless, unanimously and very reasonably admitted
by all the authorities that this law, grave in itself, does admit
smallness of matter in respect to the period during which it is not
observed, though it would be unreasonable to expect unanimity in
determining this period. We cannot find anyone who permits a
continuous period of more than six days, and although St Alphonsus
18
Q. i2
Clerics and Pastors
19
is occasionally credited with this estimate it appears that Lacroix1
first suggested it, and he is followed by many modem commentators.2
It is assumed, of course, even during this short period, that there is
no other evil circumstance, and even so an Ordinary is within his
right in enforcing the law.
ii. In the common law the sanctions are ferendae sententiae to the
extent, at least, that they arc not applicable until the stated time
has elapsed after receiving the Ordinary’s monition, which is the
mildest kind of penal measure in the Code.3
Local law is sometimes stricter, as in Malines:4 “Si quis clericus,
in maioribus ordinibus constitutus, vestibus laicalibus ad finem
inhonestum indutus in publicum prodit, ipso facto suspensionem a
divinis incurrit,” a measure which is rightly interpreted by Belgian
canonists to apply only to a grave breach of the law, as explained
above.5 We do not know of any English diocesan law applying a
sanction of this kind. Our provincial law merely directs that a priest
not attired as a cleric must not be allowed to say Mass or assist at
any divine office.0
iii. Discarding clerical dress is forbidden “propria auctoritate sine
iusta causa”, as in canon 188. Apart from times of persecution it is
not easy to estimate what the just cause will be, but we can imagine
that certain kinds of illness may demand a complete relaxation
scarcely attainable when dressed as a cleric, in which case the
necessary permission could rightly be sought from one’s own
Ordinary.
12. PRIEST PRACTISING MEDICINE
I Vhat are the limits of the law forbidding the practice of medicine to priests
and religious? It does not, one supposes, forbid the activities of an infirmarian
in a religious house. But may a priest possessing a medical degree prescribe
for a member of his household instead of calling in a general practitioner?
Canon 139, §1 : Ea etiam quae, licet non indecora, a clericali
tamen statu aliena sunt, vitent. §2 : Sine apostolico induito
medicinam vel chirurgiam ne exerceant. . . .
Canon 985 : Sunt irregulares ex delicto. ... 6. Clerici medicam
vel chirurgicam artem sibi vetitam exercentes, si exinde mors
sequatur.
1 Theol. Moralis, I, §672.
2 Vcrmecrsch-Crcusen, E[>itome, I, §254; Loiano, Institutiones, III, §504; Collât.
Brugen., 1935, p. 113 ; Iorio, Theol. Moralis, II, §990; Brys, luris Canonici Compendium,
I, §327; Davis, Moral and Pastoral Theology, IV, p. 298.
’ Canons 2307, 2309.
4 Cone. Prop., 1920, n. 131.4.
6 Clacys-Bouuacrt, Manuale luris Canonici, I, §292.
e Westm., IV, xi, 13.
20
Priests' Problems
q.
I2
i. St Luke practised this profession and many examples in the
early Church could be cited of priests and bishops who did the same.
The first prohibition is in canon 5 of the Council of Clermont held
in the year 1130, against monks who left their monasteries to study
medicine, and the rule was gradually extended to all clerics. The
reasons for this law arc, firstly, to prevent them from engaging in a
secular pursuit, especially if exercised for gain, which might deflect
them from their sacred calling; secondly, as a protection for the
virtue of chastity; and, thirdly, the irregularity of canon 985. There
seems no foundation for the view that the law is also aimed at
protecting the honour and interests of the medical profession.1
ii. The casuistical interpretation of the law resembles that used in
interpreting die law against clerics engaging in trade, but there is
no l.s. penalty attached to it. Everyone is agreed that the law does
not apply to the gratuitous treatment of minor complaints and
injuries, such as occur in any household, and which are dealt with
by an infirmarian in a college or religious house, or maybe by a
village priest from motives of charity; nor obviously does this
positive law apply to sudden emergencies when, in the absence of a
professional man, anyone is bound to come to the assistance of his
neighbour in bodily necessity. It is the exercise (“exerceant”) which
is forbidden, not the acquisition of medical knowledge or medical
degrees, and the word implies a certain frequency or repetition.
Briefly the limits of the law may be determined by three terms:
“exercitium”, “ex professo”, “ad quaestum”,2 and the most
liberal interpretation we have examined is that of Bestc :
. clerici
ex professo et ad quaestum se devovere inhibentur arti medicae et
chirurgicae, nam exercitium dicit praxim habitualem et fre
quentem. . . . Quare praesenti textu iuris clerici non vetantur
consilium gratuitum dare aegrotis, aut curam et assistentium
scicntificam praestare membris propriae familiae vel communitatis
familiaribus et amicis ; aut curam ex professo suscipere infirmorum
alienorum, si ex instituto nosocomia administrent; aut in casu
necessitatis vel caritatis chirurgiam agere, dummodo ab incisionibus
ct adustionibus periculosis se abstineant.”3
iii. Since, with the exception of canon 985.6, the law has no l.s.
sanction, it will be for the Ordinary to coerce a cleric into observing
it by applying any appropriate f.s. penalty, which leaves on the
margins a wide latitude for the conscience of the individual cleric
in deciding whether he is breaking the law or not. Induits are
frequently obtained, under certain conditions and restrictions, for
' Brunini, Clerical Obligation* of Canons 13g and
3 Collationi* Brugenrc*, 1935, p· 3θ4·
p. ia.
3 Introductio, ad can. 13g.
Q. 13
Clerics and Pastors
21
missionary clergy and religious to practise medicine in a measure
forbidden by the common law. In 1628 a Douay priest, Charles
Clcmer, obtained an induit “quod huiusmodi praetextu facilior ei
futurus sit aditus ad administranda Sacramenta catholicis anglis, ct
ad convertendos haereticos, praesertim in mortis periculo con
stitutos”.1
iv. Canon 985 offers a little difficulty in its correct application.
In pre-Code law what is now classed in n. 6 as irregularity “ex
delicto” used to be regarded as “ex defectu lenitatis”; irregularity
is an impediment not a penalty or a censure, but the notion of
delictum always carries with it a penalty. One commentator writes of
canon 985.6: “Delictum tamen non est, cum poena non imponatur,
sed antiquum nomen servat.”2 Cappello gives the common inter
pretation that this irregularity is incurred by the grave sin of breaking
the law of canon 139, §2, which is therefore properly classed as
“ex delicto”. It is not incurred, accordingly, if the patient’s death
follows medical treatment given by a cleric in the cases mentioned
above (ii), or by one enjoying an induit, even though there was
grave negligence in prescribing the wrong treatment. Cappello holds
that this law applies equally to religious who are not clerics, from
the rule of canon 592 ; others, relying on canon 2219, §3, think that
it affects only clerics.3
13.
CLERICS AS LOCAL COUNCILLORS
What is the law regarding clerics offering themselves for election as local
councillors ?
Canon 139, §4: Senatorum aut oratorum legibus ferendis, quos
deputatos vocant, munus ne sollicitent neve acceptent sine licentia
Sanctae Sedis in locis ubi pontificia prohibitio intercesserit; idem
ne attentent aliis in locis sine licentia tum sui Ordinarii, tum
Ordinarii loci in quo electio facienda est.
Code Commission, 25 April, 1922, II: An Ordinarii locorum in
concedenda licentia sacerdotibus qui se candidatos ad deputatorum
comitia sistere cupiunt, potius difficiles quam faciles se praebere de
beant. Resp. Affirmative ad primam partem, negative ad secundam.
The canon cited deals with various pursuits which, though not
indecorous, are somewhat unsuited to the clerical profession. Per
mission must be obtained from the Holy Sec in countries such as
Italy, where there exists a papal prohibition against clerics assuming
1 Fontes, n. 4439.
2 Rcgatillo, Jus Sacramentarium, §961 ; Bryce, Compendium, II, §1114.
3 Rcgatillo, Institutiones, I, §255.
2·
Priests' Problems
22
Q, 14
these civil offices. Elsewhere the Ordinary’s sanction suffices, and
the answer to be expected will usually be a negative one, unless
special reasons exist affecting the welfare of Catholics. A later reply
of the Code Commission, 15 March, 1927, strengthened the powers
of the Ordinaries in stopping any political activity on the part of
clerics which was not in conformity with the instructions of die
Holy See.
14.
ADMINISTRATOR OF VACANT PARISH
Is there any limit to the period during which a parish may be in charge
merely of an administrator ? Cases are fairly common where parishes are left
to the care of an administrator for two years or more.
Canon 155: Officiorum provisio cui nullus terminus fuit speciali
lege praescriptus, nunquam differatur ultra sex menses utiles ab
habita notitia vacationis, firmo praescripto can. 458.
Canon 458: Vacanti paroeciae curet loci Ordinarius providere
ad normam can. 155, nisi peculiaria locorum ac personarum
adiuncta, prudenti Ordinarii iudicio, collationem tituli paroccialis
differendam suadeant.
Canon 1432, §3: Si Ordinarius intra semestre ab habita certa
vacationis notitia beneficium non contulerit, huius collatio devolvitur
ad Sedem Apostolicam, salvo praescripto can. 458.
i. The six months’ tempus utile of canon 155 means that, after it has
elapsed, the Holy Sec alone can validly appoint a parish priest. On
the other hand, canons 155 and 1432, §3, as well as many other
official texts, place the parochial benefice in an exceptional position,
in so far that it is for the Ordinary' to decide whether the appointment
of a parish priest may be deferred beyond six months. The result is
that the rule of canon 1432, §3, is scarcely ever applicable, as most
of the commentators note, since it must be assumed that the
Ordinary has a just reason for delaying the appointment.
ii. Nevertheless there arc one or two important decisions which
clarify the meaning of “peculiaria locorum ac personarum ad
iuncta”. The first is a decree of the Congregation of the Council,
14 November, 1916,1 which declared that the conditions of the war
not only justified but urged delay in appointments to vacant
parishes; the same Congregation, 26 February, 1919,2 revoked this
war-time provision. We arc not aware of any similar documents
existing for the period of the Second World War.
A further decision, given by the Codex Commission, 24 November,
1 A./I.1916, VIII, p. 445; Periodica, 1919, VIII, p. 142.
2 A.A.S., 1919, XI, p. 77; Periodica, 1921, X, p. 60.
Q. 15
Clerics and Pastors
23
1920,1 was to the effect that the appointment does not pass to the
Holy See when the Ordinary’s failure to appoint is due to an
absolute lack of subjects.
Λ more recent reply of the same Commission, 3 May, 1945,2
decided that the economic necessities of a diocese arc not included
in the words peculiaria, etc., of canon 458.
iii. For the meaning of the phrase, which is only partly explained
by the official documents, we must turn to the commentators,
particularly the more recent ones on the last reply of the Code
Commission.3 It is rightly held that the phrase in canon 458 refers
to the circumstances of the parish, not of the diocese, and that the
law has chiefly in view the good of the parish which is being denied
a parish priest. Canon 1481 sanctions during a vacancy the custom
of devoting parochial revenues, superfluous to those required for
the support of an administrator, to the general needs of the diocese,
a rule which obviously favours episcopal delay in the appointment
of a parish priest but is now inapplicable beyond a period of six
months.
Reasons which do come within the phrase peculiaria, etc., of this
canon arc, for example, the lack of a priest exactly suited for the
position ; the necessity of paying off a parochial debt, or of erecting
a parish school ; or the wish of the Ordinary to make known his
displeasure with the parishioners.
iv. Our correspondent had the impression that, after adminis
tering the parish for six months, he had the right to be appointed
parish priest. This is not so, of course, though it is the common
practice to appoint a priest first as administrator with a view to
ascertaining whether he is fitted for the work of that particular
parish. The contention, however, is correct that an administrator
should not usually be placed in a parish for more than six months,
but there are many reasons justifying a longer period, all of which
depend on the Ordinary’s prudent judgement within the limits of
the official decisions mentioned above.
15. “missa pro
populo” days
Since the obligation of the parish priest appears to be in principle the
equivalent of the obligation of the. faithful to assist at Mass, why docs his
obligation continue on suppressed feasts? Why does the list differ in various
dioceses even when it is certain that no induit has been obtained?
1 A.A.S., 1920, XII, p. 577; Periodica, loc. cit., p. 252.
2 A.A.S., 1945, XXXVII, p. 149; The Clerçy Review. 1946, XXVI. p. 48.
3 Apollinaris, 1947, XX. p. 38; Irish Ecclesiastical Record, 1946, LXV1I, p. 52;
Ephemerides luris Canonici, 1946, p. 121.
24
Priests' Problems
Q. 16
The number was explained very fully and clearly by Dr Hanrahan
in The Clergy Review in the course of a commentary upon a reply
received by the Archbishop of Liverpool from the Sacred Congrega
tion of the Council, 19 July, 1941.1
i. The principle of the obligation is that the parish priest, in
return for his support from the people’s contributions or from his
parochial benefice, should apply a certain number of Masses for his
people; the obligation is not actually equivalent to that of assisting
at Mass which is binding upon all the faithful, clergy as well, even
those who are not parish priests. For the latter obligation has for its
purpose the worship of God, to give God His due, whereas the
former is concerned with giving the people their due. It is true,
nevertheless, that the two obligations used to coincide on the same
days: there were formerly many days of obligation which are now
suppressed as such, and are known as “days of devotion”; but,
from canons 339, §1, and 446, §1, the parish priest’s obligation of
offering Mass for the people continues on these suppressed feasts,
whereas the laity’s obligation of assisting at Mass on these days has
been discontinued. The ultimate reason for this is the will of the
legislator : the admitted duty of the parish priest is specifically and
numerically determined. Regatillo,2 who is well-informed on such
matters, gives another reason for the rule of the Code as explained
in later replies, 17 February, 1918, and 28 December, 1919. Many
dioceses possess an induit by which a stipend may be taken by a
parish priest for his second Mass on days when the first is offered
for the people, provided the offering is sent to the bishop for the
support of the Seminary: Regatillo states that certain bishops
petitioned the Holy See to retain the suppressed feasts as days when
Mass has to be offered for the people, precisely in order that their
Seminaries should benefit by the induit.
ii. The list differs in various dioceses, either because some have
an induit permitting a reduction in the number, or because the
feasts of local and diocesan patrons differ, or even because the
compiler of the Ordo has made a mistake or is unaware of the reply
given to Liverpool in 1941. In any event, a parish priest satisfies his
obligation in justice by offering these Masses on the days indicated
officially in his local calendar or directory.
16. PAROCHIAL VISITING
Some priests, whilst zealous in all other respects, neglect the systematic
visiting of the people in their homes, relying on the view that there is no strict
1 The Clergy Review, 1941, XXI, p. 362.
2 Interpretatio et Jurisprudentia C.I.C., p. 82.
Q. 16
Clerics and Pastors
25
obligation to visit the people in this way, and that neglect is not a grave sin.
Is there an obligation binding the parochial clergyy, and if so what constitutes
a grave sin of omission?
Canon 467, §1 : Debet parochus . . . suas oves cognoscere et
errantes prudenter corrigere. . . .
Canon 470, §1. . . . etiam librum de statu animarum accurate
conficere pro viribus curet. . . .
Systematic house-to-house visiting, at least in the conditions of
the Church in this country, is usually considered by experienced
priests to be a most powerful means of preserving Catholic faith
and practice amongst the people. Priests of the older generation
were accustomed to perform this office with great fidelity, and die
writer’s earliest recollection as a newly ordained priest attached to
a parish is of the parish priest (Rev. Thomas Moloney of the
Westminster diocese) making his daily visits as a matter of course,
in much the same way as he would observe any other obligation
such as reciting the Breviary.
It is an exacting and wearying task which is often the matter of
exhortation, whether on t he part of bishops1 or of spiritual writers.2
The question, however, which we have to answer is whether this
excellent practice is of grave obligation.
(i) We have discovered no explicit direction of the common law
requiring the parochial clergy to visit systematically the houses of
their parishioners, except of course when sickness or some other
definite reason demands it.3 It might appear, at first sight, to be
implied in canons 467, §1 and 470, §1, as a means to an end. But it
must be admitted, on reflection, that though a useful means it is
not a necessary one: there arc parts of the Church, predominantly
and devotedly Catliolic, where it is not the practice4 and it cannot
be said diat the common law in these two canons necessarily orders
everywhere a house-to-house visitation.
It could be maintained, nevertheless, that in countries such as
England and America, the law of these canons can only be observed
by a systematic visitation, and there arc not wanting moral theol
ogians who draw this conclusion.5 For the most part, neither the
moral theologians nor the canonists commenting upon these canons
or upon the duty of residence do more than strongly recommend
1 c.g. Cardinal Vaughan, Snead-Cox, I, p. 389; Westminster Synod, XXXVI,
»897» P· 14·
2 c.g. The Clergy Review, 1943, XXIII, p. 109.
3 Cf. op. cit. XXIV, 1944, p. 330.
4 Irish Ecclesiastical Record, XXIX, 1927, p. 510.
6 Tanqucrey, Theol. Moralis, III, §1109.
Priests' Problems
26
Q.· 17
parochial visiting as a means for knowing the people—oves cognoscere
—which is declared by the Tridentine decree, Sess. XXIII, cap. i,
de ref. to be of divine law.
(ii) What the common law leaves undetermined it is for local law
to make precise in the measure judged necessary by the episcopate.
The Westminster Provincial Councils require parochial visiting as
a means for preparing the liber status,1 and diocesan legislation often
does so much more explicitly, e.g. Liverpool, Synod XXIII, 1945,
n. 56: “. . . edicimus et declaramus omnes sacerdotes, quibus cura
animarum commissa est, ad hanc consuetudinem vera obligatione
teneri, ita ut negligentia notabilis graviter esset peccaminosa.”
Nottingham, Synod 1946, η. 25 : “House-to-house visitation is the . . .
duty of the parish priest. . . . Even when he has to discharge this
duty through odiers, the parish priest is primarily responsible for
its fulfilment.” Middlesbrough, Statuta 1933, nn. 47 and 62, requires
the visiting to be frequent and systematic. Similar legislation may
be found in the local laws of other countries, as in Malines, Statuta
1924, n. 109. Collections of local laws are not easy to consult, and
frequently they are not even printed, but our impression is that some
explicit positive local law requiring parochial visitation exists in
most countries which arc not predominantly Catholic. The law
varies in its expression, and in one American diocese2 the obligation
is declared to recur annually and its neglect to be a grave matter.
(iii) Though we are always loth to multiply grave obligations for
the clergy, it is certain that episcopal laws may bind sub gravi ;3 that
the bishops are within their rights in determining more closely the
common law of canons 467 and 470; and diat these local laws,
where they exist, arc to be interpreted on the usual canonical
principles. It is for the clergy of each diocese to obey their own local
law, which docs not however extend to other dioceses that have no
written law on the subject, except in so far as custom has itself
created a law, or in tire measure necessary for the observance of
canons 467 and 470.
17.
TENURE OF “VICARIUS PAROECIALIS”
From canon 47 1 this type of vicar approximates in nearly every respect to a
parish priest, and his presentation is said to be perpetual if he is not a religious.
Does this perpetuity mean that he is, as regards stability, in the position of an
immovable parish priest?
1 I Westm. Dec. xxv, 2 ; IV Westm. Dec. x, g.
2 Crookston, Statutes, 1923, n. 65.
3 Cf. The Clergy Review, 1937, XIII, p. 267.
Q. 18
Clerics and Pastors
27
Canon 471, §1 : Si paroecia pleno iure fuerit unita domui
religiosae, ecclesiae capitulari vel alii personae morali, debet
constitui vicarius, qui actualem curam gerat animarum, assignata
eidem congrua fructuum portione, arbitrio episcopi.
§3 : Vicarius si sit religiosus est amovibilis sicut parochus religiosus
de quo in can. 454, §5 ; ceteri omnes vicarii ex parte praesentantis
sunt perpetui, sed ab Ordinario possunt, ad instar parochorum,
removeri, monito eo qui praesentavit.
The question relates to a moral person, such as a Cathedral
chapter or college, which includes a number of priests, one of whom
has to be appointed to the actual care of souls in the parish united
pleno iure to the moral person. Canon 454, §2, expressly recognises
the force of customs and privileges in this rather unusual situation,
and they apply equally in our view to §3 of the canon. The secular
parochial vicar is as near as may be the equivalent of a parish priest,
and approximates to the degree of stability enjoyed by such. It
seems to us that the perpetuity mentioned in the canon refers
chiefly to the act of the moral person in appointing a vicar: its
head, say the provost of the chapter, may not change the appoint
ment at will. The local Ordinary may do so “ad instar parochorum ’*
which means, according to Fanfani, that the Ordinary may institute
the vicar either as an immovable or as a movable priest in charge,
and the process of removal will apply respectively as in Book IV,
3, of the Code.1 But lawful custom or privilege in a given instance
may deprive the parochial vicar of this stability : for example, where
it is the custom for the members of a chapter or college to accept
nomination for a year, as might happen when it is thought desir
able that each member should have a term of office in rotation.2
18.
VICARIOUS JURISDICTION OF “SUPPLY” PRIEST
A parish priest called away suddenly owing to the death of a relative
appoints as his supply a priest from another diocese who is staying in the
parish. Does this “locum tenens” possess faculties for confessions and
marriages, or must he receive them from the local Ordinary?
Canon 465, §4: . . . cum absentia ultra hebdomadam est dura
tura, parochus, praeter legitimam causam, habere debet Ordinarii
scriptam licentiam et vicarium substitutum sui loco relinquere ab
eodem Ordinario probandum. . . .
§5. Si parochus repentina et gravi de causa discedere atque ultra
hebdomadam cogatur abesse, quamprimum per litteras Ordinarium
1 Fanfani, De lure Parochorum, §449·
2 Cf. Brys, luris Canonici Compendium, I, §576, Γ.n. 2.
28
Priests' Problems
Q. 18
commonefaciat, ci indicans causam discessus ct sacerdotem sup
plentem, eiusque stet mandatis.
§6. Etiam pro tempore brevioris absentiae parochus debet
fidelium necessitatibus providere, maxime si id peculiaria rerum
adiuncta postulent.
Canon 474. Vicarius substitutus qui constituitur ad normam can.
465, §§4, 5, et can. 1923, §2, locum parochi tenet in omnibus quae
ad curam animarum spectant, nisi Ordinarius loci vel parochus
aliquid exceperint.
Code Commission, 14 July 1922, V, ad 4: Utrum vicarius seu
sacerdos supplens de quo in cit. can. 465, §5, id possit (i.e. licite et
valide assistere matrimoniis) ante approbationem Ordinarii. Resp.
Affirmative, quoadusque Ordinarius, cui significata fuerit designatio
sacerdotis supplentis, aliter non statuerit.
i. If we assume that the parish priest expected to be away for
more than a week and appointed the supply accordingly, there can
be no doubt that he enjoys ordinary vicarious jurisdiction until such
time as the Ordinary removes him. Thus Claeys-Bouuaert: “In
casu repentinae absentiae, substitutus per solam parochi designa
tionem obtinet illam iurisdictionem simul cum ceteris ad curam
animarum facultatibus, usquedum per formalem Ordinarii deci
sionem removeatur.”1 It may be, as many think, unlawful to appoint
in this way a priest from another diocese, and diocesan laws may be
quite explicit on the matter, but the appointment is, on principles
of the common law, valid. In any case, it is open to the Ordinary
on being informed to set the appointment aside and send someone
else as a supply priest.
ii. If the supply priest is appointed by the parish priest for less
than a week, according to the terms of canon 465, §6, he is certainly
not the equivalent of “vicarius substitutus”, and therefore does not
obtain ordinary jurisdiction by virtue of his appointment. He must
get it by delegation from the Ordinary as in canon 874, §i.2
iii. The Ordinary’s approbation of the appointment of a supply
is clearly necessary for its validity in the normal absences dealt with
in §4 of canon 465, a conclusion which is supported, as regards
assistance at marriage, by the Code Commission, 14 July, 1922, V, ad 2.
In the emergency dealt with in §5 of the same canon it is evident
that, for the two or three days elapsing between the parish priest’s
notification and the Ordinary’s reply, the appointment is valid and
lawful. It would seem, therefore, that the Ordinary’s positive ap1 Jus Pontificium, 1937, p. 80. Cf. also Fanfani, De lure Parochorum, §263, B, 4
(probabiliter) ; Botucaren-Ellis, Canon Law,ip.211 ; Collationes Brugenses, 1923, p. 409.
2 Fanfani, loc. cit. Bouscaren-EUis, op. cit., p. 212.
Q. 19
Clerics and Pastors
29
probation is not strictly necessary for the validity of the appointment
in the emergency of §5 : the parish priest might inadvertently omit
to send the notification, or it might never reach its destination.1 If
the parish priest expected to be away for less than a week, and
appointed the supply accordingly, it might happen that his absence
nevertheless becomes extended beyond a week. In our opinion the
supply of §6 will then become that of §5 automatically, and will be
subject to the law as explained in (i). The commentators are not
very informative on some of these points, and it will be necessary
to have recourse to canon 209 in doubtful cases of supplies who lack
the confirmation of the Ordinary.
19. assistant’s appointment “audito
parocho”
Consultation with the parish priest before an assistant is assigned to him is
unusual in this country, there being presumably a custom to the contrary. In
places where there is no such contrary custom is the appointment “inaudito
parocho” invalid?
Canon 476, §3 : Non ad parochum, sed ad loci Ordinarium,
audito parocho, competit ius nominandi vicarios cooperatores e
clero saeculari.
Canon 105: Cum ius statuit Superiorem ad agendum indigere
consensu vel consilio aliquarum personarum : l.Si consensus exigatur,
Superior contra earundem votum invalide agit ; si consilium tantum,
per verba, ex. gr. : de consilio consultorum, vel audito Capitulo, parocho,
etc., satis est ad valide agendum ut Superior illas personas audiat ;
quamvis autem nulla obligatione teneatur ad eorum votum, etsi
concors, accedendi, multum tamen, si plures audiendae sint per
sonae, concordibus earundem suffragiis deferat, nec ab eisdem, sine
praevalenti ratione, suo iudicio aestimanda, discedat;
S.C. Cone., 13 November, 1920; A.A.S., XIII, p. 43: “In archidiocccsi Zagabricnsi habetur consuetudo centenaria nominandi
vicarios cooperatores inaudito parocho. Consuetudo orta est ob
penuriam sacerdotum et ob expeditiorem administrationis modum.
Quaeritur: utrum huiusmodi consuetudo tolerari possit? Resp.
Standum dispositioni codicis, c. 476, §3.
i. The words audito parocho are all that remain in our modern law
of the more ancient principle that it is for the parish priest to make
the appointment, a principle sustained by the Council of Trent2
which empowered the bishops, whenever necessary', to compel
1 Cappello, Periodica, 1930, p. 5, n. 13.
2 Scss. xxi, c, 4 de ref.; Waterworth, p. 147.
30
Priests' Problems
Q, ig
parish priests to appoint assistants. Since that time the law has
progressively and very decisively favoured the bishops, so that by
the end of the nineteenth century it was customary nearly every
where for the bishops to nominate the assistants, a custom which
the canonists on the eve of the Code agreed was a lawful one. The
Code canonised the existing custom whilst preserving merely a relic
of the parish priest’s ancient right in the words audito parocho of
canon 476.
ii. The observance of this clause is held by some to be necessary
for the validity of an appointment1 and by others, with whom we
agree,2 to be unnecessary. Whatever view is favoured, it is agreed
that the validity of the subsequent acts of the assistant priest cannot
be questioned.3
iii. The only point remaining for discussion is whether the clause
audito parocho, which in the common law is to be observed at least
for the lawfulness of an episcopal appointment, has itself disappeared
in many places owing to its abolition by a contrary custom. The
reply, 13 November, 1920, which confirms the common law in the
Archdiocese of Zagreb, must be limited to that place alone. As
explained in the “animadversions” issued with the reply, a custom
of not consulting the parish priest is nowhere reprobated in the
Code, and may therefore be tolerated from canon 5 ; it was held,
however, that the Ordinary of that place, from the fact of his
raising the question, judged that this contrary custom could be
corrected, and the reply accordingly confirmed the common law
against the contrary custom. Michiels states that he has seen a reply
of the same Congregation, sent to the Bishop of Seckau, 8 June,
1927, which was in a sense contrary to that given to tire Archbishop
of Zagreb in 1920.4 Our conclusion is that it is for the Ordinary
of each place to make a decision whether the custom, if it exists,
should cease. Actually, from the parish priest’s point of view, the
question is not of great consequence, for die common law of the
Code permits the Ordinary to make the appointment after hearing
the parish priest, even though an assistant is unwelcome to him. But
would anyone criticise those parish priests who firmly maintain the
rights given to them in the common law, unless it is certainly
established that local custom has abolished them ?
1 e.g. Ojctti in Jus Pontificium, 1927, p. 13.
- Boudinhon, pp. cit. 1928, p. 28; The Clergy Review, 1940, XVIII, p. 67.
3 Canons 15 and 209.
* Quoted in l’Ami du Clergé, 1948, p. 318. This article and an earlier one, 1926,
p. 504, should be studied by those interested in the legal points involved.
■
III. RELIGIOUS
20. EXEMPT ORDERS AND CONGREGATIONS
What difference, if any, is there between the privilege of exemption enjoyed
by an Order of solemn vows [e.g. Benedictines} and by a Congregation of
simple vows [e.g. Redemptorists} as regards the episcopal visitation?
Canon 488.1 . . . veniunt nomine . . . religionis exemptae, religio
sive votorum sollemnium sive simplicium, a iurisdictione Ordinarii
loci subducta.
Canon 512, §2.2: Ordinarius loci ... quinto quoque anno
visitare debet. . . . Singulos domos Congregationis clericalis iuris
pontificii etiam exemptae, in iis quae pertinent ad ecclesiam,
sacrarium, oratorium publicum, sedem ad sacramentum poeni
tentiae.
Canon 615 : Regulares ... ab Ordinarii loci iurisdictione exempti
sunt, praeterquam in casibus a iure expressis.
Canon 618, §1 : Religiones votorum simplicium exemptionis
privilegio non gaudent, nisi specialiter eisdem fuerit concessum.
If either category of religious have a parish, it is subject to epis
copal control and visitation, and there appears to be no difference
between them in this respect. The question relates to religious as
such, not to those who arc also serving parish churches. The intrinsic
difference between the two categories is that an Order enjoys
exemption by the common law of canon 615, whereas a Congrega
tion enjoys it only when it is expressly granted. The external effects
certainly differentiating the two, so far as we can discover, are in
canon 512, §2.2, the directions of which apply to Congregations but
not to Orders. It is not certain whether exempt Congregations arc
included in the law of canon 533, §1, 3, regarding the necessity of
episcopal intervention in respect of certain funds and legacies. In
other ways the two classes of exemption appear to be identical in
the law of the Code, though there is always the possibility of
exceptions, induits and what not, affecting both religious and
ordinaries. The presumption in the case of an Order is that exemp
tion is established ; in the case of a Congregation the presumption
is the opposite.1
The first Congregation to be granted the exemption, substantially
1 Commentarium pro Religiosis, 1943, p. 145; Collationes Brugenses, 1948, p. 352.
31
32
Priests' Problems
Q. 2i
at least, of the regular Orders was that of the Passionists in 1781 ·
the extension of this privilege to the Redemptorists was confirmed
by Pius VI in the same year. Λ more recent example is that of the
Salesmans in 1875.1
21. PUBLIC PROFESSION AND ENCLOSURE
In convents of “ moniales”,for example the Carmelites, is it in order for
postulants to leave the enclosure for the purpose of having the ceremony of
clothing in the adjoining chapel, which is not in the enclosure ?
Canon 540, §3: In monasteriis monialium adspirantes, dum
postulatum peragunt, lege clausurae tenentur.
S.C. Relig., 6 February, 1924; A.A.S., 1924, XVI, p. 96, III, 1, c:
Quamvis adspirantes ad habitum religiosum, dum postulatum
peragunt, lege clausurae teneantur (cf. can. 540, §3) tamen libere
et absque licentia Sanctae Sedis e Monasterio egredi possunt, quando
ad sacculum sponte eas redire aut a Superioribus dimitti contingat ;
et idem de novitiis dicendum, aut de professis votorum tempor
ariorum, quando vota expiraverint, vel legitime dimissae fuerint.
2, d: Si vestitioni vel professioni Monialium Episcopus vel alius
sacerdos praesit, neque ipsis clausuram ingredi neque postulanti aut
professurae ex ea egredi licet.
The custom recorded by our correspondent is fairly common, at
least in this country. It is clearly a departure from the law of canon
540, §3, which is explicitly reaffirmed in the Instruction on Enclosure,
6 February, 1924. This non-observance of the law is more easily
tolerated, seeing that novices and postulants arc not liable to the
censure of canon 2342.3.2 One could say, moreover, that the
practice, though against the common law, is justified by a contrary
custom, which in this instance is reasonable and rarely causes any
adverse comment.
Schaefer, one of the most considerable authorities on the subject,
quotes with approval the opinion of Fanfani: “Non videtur im
probandus mos, quo postulantes, finito postulatu, ad horam c
clausura egrediantur ut sollemniter habitum novitiarum in ecclesia
recipiant, et dcin qua novitiae in clausuram recipiantur. Iste mos
rationabilis apparet respectu parentum et propinquorum.”3 Un
fortunately Fanfani has revoked this view in the latest edition of
his commentary4 and now teaches exactly the opposite, relying on
1 Ephemerides Theologicae Lovanicnses, 1946, p. 142.
2 Cf. 77
rrgy Review, 1949, XXI, p. 120.
3 De Religiosis (1947), §1172.
< De Religiosis, §310, Corol. III.
Q. 22
33
Religious
the 1924 Instruction. Neither the canon nor the Instruction abolishes
contrary customs, and in our view the departure from the common
law can be justified from canon 5, as Schaefer implies.
22. RELIGIOUS VOCATION AND PARENTAL NEED
How is a girl to be advised who wishes to enter religion of simple vows but
foresees that her mother will need her support in a few years time ? The
mother is willing to leave it to divine Providence, but is there not a natural
obligation on the girl's part to support her parent?
Canon 542.2: Illicite, sed valide admittuntur: . . . filii qui par
entibus, idest patri vel matri, avo vel aviae, in gravi necessitate
constitutis, opitulari debent, et parentes quorum opera sit ad liberos
alendos vel educandos necessaria.
i. The conflict between a religious vocation and the duty of sup
porting parents is solved by this canon in favour of the latter
obligation, since it is of the natural law and must take precedence
over a call to the religious state. Discussions and doubts may arise
in defining “grave” necessity, which is something on the one hand
much less than that which is “extreme”, i.e. danger to life, and on
the other hand much more than “common” necessity, i.e. that
which the poor in general experience. It may also be questioned
whether the rule applies not only to parents but to a brother or
sister in grave necessity.1 But there is no real problem except when
the grave necessity is existing at the moment when a decision has
to be made. Thus a parent may be able to support herself by working,
but it is foreseen that in a few years time she will be unable to do
so; it is certain that the possibility of grave necessity at some future
time is not within the terms of this canon, though a daughter may
well weigh this point in coming to a decision about entering
religion, which must be an entirely free choice. In the above case,
as stated, the mother has rightly surrendered whatever future claim
she may have, but even if she had not done so the girl can lawfully
and validly enter the novitiate.
ii. The girl, let us suppose, enters, is professed, and her mother
after a few years is in grave necessity. A solution of the problem is
suggested by Fcrrercs which appears to be correct: “Congregatio
tenebitur vel subsidium conveniens tribuere matri vel curare ut
(filia) indultum exclaustrationis obtineat pro tempore necessario
ad subveniendum matris necessitatibus. Hoc enim postulat non
modo mens Ecclesiae sed etiam ipsum ius naturale.”2 There is no
1 On these points cf. Schaefer, De Religiosis, §807.
2 Cusus, II, §133.
34
Priests' Problems
Q. 23
obligation on the part of the professed religious to get dispensed from
her vows, except, perhaps, when her mother’s necessity is “ extreme”,
which supposes that there is no other way of bringing her the
necessary assistance. The remedy of cxclaustration is justified by any
grave cause ; the alternative of the religious institute paying for the
mother’s support is to be expected whenever it seems preferable to
losing the services of the religious by exclaustration.
23. “moniales”: necessity
of dowry
Is not the canonical requirement of a dowry, for religious women of solemn
vows, nowadays somewhat of a dead letter? It seems at least to be the rule
rather than the exception for postulants to be received without a dowry.
Canon 547, §1 : In monasteriis monialium postulans afferat dotem
in constitutionibus statutam aut legitima consuetudine determin
atam. §4: Dos praescripta condonari ex toto vel ex parte nequit
sine induito Sanctae Sedis, si agatur de religione iuris pontificii;
sine venia Ordinarii loci, si de religione iuris dioecesani.
i. From §3 of the above canon the matter of dowry in institutes
of simple vows is settled by their constitutions, and many of these
bodies forgo the ancient practice because the sisters earn their own
support by teaching or nursing. The question is therefore restricted
in practice to the contemplatives who are unable to devote sufficient
time to occupations which are materially productive.
ii. If, in the case of moniales iuris pontificii, postulants arc accepted
without dowries, this must be by virtue of an induit from the Holy
See, which could be obtained, no doubt, not only for single instances
but for use habitually, provided the support of the nuns is derived
adequately from some source other than a dowry. Thus, in Spain,
it appears to be the custom for these convents to receive gifts and
legacies from the faithful, the revenue of which is used for the sup
port of the nuns; they are called dotes perpetuae and resemble the
burses which exist in some seminaries for the education of students
to the priesthood : when one leaves the burse is used for another.
Regatillo prints a private document from the Congregation of
Religious, 24 January, 1930, sanctioning this method in principle
but directing that money gifts of this kind should in future be
erected into “foundations” and not called dotes perpetuae·, hence
forth, those lacking a dowry may be accepted on one of these
foundations, and arc ipso facto deemed to be dispensed from the law
of canon 547.1
1 Interpretatio et lurùprudentia, p. 169.
QQ. 24, 25
24.
Religious
35
EXAMINATION BEFORE RELIGIOUS PROFESSION
Is the examination directed by canon 552 necessary for a valid religious
profession ?
Canon 11 : Irritantes aut inhabilitantes cac tantum leges habendae
sunt, quibus aut actuin esse nullum aut inhabilem esse personam
expresse vel aequivalenter statuitur.
Canon 552, §1 : Religiosarum etiam exemptarum Antistita debet
Ordinarium loci, duobus saltem mensibus ante, certiorem facere de
proxima admissione ad novitiatum et ad professionem tum tempor
ariam tum perpetuam sive sollemnem sive simplicem.
§2. Ordinarius loci . . . exploret . . . an sciat quid agat; et, si de
pia cius ac libera voluntate plane constiterit, tunc adspirans poterit
ad novitiatum vel novitia ad professionem admitti.
In all religious institutes of women, including those who are
exempt in certain other matters from the Ordinary’s jurisdiction,
the superior is bound by canon 552 to warn the local Ordinary two
months before a subject’s religious profession, in order that the
Ordinary or his delegate may carefully investigate whether tem
porary or perpetual profession is being made freely and with
sufficient knowledge. That this is a grave law is evident from its
nature and from the penalty, privation of office, which the Ordinary’
has the right to inflict, from canon 2412, §2, on a religious superior
who violates it.
Evasion of the law does not, however, invalidate religious
profession. This is evident from the general principle of canon 11,
and from canon 572, which enumerates the six requirements for
valid profession, amongst which the previous examination of canon
552 is not mentioned. Hence Schaefer: “Per sc ista exploratio ad
validitatem admissionis non est necessaria nec requiritur ad valid
itatem vel novitiatus vel professionis. Agitur de lege mere prohibitiva. Ex parte Antistitae autem admissio ad novitiatum et profes
sionem, omissa exploratione, est illicita, si Ordinarium loci non
tempestive certiorem fecit. Hoc in casu can. 2412 vim suam
exercet.”1
25.
religious profession: disposal of property
From canon 574, §1, perpetual profession of all religious must be preceded
by temporary profession for a period of three years. But canon 569, § 1,
assumes that there are still religious whoforgo threeyears' temporary profession,
1 Dt Religiosis, §864.
i
Priests' Problems
36
Q. 25
since it refers to novices making perpetual profession. How is this conflict
between the two canons to be explained?
Canon 569, §1. Ante professionem votorum simplicium sive
temporariorum sive perpetuorum novitius debet, ad totum tempus
quo simplicibus votis adstringetur, bonorum suorum administrationem cedere cui maluerit et, nisi constitutiones aliud ferant, de
eorundem usu et usufructu libere disponere.
Canon 574, §1. In quolibet Ordine tam virorum quam mulierum
ct in qualibet Congregatione quae vota perpetua habeat, novitius
post expletum novitiatum, in ipsa novitiatus domo debet votis
perpetuis, sive solemnibus sive simplicibus, praemittere, salvo
praescripto can. 634 (transitus ad aliam religionem), votorum
simplicium professionem ad triennium valituram, vel ad longius
tempus, si aetas ad perpetuam professionem requisita longius distet,
nisi constitutiones exigant annuales professiones.
i. There is admittedly a conflict between these two canons which
is fully discussed by Schaefer,1 who suggests various methods of
harmonising them. Some think the words “sive temporariorum sivc
perpetuorum” of canon 569, §1, were left in the canon by an over
sight : the preparatory schema on religious did not contain the firm
universal regulation of canon 574 which requires temporary profes
sion to precede that which is perpetual. Others think that the act of
ceding the administration of temporal goods must be repeated when
perpetual profession is made, an unlikely explanation since the
religious of temporary vows is a professed religious not a novice as
stated in the canon, and there should be no period between tem
porary and perpetual profession when the religious, albeit for a few
minutes only, ceases to be a professed religious and becomes a novice
again. (Canon 577, §1.)
ii. Schaefer’s own explanation, which is followed by other com
mentators,2 seems to be the most acceptable. It is that the Society
of Jesus and the Sisters of the Sacred Heart enjoy a privilege by
which their members, on concluding the novitiate, immediately
make perpetual profession. The law of canon 574 does not abrogate
existing privileges, and therefore the privilege of disregarding the
direction of canon 574 still continues ; the Code Commission is said
to have expressly declared that the privilege of these two bodies
continues. The apparent conflict between the twro canons is then
easily explained : the reference to temporary’ vows in canon 569 has
in mind the common law of canon 574, whereas the reference to
perpetual vow’s has in mind the privilege.
1 De Religiosis, §921.
« E.g. Bcste Introductio, ad can. 569.
Religious
Q.Q.· 26,27
26. TRADING FORBIDDEN TO WOMEN RELIGIOUS
Docs the law against trading and allied pursuits apply not only to clerics.
secular and religious, but also to women religious ?
Canon 142 : Prohibentur clerici per sc vel per alios negotiationem
aut mercaturam exercere sive in propriam sive in aliorum utilitatem.
Canon 490 : Quae de religiosis statuuntur, etsi masculino vocabulo
expressa, valent etiam pari iure de mulieribus, nisi ex contextu
sermonis vel ex rei natura aliud constet.
Canon 592 : Obligationibus communibus clericorum de quibus in
can. 124-142, etiam religiosi omnes tenentur, nisi ex contextu
sermonis vel ex rei natura aliud constet.
There is some reason for doubting, perhaps, whether women
religious are bound by this law. For many of the commentators fail
expressly to draw the logical conclusion from a comparison between
the three canons cited above, although we arc not aware of anyone
who excludes women religious from the law. 'Those who are writing
expressly for religious draw no distinction in the application of the
rule,1 and give the usual casuistical explanations discussed by writers
explaining the law for clerics. Bastien in particular, whose work is
largely quoted for all matters relating to women religious of simple
vows, expressly notes: “Lc commerce proprement dit est défendu
aux religieux de l’un et l’autre sexe. . . .”2 The law applies equally,
from canon 679, §1, to women living in community without vows, a
state of life dealt with in canons 673-681, even though canon 673
states that such persons are not, properly speaking, “religious”.
Everything, accordingly, which affects clerics in the recent strength
ening of canon 142 with a censure l.s.2 affects religious of both sexes,
and the document includes, as we should expect, the newly formed
Secular Institutes, whose members arc neither religious nor persons
living in community without vows.
27. RELIGIOUS
SUPERIOR
FORBIDDING
HOLY
COMMUNION
A chaplain to a religious community of men, with perpetual vows but not in
Holy Orders, is informed by the superior that, relying on canon 595, §3, a
subject has been forbidden to receive Holy Communion. If this person neverthe
less presents himself at the altar rail, what should the chaplain do?
Canon 853 : Quilibet baptizatus qui iure non prohibetur, admitti
potest et debet ad sacram communionem.
1 E.g. Creuscn, Religious Λ ten and Women in the Code, §269.
2 Directoire Canonique, §373.
.
vwiw
r
'S.C. Cone., 22 March, 1950; The Clergy Renew, 1950, XXXIV, p. 56.
Priests’ Problems
38
Q. 27
Canon 855, §1 : Arcendi sunt ab Eucharistia publice indigni,
quales sunt excommunicat i, interdicti manifestoque infames, nisi
de eorum poenitentia et emendatione constet et publico scandalo
prius satisfecerint.
§2. Occultos vero peccatores, si occulte petant et cos non emen
datos agnoverit, minister repellat; non autem si publice petant ct
sine scandalo ipsos praeterire nequeat.
Canon 595, §3: Si autem post ultimam sacramcntalcm confes
sionem religiosus communitati gravi scandalo fuerit aut gravem ct
externam culpam patraverit, donec ad poenitentiae sacramentum
denuo accesserit, Superior potest eum, ne ad sacram communionem
accedat, prohibere.
i. Canon 595, §3, repeats in almost identical words the definition
of a superior's power of prohibiting Holy Communion contained in
S.C.Ep.et Reg., 17 December, 1890, ad V.1 The religious canonists
best qualified to comment upon the rule are not agreed on the
meaning to be given to the word “grave” in this context. Vermccrsch-Crcusen,2 defines it as including faults which arc not grave
in the theological sense of mortal sin : c.g. open and calculated
disobedience or quarrelling. There is something to be said for this
view, inasmuch as a religious like anyone else is already bound by
the common law of canon 856 to go to confession before Holy
Communion if conscious of grave sin. Nevertheless we agree with
the milder view of Schaefer3 that by “grave” is meant mortal sin,
an opinion based on the general principle “odiosa sunt restrin
genda”. It is a matter relating here to the external forum and guilt
is to be calculated from the external evidence, on the principle of
canon 2200, §2, although in the internal forum of conscience the
person might, for a variety of reasons, be excused from grave sin.
ii. We cannot find any author who discusses the chaplain’s
obligations in the matter. Since it is not for him to intervene in the
internal arrangements of the religious family and the laws governing
them, we think that he should disregard the superior’s information,
and publicly refuse Holy Communion to a member of the com
munity only in the event of that member coming within the common
law of canon 855, §1. This is verified neither in a case where the
fault is less than grave sin, nor even necessarily in a case where it is
certainly grave sin ; but only where the delinquent is publicly known
to be unworthy of receiving Holy Communion in the sense defined
in that canon. Moreover Vermecrsch-Creusen, though perhaps as a
consequence of his view on the meaning of “grave” in canon 595,
1 Fonks, n. 2017.
2 Epitome, §751.
3 De Religions, §1145.
Q. 28
Religious
39
teaches that the superior’s prohibition is not per se binding under
pain of sin.
iii. It is a rule of The Clergy Review not to air difficulties without also,
so far as is possible, suggesting a solution or a remedy. The conflict, as
it were, between the superior’s prohibition and the chaplain’s duty
as a minister of the Holy Eucharist would exist in practice owing to
the lack of a confessor able to receive this person’s confession. The
situation should not in these days arise, for the Instruction S.C.Sacram., 8 December, 1938,1 directs that where frequent Communion
is the practice, facilities for confession should also be given. There
fore, in many dioceses, the chaplain saying Mass for a community
is also given faculties for hearing confessions, even though he may
not possess them from canon 522.
We may suppose, finally, for the sake of argument, that the
delinquent is loth to go to confession before communicating,
whether facilities exist or whether they do not, relying on the com
mon law of canon 901 and of canon 856 which requires confession
before Holy Communion only when one is conscious of mortal sin.
He is bound in our opinion to obey the superior’s command, and
his remedy is in recourse to a higher superior, pending which he
should on a principle of religious obedience refrain from receiving
Holy Communion.
28.
PAPAL ENCLOSURE AFFECTING NUNS
In some convents of nuns (moniales) with apparently solemn vows, the rules
about the enclosure seem to be less strictly observed than in other convents of
the same Order. Also, in one and the same convent, some nuns observe the law
more strictly than others. Is there any legal explanation, or is it due merely to
human frailty?
:
The principle is that a religious Institute without solemn vows is
governed by a law of enclosure (canon 604) which is far less rigid
than the enclosure which applies to an Order with solemn vows
(canons 597-603) ; in the latter case the law is sanctioned by the
excommunication of canon 2342.3, and, whilst allowing of course
for human frailty and negligence, it will be found that exceptions
can easily be accounted for on legal grounds.
(i) In one and the same convent, some of the professe religious
will not have made their solemn profession, since three years of
simple vows must precede this act. Exceptions which used to exist,
,
1 The Clergy Review, 1939. XVII, p. m ; 1940, XVIII, p. 167; Periodica, 1939,
I
,
P·
40
Priests' Problems
Q. 28
whether in the form of permitting simple vows for longer periods,
or of making solemn profession immediately after concluding the
novitiate, were abolished by the decree Perpensis, 3 May, 1902,1
which has been incorporated in canon 574 of the Gode. Religious
in these convents who have not yet made their solemn profession
are not liable to the censure of canon 2342.3, and though bound to
keep the papal enclosure on a principle of religious obedience, it
might easily happen that adequate reasons exist in their case for
leaving the enclosure, which would not be adequate in the case of
the solemnly professed.
(ii) Moreover, the whole community, though belonging to an
Order which is of solemn vows, may actually make merely simple
profession. This is very often the case with conununities which trace
their origin to France and Belgium, since in those countries for over
a century, owing to local conditions, the papal enclosure (and the
corresponding solemn profession) was suspended. The reasons
justifying this departure from the common law ceased, but the rule
of merely simple profession continued both in the mother country
and in foundations made elsewhere, because it had been fully
sanctioned by the Holy See. If any of these communities desire to
resume the solemn profession (and the papal enclosure) which is
proper to their Order, they must obtain permission from the Holy
Sec, which many have done. All the texts relating to this rather
tangled condition of things may be seen in The Clergy Review, 1931,
I, p. 658. Differences of observance are easily accounted for, and
in any individual case one can discover from the superiors whether
the vows are solemn or not : if they are solemn, the papal enclosure
in principle exists together with the appropriate sanction.
(iii) Lastly, there is always the possibility of a given community
having obtained an induit or privilege putting them outside the
common law. Schaefer mentions a case where Religious of simple
vows obtained the privilege of papal enclosure.2 More often, we
imagine, the induit releases a community which normally should
be of solemn vows from observing the papal enclosure, not indeed
for public reasons affecting all such communities as in (ii), but for
private and special reasons. In one instance, for example, where the
religious of solemn vows were engaged in teaching, it was found
necessary repeatedly to seek dispensations from the law of papal
enclosure, and to obviate this the Holy See decided that, in future,
the nuns should make perpetual simple profession, whilst retaining
in all other respects the condition of “moniales”.3 Everything is
1 Fontes, 203g.
2 De Religiosis (1947), §t 164, n. 291.
3 Op. cit. §1185.
Q. 29
Religious
41
possible with an induit, but we do not know of any modern instance
of nuns being released habitually from the law of papal enclosure
whilst retaining the profession of solemn vows. Some German
Ursulines used to have this arrangement, but the Holy Sec declined
to confirm their Constitutions on this point : the privilege was said
to have been granted orally by Benedict XV. Cf. bid. Droit. Canon.,
Ill, col. 898.
Editorial Note.—The distinction to which the author refers
in (ii) is unlikely to survive except by special induit in extraordinary
cases. Pius XII, in art. Ill, n. 92 of his Apostolic Constitution,
Sponsa Christi, of 21 November, 1950 (A.A.S., 1951, XLIII, p. 5 ff.),
declared: “Monasteria omnia in quibus vota tantum simplicia
nuncupantur, votorum solemnium instaurationem impetrare pot
erunt. Quinimmo, nisi prorsus graves obsint rationes, eadem iterum
suscipere curabunt.” Apparently the desired degree of uniformity
has since then been achieved, because, on 25 March, 1956, the
Congregation of Religious issued an Instruction, “Circa monialium
clausura” (J./l.^., 1956, XLVIII, p. 512 if.), in which, after
explaining that the experience gained since Sponsa Christi now
enabled it to settle the matter of enclosure “ex integro”, it proceeds
to expound the revised rules in detail.
29.
ECCLESIASTICAL SUPERIOR: PAPAL ENCLOSURE
Is the ecclesiastical superior, the Ordinary’s delegate, forbidden to enter
the enclosure of religious with solemn vows ?
Canon 600 : Intra monialium clausuram nemo . . . admittatur ...
exceptis personis quae sequuntur :
i. Ordinario loci aut Superiori regulari, monasterium monialium
visitantibus, vel aliis visitatoribus ab ipsis delegatis licet clausuram
ingredi dumtaxat inspectionis causa, cautoque ut unus saltem
clericus vel religiosus vir maturae aetatis cos comitetur. . . .
S.C. Relig., 6 February, 1924; A.A.S., XVI, p. 96. III, 2 (b).
Pro sola igitur visitatione locali peragenda visitatori clausuram
ingredi licet. Visitatio personalis extra clausuram ad crates fieri debet.
Ncc Ordinario aut superiori regulari aut visitatori extra actum
visitationis ratione officii clausuram ingredi fas est.
(c) Causa explorationis, quae ante vestitionem ct utramque
professionem ab Ordinario loci vel eius delegato fieri debet, ncc
non pro electione antistitae, Ordinarius loci aut cius delegatus
clausuram ingredi non debet (can. 506, §2; 552, §2).
42
Priests’ Problems
Q. go
There are some communities of religious women who, by their
rules and constitutions, make profession of solemn vows, but by
papal induit are permitted to make simple vows only.1 These nuns,
though moniales in other respects, arc not subject to the very strict
rules of papal enclosure contained in canons 597 and following;2
the simpler enclosure of religious Congregations, as in canon 604,
applies to them, and their superior may admit any persons for a
just and reasonable cause. In the last few years, certain communities
have returned to the condition of making solemn profession. It is
for the ecclesiastical superior to discover in each case what the
status of the nuns really is : if they have made profession of solemn
vows, the rules of papal enclosure automatically follow unless relaxed
by a papal induit.
It is quite clear from S.C. Relig., 6 February, 1924, that the
ecclesiastical superior, namely the Ordinary’s delegate, may not
enter the enclosure on the business of his delegation except for the
purpose of a local inspection, and even then he must be accompanied
by a cleric or religious of mature age. Local inspection covers such
matters as oratories, if there are any within the enclosure, or seeing
that the buildings are kept in proper condition.
The ecclesiastical superior is subject to the censure l.s. of canon
2342, 1, like any other person entering the enclosure without
permission.3
30. RELIGIOUS “PAROCHUS” AND LOCAL ORDINARY
What is the force of the genitive “ communitatis religiosae" at the end of
canon 630, §4? Does it mean “ belonging to" in the strict sense of ownership?
And why does the canon appoint the local Ordinary as the immediate adminis
trator of funds destined for the upkeep of a parish church which does not
"belong to" the religious but is served by them?
Canon 630, §4: . . . eidem (religioso qui paroeciam regit sive
titulo parochi sive titulo vicarii) licet eleemosynas in bonum
paroccianorum . . . administrare . . . salva semper vigilantia sui
Superioris; sed eleemosynas pro ecclesia paroeciali aedificanda,
conservanda, instauranda, exornanda accipere, apud se retinere,
colligere aut administrare pertinent ad Superiores, si ecclesia sit
communitatis religiosae; secus ad loci Ordinarium.
i. The genitive in this context means, firstly and indisputably,
ownership. The religious have built, let us suppose, with religious
1 For the origin of this situation cf. The Clergy Review, 1931, I, p. 658.
2 Code Commission, t March, 1921.
3 Schaefer, De Religiosis, §355, and the commentators generally.
Q. 30
Religious
43
funds a church which is used as a parish church and one of the
religious community is appointed parish priest or vicar; money
destined for its upkeep is to be administered by the religious
superiors; the situation is analogous to that of canon 415 where a
cathedral is used as a parish church, and the funds for its upkeep
are administered not by the parish priest but by the chapter.
Some apply this genitive to the case of a church which, though
not owned by the religious, is committed permanently to their care,
as would be the case when a parish is incorporated or united pleno
iure to a religious house.1 Other religious canonists do not admit this
contention and require the meaning of the genitive to be exclusively
ownership or proprietary rights.2 Secular canonists usually hold this
view.3 The Code Commission, 25 July, 1926, IV, confirmed canon
630, §4, without deciding the point at issue.
ii. “Secus ad loci Ordinarium” is equally difficult to interpret.
The obvious meaning of the words in their context denies to the
religious parish priest or vicar the right of administration granted
to all other parish priests or rectors of churches from canon 1182.
Nebreda, who has examined this canon most carefully, suggests that
the phrase can be harmonised with other general principles of
administering church property by attributing to the Ordinary in
this context, as in many other affairs, only the right and the duty
of invigilating the administration carried out by the religious parish
priest, but not of actually and immediately performing himself the
office of an administrator; or, if neither of these views is acceptable,
it may be held that the Ordinary, in this context, administers funds
for the upkeep of the church cumulatively with the religious parish
priest.4 We think that local Ordinaries are not accustomed to retain
in their own administration funds collected for the upkeep of a
parish church served but not owned by religious : they delegate their
office described in this canon to the religious parish priest or to his
superiors.
iii. It is interesting to find that, in the proposed Code for the
Eastern Churches, the equivalent of our canon 630, §4, solves the
doubt on the meaning of the genitive as follows in n. 179, §4:
“... communitatis religiosae, h.e. si communitas sibi vindicet
ecclesiae proprietatem aut usum in perpetuum vel saltem ad
tempus indefinitum; secus, servetur praescriptum can. 264”. The
1 Schaefer, De Religiosis, §§1458, 1459; Comment, pro Religiosis, 1943, p. 149.
îBeste, Introductio, p. 431; Coronata, Institutiones, I, p. 830, n. 7, appears to
açrcc: “Non omnes ecclesiae paroeciales incorporatae alicui doinui religiosae,
etiam si incorporatio pleno iurc facta sit, sunt ecclesiae religiosorum.
J Mundy, The Union of Parishes, p. 86 ; Bernier, De Patrimonio Paroeciali, §27*·
4 Ncbrcda, De Loci Ordinariorum luribus . . ., p. 34.
Priests' Problems
44
Q. 31
concluding words of this n. 179 take the place of “sccus ad loci
Ordinarium” in our canon 630, §4; and n. 264 to which we arc
referred reads: “Eirmo praescripto can. 179, §4, de ecclesia
paroeciali quae sit communitatis religiosae . . . administratio bon
orum quae destinata sunt conservandae, reparandae decorandacquc
ecclesiae divinoque in eadem cultu exercendo pertinet, nisi aliud
ex speciali titulo vel legitima consuetudine constet, ad Episcopum
cum consultorum cparchialium coetu, si de ecclesia cathedrali
agatur; ad rectorem, si de alia ecclesia saeculari.”1 This is a clearer
and a more satisfactory arrangement than the directions of our
canon, and it may well be that the modifications made in the
Eastern canons will eventually be introduced into our own law.2
Many will with some reason conclude that the Eastern canons
provide a strong argument for interpreting our own in the same
sense, whenever there is a doubt on their meaning. Actually,
however, the Eastern canons arc for the East alone, and have no
legal force whatever in the West.
31. dismissed
religious:
“clericus vagus”
On a point of law, and with no reference to any actual case : how is canon
in, §1, which declares that a cleric must belong either to a religious body or
to a diocese, harmonised with the juridical status of a dismissed religious in
priestly orders, as set out in canon 671 ? For if he is dismissed he no longer
belongs to a religious body, and until incardinated as a secular cleric in a
diocese (which might take six years from canon 641, §2) he does not belong
to a diocese.
Canon in, §1: Quemlibet clericum oportet esse vel alicui
dioecesi vel alicui religioni adseriptum, ita ut clerici vagi nulla
tenus admittantur.
The question is intricate, since the juridical condition of a dis
missed religious varies with the cause and method of his dismissal.
Assuming, however, that after dismissal his status has been regu
larised3 to the extent at least of his being able to celebrate Mass with
the local Ordinary’s sanction, the following considerations will serve
to harmonise canon 111, §1, with canons 641, §2, and 671.
i. The religious body to which he used to belong before dismissal
is responsible for his support, as provided for in canon 671, nn. 5
1 ΛΛ-S.» 1952, XLIV, pp. 112, 133.
2 Cf. 771« Clagy Raiew, 1950, XXXIII, p. 256.
3 In the more serious circumstances of his position as a cleric not being recog
nised as in canon 670, the rule of canon 111, §t, is not implicated. His condition is
the same as that of a secular cleric who is no longer permitted to function as such.
Q. 32
Religious
45
and 7. Moreover, from canon 672, §1, the religious body may be
required to receive him back if the necessary conditions are fulfilled.
The obvious purpose of the rule in canon 111, §1, is to prevent the
scandal of unattached clerics wandering about without any means
of support. Therefore, in spite of dismissal, he still “belongs” to a
religious body, not indeed as a member, but as a liability, until
incardinated in a diocese.
ii. The diocese in which he is saying Mass with the Ordinary’s
sanction is not yet his diocese of incardination. All the commentators
note that canon 671, n. 2, which provides for the assignation of a
diocese to the dismissed religious, does not provide for incardination
therein: this may be effected in due course as in canon 641. A
second purpose of the rule in canon 111, §1 is to bar the existence
of clerics with no obedience to any recognised superior. Therefore,
though not incardinated, he “belongs” to a diocese in the sense
that the Ordinary assigned to him is his recognised superior, until
he is either restored to his former religious body or has become
incardinated in a diocese. Gf. Palombo, De Dimissione Religiosorum,
§§200, 203, 207.
32. SECULAR INSTITUTES — SUPPORT OF MEMBERS
It is maintained in some quarters that one of the features which distinguish
the Secular Institute from the Religious is that the former is not obliged to
provide for the support of its members in sickness and old age. Since some
measure of voluntary poverty is necessary in the members, whence is this
support to come ?
Provida Abater, 2 February, 1947, III, §3: Quoad incorporationem
Sodalium Instituto proprio et quoad vinculum ex ipsa ortum.
Vinculum quo Institutum sacculare et ipsius membra, proprie dicta,
inter se coniungi oportet, debet esse. . . . Mutuum ac plenum, ita
ut, ad normam Constitutionum, Sodalis se totum Instituto tradat,
ct Institutum de Sodali curam gerat atque respondeat.
Instructio Cum SStnus, ig March, 1948: Ad iudicium securum et
practicum ferendum . . . haec sunt accurate perpendenda ...(/>)
an vinculum, quo membra strictiore sensu sumpta et Associatio
inter se ligantur, stabile, mutuum ac plenum sit, ita ut ad normam
Constitutionis, Sodalis Associationi se totum tradat et Associatio
talis sit vel serio fore praevideatur, quae de Sodali curam gerere
atque de ipso iurc respondere velit ac possit.
i. As noted by Dr McRcavy in his valuable explanation of the
Secular Institute,1 many problems will need a canonical solution
1 The Clergy Review, 1947, XXVIII, p. 153.
s+
46
Priests Problems
which may cause canonists a headache, and it is even now too soon
to expect everything to be straightened out: this will come only
after a long period of trial and of experience in the working of these
Secular Institutes. The economic structure is one of these problems,
and it arises fundamentally from the nature of the “poverty” which
the members must in some degree profess and practise : for, on the
one hand, they are not religious and consequently not bound by the
canonical regulations of canon 569 governing religious poverty ; on
the other hand, they are in a state of perfection which, in the
traditional concept of this state, does demand amongst other things
a negation of earthly goods. The notion of poverty, as described in
Provida Mater, III, §2, (c), is that the members of a Secular Institute
do not enjoy the free use, but only a defined and restricted use, of
temporal goods according to the Constitutions of the Institute. The
matter will be decided in different ways in each body, and in some
instances the rules do, to some extent, relieve the Institute of the
obligation of supporting its members in sickness and old age. Thus
members may be bound, out of revenues accruing to them from
sources other than the work of the Institute, to keep a capital sum
in reserve for their future needs,1 and reliance on public hospitals,
social insurance, and other benefits of the Welfare State is not
excluded.2 For a religious of solemn vows ownership does not exist;
ownership remains but its administration and use is withdrawn in
the case of a religious of simple vows ; members of Secular Institutes
retain both ownership and administration, but within the limits
permitted by the Constitutions.
ii. Λ study, however, of the documents, and of the commentaries
thereon, docs not support the view that the Secular Institute is not
bound in principle to provide for its members in sickness and old
age. The two important extracts from the documents given above
affirm responsibility, though subject always to subsidiary arrange
ments sanctioned by the Constitutions. For the latter arrangements
may, for one reason or another, fail to provide the necessary
assistance required by a sick or aged member : the capital sum put
aside by the individual for the purpose may disappear, and there is
nothing absolutely inevitable and permanent in the schemes of
benefits and social insurance provided by a Welfare State. In the
last resort, no matter what subsidiary arrangements may be made
by the Constitutions, it seems quite clear to us that the Institute will
be responsible. Thus Larraona, a religious canonist who has made a
profound study of these Secular Institutes, in explaining these two
1 E. L. Heston, C.S.C., in Secular Institutu, a Blackfriars Symposium, p. 101.
2 R. Lemoine, O.S.B., loc. cit., p. 80.
J
Q. 32
Religions
47
extracts from the documents observes: “Nota tamen, quod etiam
in casu in quo unumquodque ex membris directe de propria
subsistentia respondet, quoad membra stricte dicta quae plene ipsius
manibus se tradunt, Institutum, esto subsidiarie et mediate, sed
denique ct efficaciter respondere debet.”1
iii. A purely accidental and temporary relaxation of this principle
may be found to exist in some of these Institutes, which, in their
first beginnings, will be altogether lacking in material resources.
Accordingly the rule of Provida Mater is interpreted by the Instruc
tion quoted above to mean that the Secular Institute must offer the
serious promise or prospect of being able to provide for its members.
It may well be that an Institute in its infancy, suffering the mis
chance of having many incapacitated members, will be unable to
help them—nemo dat quod non habet—a misfortune to which any
human association is liable. This is true, indeed, even of the
canonical obligation of the Ordinary of a diocese to support its incardinatcd clerics when, as in some French dioceses, the means arc
for die moment totally lacking. But the plea of being physically
unable to meet one’s obligations is totally different from the plea
that the obligations are non-existent. We think it as certain as any
thing can be in the canonical structure of the Secular Institute that
it accepts the obligation of providing for its sick and aged members.
1 De Institutis Saecularibus, Rome, 1951, p. 96, n. 31.
IV. ASSOCIATIONS AND
CONFRATERNITIES
33.
MORAL REARMAMENT
What is the present position regarding the lawfulness of Catholics co
operating with Moral Rearmament?
The position is that Catholics must obey the direction of the local
Ordinary’ of the place where they arc staying, and if none is published
they should consult the local parish priest and accept his decision.
The association or movement is identical with what, at various
times, has been called Buchmanism, Oxford Groups, Group Move
ment, and even Oxford Movement. On the rights and wrongs of
its assuming the title “Oxford” a correspondence in The Times,
3-8 June, 193g, initiated by Mr A. P. Herbert, and a parliamentary
reply, 14 June, 1939, should be read.
Its present title, open in itself to no objection at all, is sufficiently
wide to cause some misunderstandings, since all Catholics arc
obviously in favour of moral rearmament, and the phrase or some
thing like it is met with in papal documents; indeed, when an
Italian bishop once wrote something on the subject which was com
mended by the Holy Father, the friends of the movement took this
commendation to refer to their organisation. Our correspondent
mentions a report that the Holy Office has permitted priests to
participate in the Swiss meetings, but we have no knowledge
of this.
It would be too considerable an enterprise to discuss here the
purposes of Buchmanism, its methods and practices, the possible
dangers it may have for the unwary, and the conditions under w'hich
Catholics may take an active part in the movement in those places
where no ecclesiastical prohibition of discouragement exists.1
1 Amongst Catholic writers cf. M. J. Browne, Bishop of Galway, The Group
Movement, C.T.S., No. 179, a reprint from Irish Ecclesiastical Record, December 1936,
p. 635, maintaining that it is an heretical sect, a view repeated in the same journal,
March, 1937, p. 305. From Oxford Group to the Catholic Church, C.T.S., C276, by Doris
Burton. The Oxford Groups, by Maisie Ward (Sliced & Ward, 1937). In Tht
Clergy Review, Mgr R. Knox gave his impressions, 1933, V, p. 265, and again in
1938, XIV, p. 310. Documentation Catholique, 9 December, 1933, cols. 1113-1144,
gives a good account of its origins and purposes. The Right View of Moral Rearm
ament, by Bishop Suenens, Bums Oates, 1954, gives a thorough and up-to-date
valuation.
48
Q. 33
Associations and Confraternities
49
Instead, there follow in chronological order the only verifiable
episcopal directions we have been able to trace.
(1) The Tablet, 28 October, 1933, published a dementi, obtained
through the vigilance of the Bellarminc Society, Heythrop, in which
the Archbishop of Quebec, Cardinal Villeneuve, denied the report
that he had encouraged the movement : “ de hoc nunquam audivi”.1
(2) Cardinal Hinsley, 11 February, 1938: “The Group Move
ment is so tainted with indiffcrentism, i.e. with the error that one
religion is as good as another, that no Catholic may join in such a
movement so as to take an active part therein or formally co-operate
therewith.” The statement was printed in The (American) Ecclesiastical
Review, July 1938, p. 18, and in The Catholic Herald, 11 March, 1938,
which had been informed by Archbishop’s House that the Group
Movement was using a private letter addressed by the Cardinal to
a lady in Kenya; the Cardinal denied any recollection of this letter
and asked the Group Movement to discontinue its circulation. The
direction given above is still, we believe, operative in Westminster
diocese.
(3) Mgr Charrière, Bishop of Lausanne, Geneva and Fribourg,
in whose diocese, at Caux sur Montreux, Moral Rearmament re
unions include Catholics, issued a long directive, 25 September.
1947, reprinted in Documentation Catholique, 12 September, 1948, col.
1152, which recognises the good points of the movement as well as
its possible dangers, and notably the danger of indifferentism and
of seeking a common ground by minimising Catholic truth: “Nous
ne saurions trop insister là-dessus. C’est à cette condition seulement
—c’est à dire en restant pleinement eux-mêmes—que les Catholiques
apporteront au Rearmament moral un concours vraiment efficace.”
An English version of the bishop’s statement was given in The
Catholic Herald, 1 September, 1950.
(4) The Assembly of the Cardinals and /Xrchbishops of France,
2-4 March, 1948, drew the attention of French bishops to the
position taken up by the Swiss bishop, and suggested for French
Catholics the following directions: “ i° Ne pourront fréquenter les
rassemblements du M. R. A. que des catholiques bien éclairés sur
leur religion et qui, au préalable, auront pris l’avis d’un prêtre suffi
samment informé des conditions requises pour qu’un catholique
puisse y participer sans dommage.
'‘2e Les prêtres et religieux—a fortiori les séminaristes—ne fréquen
teront pas le M. R. A. sans avoir reçu l’autorisation de leurs évêques
ou de leurs supérieurs religieux. En tout état de cause, ils auront
soin de ne pas laisser croire que leur présence aux réunions du
1 Cf. Documentation Catholique, 1933, XXX, col. 1145.
Priests' Problems
50
Q· 34
M. R. A. entraîne une approbation de principe de la hierarchic
catholique à l’égard du mouvement.”
The text was printed in Documentation Catholique, 1948, col. 1156;
in Ephemerides Theologicae Lovanienses, 1948, p. 666; and an English
version in The Tablet, 14 August, 1948.
(5) The Tablet, 17 June, 1950, reported that Cardinal Frings,
Archbishop of Cologne, in a Whitsun sermon, had warned Catholics
against the Moral Rearmament movement; his Eminence’s words
were occasioned by an important meeting of the movement at
Gelsenkirchen, which had been welcomed by Dr Adenauer and
some other Catholics prominent in political life.
Some of our readers may know of other episcopal directions.
From the above we can learn that the leaders of the movement arc
anxious to claim the approval of Catholic bishops; that some of
these are unequivocally against it and others (in recent times)
disposed to give it a guarded approval. The varying episcopal
directions on the subject are to be understood in connexion with
the Instruction of the Holy Office, 20 December, 1949, reprinted
in The Clergy Review, 1950, XXXIII, p. 270, which carefully defines
the permissible activities of Catholics when taking part in the
Oecumenical Movement, and which leaves effective control in the
hands of local Ordinaries.
j
Editorial Note.—Since above was written, the Holy Office has
issued the following statement, dated 8 August, 1951 : “ 1. It is not
fitting for cither diocesan or religious priests, and much less for
nuns, to participate in meetings of Moral Rearmament. 2. If
exceptional circumstances should make such participation oppor
tune, the permission of the Sacred Congregation of the Holy Office
must be requested beforehand. This permission will be granted only
to learned and experienced priests. 3. Finally it is not fitting that
the faithful should accept posts of responsibility in Moral Re
armament, and especially not fitting that they join the so-called
‘policy team’.”1
34. WOMEN IN CONFRATERNITIES
WAy are women excluded from full membership of confraternities according
to canon 709, §2?
Canon 707, §2 : Sodalitia vero in incrementum quoque publici
cultus erecta, speciali nomine confraternitates appellantur.
1 Quoted, in translation, by The American Ecclesiastical Review, November, 1955·
p. 351, from La Semaine Religieuse of Quebec, 14 July, 1955.
Q. 34
Associations and Confraternities
51
Canon 709, §2 : Mulieres confraternitatibus adscribi tantum
possunt ad lucrandas indulgentias et gratias spirituales confratribus
concessas.
Canon 1256: Cultus, si deferatur nomine Ecclesiae a personis
legitime ad hoc deputatis et per actus ex Ecclesiae institutione Deo,
Sanctis ac Beatis tantum exhibendos, dicitur publicus ; sin minus,
privatus.
i. The meaning of the exclusion of women in canon 709, §2, can
only be explained by giving cultus publicus in canons 707 and 1256
an identical signification. There arc, indeed, certain difficulties
about the definition of public worship in canon 1256, and some
commentators attempt to avoid them by giving the conjunction
“et” the meaning of “vel”, thus providing for the familiar “per
viam non-cultus” in processes of beatification.1 There are also
difficulties in supposing, with the majority of commentators, that
liturgical worship has an adequate definition in canon 1256. With
out exploring either of these problems, which would take us far
beyond the scope of the present question, we will suppose that
chiefly liturgical worship is referred to in canons 707 and 1256 It
would seem to follow that women are excluded from a body’ (con
fraternity) whose members engage in the sendee of the altar or
choir in public churches. Hence, as in canon 712, §3, a confraternity
of this kind may not be erected in the oratories of women religious.
Taking the word “confraternity” in this very' strict and limited
sense, there must be comparatively few bodies to which it is properly
applicable. The learned writer who has contributed a fine article
on the subject in Dictionnaire de Droit Canonique2 records that in 1936
the Holy See made an enquiry, through the Nunciatures, about the
number of confraternities (in this strict sense) functioning in parish
churches as provided for in such canons as 709 and 718 ; few were
found to exist and in France scarcely any at all.
ii. One shudders at the consequences of defending the view that
women cannot be full members of confraternities. For everyone
knows that they arc not only members of many bodies lawfully
bearing this name, but are usually amongst the most active, devoted
and enthusiastic adherents. It could be argued, no doubt, that the
word “confraternity” means a brotherhood and women cannot
therefore enjoy full membership, but this docs not satisfactorily
account for the terms of canon 709. The correct explanation is that
many well-known bodies bearing the name of confraternity, and
admitting both men and women on equal terms, were founded in
days long before the Code, when the meaning now given to this
1 Vcrmccnch-Crcuscn, Epitome, II, §574.
2 IV, col. 135.
52
Priests" Problems
Q.
word in the strict canonical sense was not recognised. These bodies
are entitled to be called confraternities, since they have been
authorised to carry this title, but in the Code terminology, and
considering their nature and constitution, they are not confraternities
but sodalities or pious unions. Moreover, this strict terminology is
not rigidly and coherently sustained even in the Code.
|
35.
BLESSED SACRAMENT GUILD
Is it not correct that any pious association, guild, league, sodality or
confraternity, having for its chief purpose the increase of devotion to the
Blessed Sacrament, satisfies the law of canon 711, §2, and therefore enjoys
aggregation to the Archconfratemity in Rome?
Canon 707, §1 : Associationes fidelium quae ad exercitium alicuius
operis pietatis aut caritatis erectae sunt, nomine veniunt piarum
unionum; quae, si ad modum organici corporis sint constitutae,
sodalitia audiunt.
§2 : Sodalitia vero in incrementum quoque publici cultus erecta,
speciali nomine confraternitates appellantur.
Canon 711, §2 : Curent locorum Ordinarii ut in qualibet paroecia
instituantur confraternitates sanctissimi Sacramenti, ac doctrinae
Christianae ; quae, legitime erectae, ipso iure aggregatae sunt eisdem
Archiconfratcrnitatibus in Urbe a Cardinali Urbis Vicario erectis.
Code Commission, 6 March, 1927; A.A.S., XIX, 161 : I. Utrum, vi
canonis 711, §2, locorum Ordinarii stricte teneantur erigere in
qualibet paroecia confraternitatcm Ss.mi Sacramenti, an eius loco
possint, secundum peculiaria adiuncta, instituere piam unionem vel
sodalitatem Ss.mi Sacramenti.
II. Utrum archiconfratcrnitati Ss.mi Sacramenti in Urbe erectae,
de qua in canone 711, §2, ipso iure aggregatae sint tantum con
fraternitates Ss.mi Sacramenti proprie dictae, an etiam piae uniones
aliaeque sodalitates Ss.mi Sacramenti.
Resp. Ad I. Negative ad primam partem, affirmative ad secundam.
Ad II. Affirmative ad primam partem, negative ad secundam.
i. The extraordinary variety of pious unions, leagues, guilds and
confraternities existing and flourishing at the present time makes it
sometimes extremely difficult to determine the canonical status of
each. The meaning of terms in canon 707 was rather different before
the publication of the Code, and the old notions have naturally
continued in many places, so that the faithful of a parish often refer
to any association flourishing in their midst as a confraternity, or
even as “the” sodality, as though it were the only one in existence,
Q. 35
Associations and Confraternities
53
no matter what its internal nature may be. The designations given
in canon 707 are not, it seems, exclusive of others, or, as the canonists
say, the list is not defined laxative·,1 nor are the canons which follow
always coherent, for what is called a confraternity of Christian
Doctrine in canon 711, §2, is not within the definition of canon 707,
§2, since its purpose is not divine worship, which perhaps accounts
for the same body being called sodalitium in later documents.2 The
Code Commission in the above reply has clearly enlarged the meaning
of the word confraternitas.
Indeed, if one regards the matter from the point of view of a
devout Catholic rather than that of a canonist—though God forbid
that the two should be incompatible—one might say that the Church
is clearly more concerned with the increase of piety amongst the
faithful than with the form of the organisation which furthers it.
ii. The notion that substance and reality is of more importance
than form and appearance is certainly sustained in the first part of
the above reply, which has happily allayed the scruples or misgivings
both of Ordinaries and of parish priests in relation to the word
“curent” in canon 711. Λ confraternity even in the loosest sense
of the word, if it is alive and flourishing, is of the utmost value in any
parish, though it may not be technically a canonical confraternity.3
In the Middle Ages, in fact, the confraternity in its strict meaning,
enjoying moral personality and its own property, chapel and
chaplain, led frequently to abuses and conflicts with ecclesiastical
authority.4
ii. When it comes to determining the possession of certain
privileges, especially indulgences, the law is more exigent, and it is
reflected in the second part of the Code Commission reply. Aggrega
tion, which is the power of adopting other bodies and imparting
privileges to them, is restricted to associations distinguished by the
prefix “arch” or by the adjective “primaria”, as explained in
canons 720-725, though even here one must walk warily since many
arc decorated with the prefix “arch” merely as an honorific title
and with no powers of aggregation. A parish confraternity, in the
wide sense, satisfies the law of canon 711, §2, but if its promoters
desire the privileges arising from aggregation to the Roman Arch
confraternity, these may be obtained ipso iure, without any further
1 Vermcersch-Creusen, Epitome, I, §855.
2 It is so styled in the important decree, S.C. Cone., 12 January’, 1935, A.A.S.,
XXVII, p. 145; Eng. tr. Bouscarcn, Digest, I, p. 412. Cf. also Glasgow Synod, 1946,
n· 77·
•Cf. the excellent articles “Confraternities and how to work them’*, by Rev. J.
Cleary, C.SS.R., Irish Ecclesiastical Record, 1927, XXIX, p. 573, and XXX, pp.
173,261.
♦Did. Droit Canon., IV, col. 151.
3*
Priests' Problems
54
Q. 36
formalities, by erecting a confraternity in the strict sense defined
in canon 707 and with the formalities of canon 708 ; alternatively
they may be obtained, by explicitly securing aggregation to the
Archconfraternity, a favour which will be granted or not according
to the faculties enjoyed by the Roman Archconfraternity. Quite
frequently die Holy See issues a sanatio healing the various defects
that may occur in the erection and aggregation of associations. In
our view, saving an Ordinary’s directions to the contrary, parish
priests need not be unduly concerned about the canonical status of
some parish confraternity in the wide sense of the word, for the
specific indulgences which are perhaps forgone owing to the lack
of some formality or other, arc usually obtainable in numbers of
other ways.
36.
CHILDREN OF MARY
Why is it that in some parishes this sodality is restr icted to young girls who
forfeit membership on marriage, whereas in other parishes the membership
is lifelong and open to both sexes?
What we had occasion to say about Blessed Sacrament Guilds1
applies equally to Sodalities of Our Lady, which exist in more than
one form, although the exact identity of each can usually be
determined from the documents of erection or of aggregation to a
Roman Primaria.2 There arc at least two associations known in
differently as the Sodality or The Children of Mary.
i. The one which is most favoured was founded in 1563 in the
Roman College by the Society of Jesus. Amongst many papal com
mendations is the Golden Bull Gloriosae Dominae of Benedict XIV,
27 September, 1748, the second centenary of which was com
memorated by Pius XII in a document which renewed the com
mendation and summarised the rules.3 This Sodality is not merely
styled primaria in the sense defined in canon 720, namely as having
the faculty to aggregate others, but is always referred to as Prima
Primaria' the original association, owing to its growth, was divided
into Prima, Secunda, Tertia and Quarta Primaria, of which only the
Prima Primaria survived.4 Its correct title is “Primaria Congregatio
seu Primarium Sodalitium sub titulo Annuntiationis B.V.M.” For
the purpose of gaining the indulgences and other privileges any
1 The Clergy Review, IQ50, XXXIII, p. 405.
2 Canons 708, 720.
• Bis Saeculari, 27 September, 1948; 77ie Clergy Review, 1948, XXX, p. 416;
Eng. tr. Bouscaren, Digest, 1948, p. 24.
4 This is the explanation given in N.R.T., January, 1949, p. 58; other sources
and handbooks describe the association almost from its first beginnings as Prime
Primaria.
Q. 36
Associations and Confraternities
55
Sodality of Our Lady may, if deemed suitable, become aggregated
to the Prima Primaria by the Father General of the Society of Jesus.
ii. Very common, however, in the parish churches of this country
is another sodality known as The Children of Mary, the membership
of which is restricted to unmarried girls, though the Directress or
Vice-Directress may be married. It was founded in 1864 by Dom A.
Passeri, C.R.L., in the Roman parish church of St Agnes outside
the Walls. This also has the rank ofprimaria, in the sense of canon 720,
the power of aggregation being with the Abbot General of the
Canons Regular of the Lateran.1 One of its special features is the
medal with a representation on one side of Our Lady Immaculate
welcoming her children presented by St Agnes, and on the reverse
the monogram of Mary. The correct Latin title of this sodality is
“Sodalitas Filiarum Mariae sub patrocinio B.V. Immaculatae et
S Agnetis, V.M.”
iii. A parish priest may secure the erection of either or both
sodalities in his parish, or may choose some other association of a
similar kind,2 or may even invent his own special one, provided
that in every case the Ordinary’s sanction is obtained. If the parish
priest desires aggregation to a primaria, he may choose either of the
two explained above (not both, canon 723.1), and it will be granted
or not according to the will of Father General or Abbot General,
who, no doubt, arc guided by their own faculties in accepting or
declining requests for aggregation.
iv. There exists a Confederation of Children of Mary, effected by
Cardinal Bourne.3 According to the handbook, aggregation when
secured through the agency of the Confederation rests with the
Fadier General of the Society of Jesus, that is to say the aggregation
is to the Prima Primaria of the Roman College. An echo at least of
the Sodality mentioned in (ii) is found in certain references to the
Agnetians.
v. Though there is a wealth of devotional literature and pam
phlets about these sodalities, accurate canonical information is
difficult to obtain. A further letter of the Holy Father on the subject,
addressed to the General of the Society of Jesus, was given on 15
April 1950,4 which supports the view given above that any sodality
of Our Lady may become affiliated to the Prima Primaria without
necessarily belonging, so to speak, to the Society of Jesus.
’Beringcr, Les Indulgences, II, §244; The Child of Mary's Little Handbook, com
piled by Rev. V. Scully, C.R.L., 1921.
1 Catholic Encyclopedia, III, p. 65g, mentions two others.
1 Secretariate : 23 Ecclcston Square, London, SAV. 1.
* I'Osservatore Romano, 22 April, 1950; Documentation Catholique, 1950, p. 578.
V. BAPTISM AND CHURCHING
37.
BAPTISM BY HERETICAL MINISTER
In a maternity hospital, no one was willing or able to baptise an infant in
danger of death except the non-Catholic chaplain and the mother. Which oj
these two is the lawful minister?
Canon 742, §2 : Patri aut matri suam prolem baptizare non licet,
praeterquam in mortis periculo, quando alius praesto non est, qui
baptizet.
S.Off., 20 August, 1671 ; Fontes, n. 746 : Non permittat (Episcopus)
schismaticis administrare Sacram. Baptismatis nisi in casu neces
sitatis, et deficiente quacunque alia persona catholica. Cf. also
n. 924.
It is certain that the non-Catholic chaplain is able to administer
a valid baptism, and like anyone else is bound by the law of charity
to do so in danger of death if no Catholic is present who is able and
willing to baptise the infant ; in this instance he rightly baptises if
the mother is too ill to do so. There is, however, reason in the query,
since canon 742, §3, excludes the mother, even though she is able
and willing, if there is another person present who can baptise. As
far as the letter of the law is concerned there is some little conflict
in the directions, which must be resolved by giving precedence to
the more important aspect of the law.
Before the promulgation of the Code, an added reason existed
excluding the parents from administering baptism, even in danger
of death, to their own children: for the diriment impediment of
spiritual relationship, which was more extended than it is now, was
held by some to deprive the baptising parent of the right to seek
the marriage debt.1 It was a deprival which could easily be restored
and though we cannot find any writer who discussed the situation
in the above question, it might be held that the possible deprival
was sufficient reason for permitting an heretical minister.
This particular point, however, is now only of historical interest,
and it seems to us that, if the mother is able to baptise, the positive
law forbidding her to do so is of less consequence than the law
forbidding communicatio in sacris. Moreover, the exclusion of heretics
should apply, in our opinion, even to those who arc not ordained
1 Cf. Diet. Droil Canon., Illcol. 127.
56
Q· 38
Baptism and Churching
57
ministers of their sect, and the word “quacunque” in the reply of
the Holy Office could bear the meaning that, if any Catholic
including the mother is able to baptise, a non-Catholic is not to be
employed; an exception permitting a non-Catholic to baptise, on
analogy with “nisi pudoris gratia” of canon 742, §2, exists in cases
of baptism “in utero”, whenever a Catholic though present lacks
the necessary skill and knowledge.
Finally, it cannot be assumed that an heretical minister, even an
ordained one, will validly administer baptism to an infant in danger
of death. We have heard the view defended by these ministers that
“dry” baptism is permitted, i.e. a sign of the cross and the formula
without the use of water, or at least of running water.
38. BAPTISM OF ADOPTED CHILD
In this district the foster parents of an adopted child are on trial for six
months, until the authorities are satisfied that the child is in suitable sur
roundings. If in a given case, there is every reason for supposing that, at the
conclusion of six months trial, the adoption will become permanent, should the
child be baptised at once?
Canon 750, §2 : Extra mortis periculum, dummodo catholicae
eius educationi cautum sit, licite baptizatur: 1. Si parentes vel
tutores, aut saltem unus eorum, consentiant; 2. Si parentes, id est
pater, mater, avus, avia, vel tutores desint, aut ius in eum amiserint,
vel illud exercere nullo pacto queant.
Canon 770: Infantes quamprimum baptizentur; et parochi ac
concionatores frequenter fideles de hac gravi eorum obligatione
commoneant.
i. Where there is no reason for supposing that, at the end of six
months, the child will be withdrawn from its adopting parents and
educated as a non-Catholic, it seems to us that it should be assumed
that the adopting parents will remain permanently such ; the child
should then be baptised as soon as possible, exactly like any other
infant. There is, perhaps, some slight risk that it may be withdrawn
from their care at the end of six months and educated as a non
Catholic. But there is often some possibility of this happening even
to the natural and legitimate offspring of Catholic parents, and the
risk must be taken, since every infant has a right to baptism.
ii. If, on the other hand, there is some reason for supposing that
the adoption will not become permanent, we think that the baptism
should be deferred for six months, until the clause of canon 750, §2,
“dummodo cautum sit etc.”, is verified. Should it be in danger of
I
I
58
Priests Problems
death, however, it ought to be baptised at once, in accordance with
canon 750, §1, “Infans infidelium, etiam invitis parentibus, licite
baptizatur, cum in eo versatur discrimine, ut prudenter praev
ideatur moriturus, antequam usum rationis attingat.”
39. BAPTISM BY ASPERSION
When receiving a family, including young children, into the Church, the
parents attested that the non-Catholic minister baptised one child {thought to
be in danger of death} by sprinkling water from a small bottle with the type
of stopper used in scent bottles. The water was sprinkled on the child's face,
but the witnesses could not say whether it flowed or not. Did I act correctly
in re-baptising the child conditionally?
Canon 758: Licet baptismus conferri valide possit aut per in
fusionem, aut per immersionem, aut per aspersionem, primus tamen
vel secundus modus, aut mixtus ex utroque, qui magis sit in usu,
retineatur, secundum probatos diversarum Ecclesiarum rituales
libros.
The inquiry about the matter and form of a valid administration
of baptism turns, firstly, on the fact of a rite having been performed,
which is established in the above instance fully and satisfactorily:
the proof of administration by a written certificate from the non
Catholic minister, though urged by some canonists, is not customary
in this country’, and the testimony of one witness “omni exceptione
maior” suffices as canon 779 directs.
It turns secondly on whether the rite has been validly performed,
and (restricting the inquiry to the proximate matter) the question
to be decided is whether the water flowed, for there is agreement
amongst all the commentators that a flow of water, even though it
be merely a few drops, is essential to the sign of ablution or washing
which, by divine institution, is of the substance of this sacrament.
Canon 758, whilst admitting the validity of baptism by aspersion,
on the understanding that the water flows, nevertheless rejects this
method because, as it seems to us, there must always be uncertainty
about the flowing of water which is merely sprinkled on the
candidate.
If the water flowed on the face of the infant, this is certainly valid,
though the more usual and recommended method is to cause water
to flow on the forehead or on the crown of the head. Fortescue, in
fact, directs that “the water may best be poured over the right
check ,1 a recommendation which occasioned some comment^ and
1 Ceremonies of the Roman Rite (1920), p. 395.
2 Irish Ecclesiastical Record, 1922, XIX, p. 421.
Q. 40
Baptism and Churching
59
which has been modified in Fr O’Connell’s edition of the book;
the added rubric on page 7 of the Ordo Administrandi reads “Ab
luenda est pars capitis superior”. In the common law, as Cappello
states, “Nomine capitis intclligitur frons, vertex, visus.”
The conclusion must clearly be that the priest receiving the
family into the Church acted rightly in re-baptising this child
conditionally, because he had no certainty that the rite which had
taken place was validly performed.
40.
BAPTISM OF A CHILD OF NON-CATHOLIC
PARENTAGE
A non-Cat/iolic mother, anxious for her child's baptism, cannot take the
infant to the Protestant church owing to domestic difficulties, and the minister
declines to baptise it at home. May the parish priest, when consulted, either
recommend the mother to get some other non-Catholic minister or privately
baptise the infant himself? If neither course is permissible, is there anything
the parish priest can do to assist this mother?
Canon 759, §1 : In mortis periculo baptismum privatim conferre
licet; et, si conferatur a ministro qui nec sacerdos sit nec diaconus,
ca tantum ponantur, quae sunt ad baptismi validitatem neces
saria. . . .
§2: Extra mortis periculum baptismum privatum loci Ordinarius
permittere nequit, nisi agatur de hcreticis qui in adulta aetate sub
conditione baptizentur.
Canon 750, §2 : Extra mortis periculum, dummodo catholicae
cius educationi cautum sit, licite baptizatur: 1. Si parentes vel
tutores, aut saltem unus eorum consentiant.
The only person enjoying the right of administering public
baptism is the Catholic parish priest of the place: the priest con
sulted may baptise this child, if the mother consents to its being
educated a Catholic, which appears not to be the case. The baptism,
however, would have to be in the church like any other, unless the
child is in danger of death.
The priest consulted may not recommend the parent(s) to have
the child publicly baptised by any non-Catholic minister, since this
advice amounts to a recognition of the heretical sect, which the
Holy See has more than once forbidden.
It seems, therefore, that the most the priest may do is to inform
the mother about the law of baptism in danger of death, and he may
even instruct her on the correct matter and form. If the child is in
danger of death at any time, the priest may himself administer
60
Priests' Problems
QQ· 4b 42
private baptism at the mother’s request, or—what is probably the
best course in the circumstances—the mother may herself baptise
the child.
41. MINISTER AS BAPTISMAL SPONSOR
Assuming that a priest gets permission to be a baptismal sponsor, as
requiredfrom canon 766.5, may he at the same time administer the sacrament?
S.R.C., 14 June, 1873, n. 3305.3: Num in administratione sacra
menti Confirmationis Episcopus possit . . . Ministri et Patrini paries
uno codcmquc tempore sustinere, dextera scilicet manu frontem
confirmandi sacro Chrismate signare ut Minister, ac sinistra con
firmandum ipsum tenere ut Patrinus. Resp. Episcopus confirmans
in casu officium Patrini gerat per Procuratorem.
One’s first reaction to this question was a decided negative, since
it appeared almost from the nature of things that the minister could
not also be the godparent. He contracts spiritual paternity by
baptising the infant and it would seem that he cannot contract it
again, with regard to the same person, by acting as sponsor; more
over, he would be addressing questions to himself during the rite.
Relying, however, by analog)', on the reply given by S.R.C., n.
3305.3, De Smet, De Sacramentis, n. 352, teaches that it is not for
bidden: “Non prohibetur sacerdoti baptizanti, simul ac baptizat,
agere patrinum ; sed munus susceptoris exercere debt per procura
torem, qui nomine sacerdotis Baptismum ministrantis suscipiat et
interrogationibus faciendis respondeat.” He quotes for the same
teaching Revue du Clergé Français, LV, p. 725.
He Smet’s opinion may be followed, if desired, since the law
nowhere expressly bars the minister from being at the same time a
godparent. But we cannot easily discern any reason for a practice
which, if not forbidden, is certainly extremely odd and unusual,
and we imagine that the priest’s Ordinary would not grant permis
sion for him to act as sponsor if he knew that the sponsor was also
to be the minister.
If the double office is, nevertheless, assumed, the priest should
appoint a proxy to answer for him as sponsor, on analogy with
S.R.C., n. 3305.3, thereby avoiding the additional oddity or im
propriety of speaking to himself when putting and answering the
questions.
42. BAPTISMAL SPONSOR “ PRO FORMA”
Having to refuse a non-Catholic sponsor I appointed the school-teacher, who
is always present for the Catechism on Sunday afternoon. The parents objected
Q. 42
Baptism and Churching
61
to having a perfect stranger, and I insisted for the purpose of duly carrying
out the ceremonies; but I am now doubtful whether I acted rightly. Is it
better to have no sponsor at all rather than one who, though willing to assist
at a ceremony, has no intention of assuming any responsibility for the child’s
spiritual welfare?
Canon 765 : Ut quis sit patrinus, oportet : 1. Sit baptizatus rationis
usum assecutus et intentionem habeat id munus gerendi.
Canon 769: Patrinorum est, ex suscepto munere, spiritualem
filium perpetuo sibi commendatum habere, atque in iis quae ad
Christianae vitae institutionem spectant, curare diligenter ut ille
talem in tota vita se praebeat qualem futurum esse sollemni
caeremonia spoponderunt.
S. Off. 15 Sept. 1869; Fontes η. 1011 : Quandoquidem nil impedit
quominus ipsi (parentes) patrinorum vices gerant suos infantes
materialiter tenendo et pro iis baptizanti respondendo, citra tamen
veri ac proprie sumpti patrinatus praerogativam. ... Ita fiet, ut in
sollemnitate Baptismi omnes quadam ratione serventur ritus, et
parentum materiali praesentia formalis patrinorum suppleatur.
S. Sacram. 29 July and 25 November, 1925; A.A.S., 1926, XVIII,
p. 43 : . . . patrinus suum munus suscipere debet cum plena
notitia et conscientia inde exorientis obligationis ad mentem can.
769. . . .
i. Parents should provide a sponsor who fulfils all the requirements
of the canons, and if he is unable to be present a proxy may be
appointed.1 Failing an appointment by the parents it is for the
minister, from canon 765.4, to choose a sponsor who has, at least,
the minimum qualifications. It must be conceded that, quite often,
whether appointed by parents or minister, the intention in taking
this office does not explicitly correspond with the description in
canon 769, owing to ignorance of the law. But a vague and confused
knowledge suffices, and one could not question the validity of the
action except, perhaps, in a case where an unwilling sponsor has
been forced into the office by the priest.2
It is not, however, to be assumed that school-teachers, always
ready to assist in an emergency, are necessarily unqualified from
lack of the necessary intention. These persons may regard the
charge more seriously than some friend or relation of the parents
chosen merely for social reasons; they can he informed about the
obligations; their identity is registered and their assistance could be
claimed later on if the necessity arose.
1 Cf. The Clergy Review, 1944, XXIV, p. 560.
2 Cf. The Clergy Review, 1934, VII, p. 527.
Priests' Problems
62
Q· 43
ii. The question we have to answer is whether it is preferable to
dispense with a sponsor altogether rather than have one who has no
serious intention of assuming the obligations, but merely of assisting
at a ceremony. The canons and the instructions of the Holy Sec all
point to the conclusion that it is preferable to have no sponsor.
The Church would not attach a diriment impediment to a mere
ceremony; the canons are quite explicit about the sponsor’s office
and obligations ; and the two replies referred to above support this
view. The reply in 1869 was chiefly concerned with pointing out
that the lack of a sponsor was no reason for administering Baptism
without the ceremonies. It forbade the appointment of a proxy
unless the principal had previously consented: “ratio est quia
patrinus formalem habere debet voluntatem acceptandi et exercendi
pro viribus onera patrinatui inhaerentia.” Finally it strongly re
probated the practice of employing for the office some person who
happened to be in the church and who would take no further
interest in the child.
The reply in 1925 made more explicit the rules for appointing
proxies, precisely because of the obligations attached to the office,
and the accompanying instruction quotes papal decretals, St
Thomas and the Roman Catechism in proof of the seriousness of
the act of sponsorship, and insists that the abuse of regarding it as
an empty ceremony must be removed.
It is certain, therefore, that the appointment of a sponsor merely
to take part in the rite is unlawful ; it may even be invalid in some
instances, although in the external forum a sponsor would have
difficulty in proving its invalidity, since a person’s internal intention
is presumed to conform with his external acts.
43.
UNLAWFUL BAPTISMAL SPONSOR
May a Catholic who has contracted a mixed marriage in a register office
be a lawful godparent at Baptism, if this attempted marriage is not
notorious ?
Canon 766: Ut autem quis licitc patrinus admittatur, opor
tet: ... 2. Non sit propter notorium delictum cxcommunicatus vel
exclusus ab actibus legitimis . . . vel infamis infamia facti.
Canon 2293, §3: Infamia facti contrahitur, quando quis, ob
patratum delictum vel ob pravos mores, bonam existimationem
apud fideles probos et graves amisit, de quo iudicium spectat ad
Ordinarium.
Canon 2375 : Catholici qui matrimonium mixtum, etsi validum,
Baptism and Churching
Q. 44
63
sine Ecclesiae dispensatione inire ausi fuerint, ispo facto ab actibus
legitimis ecclesiasticis . . . exclusi manent. . . .
i. Details of canon law and its interpretation apart, a person of
this type is unsuited for the office of sponsor. Since, from canon
765.4, the choice of sponsor rests with the parents, the priest who
knows about the status of the proposed sponsor should use his
influence to urge the choice of a more respectable person.
ii. Difficulty, however, arises when the parents are so bent on
having this undesirable sponsor that they might even decline to
have the child baptised if the sponsor is rejected. It is then for the
priest, applying the rule of canon 2219, §1, “In poenis benignior est
interpretatio facienda”, to admit the sponsor unless it is certain
that he comes within the prohibitive law of canon 766, and a fortiori
within the invalidating law of canon 765. In some dioceses the local
law resolves whatever doubt there may be in interpreting the above
canons by enacting that all parties to a civil marriage, mixed or not,
must be excluded from baptismal sponsorship.1
If there is no local law, we think it could be decided that a person
of this kind is not with certainty excluded by positive law from the
legitimate ecclesiastical acts enumerated in canon 2256.2, amongst
which is sponsorship; for, although canon 2375 does not mention
notoriety, canon 766 does, unless this qualification is to be applied
only to the excommunicated and not to the classes which follow.2
Infamia facti cannot exist unless its basis is publicly known and
established by the bishop. “Ausi fuerint” of canon 2375 requires,
amongst other things, knowledge of the penalty, which will usually
be lacking. Evidently quite a number of canonical reasons could be
adduced if one wanted to prove that a person of this character is
not necessarily excluded by the positive law.
iii. Where the civil marriage is notorious, or even merely public
(canon 2197), and scandal will be caused by admission to sponsor
ship, the party may lawfully be rejected, in the teaching of Prümmcr
and others, even though his condition does not come, perhaps,
within any specified positive law.3
44.
CONTENT OF BAPTISMAL CERTIFICATE
Is it necessary to give the full particulars, including those of confirmation
and marriage, when all that is required is a certificate of baptism for civil
Purposes?
1 Gougnard, Collationes Theologicae, 19312, p. 42.
1 Cf. Ecclesiastical Review, March 1941. P- 255, where the writer applies notoriety
rightly to al) that follows, an interpretation which should be accepted.
1 Theol. Moralis, III, §146; The Clergy Review, 1941, XX, p. 88.
Priests Problems
64
Q. 45
In the event of a baptism being entered which shows the child to be of
illegitimate birth, but whose parents have later married and thus legitimated
the offspring, what exactly should be stated on the certificated copy?
i. The testimonium baptismi, required by certain canons, is per
fectly established by a certificated copy from the baptismal register,
but this is not the only lawful method of proving baptism, as is
evident from canon 779,1 although local laws frequently insist upon
it.
If, however, a certificate is issued which purports to be a copy of
the baptismal register, the certificate must contain all the details
entered therein, whether they are judged necessary or not. The
parish priest making entries in his register, or giving certificated
copies of them, acts as a notary, not as a judge of what is fitting. It
would be improper for him to make any alterations, or to supply an
imperfect copy of the whole entry, unless authorised by the local
Ordinary. For this improper procedure might have the effect of
nullifying the purpose of the law, especially that relating to marriage ;
an adult, for example, in possession of a baptismal certificate which
omitted the details of his marriage, could use it within six months
of issue as a proof of freedom to marry’.
ii. In observing the above principle difficulties occasionally
arise, for example, in cases where it is advisable to conceal the fact
of a child’s adoption.2 It is for the Ordinary to decide, either by
local regulations or by giving a direction in individual cases, what
changes, if any, may be permitted.
In some dioceses the difficulty about legitimation by subsequent
marriage is met by authorising the clergy to note the date and
place of the marriage in the margin of the baptismal register:
extracts subsequent to this added entry are to be issued containing
without qualification the names of the married parents which
perhaps, following the law of canon 777, §2, were not inscribed in
the baptismal register, or were inscribed with the qualification
coram lege civili” before the word “coniugum”.
45.
ABSOLUTE BAPTISM OF ADULTS
At the absolute baptism of adults, when the form for infants is used by
induit, should the questions be answered by the candidate or by the sponsors?
Should the candidate join in the recitation of the “Credo” and “Pater”?
Should a profession offaith precede the rite of baptism ?
1 The Clergy Review, 1938, XV, p. 260.
Cf. The Clergy Review, 1942, XXII, p. 556; 1943, XXIII, p. ig2.
Q. 45
Baptism and Churching
65
Canon 755, §2 : Loci Ordinarius potest gravi et rationabili de
causa indulgerc ut caeremoniae praescriptae pro baptismo infantium
adhibeantur in baptismo adultorum.
Ordo Administrandi, Tit. iii, cap. iv, i a : Si Baptismus absolute con
feratur, nulla fit a neo-convcrso abiuratio haeresis, nec ei datur
absolutio, eo quod omnia abluat Sacramentum regenerationis; sed
Professio fidei emitti debet, saltem ab adultis, quam sequitur
Baptismi publica administratio sub ritu (ex privilegio) Baptismi
parvulorum.
£ Ojf. 19 May, 1879; Fontes, n. 1063: ...ultrum scilicet
baptizari possint, servato ordine Baptismi parvulorum, ii pueri
neophyti qui scholis catholicis admissi baptizantur ante primam
Communionem? Resp. . . . Affirmative; responsiones autem praes
criptae dentur a pueris baptizandis insimul cum eorum patrinis.
In the common law, when the rite for adults is used, the above
questions arc answered by the rubrics of the rite itself.
In this country’ the form for infants was permitted by induit
before the Code, and is now lawful, even without an Apostolic
induit, from the terms of canon 755, §2. The direction of the Holy
Office, 19 May, 1879, is that the responses are to be made by the
candidate and the sponsors together; though it was given for only
one locality, it may fittingly be followed in all cases of adult baptism
with the form for infants ; on analogy with this rule, the candidate
should also, we think, recite the Credo and Pater with the minister
and sponsors.
Λ profession of faith, not indeed required by the common law
from the adult candidate, except in the course of the rite for adults,
must precede the rite for infants in this country as directed by the
Ordo Administrandi. The teaching of Fr Dunne, The Ritual Explained,
p. 33, that no profession of faith is required beyond that contained
in the rite itself, must refer, we think, to the absolute baptism of
adults with the adult rite. When the infant form is used and the
candidate, correctly we think, joins in the profession of faith with
the sponsors, he does so, as it were, unofficially, and not as one
making the profession of faith required by the law. This explanation,
though weak, is the only one occurring to us which explains the
requirement of the Ordo Administrandi for a profession of faith from
the adult candidate before the rite of baptism administered with
the form for infants. A profession of faith by an adult candidate is
in the nature of things, and has always been required by the Church :
an instance of it is in Acts viii, 37, before Philip’s baptism of the
eunuch.
The formula of this profession found in the Ordo Administrandi is
Priests' Problems
66
Q. 46
the one given by the Holy Office, 20 July, 1859,1 for the reconciliation
of heretics. It could be maintained, therefore, that its use is not
obligatory except for those already baptised, and that in the case we
are discussing the Credo suffices, or the formula of Pius IV given in
Fontes, n. 108. Λ study of the formula in the Ordo Administrandi by
Fr Bévcnot, S.J., may be seen in The Clergy Review, 1938, XV,
p. 212, and 1939, XVI, p. 401 ; a new formula was authorised for
England and Wales in 1945.
46.
CONDITIONAL BAPTISM
A child of a mixed marriage was, unknown to the Catholic mother,
baptised in the Protestant church. He was confirmed, has made his First
Communion, and has never received any religious instruction or taken part in
any religious worship except that of the Catholic religion. The defect of his
baptism was not discovered until he was sixteen years of age. What is the
correct procedure in rectifying his status, assuming his first baptism to be
doubtful?
Canon 759, §2 : Extra mortis periculum baptismum privatum loci
Ordinarius permittere nequit, nisi agatur de haereticis qui in adulta
aetate sub conditione baptizentur.
§3 : Caeremoniae autem quae in baptismi collatione praetermissae
quavis ratione fuerint, quamprimum in ecclesia suppleantur, nisi in
casu de quo in §2.
Canon 760: Cum baptismus sub conditione iteratur, caere
moniae, si quidem in priore baptismo omissae fuerunt, suppleantur,
salvo praescripto can. 759, §3; sin autem in priore baptismo
adhibitae sunt, repeti in altero aut omitti possunt.
Canon 763, §1 : Cum baptismus iteratur sub conditione idem
patrinus, quatenus fieri possit, adhibeatur, qui in priore baptismo
forte adfuit; extra hunc casum in baptismo conditionato patrinus
non est necessarius.
§2: Iterato baptismo sub conditione, neque patrinus qui priori
baptismo adfuit, neque qui posteriori, cognationem spiritualem
contrahit, nisi idem patrinus in utroque baptismo adhibitus fuerit.
In The Clergy Review, 1942, XXII, p. 372, a chart was suggested
for the purpose of solving questions of this kind. The boy in the
above case comes under the description of a “Catholic 7 onwards”
receiving conditional baptism.
In the common law the permission or the intervention of the
Ordinary is not required since canon 744 is commonly interpreted
1 Fontes, n. 953.
Baptism and Churching
Q, 47
67
as referring to absolute baptism, and the boy not having been at
any time a heretic is not subject to the usual procedure for receiving
a convert into the Church.1 Occasionally, however, local law
requires even conditional adult baptism to be referred to the
Ordinary, as in Lancaster Synod, 1945, n. 75.
The ceremonies are to be employed (which by induit are those in
the “Ordo Parvulorum”) since conditional baptism without the
ceremonies is permitted only at the reception of converts. A sponsor
is permissible, though not necessary, and if employed the impediment
of spiritual relationship is not set up ; the questions may be answered
by the sponsor and candidate together.2 The baptismal formula
should be preceded by the words “si tu non es baptizatus.”
The above solutions, which we believe to be correct, are given
on the assumption that this boy, though baptised in a non-Catholic
church, is not a heretic, because he has never adhered at any time
to a sect since reaching the age of discretion ; for this reason, the
convert form is not used, there is no abjuration of heresy, and no pro
fession of faith beyond that contained in the “Ordo Parvulorum”.
47.
font blessing: holy oils
If the Holy Oils blessed on the previous Holy Thursday have not arrived,
what is the correct practice in blessing the Font, particularly when a solemn
Baptism must be administered immediately?
Canon 734: Sacra olea quae quibusdam sacramentis admin
istrandis inserviunt, debent esse ab Episcopo benedicta feria V in
Coena Domini proxime superiore; neque adhibeantur vetera, nisi
necessitas urgeat.
S.R.C., 31 January, 1896, n. 3879: Parochus curet, ut presbyter
vel clericus, si possibile sit in Sacris constitutus, nova Olea Sacra
recipiat. Quod si aliquod adhuc exstet impedimentum, idem
parochus vel per se vel per alium Sacerdotem benedicat Fontem sine
Sacrorum Oleorum infusione, quae privat im opportuno tempore
fiet: nisi aliquem baptizare debeat; tunc enim ipsa benedictione
solemn! vetera Olea infundat.
Some other earlier replies arc not so clear because the circum
stance of an impending Baptism was not taken into consideration.
If no Baptism is expected before the newly consecrated oils arrive,
the Holy Saturday rite should be performed without them, and
later a priest vested in surplice and violet stole should add to the
1 Cf. The Clergy Review, 1943, XXIII, p. 566.
2 The Clergy Review, 1946, XXVI, p. 101.
Priests' Problems
68
Q. ^3
blessed water the Holy Oils with the formula given in the Missal. 1
A solemn Baptism, let us suppose, must be administered un
expectedly after the blessing of the Font without Holy Oils and
before the newly consecrated ones have arrived ; the Baptism will
be preceded by pouring the old Oils into the Font with the ap
propriate formula, and the candidate throughout the rite will be
anointed with the old Oils. It is evident that the priest should not
burn up the old Oils before he is in possession of the new ones, since
he may need them in an emergency for Extreme Unction or
Confirmation, as well as for solemn Baptism.
48.
churching: stole ceremony
Since this rite is not a purification but a thanksgiving, why does it include
certain penitential features such as the direction that the woman shall kneel al
the church door and be led to the altar holding the priest's stole? Women some
times rather resent the implications of these rites.
Rituale Romanum, VIII, vi ... ad fores ecclesiae accedat, ubi illam
(puerperam) foris ad limina genuflectentem et candelam accensam
in manu tenentem, aqua benedicta aspergat. ... 2. Deinde por
rigens ad manum mulieris extremam partem stolae, ex humero
sinistro pendentem, eam introducit in ecclesiam. . . .
i. In the primitive rite of this blessing there was included the
notion of “purification” which has now almost completely dis
appeared. This notion was due to the fact that Our Blessed Lady
herself observed the Mosaic law contained in Leviticus xii, and the
Christian rite began as an imitation of Our Lady’s Purification;
in many ancient rituals, indeed, the rite is described as a purification.1
It must be observed, however, that the purification in question was
only legalistic, and in no sense considered to be a cleansing from
some kind of moral stain. Our Lady was not properly speaking
bound to observe the ritualistic purification, since the circumstances
of Christ’s birth were not those described in Leviticus; that she
nevertheless did so, in a spirit of humility and obedience, encouraged
Christian mothers to imitate her example, and the Church provided
a rite for the purpose in order to sanction what the Ritual still
refers to as “pia ct laudabilis consuetudo”, although the stress is
now exclusively on the notion of rendering thanks to God for a
safe delivery.
We think that, historically speaking, the existing rubrics quoted
above must be traces of the notion of ceremonial purifying which has
1 Maynooth Council, 1927, n. 305, refers to "ritus purificationis”.
Q. 48
Baptism and Churching
69
now completely disappeared from the title and words of the rite, a
notion which everyone is rightly anxious to suppress, lest an entirely
false idea of motherhood should be encouraged.
ii. If we take the rubrics and the rite as we have it in our current
ritual, together with the law on the subject, the traces of what used
to be a purificatory ceremony are capable of an explanation which
relates solely to the idea of thanksgiving.
Humility, both in word and gesture, is at all times appropriate
to Christian worship, and most of all in an act of thanksgiving to
God for benefits received. Though resembling the stole ceremony
on introducing catechumens at Baptism {Ingredere in templum Dei),
the use of a white stole at Churching indicates the difference : if the
action symbolised the rehabilitation of a mother as part of a cerem
onial purifying, the colour of the stole would certainly be violet.
Neither our word “Churching” nor the French word “ Relevailles ”,
both of which are reminiscent of rehabilitation, is to be found in
the vocabulary of the liturgy ; and whatever may be the popular
idea, there is no liturgical rule which requires the mother not to
enter the sacred precincts until after receiving the blessing. AVe
cannot remember any other rite, except Baptism, in which the
priest’s stole is used to conduct the recipient of a blessing into the
church, and it is therefore difficult to attach a meaning to it which
is unconnected with some kind of rehabilitation. The lighted candle
and procession to the altar are strongly reminiscent of the Candlemas
rite, and it could be said, perhaps, that the action of accompanying
the priest, whilst holding the end of his stole, far from indicating
rehabilitation, is a privilege which is not found in any other blessing.
Were this rite one of rehabilitation or purification, it would seem
that it could more fittingly be used for unmarried mothers. Exactly
the opposite, however, is implied in many local rituals which direct
that the blessing is to be given only to mothers who have borne
children in lawful wedlock ; and, though the modern common law
does not refuse it to the unmarried, it is agreed that they have no
strict right to it.1
iii. Finally, we must remember that there is no common law
obligation in the Latin Church for women to receive this blessing
after childbirth. If the Church considered it to be a purifying or
rehabilitating rite, it would no doubt be obligator}'· for women to
receive it. Should the above reasons fail to convince, any mother
who views the rite with repugnance may be told not to ask for this
blessing, unless local law directs parish priests to exhort women to
receive it, as in Madras Statutes, 1942, n. 331.
1 The Clergy Review, 1940, XVIII, p. 347.
Priests' Problems
70
49-
Q· 49
CHURCHING AFTER INFANT’S DEATH
Is it usual for churching to take place if the child is dead, especially when
it has died without baptism?
S.R.C., 12 September, 1857, n. 3059.17: . . . pro benedictione
accipienda, etiamsi proles mortua fuerit quandoque sine Baptismo.
In illo tamen casu verba orationum Ritualis Romani nunc in hac
dioecesi vigentis verificari non possunt, ct aliunde benedictio omitti
nequit sine aliqua admiratione plebis ct sine aggravationc moeroris
mulierum huiusmodi. Quaeritur quid agendum. . . . Resp. Ser
vandum omnino Rituale Romanum.
19 May, 1896, n. 3904: Utrum vi Decreti ... 12 Septembris,
1857, liceat benedictionem mulieris post partum, iuxta Rituale
Romanum, impertiri puerperae, cuius proles mortua fuerit sine
Baptismo; an vero abstinendum sit ab ea benedictione? Resp. Non
esse negandam benedictionem.
The use of some Churches, especially in the East, supposes that
the child is present with the mother at the time of receiving the
blessing,1 and this might have been so in the local rite mentioned
in S.R.C. n. 3059. Assuming, however, that the rite in question is
that contained in our present Ritual, its unsuitability for the case
where an infant has previously died without baptism can only be
discerned in the words of the prayer “ad aeternae bcatitudinis
gaudia cum prole sua pervenire mercatur”. It touches upon the
difficult question of the salvation of infants dying without baptism.
To the questions set the reply is that the words of the Ritual arc not
to be modified, and that the blessing is not to be refused even when
the infant has died unbaptised. Without in any way modifying the
dogmatic teaching on this question, the Sacred Congregation insists
on the words of the Ritual being used ; they are not absolutely ir
reconcilable with the doctrine, since the necessity of baptism does
not absolutely exclude the possibility of salvation by some miraculous
divine intervention, difficult though it may be to prove.2
If the infant has died after baptism, there is no problem of any
kind, since the formula in our current Ritual is exclusively a blessing
upon the mother.
1 O’Kane, Rubrics of the Roman Ritual, §542.
» Cf. Diet. Thiol., II, col. 365.
50.
confirmation: grave sickness
The terms of the induit defining the powers of the extraordinary minister of
Confirmation seem to require in the sick candidate a danger of death which is
more certain and proximate than that required for Extreme Unction. What
support is there for the opinion that for both sacraments the danger required is
the same?
Propaganda, 4 May, 1774; Fontes, n. 4565: · · · agatur de eo, qui
gravi morbo laboret, ex quo decessurus praevideatur. . . .
Canon 940, §1 : Extrema Unctio . . . ob infirmitatem vel senium
in periculo mortis versetur.
S.C.Sacram., 14 September, 1946: . . . dummodo hi fideles ex
gravi morbo in vero mortis periculo sint constituti, ex quo decessuri prae
videantur.
There is this difference between the two dangers of death, that
if the person is in danger of death from old age or from some lingering
sickness, he may receive Extreme Unction and the other last rites
validly and lawfully ; but quite probably the reception of Confirma
tion, though valid, might, in such circumstances, be unlawful, since
in the case of a lingering sickness it might be possible to secure a
bishop, as required in n. 3 of the induit.
It must be admitted that the phrasing of the induit and of
its predecessor in 1774 seems to require a more proximate and
certain danger of death than is required, according to the common
teaching, for Extreme Unction. Nevertheless, most of the com
mentators are in agreement that for the valid reception of both
sacraments the degree of danger of death required is identical, and
whatever doubts may arise arc common to both sacraments and to
be solved in the same way. The word “true” is opposed to “false”,
and docs not exclude the accepted doctrine that a person in danger
of death can validly receive both sacraments whenever a truly
prudent judgement is made, albeit only a probable opinion, that
death may ensue. The best explanation of the peculiar terms used
is the practice of the Roman Curia of adhering to precedent in
the drafting of documents; the instruction of 1774 used almost
identical terms, and those derive from the contemporary opinion
which required imminent danger of death for Extreme Unction.
71
I
Priests' Problems
sacrament of confirmation ?
Canon 787: Quamquam hoc sacramentum non est de neces
sitate medii ad salutem, nemini tamen licet, oblata occasione, illud
negligere ; imo parochi curent ut fideles ad illud opportuno tempore
accedant.
Benedict XIV, Etsi Pastoralis, 26 May, 174.2 ; Fontes, n. 328, III,
§4 . . . monendi tamen sunt ab Ordinariis Locorum, cos gravis
peccati reatu teneri, si cum possunt ad confirmationem accedere,
illam renuunt, ac negligunt.
Propaganda, 4 May, 1774; Fontes, n. 4565: . . . etsi enim hoc
Sacramentum non sit de necessitate medii ad salutem, tamen sine
gravis peccati reatu respui non potest, ac negligi, cum illud suscip
iendi opportuna datur occasio.
S.Ojf., 20 June, 1866; Fontes, n. 994, n. 40: . . . omnino pericu
losum esset, si ab hac vita sine Confirmatione migrare contingeret,
non quia damnaretur, nisi forte propter contemptum, sed quia
detrimentum perfectionis pateretur.
It cannot be proved, either from the nature of this sacrament or
from any certain positive law, that its reception is a grave obliga
tion in itself, apart from such extrinsic circumstances as the necessity
of avoiding scandal, or when refusal is due to contempt. The
Benedictine phrase, as is clear from the context of the whole docu
ment, is usually explained by pointing out that the Italo-Greeks, for
whose instruction the Pope was writing, were in fact guilty of
contempt in refusing confirmation from a bishop, the Holy Sec
having withdrawn the faculty from their priests.1 The phrase in
Fontes, n. 4565, is drawn from the Benedictine constitution, cited in
a footnote ; it is not a law but an instruction giving the teaching of
the Roman Congregation at that time. St Alphonsus relied on the
Benedictine statement for his stricter view,2 and some modem
manualists, relying on both the above texts, argue that the obliga
tion is a grave one.3 The majority of commentators think it is not
grave, and their view may safely be accepted.4 The teaching of
Propaganda in 1774 is not sustained by the Holy Office in Fontes,
n. 994, and the earlier instruction is no longer printed in the
Appendix to the Roman Ritual.5 The mild terms of canon 787 are
1 De Smet, De Sacramentis, §396.
2 Theol. Moralis, VI, n. 182, ad finem.
3 E.g. Aertnys-Damen, II, §92.
* E.g. Iorio, Theol. Moralis, III, §89.
8 Noldin, loc. cit., edition 1935, is to be corrected on this point: he is referring,
no doubt, to the edition of the Ritual previous to that of 1925.
Confirmation
Q, 52
73
reflected in canon 1021, §2, directing that parties about to be
married should be confirmed if it can be done without grave in
convenience. Nothing appears to modify the milder view in the 1946
decree,1 which facilitates the reception of this sacrament, and com
mentators remain unwilling to assert a grave obligation.2
52.
OBLIGATION OF CONFIRMING THE DYING
Docs it follow from the opinion that the dying are not gravely bound to
receive Confirmation (of. previous question), that neither is the priest gravely
bound to administer it, when asked to do so ?
Canon 467, §1 : Debet parochus . . . administrare sacramenta
fidelibus, quoties legitime petant. . . .
Canon 468, §1 : Sedula cura et effusa caritate debet parochus
aegrotos in sua paroecia, maxime vero morti proximos, adiuvarc,
eos sollicite Sacramentis reficiendo. . . .
Canon 785, §1 : Episcopus obligatione tenetur sacramentum hoc
subditis rite et rationabiliter petentibus conferendi, praesertim
tempore visitationis dioecesis.
§2: Eadem obligatione tenetur presbyter, privilegio apostolico
donatus, erga illos quorum in favorem est concessa facultas.
§3: Ordinarius, legitima causa impeditus aut potestate con
firmandi carens, debet, quoad fieri potest, saltem intra quodlibet
quinquennium providere ut suis subditis hoc sacramentum
administretur.
i. The satisfaction felt, perhaps, in sharing the powers of the
episcopate, has been clouded in some few instances by the labour
involved : if there is a large maternity clinic in his district, a parish
priest is liable to be summoned at all hours of the day or night, and
cannot depute an assistant priest to take his place. The remedy in
cases of serious hardship is to obtain an induit for the priest who
habitually attends the institution.3 A definition of the priest minister’s
obligation to confirm the dying is one of the most difficult points
arising from the decree Spiritus Sancti, 14 September, 1946. The one
suggested in the following notes is tentative and lacking that modest
degree of assurance which one would like to have in solving a doubt.
The question must be kept within due bounds by limiting it to what
is of grave obligation, and by eliminating such circumstances as
scandal, contempt, or special necessity in the recipient. Further,
1 The Clergy Review. 1947, XXVII, p. 54.
t E.g. Pistoni, De Confirmatione a Ministro Extraordinarie, η. 40.
1 One has now been granted.
74
Priests' Problems
q
there is complete agreement that a parish priest who habitually
declines to confirm the dying commits grave sin, a conclusion
deduced from canon 785 which affirms a priest’s obligation to be
the same as a bishop’s : strict parity exists, indeed, only when a
priest’s induit extends to holding a general confirmation of persons
not in danger of death, but it can be extended by analogy to the
case of a priest who habitually refuses to use his faculty of confirming,
ii. Many commentators go further and by regarding an individual
request in much the same way as a request for Extreme Unction on
the part of a person who has received absolution and Viaticum,
they assert a grave obligation to confirm each individual,1 whilst
admitting that grave inconvenience may release from grave obliga
tion in an individual case, a reasonable consideration which is not,
however, strictly relevant. This view, shared by the majority, is
based on the law of canons 467 and 468, and not on other considera
tions : the faithful have a right to the sacraments and it is the parish
priest’s grave duty to administer them when reasonably requested, a
duty not limited to those which are necessary for salvation, which
confirmation is not, nor to those which the faithful are under a
grave obligation to receive, which again confirmation is not. There
is everything to be said for defending this safe view even though it
should prove to be too strict.
iii. Nevertheless, it is not certain that the obligation to confirm
each individual applicant is grave, and we agree with those writers
who think it be only binding sub levi.2 Our unwillingness to fasten
fresh grave obligations on the parochial clergy is supported by two
considerations. It is, in the first place, unreasonable to make the
extraordinary minister’s obligation more serious than that of the
ordinary minister, and many writers including St Alphonsus teach
that a bishop is under no obligation to confirm a dying person
because it is not the common practice. Moreover, in the second
place, seeing that the power is now enjoyed by parish priests, it
appears that the thing to be examined is whether a dying person
has a strict right to this sacerdotal ministry, for a decision on the
parish priest’s obligation turns on this point. Mgr Zcrba, correctly
in our opinion, teaches that dying persons have no strict right to
this sacrament;3 otherwise it will be difficult to explain how it came
about that, for many centuries, this right was in practice denied
them. Not being a strict right to something claimed as due, it must
1 Zcrba, Commentarius, p. 73; Smiddy, Manual, p. 59; E.T.L., 1949, p. 355;
I E.R.. pp. 348, 537.
2 A.E.R., April 1947, p. 261 ; The Jurist, 1947, p. 231 ; L'Ami du Clergé, 1949, p.
G94.
» Op. at., p. 52.
Confirmation
0,0,· 53> 54
75
be a favour, a privilege, a right in the wide sense of something fitting
and expedient which the Church desires the faithful to enjoy. In
those parts of the world where priests have long enjoyed the faculty
under Propaganda, the accepted opinion is that the obligation to
use the faculty is not grave.1 Probably the best way is to regard the
question not vis-à-vis the claims or desires of individuals but of the
Church and of the Holy See; a refusal, even on one occasion, if
causing scandal or due to contempt, may easily be grave sin.
53.
confirmation: apparent death
Called to administer the last sacraments to a person who died just before I
arrived, I absolved and anointed him conditionally, as recommended by modern
writers. He had not been confirmed, and I wondered afterwards whether I
should have administered conditional Confirmation as well?
With all the reservations applying to the conditional administra
tion of the last sacraments in such cases,2 we cannot discern any
reason at all why Confirmation should not be included. Up to the
appearance of the new decree on the subject3 the point was not
discussed by the commentators, since it was scarcely of any practical
value. Since the decree, the only reference to the point that we have
seen is in I'Ami du Clergé, 1947, p. 617, where the writer decides that
there is no reason for excepting Confirmation from the theological
teaching about administering sacraments to the apparently dead.
Unlike Extreme Unction the Ritual makes no provision for a short
form in cases of necessity; following the existing principles, and on
analogy' with them, the form will be “N, si vivis, signo te”, etc.
54.
confirming a dying heretic
The practice of administering “servatis servandis” Penance and
Extreme Unction to dying heretics has been sanctioned for some time. May
we now add Confirmation in the circumstances permitted by the recent decree,
14 September, 1946?
Canon 786: Aquis baptismi non ablutus valide confirmari nequit ;
praeterea, ut quis licite et fructuose confirmetur, debet esse in statu
gratiae constitutus et, si usu rationis polleat, sufficienter instructus.
& Off., i November, 1941. Iis autem, qui bona fide errant et iam
sensibus sint destituti, ea sacramenta (absolutio et extrema unctio'
1 South African Clergy Review, 1949, p. 79·
2 Cf. The Clergy Review, 1932, III, p. 228, and 1941, XXI, p. 114.
’ Ibid. 1947, XXVII, p. 54·
76
Priests' Problems
q
conferri possunt sub condicione, praesertim si coniicere liceat cos
implicite saltem errores reiecisse. (Periodica, 1948, p. 97.)
S.C. Sacram., 14 September, 1946, n. 2: Praefati ministri Con
firmationem valide et licite conferre valeant per se ipsi, personaliter,
fidelibus tantummodo in proprio territorio degentibus. . . .1
i. The practice as regards Penance and Extreme Unction, long
taught by theologians as permissible, was sanctioned by a private
reply of the Holy Office, 17 March, 1916, which now appears in
Denzinger, n. 2181, a. A full explanation of the matter is in Periodica,
1929, p. 125 (Vermeersch), and a closer analysis of the condition
on which these sacraments are administered is in the same journal,
1948, p. 97 (Umberg), which gives also a more recent private reply
of the Holy Office, 1 November, 1941, quoted above. It is not our
purpose to discuss this practice in general but, assuming its lawful
ness in given circumstances, we have to decide whether it is now to
be extended so as to include Confirmation, a point which has only
arisen as a practical issue since the decree of 1946 gave the power of
confirming to parish priests. Our discussion is limited to the case of
an adult heretic, for in contingencies where an infant child of
heretical parents is being lawfully baptised in danger of death there
can be no doubt that, servatis servandis, this infant should also be
confirmed.1
2
ii. Canon Pistoni, an excellent commentator on the decree of
1946, decides that Confirmation cannot validly be conferred on a
dying heretic.3 His reason is based on the terms in which the power
of confirming is granted to extraordinary ministers in the decree, for
it cannot be in dispute that, if it is a case of the ordinary minister,
any baptised person may, other things being equal, be validly
confirmed. Canon Pistoni’s interpretation takes “fidelis” in the
decree to mean a baptised person who is neither a heretic, nor a
schismatic, nor an apostate, and this is, indeed, its usual meaning
both in the Code and in other legal texts. It may also be that he is
attaching the word “ tantummodo ” to the preceding word “ fideles”.
iii. Tire Code, however, occasionally uses the word “fidelis” in a
wider sense, so as to include every baptised person, in such canons as
218, §2 ; 1124 and 1126; 1203, §1 ; 1276; 1384.4 It must be admitted
that the decree empowering parish priests to confirm does obviously
have in mind Catholics primarily, if not exclusively, and the truth
probably is that the terms of that decree were framed without any
1 The Clergy Review, 1947, XXVII, p. 57.
1 Ecclesiastical Review, April 1947, p. 260.
3 De Confirmatione a Ministro Extraordinario, p. 95.
* Cf. Morsdorf, Die Rechtssprache des Codex, p. 129.
Confirmation
Q. 55
T]
reference whatever to the question of administering sacraments to
dying heretics conditionally. The common law of canon 731, §2,
which forbids the sacraments to heretics in good faith, is similarly
expressed with no reference to the practice permitted by the Holy
Office in 1916 and 1941, and it is not self-evident from the terms of
the 1946 decree on Confirmation that the Holy See expressly
excludes heretics from its provisions.
In missionary parts priests have long enjoyed, from the Prop
aganda faculties, n. 3, the power to confirm, and the conditions
attached thereto, unlike most of those attached to the 1946 decree,
are not held by the commentators to limit the validity of its adminis
tration. It would be helpful in the present query if these commen
tators discussed the validity and the lawfulness of using the
Propaganda faculty in favour of dying heretics in good faith, but
we cannot find any who deal with the question.
Our conclusion, given with much hesitation, is that the sacrament
would be validly administered, since heretics are not expressly ex
cluded and, on the ordinary principles of sacramental causality,
this sacrament can be validly received by any baptised person who
has at least an habitual implicit intention, as Canon Pistoni teaches
in §22, c., of his Commentary.
iv. Assuming that the sacrament of Confirmation (relying on the
1946 decree) can be validly received servatis servandis by a dying
heretic, the question remains as to its lawfulness. Canon Pistoni is
the only author we have discovered who has given an opinion, which
is to declare it to be unlawful, a necessary consequence of the
opinion that its reception is invalid.
Our own view is that, even though it may be validly received,
its reception is unlawful: firstly, because it is not necessary for
salvation, and so the grave reasons which justify absolution and
Extreme Unction are lacking; secondly, because the administration
of Holy Communion is always forbidden in these circumstances,
since it is a sign of external communion with the Church and there
seems some parity with Confirmation in this respect. One could
also cite the direction of the rubric, perhaps, which forbids its
administration in the presence of heretics;1 a fortiori it would seem
that the rubric forbids the confirmation of heretics.
55.
PRIEST MINISTER OF CONFIRMATION---ADMINISTRATOR
An administrator of a vacant parish, “vicarius oeconomus”, is amongst
those empowered by “Spiritus Sancti munera” to confirm the dying. Does
1 The Clergy Review, 1947, XXVIII, p. 41.
4+
78
Priests' Problems
Q· 55
this incan the one mentioned, in canon 472.2, or are the powers restricted to the
one defined in canon 472.1 ?
Canon 472: Vacante paroecia: 1. Ordinarius loci in ea quam
primum constituat idoneum vicarium oeconomum . . . qui eam
tempore vacationis regat, assignata eidem parte fructuum pro
congrua sustentatione;
2. Ante oeconomi constitutionem, paroeciae regimen, nisi aliter
provisum fuerit, assumat interim vicarius cooperator. . . .
Spiritus Sancti munera, 14 September, 1946: . . . facultas tribuitur
conferendi sacramentum Confirmationis . . . sequentibus presby
teris, iisdemque dumtaxat: ...(/>) vicariis de quibus in canone471,
atque vicariis oeconomis.
i. The wording of the document seems to require us to limit the
power of confirming to the administrator appointed by the Ordinary',
as directed by canon 472.1. If the various provisional custodians
mentioned in n. 2 of the canon arc also given this power, the decree
would have read: “vicariis de quibus in cann. 471 and 472”;
whereas it mentions only the vicarii paroeciales of canon 471 and
vicarii oeconomi. The term vicarius oeconomus is restricted to n. 1 of
canon 472, and the various priests who are to assume the custody
of a parish in n. 2 are described as functioning “ante oeconomi
constitutionem”. The word “dumtaxat” emphasises the fact that
only the priests mentioned enjoy the faculty, and everyone is agreed
that the list may not be extended solely because there seems to be a
good reason for so doing, or because there is a certain analogy
between those expressly mentioned and some other priest whom it is
desired to include. The list will, no doubt, be extended in course of
time, either by induit or by an extensive interpretation officially
given to those already named therein, but for the moment, in our
view, the custodian of canon 472.2 is not included. This view is held
by Zcrba, Commentarius, p. 49 (h) ; Pistoni, De Confimatione §99 ; Tht
Jurist, 1947, p. 178.
ii. Onclin, however, in Ephemerides Theologicae Lovanienses, 1949,
p. 340, includes the custodian of canon 472.2, and his view is shared
by Rcgatillo, Jus Sacramentarium, §86, because the priest in n. 2,
though not styled vicarius oeconomus, is effectively such, the only
difference between him and the one in n. 1 being that n. 1 is
appointed ab homine and n. 2 a iure. This view which is, it appears,
that of the minority, may be accepted if desired. For the difference
of opinion on the point constitutes a dubium iuris which, in our
opinion, is covered by canon 209. Unhappily, there is no complete
agreement on the lawfulness of applying canon 209 to doubts
Confirmation
Q. 56
79
affecting the extraordinary minister, because it involves the debated
question concerning the exact nature of this priestly power obtained
by induit. That canon 209 may be used in solving doubts is taught,
correctly we think, by Dr Onclin, a Belgian canonist of the first
rank. Unless an instruction to the contrary has been given by local
Ordinaries, priests may accept this view. It means, in practice, that
on the death of the parish priest, his senior curate may administer
confirmation to those dying within the parish, until an administrator
is appointed by the Ordinary. This question is only one of a number
of doubts arising from the decree Spiritus Sancti munera, which is
lacking precision in certain phrases.
56.
CONFIRMATION BY “SUPPLY” PRIEST
Is it certain that a priest canonically appointed to supply for an absent
parish priest, or to assist one who is incapacitated, does not enjoy the faculty
of confirming the dying ?
Spiritus Sancti, 14 September, 1946: . . . facultas tribuitur ... in
casibus tantum et sub conditionibus infra enumeratis, iisdemque
dumtaxat: (a) parochis . . .; (/>) vicariis, de quibus in canone 471,
atque vicariis oeconomis; (f) sacerdotibus, quibus exclusive et
stabiliter commissa sit in certo territorio et cum determinata ecclesia
plena animarum cura cum omnibus parochorum iuribus et officiis.
i. The view favoured by practically all commentators on this
decree excludes the supplying and the assistant vicars of canons 474
and 475, because the list of priests delegated in this document is
laxative—iisdemque dumtaxat”; because the Holy See would have
included them under (Z») if they were given the faculty ; in a word,
because their exclusion seems plainly expressed in the decree and
we are required from canon 18 to interpret laws according to the
proper meaning of the words in text and context. Amongst those
holding this view are: Alvarez-Menendez, O.P., in Angelicum, 1947,
p. 193; Bergh, S.J., in Nouvelle Revue Théologique, 1947, ρ· 85;
Connell, C.SS.R., in The American Ecclesiastical Review, April, 1947,
p. 258; Bastnagel in The Jurist, 1947, p. 176; Onclin in Ephemerides
Theologicae Lovanienses, 1939, p. 332 J Pistoni, De Confirmatione, p. 93;
Zerba, Commentarius in Decretum, p. 48; Smiddy, The Extraordinary
Minister of Confirmation, p. 35.
ii. An important exception to the practically united opinion of
previous commentators is the view of Rcgatillo, S.J., in his Sacramentarium, p. 57, and in Interpretatio et lurisprudentia, p. 242, who
argues with great persuasiveness that these substitute and assistant
θθ
Priests' Problems
Q. 56
vicars enjoy the faculty, not indeed under (6) of the decree but under
(c). Everything said on the subject by this canonist, who is in the
first rank of contemporary writers, certainly proves that these vicars
ought to be given the faculty. We entirely agree and most of the
commentators mentioned under (i) express some surprise that they
are not included. The categories of priests to whom the faculty has
been granted have already been extended by local induits in America
and elsewhere, and we imagine that this process will go on until
eventually every priest assisting the dying will be empowered to
confirm them. The question, however, is not what is desirable and
fitting but to whom de facto the faculty has been granted by the
Holy See. It seems to us that Regatillo has not proved his point.
He joins with the rest of us in expressing surprise that substitute
and assistant vicars are not included under (ό), and explains that
the reason for the omission is that they are included in the category
(c). But this is by no means apparent when the wording of (c) is
considered, for these vicars are of their nature neither stable, nor
endowed with exclusive powers, nor in possession of all the rights or
burdened with all the duties of parish priests. If, in exceptional cases,
they are found to be within the definition of (c), it must follow that
they enjoy the faculty, as Cappello noted at the time the decree
appeared, in the commentary printed in Periodica, 1946, p. 386. It
appears that Regatillo’s opinion is to some extent due to local
Spanish conditions, where substitute and assistant vicars often rule
a parish for many years, during the absence or illness of the parish
priest, in which case they no doubt come up to the requirements of
(c). On the other hand, length of tenure is not strictly relevant, for
the administering vicar certainly enjoys the faculty even though his
appointment lasts only a few days. Regatillo’s view may prove to
be “probable” or at least to supply the foundation for a dubium iuris,
when juristiction will be supplied from canon 209.
1
VII. THE MASS (CANON LAW)
57. duplication on days which are not
OF OBLIGATION
Is there any possible circumstance in which a priest would be justified in
saying two Masses on an ordinary weekday? Example: a priest is giving a
mission in a place in which the Blessed Sacrament is not reserved. He urges
the people to attend morning Mass in large numbers. He says his Mass al
6.30. The P.P. is to follow at 7. He is too ill to celebrate. A large number
of people has arrived for the 7 o'clock Mass wishing to receive Holy Com
munion and the Ordinary cannot be reached. Is there any probable opinion
which would justify the missioner in saying a second Mass?
Canon 806, §2 : Hanc tamen facultatem (plures in die celebrare
Missas) impertiri nequit Ordinarius, nisi cum, prudenti ipsius
iudicio, propter penuriam sacerdotum die festo de praecepto
notabilis fidelium pars Missae adstare non possit. . . .
i. Our first reaction to this query’ was to deny the lawfulness of
duplicating in these circumstances, since the canon permits the
practice only on Sundays and holy days when the faithful would
otherwise be unable to observe the precept. That it is lawful on
such days to presume on the Ordinary’s permission is taught by
canonists such as Brys, whose opinion we accepted when answering
a question some years ago.1
ii. Maturer reflexion, however, leads to an affirmative answer,
provided always that the local Ordinary has not expressly forbidden
priests in his jurisdiction ever to presume on his permission no matter
what the necessity may be. An affirmative reply can be justified
on the principle that positive laws do not bind when a superior
cannot be reached for a dispensation and when their observance
would cause grave harm or scandal to the faithful. It is necessary,
in order to arrive at a just decision, to weigh the gravity of the law
and the harm resulting from its observance: in estimating the law
itself one must discover whether the Church is accustomed to
dispense from its observance and, in estimating the harm, necessity’
of avoiding scandal has great weight since it implicates the natural
law.
Now it is certain, in the first place, that the Church is accustomed
1 The Clergy Review, 1940, X III, p. 54» Î Collationes Brugenses, 1929, p. 71.
Priests' Problems
82
Q. 58
in these days, for proper reasons, to permit duplication on days
which are not of obligation, and the following examples may be
cited: 7 February’, 1938 in Valparaiso on certain days for the
people’s devotion;1 1941 in Germany “si adsit necessitas, cum multi
sacerdotes ad militum nosocomia sint vocati”;2 8 March, 1948 for
Paris “occasione matrimoniorum vel funerum, ob cleri penuriam”;3
16 November, 1948 for an American diocese “occasione matri
moniorum vel funerum vel ad renovandas Sacras Species in oratoriis
monasteriorum, attenta sacerdotum penuria”.4
It is equally certain, in our view, that the reasons for not observing
the positive law as described in the above question are, if anything,
rather weightier than those for which the various induits were
obtained, and therefore that a superior’s permission may be pre
sumed when he cannot be reached. It is agreed, of course, that the
Ordinary’s faculties do not cover duplication except on days of
obligation. If he can be reached and grants permission, he will do
so by virtue of canon 81 and not by relying on canon 806, §2.
58.
MASS WITHOUT A SERVER
I understand that Cappello has the following paragraph in “De Sacra
mentis”, Editio quinta (1945), Lib. 4, pars. 2, cap. 4, para. 703: “Si
desit omnino minister, sacerdos ex qualibet justa et rationabili causa, etiam
devotionis tantum, potest Missam sine ministro celebrare, potius quam eam
omittere ” Can one safely act on this in view of the provision of the Code, the
unanimous and strict view of approved authors, and the fact that Cappello ù
the only author to teach this and that he does so only in post-war editions?
S.C. Sacram., 1 October, 1949; A.A.S., 1949, XLI, p. 507:
III, 2: Lex utendi ministro in Missa perpaucas tantummodo
patitur exceptiones, quae ab AA. rei liturgicac ct moralis peritis
uno consilio reducuntur ad sequentes casus :
(а) si viaticum ministrari debeat infirmo ct minister desit;
(б) si urgeat praeceptum audiendi Missam ut populus eidem
satisfacere possit ;
(c) tempore pestilentiae, quando haud facile invenitur qui tale
ministerium expleat et secus sacerdos debeat per notabile tempus
se abstinere a celebrando ;
() si minister e loco abscedat tempore celebrationis, etiam
1 Bouscarcn, Digest, II, p. 192.
2 Ephemerides Liturgicae, 1941 (Jus ct Praxis), p. 6.
* Op. cit., 1948, p. 381.
* Op. ciL, 1949, p. 326.
Q. 58
The Mass {Canon Law)
83
citra consecrationem ct offertorium : quo casu reverentia sancto
Sacrificio debita prosecutionem exigit etiam illo absente.
Extra hos casus, pro quibus habetur unanimis auctorum consensus,
huic legi derogatur dumtaxat per apostolicum indultum, praesertim
in locis missionum. . . .
3. . . . Nuper vero Sanctitas Sua aliam clausulam induito litandi
Missam sine ministro inserendam praecepit, nempe “ dummodo aliquis
fidelis Sacro assistat”, cui nullimodc derogari praestat.
i. The lenient view that one may celebrate Mass without a server
“devotionis causa” was held to be probable not only by Cappello1
but also by Priimmer2 and Wouters,3 and it was well defended more
recently in America by writers in the Ecclesiastical Review * Condi
tions in America in earlier days were held to justify in these circum
stances even a solitary celebration, and the authority of Propaganda
supported this view in interpreting the faculty of celebrating without
a server; this outlook or custom naturally continued long after the
induit had ceased to be granted. Without wishing to criticise the
practice of priests in other countries, the plea for the milder view
seems to have been made too easily. When it is asked, for example,
why a number of priests in retreat, all eager to say Mass for their
personal sanctification, should be denied the privilege owing to the
lack of servers, the obvious rejoinder is that they should serve each
other.
ii. Since the 1949 instruction, it seems certain to us that the
lenient view can no longer be defended. It is within the competence
of the Sacred Congregation to correct abuses, which has now been
done in no uncertain terms. It might be thought that n. 2 is dealing
with the practice of celebrating in an empty church, since the
causes (a) and (d) are those usually cited in justification of this
practice. It is clear, however, from comparing n. 2 with n. 5, that
except for the statement that induits will not be granted for
celebrating Mass in an empty church, the whole of section III is
based on the assumption that someone is present.
The terms of the instruction are not so severe as they might seem
to be, for it is possible to obtain induits for causes of less gravity
than those given in {a) to (d) ; moreover, it is not required that
the server should be able to function perfectly and exactly in accor
dance with the rubrics, if such a one is not obtainable. It should be
fairly easy to obtain at least an indifferent server, or the sendees of a
woman to answer the responses, and the firmness of the Sacred
Congregation will encourage priests to do this. In places where the
1 De Sacramentis, §703.
» Thiol. Moralis, II, §269.
2 Thtol. Moralis, III, §304.
4 1947» CXVI, p. 432; CXVII, p. 369.
84
Priests' Problems
Q.
custom of what is called Missa Dialogata exists, there will rarely be
any difficulty to surmount.
iii. Commenting on the above instruction,1 Cappello writes:
“Instructio memorat quatuor casus in quibus ex communi doc
torum consensu fas est sacrum facere sine ministro. Enumeratio
dici nequit exclusiva ; nam, praeter casus recensitos, alii quoque in
praxi verificari possunt.” He does not, indeed, mention “devotion”
as one of these causes, but it appears that unless this henceforth is
to be excluded the words of the instruction have scarcely any
meaning, for “devotion” is undoubtedly the weakest of all the
reasons alleged by writers as an excuse justifying non-observance
of the law.2 Dealing with the matter in Mediator Dei, the Holy
Father writes :
“Although it is clear from what We have said that, even though
a priest said Mass without a server, the Sacrifice would still be
offered in the name of Christ and of the Church, and would not be
deprived of its effects even for the benefit of the community, still it
is Our desire and command—as it is indeed the command of Holy
Mother Church—that out of reverence for the dignity of this
august Sacrifice no priest should go to the altar without a server to
assist and answer the Mass, according to the prescription of canon
813.”3
59. SERVER AT CONVENT MASS
In convent chapels a religious usually answers at Mass. Is this permissible
even on exceptional occasions when it is possible to have a male server?
Canon 813, §1 : Sacerdos Missam ne celebret sine ministro qui
eidem inserviat et respondeat.
§2 : Minister Missae inserviens ne sit mulier, nisi, deficiente viro,
iusta de causa, eaque lege ut mulier ex longinquo respondeat nec
ullo pacto ad altare accedat.
De Defectibus, X, 1 : ... si non adsit clericus, vel alius deserviens
in Missa, vel adsit qui deservire non debet, ut mulier.
i. Whilst sustaining the rule requiring a male server as the normal
and correct procedure, the law and the commentators thereon have
in recent years become progressively lenient in defining the kind
1 Periodica, 1949, p. 420.
2 In the 1953 edition of his commentary De Sacramentis, I, n. 703, Cappello
holds to his opinion that, in the absolute lack of a server, a priest can say Mass
without one, “ex qualibet iusta causa, etiam devotionis tantum”, and the only
concession he makes to the 1949 Instruction is to add: saltem in casu particulari” [Editor].
’ C.T.S., §102.
Q. 6o
The Mass {Canon Law)
35
of reason, cause or necessity justifying the use of a woman to answer
the responses, and this fact must be remembered when weighing
more ancient texts, as that in De Defectibus, X, i. The list of things
in this chapter includes the necessity of reciting Matins and Lauds
before Mass, which it is now commonly agreed is not a precept.
The kind of reason which justifies the use of a woman server is
something less than grave necessity. A reply S.R.C., 4 August, 1893,
requiring the necessity to be grave was not included in Decreta
Authentica, and was indeed effectively revoked a few months after its
issue.1 Moreover the replies, nn. 2745.8, and 4015.6, which require
necessity, though referred to amongst the sources of canon 813, §1,
are not incorporated in the canon itself; a just cause is something
less than necessity, and the writers agree in defining this cause
generously, though always on the supposition that there is no male
present who is able and willing to serve.
ii. Cappello is even more lenient than the majority of writers:
“In oratorio seu sacello religiosarum, i.e. piae domus mulierum,
huiusmodi causa iusta semper haberi censetur. Imo congruentius
est, ut ibi Missae respondeat cx longinquo mulier, quam ut vir
inserviat, saltem gencratim loquendo.”2 His meaning seems to be
that, even though there is a male willing and able to serve, it is
more fitting as a general rule that a religious should answer the
responses at Mass in a convent chapel. This is certainly a common
practice or outlook, and priests may rely on Cappello’s teaching for
its justification. In oui' view it is incorrect, for the canon keeps
distinct the two clauses “deficiente viro” and “iusta de causa”, and
the just cause comes into operation only when there is no male
present who is able and willing to serve. A careful search has not
revealed any other commentator supporting Cappello’s opinion, but
it is not, we think, affected adversely by the recent Roman instruc
tion3 which is concerned with reprobating the custom of celebrating
Mass with no server at all.
60.
MASS AT SEA
Are any formalities necessary before a priest may lawfully say Mass at sea
when the ship has an oratory authorised by the Ordinary of its port of origin ?
Canon 822, §1 : Missa celebranda est super altare consecratum et
in ecclesia vel oratorio consecrato aut benedicto ad normam
iuris... .
’Cappello, §702, n. 7; Many, Dt Missa, §139.
* Loc. dt.
3 Discussed in the preceding question.
4*
JA
86
Priests' Problems
Q. 60
§2 : Privilegium altaris porlatilis vel iurc vel induito Sedis tantum
Apostolicae conceditur.
§3 : Hoc privilegium ita intelligenduin est, ut sccumferat facul
tatem ubique celebrandi, honesto tamen ac decenti loco et super
petram sacram, non autem in mari.
Facultates Legatorum App. n. 37 : Permittendi sacerdotibus nav
igantibus sive in mari sive in fluminibus, ut in navi Missam celebrare
possint super altari portaili, dummodo locus in quo Missa celebratur
nihil indecens aut indecorum prae se ferat et periculum absit calicis
effusionis.
S.R.C., 4 March, 1901, n. 4069.4: Utrum sacerdotes, qui
privilegio fruuntur celebrandi ubique, valeant, vi huius privilegii
in navi celebrare, absque speciali Induito Apostolico? Resp,
Negative.
5: Utrum Cappellae navium aut Altaria in ipsis navibus erecta
pro Sacro litando debeant considerari ut Oratoria privata vel
publica. Resp. Si Cappella locum fixum habeat in navi, uti publica
habenda est : secus neque publica est, neque privata, sed habetur ut
Altare portatile.
i. Before the advent of large ships celebration at sea was hardly
possible and the few examples of it happening were regarded as
something altogether extraordinary.1 When celebration became
feasible the common law firmly insisted on an apostolic induit,
denying bishops the faculty of granting it, and expressly excluding
Mass at sea from induits granted for the use of a portable altar ; the
Code reproduces this discipline in canon 822. The faculty is ob
tained (a) de iure by Cardinals and Bishops from canons 239, §1, 8
and 349, §1, i ; (ά) normally from the Apostolic Delegate of the
country from which the ship sails; (c) exceptionally from local
Ordinaries who may have this power, as granted, for example, to
the bishops of South America in their decennial faculties.2 We do
not find it granted in the formula of quinquennial faculties obtained
by Ordinaries in this country, but individual Ordinaries no doubt
obtain the additional faculty occasionally; the bishops of the
United States enjoyed it, for example, during the Holy Year.3 Also
the Generals of some religious Orders have the faculty for their
subjects, e.g. the Minister General of the Franciscans.*
Priests desiring to celebrate at sea will apply to their diocesan
Curia which will either grant the faculty or obtain it from the
1 Many, De Missa, §12, n. 1.
2 A.A.S., XLI, p. 191 ; The Clagf Review, 1949, XXXII, p. 348.
3 S.C. Sacram., 13 February, 1950; Ephemerides Liturgicae, 1950, p. 368.
4 Sartori, lurispnidentiae Ecclesiasticae Elementa, p. Gt.
The Mass (Canon Imw)
Q. 61
87
Apostolic Delegate. The conditions usually attached are : “ (i) locus
electus decens sit; (ii) mare sit tranquillum; (iii) nullum adsit
periculum effusionis; (iv) si possibile, alter sacerdos supcrpelliceo
indutus celebranti continuo assistat.”
(ii) Λ new development occurs when the ship has a permanent
Catholic oratory, duly authorised, as may often be found on the
ships of some foreign lines. This might seem to come within the
terms of canon 822, §1, and Cappello holds the view1 that Mass
may be celebrated therein, as in any other authorised oratory,
without the special induit required by canon 822, §3: “In isto
sacello omnes sacerdotes, etiam sine peculiari induito apostolico,
possunt Missam celebrare.” Cappello, who was the first to hold this
opinion, is followed by certain other contemporary writers of
repute,2 who think that it may be presumed that the shipping com
pany has obtained the necessary authorisation. This opinion is
externally probable3 and may be followed until a decision to the
contrary is given by the Holy See.4
We hesitate to accept this view as a correct interpretation of the
law, seeing that the necessity of an apostolic induit for celebrating
at sea has always been so firmly maintained. Thus, in the American
induit for the Holy Year mentioned above we read amongst other
conditions for its lawful use: “dummodo . . . oratorium autem, si
canonice erectum sit, tum etiam altare et sacra paramenta non
inserviant sectis acatholicis. . .
By permitting, in the terms of an
induit for Mass at sea, the use of the ship’s oratory provided it is
exclusively devoted to Catholic worship, the document seems to
show, by implication, that a special induit is always required even
in ships which have a permanent oratory.
6l.
MASS IN AN AEROPLANE
Would a priest enjoying a portable altar induit, which, included celebration
in a ship, violate any grave law by celebrating Mass in an aeroplane ?
Canon 20 : Si certa de re desit expressum praescriptum legis . . .
norma sumenda est ... a legibus latis in similibus ; a generalibus
iuris principiis cum aequitate canonica servatis. . . .
Canon 822, §3 : Hoc privilegium (altaris portatilis) ita intelligendum est, ut secumferat facultatem ubique celebrandi, honesto
1 Di Sacramentis, §712.
’Cimcticr, Consultations, I, §84 ; Joinbart, Droit Canon., §426.
’Coronata, De Sacramentis, §257, f.n. 5.
* Arni du Cierge, 1950, p. 492.
88
Priests' Problems
Q.61
tamen ac decenti loco et super petram sacram, non autem in
mari.
i. The Code law on portable altars excludes their use at sea. It
follows that, in principle, celebration of Mass at sea, to be lawful,
requires an apostolic induit, or the inclusion of the faculty in the
portable altar privilege. Hence, a fortiori, unless a priest has an
induit for celebrating at sea, he cannot lawfully celebrate in an
aeroplane. Whether the privilege of celebrating on ships can be
stretched to include aeroplanes remains to be discussed. But the
commentators, perhaps illogically, teach that no induit is required
for celebrating at sea on liners which have a permanent oratory in
which, very often, the Blessed Sacrament is reserved. They argue
that the law of canon 822, §3, does not apply to these oratories on
large ships, since there is normally no danger of accident or ir
reverence.1 We agree with this interpretation. Very likely the point
will be covered by the conditions attached to the erection of a ship’s
oratory, but at the moment even giant aeroplanes have not got the
proportions of a liner, and the question concerning Mass in them
is limited to priests who enjoy by induit the privilege of celebrating
on a ship. This is possessed ipso iure by Cardinals (canon 239, §1, 8)
and by bishops (canon 349, §1, 1) : others must obtain the faculty
from the Holy Sec, and usually Apostolic Delegates are able to
concede it.
ii. There is no express prohibition against celebrating in aero
planes. On the contrary, it was expressly permitted by papal induit
as long ago as 1936, on the voyage of the dirigible Hindenburg
from Friedrichshafen to New York,2 and the celebrant, Father
Schulte, O.M.I., is said to have been the first priest to celebrate in
the air. Induits can, therefore, be obtained expressly for use in
aeroplanes, since a large modern one is at least as safe as a dirigible
airship.
If the induit for celebrating at sea contains no express mention
of its use in aeroplanes, Coronata implies that, provided the con
ditions safeguarding reverence are verified, the practice is permitted
and we agree with this very reasonable interpretation. No doubt,
in time, the induits will all deal with the situation. Those commen
tators who taught that the confessional faculty of canon 883 could
be used in aeroplanes were justified,3 and there seems no good
reason why the rule of canon 20 (a legibus latis in similibus) should
not be applied equally to the present topic.
1 Periodica, 1945, p. 42; Coronata, De Sacramentis, I, §257; Cappello, De Sacra
mentis, §712.
2 Bouscaren, Digest, II, p. 203.
’ Cf. Ths Clergy Review, 1941, XX, p. 552; J948, XXX, p. 344.
4
Q. 62
The Mass {Canon Law)
89
62. MASS “IN CUBICULO”
Could permission be obtained, notwithstanding the prohibition of canon 822,
§4, for a priest to celebrate Mass in the bedroom of a sick parent who is near
to death ?
Canon 822, §4 : Loci Ordinarius aut, si agatur de domo religionis
exemptae, Superior maior, licentiam celebrandi extra ecclesiam et
oratorium super petram sacram et decenti loco, nunquam autem in
cubiculo, concedere potest iusta tantum et rationabili causa, in
aliquo extraordinario casu et per modum actus.
The rule seems absolute at first sight that Mass may never be
permitted in a bedroom, and the Code Commission, 16 October, 1919,
declared that the canon must be interpreted restrictively. Any
positive law, however, may be relaxed by the appropriate authority,
and the canon merely declares that granting permission for Mass in
a bedroom is excluded from the Ordinary’s powers. Examples occur
now and then of a priest getting permission in the circumstances
described in the question,1 though we have no information whence
the faculty was obtained, whether from the Holy See or from the
Ordinary possessed of an induit in addition to the faculties he usually
enjoys from the Quinquennial Formula.
In fact, a survey of the many existing departures from the rule
of canon 822, §4, suggests that a petition for an induit permitting a
priest to say Mass in the bedroom of a dying parent would normally
be granted without great difficulty. There is, firstly, the direction of
S.C. Sacram., 30 April, 1926,2 deprecating indeed the celebration of
Mass in a camera ardente, but permitting it in certain cases. Then we
have the common permission for celebrating at sea, which is in
cluded in the Faculties issued by Propaganda, n. 51 ; although the
Sacred Congregation had decided that the cabin of a ship was not
"deccnti loco”, the decision was altered a few months later, 13
August, 1902, and Mass in private cabins permitted provided all
danger of irreverence was removed ;3 some regulars have this faculty
habitually, and it can be obtained in many countries by any priest
voyager from the Apostolic Delegate. Priests belonging to the
Institute of St Camillus were granted the faculty by Pius X in 1905
for use in their administrations to the sick and dying.4 Finally,
many commentators hold that a hospital ward is not included in the
word “cubiculo” of this canon.5
1 E.g. Catholic Press, g July, 1943.
’
XVIII, p. 388.
3 Periodica, 1922, p. 83.
‘ Ephemerides Lilurgicae, lus ct Praxis, 1948, p. 179.
‘ Coronata, De Sacramentis, I, §258.
90
Priests' Problems
Q. 63
63. “ ANTIMENSION ”
Could permission easily be obtained for a priest enjoying the portable altar
privilege to use a linen “antimension” in place of an altar stone? If so,
is there a recognised form of blessing for this article ?
Canon 823, §2 : Deficiente altari proprii ritus, sacerdoti fas est
ritu proprio celebrare in altari consecrato alius ritus catholici, non
autem super Graecorum antimensiis.
i. The antimension used in oriental rites is fully described in Diet.
Archéol., I, coll. 2319-2326, and on a principle of keeping rites and
their appurtenances distinct its use is forbidden to priests of the
Latin rite. Benedict XIV, nevertheless, permitted Latin priests in
Russia to celebrate in Ruthenian churches with the use of an
antimension, since otherwise they would not be able to say Mass, and
he pointed out that priests of an Eastern rite were accustomed, in
analogous circumstances, to celebrate on a Latin altar stone.1 Ac
cordingly, whilst maintaining the rule of canon 823, §2, in normal
conditions. Cappello permits its non-observance if there is a grave
reason.2
ii. The practice favoured in the Latin Church is the use of a small
portable altar stone, and contrary' to the common rule Propaganda
permits its continued use in missionary countries even though it be
fractured and lacking relics.3 In 1929 the Ordinaries of Mexico
obtained, amongst their special faculties, “in loco altaris seu arae,
liceat lineo panno rite benedicendo et in profanos usus non amplius
convertendo”,4 which appears to be a description of an antimension.
Coronata states that the Holy Office, 3 May, 1941, refused to
sanction its use by army chaplains in Italy,5 but the prohibition
must have been withdrawn in later stages of the war, since English
army chaplains certainly enjoyed this faculty. It was inevitable that
the antimension, which is so convenient when travelling about, and
obviously more fitting than a fractured stone, should eventually
have found favour with those in authority. Its use is now permitted
in places subject to Propaganda, “iis tantum in casibus, et onerata
eorum (sacerdotum) conscientia, in quibus aut nulla ecclesia vel
oratorium sive publicum sive privatum exstet, ct valde incommodum
sit lapideum altare secum in itinere transferre”.®
We think that, where similar necessity exists, priests with a
1 Fontes, n. 410.
2 De Sacramentis (1945), I, §720.
3 Paventi, Brevis Commentarius, p. 14, ad. n. 4; cf. The Clergy Review, 1943,
XXIII, p. 32t.
4 Ibid., p. 432.
s De Sacramentis, §256, n. 8.
6 S.R.C., !2 March, 1947, printed in Ephem. luris Canonici, 1947, p. 251.
The Mass {Canon Law)
Q. 64
91
portable altar privilege could reasonably petition their own Or
dinaries for the use of an antimension.1
iii. It is described by the Congregation of Rites as “aliquod linteum
ex lino vel cannabe confectum, et ab Episcopo benedictum, in quo
reconditae sint Sanctorum reliquiae ab eodem Episcopo recognitae”.
The usual dimensions are those of a corporal, and the relics are
enclosed in a small pocket in one of the corners ; its use does not, of
course, dispense with the altar cloths.
The formula of blessing, which accompanied the decree permit
ting its use, is as follows :
“V. Adiutorium nostrum in nomine Domini.
R. Qui fecit coelum et terram.
V. Dominus vobiscum.
R. Et cum spiritu tuo.
Oremus: Majestatem tuam, Domine, humiliter imploramus ut
linteum hoc ad suscipienda populi tui munera praeparatum, per
nostrae humilitatis servitium bene-f-dicere, sancti4-ficare et consc
•{■crare digneris: ut super eo sanctum sactificium Tibi offerre
valeamus, ad honorem beatissimae Virginis Mariae, Sanctorum
N.N., quorum reliquiae in eo reposuimus, et omnium Sanctorum ;
ct praesta, ut per haec sacrosancta mysteria vincula peccatorum
nostrorum absolvantur, maculae deleantur, veniae impetrentur,
acquirantur, quatenus una cum Sanctis et Electis tuis vitam
percipere mereamur aeternam. Per cumdcm Christum Dominum
nostrum. R. Arnen.”
This prayer is taken, with appropriate modifications, from the
Roman Pontifical “De Unius Altaris vel Plurium Consecratione:
Quae fit sine Ecclesiae Dedicatione”, where it occurs as the
penultimate prayer of the rite.
64.
THREE MASSES ON ALL SOULS’ DAY
Λ is maintained, relying on an English version of the original Bull, that a
stipend may be accepted for the second Mass, provided it is offered for all the
faithful departed, and that the second and third Masses may discharge
obligations arising from the Pact (“Societas pro Clero Defuncto”). Is
this correct ?
’Since the above was written, the Congregation of Rites has declared, 26 June,
1950 (Monitor Ecclesiasticus, 1952, p. 450), that it was “not expedient” to grant the
faculty of using an antimension, which had been requested by some Ordinaries on
behalf of priests who had to celebrate Mass in distant places to meet the need of
the faithful, and found it difficult to transport an altar stone [Editor].
Priests' Problems
92
Canon 806, §i : Excepto die Nativitatis Domini et die Com·
mcmorationis omnium fidelium defunctorum, quibus facultas est
ter offerendi Eucharisticum Sacrificium, non licet sacerdoti plures
in die celebrare Missas, nisi ex Apostolico induito aut potestate
facta a loci Ordinario.
Canon 824, §2 : Quoties autem pluries in die celebrat, si unam
Missam ex titulo iustitiae applicet, sacerdos, praeterquam in die
Nativitatis Domini, pro alia eleemosynam recipere nequit, excepta
aliqua retributione ex titulo extrinseco.
Benedict XV, Incruentum Altaris, 10 August, 1915, ad 1 : Liceat
omnibus in Ecclesia universa Sacerdotibus, quo die agitur Sollemnis
Commemoratio omnium fidelium defunctorum, ter sacrum facere;
ea tamen lege, ut unam e tribus Missis cuicumque maluerint
applicare et stipem percipere queant ; teneantur vero, nulla stipe
percepta, applicare alteram Missam in suffragium omnium fidelium
defunctorum, tertiam ad mentem Summi Pontificis, quam satis
superque declaravimus.
Eng. Tr. (Burns Oates, 1915) : . . . subject however to this law,
that they can apply one of the three Masses for whomsoever they
prefer and accept an offering; but they shall be bound, having
accepted an offering, to apply the second Mass by way of suffrage
for all the faithful departed, the third according to the intention of
the Supreme Pontiff, which we have more than sufficiently declared.
i. From the English version given above there is some foundation
for the view that a stipend may be accepted for the second Mass said
for all the faithful departed. The explanation may be that, in the
Latin version first sent to Ordinaries, there was some phrase corres
ponding to “having accepted an offering”. Otherwise, it is clear that
the English version is an incredible mistranslation of “nulla stipe
percepta”, which is in the authentic version published in A.A.S.,
1915, VII, p. 422. It is completely certain that, without an Apostolic
Induit, no stipend may be accepted for the second or third Mass.
ii. Though the exact nature of the Pact obligation may be in
dispute, as noted in The Clergy Review, 1931, I, p. 331, it is agreed,
firstly, that it is not an obligation of commutative justice, and
therefore it may be discharged when duplicating. But it is agreed,
secondly, that the Pact Mass must be offered for the soul of the
deceased priest, and therefore it is not discharged by offering a Mass
for all the faithful departed, or according to the Pope’s intention.
But a second and third Mass on All Souls’ Day is permitted only
if the Masses arc applied as directed—ea tamen lege—by the papal
Bull. It is accordingly gravely unlawful to discharge a Pact obliga
tion at the second or third Mass on All Souls’ Day.
kJ
Q. 65
The Mass (Canon Law}
93
65. ANTICIPATED MASSES FOR THE DEAD
It is alleged that one of the recent Popes teaches that it is of more profit to
one's soul to have Masses said for its repose whilst still alive. Could you give
the teaching which appears to have this meaning?
In an Apostolic Letter to the Bona Mors Confraternity, 31 May,
1921,1 Benedict XV grants certain indulgences and uses the occasion
for explaining the gift of final perseverance, and for urging the
reception of Extreme Unction in good time. In the course of the
letter, words occur which, taken out of their context, might mean
that it is possible to have Masses said whilst alive which are not
applied to the benefit of one’s soul till after death. The correct
meaning, however, is that the fruit of these Masses said during life
is more certainly obtained than is the fruit of Masses said after
death; other things being equal, they dispose the soul for a good
death and thereby shorten one’s purgatory.2 They may be offered
in satisfaction for the penalty due to sins committed up to the time
of the celebration of the Mass, but not for the penalty due to possible
future sins not yet committed. It is erroneous to suppose that the
benefit of such Masses resembles that of an indulgence which one
gains by fulfilling certain conditions, but which is not applicable till
the moment of death.
These are the relevant passages in the papal letter: Verum ad
gratiam eiusmodi assequendam cum preces eo plus valeant, quo
excellentiores sunt, liquet, quas Christus ipse, Mediator ac Sacerdos,
in augusto Missae sacrificio, Patri obsecrationes adhibet, eas esse
prorsus perfectas et gratas, ideoque omnium efficacissiinas. Fideles
igitur, qui pretiosum sibi spondere decessum tutumque reddere
velint, quidni Sacrum ad hanc mentem fieri iubeant, cum in altari
Christus sit semper vivens ad interpellandum pro nobis, ibique thronum
gratiae constituerit, ad quem adeamus cum fiducia ut misericordiam con
struamur et gratiam inveniamus in auxilio opportuno? Praeterquam enim
quod, ut Tridentini verbis utamur, sacrificii oblatione placatus Dominus,
gratiam et donum poenitentiae concedens, crimina et peccata etiam ingentia
dimittit, pocnasque culpae expiandae debitas condonat, solutionis
pretium ex immenso satisfactionum Christi cumulo depromens, per
ipsam praeterea Sacri litationem subsidia ea omnia impetrare licet
necessaria atque opportuna, quibus non modo maculas devitemus
conccptasquc cluamus, sed etiam in Dei gratia amicitiaquc sic
perstemus ut mortem iustorum obeamus. In quo considerandum
XA.A.S., 1921, XIII, p. 342.
!Cf. Cappello, De Sacramentis, §608; Tummolo-Iorio, Theol. Moralis, II, §354·
Priests' Problems
94
Q. 66
praecipue est, fructus, qui ex Sacro percipiuntur, hominibus longe
uberius vivis prodesse quam vita functis, cum iis, bene animatis ac
dispositis, magis directo, certius atque abundantius, quam his,
applicentur: unde efficitur, ut, cum perseverantiae dono, queamus
nobis facultatem adhuc vivis comparare cum placandae Dei
iustitiae, tum poenae, quae nos in Purgatorio igni maneret, vel
tollendae omnino vel valde saltem imminuendae. Quodsi satis multi,
obliviosi atque ingrati homines, id committere consueverunt, ut ad
animas eorum piandas, quos habere carissimos videbantur, augus
tum offerri Sacrificium neglegant, sunt quidem maiore numero, qui,
gravi cum spiritualium utilitatum iactura, illud ignorent, pro
futurum sibi multo magis Missae sacrificium quod, se vivis, ipsimet,
quam quod in ipsorum levamen defunctorum heredes, propinqui
vel amici perlitari iusserint.
66.
EASTER MASS STIPEND
I suppose that a priest who celebrates the nocturnal Mass is not forbidden
to accept a stipendfor one Mass on Easter morning.
Canon 824, §2 : Quoties autem pluries in dic celebrat, si unam
Missam ex titulo iustitiae applicet, sacerdos, praeterquam in dic
Nativitatis Domini, pro alia eleemosynam recipere nequit, excepta
aliqua retributione ex titulo extrinseco.
In our view the priest who accepts a stipend for the midnight
vigil Mass may accept another for one Mass on Easter morning (in
this connexion the application of missa pro populo is the equivalent of a
stipend). This requires the words “in die” of canon 824, §2, not to
be taken in the sense of midnight to midnight in this instance, as
defined in canon 32, §1, but in a sense which accords with the
special rules made by the Holy See for the restored paschal vigil.
These rules include permission to anticipate the paschal vigil, with
the Ordinary’s permission, at 8 p.m., when there is no stipend
problem to solve, since the priest will be celebrating only once
within the twenty-four hours of Holy Saturday : if he may take a
stipend when anticipating it is reasonable that he may also do so
when celebrating at midnight, which for the purposes of the stipend
laws is regarded as pertaining to Saturday. The rules also permit
the priest who celebrates at midnight to say three Masses on Easter
Sunday, assuming that he enjoys an induit for this purpose : he may
take a stipend at one of these three Masses exactly as he would on
any other Sunday, on the supposition that, for the purpose of the
stipend law, these three Masses are not on the same “day” as the
The Mass (Canon Law}
95
Q,· 67
midnight Mass : otherwise, we should have to see in this permission
to celebrate three Masses after midnight Mass the unheard of
permission (in modern times) of celebrating four Masses on one
“day”.
67.
HOLY SOULS* BOX MASSES
fft/Ain what period is one bound to discharge or gel discharged these
collective Mass offerings? It would seem that they are not, properly speaking,
manual Masses and should not be subject to the same rules.
Canon 826, §1 : Stipendia quae a fidelibus pro Missis offeruntur
ex propria devotione, veluti ad manum . . . manualia dicuntur.
Canon 832 : Sacerdoti fas est oblatam ultro maiorem stipem pro
Missae applicatione accipere ; et, nisi loci Ordinarius prohibuerit,
etiam minorem.
Canon 834, §2 : Si oblator nullum tempus pro Missarum manu
alium celebratione expresse praescripserit. . . . Missae sunt cele
brandae intra modicum tempus pro maiore vel minore Missarum
numero.
§3: Quod si oblator arbitrio sacerdotis tempus celebrationis
expresse reliquerit, sacerdos poterit tempore quo sibi magis pla
cuerit, eas celebrare, firmo praescripto can. 835.
Canon 835: Nemini licet tot Missarum onera per se cele
brandarum recipere quibus intra annum satisfacere nequeat.
Canon 837 : Qui Missas per alios celebrandas habet, eas quam
primum distribuat . . . sed tempus legitimum pro carundem cele
bratione incipit a die quo sacerdos celebraturus easdem receperit,
nisi aliud constet.
Canon 841, §1 : Omnes ... ad Missarum onera implenda
obligati . . . sub exitum cuiuslibet anni, Missarum onera quibus
nondum fuerit satisfactum, suis Ordinariis tradant secundum
modum ab his definiendum.
§2: Hoc autem tempus ita est accipiendum ... in manualibus
vero, post annum a die suscepti oneris, salva diversa offerentium
voluntate.
Canon 842 : Ius et officium advigilandi ut onera Missarum
adimpleantur, in ecclesiis saecularium pertinent ad loci Ordin
arium. . . .
i. In the common law some justification may be found for
regarding these Masses as being in a rather different category' from
the ordinary manual Mass, and there exists for America a decision
of the Congregation of the Council, 27 January, 1877, sanctioning
the custom of saying one Mass in November for an indeterminate
Priests' Problems
96
q gg
collective offering of the faithful, provided they are informed that
their offerings will be applied in this way.1
ii. The practice being liable to abuse is forbidden in many
dioceses, and the prohibition is also attached to the offerings made
in the Holy Souls’ Box throughout the year. In this country a
resolution of the Bishops, 20 October, 1936, decided that these
offerings must be considered as obliging to a Mass for every amount
equal to the usual diocesan stipend; the resolution was commun
icated by many of the bishops individually to their own clergy, and
is now found in some collections of local or Synodal statutes.2
There cannot be the slightest doubt that, in making this regulation,
the Ordinary is acting within the terms of canon 842. An episcopal
declaration of this kind resolves any doubt there might be: these
Masses are in the category of manual Masses and subject to the same
rules, for there is no other category to which they may be assigned.
iii. The rule concerning the time limit for the ordinary Manual
Mass in canon 834, §2, reads “intra modicum tempus”, whereas
the pre-Code rule assigned one month for one Mass. There is
everything to be said for retaining the pre-Code rule, which makes
for a prompt discharge of Mass obligations, but it may be held
with probability that it is not, since the Code, of strict obligation
in the common law.3 An Ordinary, however, is well within his
right in imposing the pre-Code rule on the priests of his diocese,1
as an interpretation of canon 834, §2, for manual Masses in general.
But it by no means follows, in our opinion, that each Mass
represented by offerings in the Holy Souls’ Box is to be regarded as
equivalent to each ordinary' Mass stipend offered by an individual.
For, quite apart from the offering being collective, the amount may
represent several Masses which, even when offered in the ordinary
way by one donor, are subject to a longer time limit, and were
allowed this longer time under the stricter pre-Code rules. We think
accordingly, from the nature of the case, that the only certain rule
about them is the year’s limit contained in canons 835 and 841.
68.
OBLIGATION OF CELEBRATING AT
A PRIVILEGED ALTAR
Does a priest fulfil his obligation in justice when, after accepting a stipend
for Mass at a privileged altar, he celebrates at an altar which is not
privileged?
1 Cf. The Clergy Review, 1942, XXII, p. 82.
2 E.g. Nottingham, 1946, n. 2; Northampton, 1947, n. 66.
» Cf. The Clergy Review, 1941, XXI, p. 50.
* E.g. Northampton Statutes, 1947, p. 68.
Q,. 69
The Mass (Canon Law)
97
Canon 833 : Praesumitur oblatorem petiisse solam Missae applica
tionem; si tamen oblator expresse aliquas circumstantias in Missae
celebratione servandas determinaverit, sacerdos, eleemosynam
acceptans, eius voluntati stare debet.
Canon 918, §2: Pro Missis celebrandis in altari privilégiât©
nequit, sub obtentu privilegii, maior exigi Missae eleemosyna.
It may be assumed, in these parts at any rate, that no condition
is attached to the circumstance of place when Mass stipends arc
offered, unless the donor expressly mentions them : and even in this
case we think it would have to be certain that the donor, in reques
ting the Mass to be celebrated at a privileged altar, means this to
be a condition sine qua non, and that the priest who accepts the
obligation is aware of this.
Supposing, therefore, that the obligation of using a privileged
altar is contracted, it is agreed that the condition is fulfilled by a
priest who enjoys a personal induit, a faculty which is often ob
tained by those who have joined some pious association.
If a priest lacks a personal induit and fails to celebrate at a local
privileged altar, it is now fairly certain, although some decrees of
the Congregation of Indulgences are conflicting, that if the omission
to observe the attached condition is accompanied by good faith,
the obligation is fulfilled by the priest applying to the donor’s
intention some other plenary indulgence applicable to the souls
departed. Good faith is held to cover not only forgetfulness but any
other grave cause, physical or moral, which prevents the priest from
celebrating at a privileged altar.1
If, however, the omission is in bad faith (a defect which cannot
easily be conceded) the obligation in justice is not fulfilled : the
priest is bound to say another Mass as agreed upon or return the
stipend to the donor.2
69. MASS STIPENDS : INDULT FOR REDUCTION
To a priest in charge of a charitable work in “J ”, the faithful send Mass
stipends thinking the money will assist the work. Could one petition the Holy
See, with any prospect of success, for an induit permitting these Mass
offerings to be discharged in “ B” where the stipend is less, in order that the
difference may be devoted to the charitable work?
Canon 840, §1 : Qui Missarum stipes manuales ad alios trans
mittit, debet acceptas integre transmittere, nisi aut oblator expresse
permittat aliquid retinere, aut certo constet excessum supra taxam
dioecesanam datum fuisse intuitu personae.
1 Cappello, De Eucharistia, §658.
2 Dc Angelis, De Indulgentiis, §430.
98
Priests' Problems
Q. 69
Canon 2324: Qui delinquerint contra praescriptum can. 840, §1,
ab Ordinario pro gravitate culpae puniantur, non exclusa, si res
ferat, suspensione aut beneficii vel officii ecclesiastici privatione, vel,
si de laicis agatur, excommunicatione.
(i) The indivisibility of the manual Mass offering is certain in
the positive law, and its violation is a grave matter, as may be
discerned from the penalties attached. It may perhaps be assumed
that, if the Mass offering in the above circumstance is in excess of
the diocesan stipend fixed in the place where the charity is adminis
tered, it is given intuitu personae ; or, if desired, a ruling of the local
Ordinary could be obtained on the point. The commentators permit
deduction of postal expenses, and there is no law prohibiting the
recipient in “B” freely to return part of the offering, after he has
accepted it, for the work of the charity ; if, however, he is compelled,
as it were, to do this, by the charity organiser in “A” making it a
condition, we think the law of canon 840 is thereby violated. We
have had experience of priests in the condition of diocese “B”
writing to diocese “A” for Mass stipends and asserting their
willingness to accept less than the stipend in “A”; this is not a
violation of the law, though it comes rather near to it, and the local
Ordinary may forbid the practice from his powers in canon 842.
Cf. Keller, Mass Stipends, pp. 162-172.
(ii) If canon 840, §1, is a declaration of the natural law, it
appears that induits excusing from its observance are to be ruled out.
Suarez was the first to defend the view that having Masses said for
less than the donor’s stipend was not intrinsically unjust, though
the majority of writers, having in mind the donor’s intention that
the offering should go to the celebrant, are loth to accept this view.
The commentators are very reticent about the possibility of
obtaining an induit permitting the rule of canon 840 to be relaxed.
One modern example we have come across is in Commentarium pro
Religiosis, 1946, p. 33, where an incidental question is discussed
arising from an induit of this nature. The induit permits a reduction
provided, firstly, that the amount is not more than halved, and,
secondly, that the amount sent to the celebrant is not less than the
diocesan stipend of the place where he is living. Diet. Droit Canon.,
Ill, col. 986, mentions another dated 1905.
It follows that the natural law difficulty, if it is really such, is not
insuperable, and that a petition could properly be presented to the
Holy See for the favour desired, particularly as it is for the benefit
of a charity. With the volum of the Ordinary supporting it, there
seems every prospect of a favourable response.
VIII. THE MASS (RUBRICS AND
LITURGY)
70.
CALENDAR FOR MASS AT SEA
celebrating on board ship, should one follow one's own calendar or
rather that of the universal Church ?
S.R.C., 13 June, 1950, ad i; Ephemerides Liturgicae, 1950, p. 359:
Cum iuxta decretum S. Congregationis Rituum, η. 4069, ad 5,
cappella navis, fixum locum habens, uti publica censenda sit,
quaeritur utrum in Missarum celebratione (1) Calendarium illius
dioecesis sequi oportet, ad quam pertinet portus patrius eiusdem
navis, (2) an potius Calendarium universale? Resp. Negative ad
primam partem, affirmative ad secundam.
The reply, though not authentically published, indicates what
one should do when celebrating in the public oratory of the ship ; if
a private cabin is being used, as would be the case on the smaller
vessels, it would also seem to be more correct to follow the universal
calendar, since in the open sea there is no local Ordinary to direct
otherwise; but there is no rule on the point, and it may often be
more convenient to follow one’s own calendar.1
71.
RESPONSES AT MASS WITHOUT SERVER
It is suggested by some that, on analogy with the rule requiring the celebrant
Id say “manibus meis" instead of11 manibus tuis" when he himself answers
the “Suscipiat”, he should say "Et cum spiritu meo" for the response to
“Dominus vobiscum". Is this correct?
The lawfulness of celebrating alone is discussed above, in qu. 58.
Relying on the rubrics in Rit. Celcbr. Miss., IV, 2, and VII, 7,
which direct the celebrant to say the Kyrie nine times and to say the
Suscipiat when no response is given by those assisting, the rubricians
formulate a rule that the celebrant says all the responses when, for
grave reasons, he has to celebrate Mass without a server who can
answer. S.R.C., 4 September, 1875, n. 3368.1, directs the Confiteor to
’Cf. article, "Mass at Sea”, by Rev. R. More O’Fcrrall, in The Clergy Review,
1951, XXXVI, p. 33 ff. Concerning permission to say Mass at sea, cf. above, qu.
60.
99
Priests' Problems
100
be said in these circumstances only once, which is rightly taken to
mean that it is said, with the Misereatur and Indulgentiam, in the form
used when saying Office alone.1
We can find no ruling on this point and no commentator who
deals with the above suggestion, which is certainly supported to
some extent by the rubric at the Suscipiat. In our view, however, no
modification should be made in any responses occurring in the
liturgy unless they have been authorised, and we think accordingly
that the celebrant should say “Et cum spiritu tuo”. Two similar
instances occur to us when modifications arc forbidden, notwith
standing the fact that circumstances seem to demand some change
in the words. The first requires nuns when reciting office in choir
to say Pater et Fratres, as in the text of the Breviary, instead of
changing them, as circumstances seem to demand, into Mater et
Sorores.2 The second requires the minister at Baptism himself to
recite the questions and answers in Latin before putting the questions
and receiving the answers from the sponsor in the vernacular,3
which means that he must himself say Volo after putting the question
“N, vis baptizari?” Whatever illogicality exists in this procedure
disappears when one remembers that the words arc being said for
the completion of the rite. Rather than change tuo to meo at the
“Dominus vobiscum”, it would be better to omit the response
altogether, for a small omission is less notable than changing a
formula which has been in use from the beginning.
72. MASS
VOICE
WHEN MANY ARE CELEBRATING
Is it merely a matter of courtesy or is there some law of rubric directing
celebrants to lower their voices when others are celebrating at the same time?
Rubricae Generales Missae, xvi, 2. Sacerdos autem maxime curare
debet, ut ea quae clara voce dicenda sunt, distincte et apposite
proferat . . . neque etiam voce nimis elata, ne perturbet alios, qui
fortasse in eadem Ecclesia tunc temporis celebrant; neque tam
submissa, ut a circumstantibus audiri non possit, sed mediocri et
gravi : quae et devotionem moveat, et audientibus ita sit accomodata,
ut quae leguntur intelligant.
There is no direction which determines absolutely the pitch or
tone to be used by all priests everywhere and in all circumstances,
the terms of the above rubric being relative to the church or oratory
1 O’Connell, Celebration of Masi, II, p. 212.
2 S.R.C., 13 February, 1666, n. 1334, 4.
• 5 March, 1904; Periodica, III, p. 287.
Q, 72
The Mass {Rubrics and Liturgy)
101
where Mass is being celebrated ; a pitch and tone which would be
"dear and intelligible” in a cathedral, and therefore correct, would
be too loud and therefore wrong in a small oratory, even though no
other priests were celebrating at the same time.
When many priests are celebrating at side-altars, as for example
in a college chapel, the rubric is observed if the voice of each
celebrant can be heard by the server and by any of the faithful
assisting at his Mass in the immediate vicinity of the altar.
If, however, whilst many private Masses are being said at side
altars, there is at the same time a public or community Mass at the
high altar, at which all of the faitliful in the church are assisting, it
cannot be maintained that the rubric requires the celebrant at the
high altar to use a voice which can be heard, indeed, by his server
and those in the vicinity, but not by the body of the faithful assisting;
for this practice, whilst keeping the rule of not disturbing other
celebrants, would violate the rule requiring his voice to be accom
modated to those hearing Mass. There is, in fact, in these circum
stances, a conflict of laws which makes it impossible perfectly to
observe both, and one must choose the lesser evil.
Dr Eaton, writing in the Irish Ecclesiastical Record, 1923, XXI,
p. 314, maintains that “it is less unrubrical to adopt a tone of voice
that may not be heard distinctly throughout the church, than to
interfere with the attention and devotion of other priests engaged
at the same time in offering the Holy Sacrifice”. The majority of
the clergy would probably agree with this solution, which is based
on courtesy, particularly if the presence of other celebrants rarely
occurred.
The opposite view is nevertheless tenable in our opinion. The
celebrant at the community Mass, whilst somewhat moderating his
voice out of regard for other celebrants, is entitled to use a voice
which can be heard by all the community, and the celebrants at
side-altars must bear with the inconvenience, as they would have to
do if the community Mass were being sung. Otherwise, in college
chapels, the community would scarcely ever hear a low Mass cele
brated in accordance with the rubrics, nor would it ever be possible
for the community to assist at a dialogued Mass which is nowadays
$0 common a practice.
However, it will be for the rector of the church to decide, in a
given instance, which of these two views should be preferred. Our
own preference is for the second opinion, and we think that the
first dates from days when it was the exception for the faithful to
follow in a missal the words of the celebrant, and still more the ex
ception for them to answer the responses with the server.
102
Priests' Problems
Q· 73
73· POSITION OF THE STOLE
Should the back of the stole be entirely hidden by the chasuble?
Rit. Celebr. Miss., I, 3 : Deinde ambabus manibus accipiens
Stolam, simili modo deosculatur, et imponit medium eius collo.
Caerem. Epp., II, viii, 14: Diaconus . . . Episcopo (stolam) deos
culandam offert, eamque super eius humeros applicat, ita ut, nec
eius collum tegat, nec transversa sit in modum crucis, sed aequaliter
ante pectus pendeat. . . .
i. The direction of the Missal (eius collo) is not in perfect accord
with that of Caerem. Epp. (eius humeros), and modern commentators
prefer the latter expression as an explanation. Thus O’Connell,
Celebration of Mass, II, p. 49: “. . . places the stole ... so that the
back part lies, flattened down, between the shoulders at the base of
the neck”; The Ceremonies of the Roman Rite Described, p. 39:
“. . . puts it over the shoulders. ... It is a much disputed question
as to the position of the stole on the back. The best solution of the
difficulty seems to be that the stole should lie between the shoulders
at the base of the neck (covered by the chasuble), neither up around
the neck (C.E., II, viii, 14) nor yet down low on the back (R. I, 3)”.
The preference for “on the shoulders”, as a more correct description
than “round the neck” is supported by the Ordinal : “ Pontifex ...
reflectit orarium sive stolam ab humero sinistro Ordinandi ... im
ponens super dexterum humerum. . . .” The Pontifical, neverthe
less, on occasions when a chasuble is not worn, e.g. De Patenat tl
Calicis Consecratione, reads: “Pontifex . . . debet semper stolam circa
collum habere.” No doubt the two expressions can be harmonised,
but the visible effect of stressing one rather than the other will cause
the stole to be covered or not covered by the chasuble.
ii. The only full discussion of this point, so far as we can discover,
is given by Merati commenting on Gavanti. Gavanti, Thesaurus,
II, i, 3, n., states: “. . . imponit collo, ut torquem, ait Gemma, loc.
cit.1 non longe a collo, contra quosdam; longe enim a collo est
proprium episcopi ; premens cervicem, et utrumque humerum, ait
Cone. Bracar. citatum: si premit cervicem, ergo prope collum”.
Merati, n. xxx, clears up the rather equivocal direction of Gavanti,
by discussing whether the chasuble should cover the stole or not.
The Jesuit fathers, he says, “Stolam collo ita aptant, ut Crux stolae
a planeta non contegatur, sed exterius appareat”, a custom which
is supported by the ceremonial books of various religious Institutes
cited. His own view is that the stole should be entirely hidden by the
1 Gemma Animae, a mediaeval commentary, I, 204 (Hittorp, cd. 1G10, p. 1232),
does not use the word torquem, and is concerned chiefly with symbolism.
The Mass {Rubrics and Liturgy}
103
chasuble, a practice supported by many authorities and observed
by the Pope and Roman prelates. It is also in line with the original
purpose of the plancta, an outdoor garment designed to cover
everything worn.1
iii. In our opinion Merati has the weight of argument in his
favour, but notwithstanding the preference of modem commentators
for this view, the question is still an open one, and is probably a
phase of the controversy about Roman or “Gothic” chasubles. The
Roman type has a high peaked back, as a rule, which will cover the
stole in any case; it is stiffer than the “Gothic” kind, and the stole,
being fixed out of view, is held in position by the fastening tapes
attached to the chasuble. The softer ample chasuble usually has no
tapes, and no high peaked back, so that the stole is eventually liable
to appear, even though one has carefully concealed it when vesting.
Unless some explicit direction can be produced which requires the
that at least on the principle that one may do what no certain law
forbids, priests may allow the stole to be visible. They also have
74.
FERIAL MASS---- PLAINSONG
ΠΤια/ is the meaning and force of the rule, printed at the end of Credo II',
Io the effect that, with the exception of the ferial Masses, the settings of
the Ordinary may be interchanged at will?
Vatican Kyrialc, Credo IV : Qualislibct cantus Ordinarii superius
in una Missa positus adhiberi potest etiam in alia, feriis tamen
exceptis; itemque pro qualitate Missae, aut gradu solcmnitatis,
aliquis potest assumi ex iis qui subsequuntur. (Sequuntur “Cantus
ad Libitum”.)
The meaning may be twofold : cither that the Kyrie, Sanctus,
Benedictus and Agnus Dei, whenever there is a sung ferial Mass, must
always be the chant appointed for ferias (XVI and XVII); or it
may mean that the two settings for ferial Masses arc for these cxdusively and that they may never be used for Masses which are not
ferial.
Monitor Ecclesiasticus, 1952, pp. 459-82, contains what is called
"Codex luris Musicae Sacrae” by Dr Florentius Romita, a scries
of seventy canons admirably codifying the existing law on sacred
music in churches. It is the result of a suggestion made at the Roman
1 The Clergy Review, 1946, XXVI, p. 431.
Priests' Problems
104
Q· 75
“Conventus de Musica Sacra” in 1950, and though obviously of no
legal force as a text it is a most useful clarification. Canon 25 reads:
“Rubricae, quae in Kyriali Vaticano sub unaquaque Missa in
veniuntur, sunt directivac tantum, feriis tamen exceptis, in quibus
Missa de feria canendae sunt.” The source quoted is the rubric
concluding Credo IV, which Dr Romita takes in the first of the
two senses noted above. One may ask, however, with great respect
for his authority, whether the exception contained in the rubric is
itself anything more than directive. For one is not bound to have a
plainsong Ordinary at any sung Mass, including fcrias and Re
quiems, provided the music sung comes within the rules of what is
permitted.
It seems equally likely that the exception in the rubric may be
taken in the second sense, as rendered in the Liber Usualis containing
English rubrics “the ferial Masses excepted”; but even so we think
it nothing more than a directive. People who want to restore popular
singing of plainsong recommend that the ferial Ordinary is the
simplest one to begin with ; and there is never any suggestion that
it may not be used except on the extremely rare occasions of a sung
ferial Mass.
However, our conclusion is that cither of the two senses suggested
may be adopted.
75.
PUBLIC PRAYERS DURING MASS
Does S.R.C., 4 August, 1922, refer to a children's Mass, where the
priest recites Mass prayers with the children even during the Canon? I have
found that the only way to have the children understand the Mass is to recite
the prayers in this way, with short explanations of what the priest is doing
at the different parts of the Mass. Miming the Mass in school does not give
the children the requisite knowledge or dévotion. I find also that converts are
helped in understanding the action of the Mass by attendance at such children's
Masses. Must the practice “ be entirely removed” ?
S.R.C., 4 August, 1922, n. 4375: (1) An liceat coetui fidelium
adstanti sacrificio Missae, simul et conjunctim respondere, loco
ministri, sacerdoti celebranti?
(2) /\n probandus sit usus, quo fideles Sacro adstantes, elata voce
legant Secreta, Canonem, atque ipsa Verba Consecrationis, quae,
paucissimis in Canone verbis exceptis, juxta Rubricas secreto dici
debent ab ipso sacerdote?
Et Sacra Rituum Congregatio, audito specialis Commissionis voto,
omnibus mature perpensis, ita respondendum censuit :
■
Q. 76
The Mass {Rubrics and Liturgy)
105
Ad I. Ad Rrhum Ordinarium juxta mentem. Mens autem est:
Quae per se licent, non semper expediunt ob inconvenientia quae
facile oriuntur, sicut in casu, praesertim ob perturbationes quae
sacerdotes celebrantes ct fideles adstantes experiri possunt cum
detrimento sacrae actionis ct rubricarum. Quapropter expedit, ut
servetur praxis communis, uti in simili casu pluries responsum est.
Ad 2. Negative; neque permitti potest fidelibus adstantibus quod
a Rubricis vetitum est sacerdotibus celebrantibus, qui Canonis
verba secreto dicunt, ut sacris Mysteriis maior reverentia concilietur,
et in ipsa Mysteria fidelium veneratio, modestia et devotio aug
eantur; ideoque mos enuntiatus, tamquam abusus, reprobandus
est, et, sicubi introductus sit, omnino amoveatur.
This reply of the Sacred Congregation, and others in a similar
sense, refer to what has become known as the Missa Dialogata, in
which the faithful answer with the server the usual responses of a
Low Mass, and even recite with the celebrant the portions which,
in a sung Mass, are chanted by the choir. These practices may be
permitted with the Ordinary’s sanction.1
A further development took the form of the congregation reciting
with the priest those parts of the Mass which the rubrics direct the
celebrant to recite secreto ; this practice is forbidden.
The recital of any other authorised prayers, accompanied by
appropriate explanations, especially during a children’s Mass, is
not touched by the above decree.
76.
PROCESSIONAL INTROIT
In certain places abroad the choir sings the Introit during the procession to
the altar, and adds antiphonally the verses of the psalm of which only one
terse is given in the Missal. May this practice be introduced anywhere?
S.R.C., 29 January, 1947 (private) : An in Missis cantatis . . .
liceat Introitum cantare iuxta morem antiquum, plurcs nempe
versus psalmi canendo, Antiphona quidem interiecta, ita ut cantus
Introitus protrahatur ad totum tempus quoad Celebrans a Sacristia.. . ad altare accesserit? Rcsp. Affirmative, dummodo omnia
secundum ordinem fiant iuxta prudens Ordinarii indicium.
i. The practice of singing the Introit, as in the Liber Usualis,
whilst the sacred ministers arc approaching the altar is according
1 Cf. The Clagy Review, 1933, VI, p. 234 ; 194L XX. Ρ·,453· Ί
to the Dialogue Mass has grown more favourable (cf. ibid., 1954, XXXIX, p.
589), and it was expressly commended by Pius XII in his encyclical Mediator Det
(Editor).
Priests' Problems
106
Q. 77
to the rubrics of some monastic missals in current use and, notwith
standing a Roman reply, 14 April, 1753, is held by many to be
permitted by a direction in the Vatican Gradual, De Ritibus
Servandis, η. i.1
ii. The private reply quoted above goes further than this and
permits the re-introduction of an antiphonal singing of the psalm,
repeating the antiphon between each verse. To be lawful the
Ordinary’s sanction is required, as it is for other liturgical develop
ments such as the Missa dialogala. It will surely be rare for the rector
of any church to want this development of the Introit chant, which
will take considerable time to carry out, particularly on some day’s,
as the Feast of Christ the King, when the Introit is already very long.
But occasions may arise when, for one reason or another, there has
to be a long procession from the sacristy to the altar, perhaps going
round the aisles of the church : the Ordinary’s permission may then
properly be sought, relying on the above reply to the Master of
Ceremonies of the Cathedral of Bayonne.
77.
THE PEOPLE’S OFFERTORY
In “ Mediator Dei” the Holy Father speaks with approval of the faithful
themselves presenting bread and wine at Mass. If a priest is allowed to
introduce this custom what are the ritual details to be observed?
Mediator Dei, 20 November, 1947 ; A.A.S., 1947, XXXIX, p. 555;
Eng. tr. n. 94: Quamobrem consentaneum est ut christianus
quoque populus pie quaerat quo sensu et ipse in Eucharistici
Sacrificii Canone illud offerre dicatur. ... Et primum quidem
rationes habentur magis a re remotae, quia nempe haud raro
contingit ut christifideles, sacris assistentes ritibus, suas preces cum
sacerdotis precibus alternis vocibus conserant; itemque, quia nonnunquam—quod antiquitus eveniebat crebrius—administris altaris
panem vinumque offerunt, ut Christi corpus et sanguis fiant; ac
denique quia eleemosynis id agunt, ut sacerdos divinam victimam
pro iisdem offerat.
Rit. Celebr. Miss. (De Ingressu Sacerdotis ad Altare), II, 3: Si
est consecraturus plurcs Hostias pro Communione facienda, quae
ob quantitatem super Patenam manere non possint, locat eas super
Corporale ante Calicem. . . .
i. Before dealing at length with the deeper reason (intima ratio)
why all the faithful arc said “to offer” when present at Mass, the
Holy Father mentions briefly three remoter reasons: the first is in
1 The Clergy Review, 1939, XVII, pp. 71, 282.
Ç*V-
1
Q. yy
The Mass (Rubrics and Liturgy)
107
what is usually called dialogue Mass ; the third is in the alms or
Mass offering given to the priest; the second is in the actual offering
of bread and wine made to the priest.
Later in the encyclical,1 when speaking of the communion of
the people, Benedict XIV is quoted in support of the practice of
communicating the faithful from hosts consecrated in the Mass at
which they are assisting. It is clear that, provided the practical
difficulties can be surmounted, the clergy arc encouraged by the
Holy Father to distribute Holy Communion in the manner
described ; it is in fact the only method when the faithful desire to
communicate during a Mass celebrated at an altar which has no
tabernacle.
But, as regards the faithful offering bread and wine, the Holy
Father does not urge the practice, but merely records that it some
times happens. To what is the Holy Father referring? Firstly, the
custom continues still in many rites other than the Roman, e.g. the
Ambrosian, and is explained by the liturgical writers.2 Secondly,
vestiges of it remain in the Roman rite at the Mass of consecrating
a bishop or blessing an abbot, though the bread and wine offered to
the celebrant are not actually used at that Mass. Thirdly, local
customs still survive in places where the Roman rite is used, e.g. the
offerings at the exequial Mass, and amongst the authentic decrees
S.R.C. one or two may be found3 which regulate the manner of
offering oblations, whilst not specifying what these oblations arc,
in places where the custom exists.
ii. Dealing with this point long before the publication of the
encyclical,4 our opinion was that, unless justified on the ordinary'
principles of customary' law, the celebrant is not permitted by the
existing rubrics to receive offerings of hosts from the faithful at the
Offertory’. It is not permitted because it is an unauthorised inter
ruption of the Mass, and because the rubric in Rit. Celebr. Miss., II,
3, clearly directs the hosts for the communion of the faithful to be
on the corporal from the beginning of the Mass. We can see no
reason in the words of the encyclical for receding from this view,
but it is open to those priests who desire to introduce the practice
to obtain an induit for what they want to do, or to agitate by every’
lawful method for a modification of the existing rubrics.
iii. Since in our view the practice is against the rubrics of the
Roman rite, the question of the rubrical details to be observed on
the occasion scarcely arises. In places where a contrary custom
1 Λ.Α.5., p. 564; Eng. tr., n. 126.
lCf. Diet. Archiol., XII, col. 1946; Periodica, 1944, p. 61.
’E.g. Nn. 3535.1 and 3579.1.
1 Tht Clergr Review, 1941, XXT, p. 113.
1
108
Priests' Problems
Q, 78
exists, S.R.C., 30 December, 1881, n. 3535.1, directed the celebrant
to receive the offerings in silence and permitted the faithful to kiss
his stole or maniple.
There can be no serious objection, except one of practical ways
and means, to the faithful bringing offertory hosts to the priest
before Mass begins, but we imagine that this would be neither
liturgically correct nor appropriate, and would serve no useful
purpose.
In many places love for the liturgy has re-introduced an offertory
procession of the faithful1 at which hosts are offered to the celebrant.
Whether this is done by induit or not we cannot say, but it may be
admitted that those in favour of the practice have some support
from the words of the Holy Father in Mediator Dei. The practical
difficulties to be surmounted in churches with a large congregation
are imposing, and such a ceremony must add considerably to the
length of the rite.
78. “orate fratres”
Why does the rubric direct a completion of the circle after this salutation,
but not after others occurring during the Mass ?
Mediaeval writers, like Durandus, suggest a number of mystical
reasons which most of us nowadays find quaint rather than con
vincing, and which were rejected by some of their contemporaries
such as Albertus Magnus : “apud me nihil valent tales adaptationes.”
Gavanti mentions one or two of these, followed by the literal reason:
“Ad literam dici potest, perfici circulum, ut convertat se sacerdos
ad librum; ad quem semper se vertit, excepto unico casu, ante
0fertorium quod a choro cantatur.”2 Lc Brun gives the same explana
tion,3 and the rubrics of some ancient missals confirm it by giving
the direction “revertit ad librum” or “ad librum in sinistra parte
accedens”.4 After the last blessing, similarly, the circle is completed
in order to read the last gospel.
The only exception, at the Dominus Vobiscum before the Offertory,
is certainly difficult to explain, and one writer who admirably
proves the principle of turning “ad librum”5 has to admit defeat
when confronted by this exception. The reason given by Le Brun
seems to us quite adequate : the celebrant nowadays, indeed, has to
read the Offertory antiphon, both in solemn and low Mass, but
formerly it was not so in the solemn Mass, since the Offertory was
1 Cf. National Liturgical Week (U.S.A.), 1941, pp. 92 and 216.
1 Thesaurus, II, vii, 7.
3 Explicatio, cd. 1770, p. 181.
* Lc Brun, loc. cit. ; Tracts on the Mass, H.B.S., 1904, p. 100.
6 Questions Liturgiques et Paroissiales, 1921, p. 244.
Q. yg
The Mass {Rubrics and Liturgy)
109
sung by the choir, and many of the rubrics of a solemn Mass
continued naturally at low Mass. Λ further reason may be suggested,
though we have not seen it recorded by the writers. The Oremus at
this point is probably all that remains of the prayers, commonly
called bidding prayers, which are still sung on Good Friday, and
presumably they were sung, as on Good Friday, from the missal on
the epistle side. Just as the Oremus has continued, so also the move
ment after the salutation, and the principle of turning “ad librum”
is sustained.
If it is asked why the turn is always commenced from the priest’s
right, the best answer is that this is the more natural way to make
the movement. Fortescue’s suggestion that it is to avoid the celebrant
turning his back on the deacon is perhaps correct ; Jungmann thinks
it unlikely.1
79. “secret” prayers
The popular missal edited by Dorn Cabrol states that it is at least doubtful
that the “secret” prayers are so called because they are recited silently. What
are the alternative explanations ?
Rubricae Generales, xii . . . postea fit oblatio cum Orationibus, ut in
Ordine Missae. Qua oblatione facta, dicuntur Orationes secretae .. .
sed ante primam Orationem non dicitur Dominus Vobiscum, nec
aliquid aliud, sed dicto Suscipiat Dominus sacrificium, absolute dicun
tur: neque etiam ante secundam Orationem dicitur Oremus.
i. The question is one of the minor difficulties in the history of
the Mass and it is not yet satisfactorily settled. All the explanations
offered have to take account of the word “secreta”, past participle
of‘‘secerno”, and the commonest is undoubtedly to give the word,
which primarily means “separate”, its secondary meaning of
“private”. The prayers arc said privately, that is to say in silence,
submissa voce, because in a sung Mass the singing of the Offertory
psalm prevents the prayers being said aloud.2 Another explanation
of the silent recital of these prayers is sometimes suggested : they
were whispered in deference to the established tradition that the
offering was the act of the people, made through the deacons.3
The weak point of this common explanation is that it gives no
adequate reason for the presence of the prayers, and whatever their
origin may be it seems that the custom of reciting them secretly
was subsequent to their introduction in the liturgy.
’Fortescue, The Mass, p. 214; Jungmann, Missarym Sollemnia,II, p. 103.
’Thus Fortescue, The Mass, p. 312; Gasparri, De Eucharistia, §907; Diet.
Archiol., XI, col. 726.
5 Dix, The Shape of the Liturgy', p. 118.
5+
Ί
no
Priests" Problems
Q. 80
ii. A second solution gives the word “secreta” its primary
meaning of “separated”, the neuter plural becoming ultimately a
feminine singular, as may be noticed in the word “oblata” which
occurs so often in liturgical texts : oratio super oblata becomes oratio
super oblatam (hostiam). There are two meanings given to this notion
of something separated, both of which are recorded by O’Brien, in
his History of the Mass, a remarkably informative work considering
its age1 and its popular character.
One meaning associates the word with the separation, the dis
missal, of catechumens which occurred just before this point. There
is little proof in support of this contention.
A second meaning is related to the separation of the bread and
wine from the offerings of the people, which would normally be
far in excess of what was required for consecration. Bossuet has
pointed out that in some ancient sacramcntarics the oratio super
oblata is described as oratio post secreta, which certainly supports this
meaning of “separated”. Critics, however, observe that accurate
references to this phrase are wanting.2
ii. A third solution, favoured by Dr Brinktrine,3 stresses the
meaning of “mystery” which is often given to the derivatives of
“secerno”. What we now call the Preface, as something distinct
from the Canon, is undoubtedly an essential part of the anaphora or
Eucharistic Prayer in its most primitive shape : the versicles Sursum
corda etc. being found in all its forms. The description of the Euch
aristic Prayer as Mysterium or Secreta is fairly common. It is suggested
that our word Secreta must be related to the Eucharistic Prayer to
which it is attached, and similar examples of a prayer preceding a
praefatio may still be seen in the missal at the Blessing of the Font on
Holy Saturday, and in the Ordinal at the ordination of deacons and
priests and the consecration of bishops. Consequently the prayer
which was in its origin a gate, as it were, leading to the Praefatio,
has itself preserved the name of “Secret” or “Mystery”.
The prayer has no Oremus, since the more lengthy Orate fratres
takes its place, and the Amen which the priest is directed to say
submissa voce is accounted for, no doubt, by the same causes that
account for the plurality of Amen in the course of the Canon.4
80.
INTENTION IN CONSECRATING CIBORIUM
Relying on the teaching of St Alphonsus, priests are usually recommended
to formulate an intention of consecrating only that matter which is on the
1 New York, 1884, p. 283.
« L'Ami du Clergé, 1947, p. 683.
3 %ur Dcutung des H ortes Secreta, in Ephemerides Lilurgicoe, 1930 p 291
* Cf. Theological Studies, 1945, p. 380.
Q. 8o
The Mass {Rubrics and Liturgy')
111
corporal. Others, following Vermeersch, hold that it is less precarious if an
intention is made to consecrate all matter brought to the altar for that purpose,
whether placed on the corporal or not. Which of these opinions is to be
breferred?
De Defectibus, VII, I : . . . quilibet sacerdos talem semper inten
tionem habere deberet, scilicet consecrandi eas omnes quas ante se
ad consecrandam positas habet. 4. Si intentio non sit actualis in
ipsa consecratione propter evagationem mentis, sed virtualis, cum
accedens ad altare intendat facere quod facit Ecclesia, conficitur
sacramentum, etsi curare debet sacerdos, ut etiam actualem inten
tionem adhibeat.
St Alphonsus, Theol. Moralis, VI, 217: Utrum censendum sit
consecratum ciborium, ex oblivione extra corporale relictum? . . .
sententia communis et probabilior negat cum Suarez, Diana, Palao,
etc. cum Croix. Ratio, quia cum intentio consecrandi extra corporale
fuisset peccatum grave, illam tu habuisse non praesumeris.
Vermeersch, Theol. Moralis (1923), III, §379: Verum huiusmodi
consilium (non consecrandi quidquid sit extra corporale) aeque
nocere ac prodesse potest . . . Intentio esse possit, consecrandi quid
quid affertur vel allatum ad altare, in finem consecrationis.
(i) An intention is actual if the act performed under its influence is
done with advertence ; if done without advertence it is virtual ; it is
habitual if made once and not retracted but having no influence
on the action at the time it is performed. It is agreed that, in
principle, an habitual intention suffices for receiving a sacrament
validly, though not for administering it; the minister should
have, if possible, an actual intention, though a virtual intention
suffices.
The matter under discussion is not a law but a counsel or device,
for the purpose of allaying anxiety about the consecration of a
ciborium in cases when the celebrant had no actual intention : for
a valid consecration it is necessary to have at least a virtual intention,
and it is rightly maintained that by forming some time before Mass
an intention which is sufficiently wide in its object, provided always
that the matter is present as the words “hie” “hoc” imply, the
consecration will be valid, even though the celebrant did not advert
to its presence.
We must beware, however, of supposing that any intention of this
kind will always be, if one may use the term, “fool-proof” in every
contingency. A parish priest, let us suppose, having prepared a
ciborium in the sacristy, decides not to consecrate it that morning;
the sacristan, thinking it has been forgotten, places it behind the
112
Priests' Problems
Q. 8o
Missal during the Lavabo ; or, during a solemn Mass, let us suppose,
the deacon removes the ciborium just off the corporal, and the
celebrant nevertheless intends to consecrate it. In the first instance
the celebrant does not advert to its presence on the altar, and in the
second instance to its removal from the corporal, but in neither case
will the device we are discussing avail : the ciborium is not conse
crated in the first case, notwithstanding a general intention to
consecrate all matter placed on the altar; it is consecrated in
the second instance, notwithstanding a general intention not to
consecrate matter placed outside the corporal. For in a conflict of
intentions the particular must prevail over the general, and it is
exactly on these lines that the Church decides on the validity of
marriage consent.
(ii) Of the two suggestions we prefer that of Vermeersch, since it is
wider and more efficacious in solving doubts,1 as well as being more
perfectly in agreement with the phrase in the rubrics “ante se ad
consecrandam positas”. We have been informed by an eye-witness
that the consecrating prelate at an ordination Mass distributed to
the ordinali the Holy Eucharist from a ciborium that had been in
advertently left on the credence. Assuming that it is the celebrant’s
intention to consecrate whatever is placed before him for consecra
tion, it is preferable not to limit this intention to what is placed on
the altar. Following St Alphonsus, D’Annibale and other authorities,
one may regard twenty paces as the limit beyond which the matter
is not to be regarded as present.2 Gasparri, amongst others, is
opposed to the practice of not intending to consecrate matter not
placed on the corporal.3
(iii) St Alphonsus is mistaken in regarding his doctrine as the
common and more probable opinion, since the authors cited by him
are, for the most part, cited incorrectly, as a reference to the critical
edition of Gaudé proves. The presumption referred to is, at the most,
an interpretative intention, which is really no intention at all : what
we have to discover is not what a priest would have done had he
known the ciborium to be unlawfully outside the corporal, but what
he intended to do at the time. Thus Cappello: “Non valet, inquam,
ratio allegata, quia fundatur in falso principio, quatenus supponit
generalem hanc doctrinam quod non possit in sacerdote praesumi
intentio consecrandi, si aliqua circumstantia, licet sacerdoti ignota,
1 He notes, in effect, what is sometimes overlooked, that an habitual intention
docs not suffice : “Primo observes intentionem istam non esse, secundum principia
generalia, perpetuae efficaciae, sed tamdiu valere quamdiu in actione sacerdotali,
ex confusa saltem memoria, aliquid efficiat, seu sit aliquo modo virtualis.”
2 St. Alphonsus, Tluol. Moratis, VI, §213; D’Annibalc, III, §388.
3 De Eucharistia, §459.
Q. 81
The Mass {Rubrics and Liturgy)
113
intercedat, quae, si ab eodem sacerdote nosceretur, ipsum deterreret
a consecrando, ne illicite consecraret.”1
The objection remains that a priest may not lawfully form an
intention to consecrate hosts lying outside the corporal ; to which a
proper reply seems to be that the intention is not absolute but
conditioned, the condition being that there will be a grave reason
for not observing a positive law, the necessity of securing a valid
consecration in certain contingencies when the consecration would
otherwise be left in doubt.
8l. REMOVAL OF CIBORIUM AFTER CONSECRATION
Al a Christmas midnight Mass, when a large congregation, desired Holy
Communion, the parish priest found insufficient Hosts in the Tabernacle. He
Hrultd an assistant to say Mass immediately; the consecrated ciborium was
rmoved after the consecration and before the completion of the priest's Mass.
liar this permissible in the circumstances?
S.R.C., ii May, 1878, n. 3448.7: Valetne sustineri usus ali
quarum Ecclesiarum, in quibus, ratione concursus ingentis populi,
cum non suffecerit multitudini pro S. Communione quantitas
hostiarum, iam subséquente alia Missa, statim a consecratione reassumitur distributio Communionis. Rcsp. Abusum esse inter
dicendum.
i. There was sufficient justification for a priest in these circum
stances saying Mass in violation of the “aurora” rule of canon 821,
or of the midnight Mass rule in §2 of the same canon. The writers,
following St Alphonsus, permit anticipation of the rubrical time
by two hours for any reasonable cause, and in some rare and extra
ordinary contingency allow' anticipation by more than two hours.2
Moreover, the faculties of some religious institutes permit the
celebration of Mass one hour after midnight, with the presumed
permission of a superior ; it is a law which the Church is accustomed
to dispense, and its non-observance was rightly recommended in the
above case.
Another remedy, which the parish priest could have used if the
deficiency was discovered in time, was to divide the existing Hosts :
there is sufficient authority for dividing each one into four when,
otherwise, the faithful will have to be denied Holy Communion.3
ii. The ciborium is validly consecrated at the completion of the
words of divine institution, and persons immediately communicating
1 Di Sacramentis, I, §303.
’Iorio, Theol. Moralis, III, §246.
3 Gaspard, De Eucharistia, II, §1098.
Priests' Problems
114
Q, 82
therefrom would validly receive Holy Communion. But doing so
involves, firstly, an interruption of the Mass by part of the oblation
being consumed before its ritual completion; and, secondly, a
violation of the rule requiring the laity to communicate after the
priest. The justification for consuming the sacred species im
mediately after the consecration of the Mass is in De Defectibus, x, 2:
“si timeatur incursus hostium, vel alluvionis, vel ruina loci ubi
celebratur, ante consecrationem dimmittatur Missa ; post consecra
tionem vero Sacerdos accelerare poterit sumptionem Sacramenti,
omissis omnibus aliis”.1 The necessity of preventing irreverence to
the Body of Christ is an emergency which justifies departing from
all positive laws about the reception of the Holy Eucharist. There is
nothing resembling this necessity in the above case. The faithful,
having awaited the course of the priest’s Mass up to the consecra
tion, must be kept waiting a further few minutes, until the celebrant
has himself consumed the oblation.
82.
COMMUNION
“confiteor”
DURING MASS
Is the recitation of the “Confiteor” at the communion of the faithful an
ancient custom? Should it be sung, not only at solemn Masses by the deacon,
but at a “Missa Cantata” by a cleric or layman; and is there only one tone
for all occasions? Is it correct to precede the word “ pater" by “ reverendissime"
or “ eminentissime", if a bishop or a Cardinal is present? Why is the variani
"beatus" and "sanctus" therein?
i. It is a mediaeval addition to the rites of the Mass, apparently
due to the influence of the mendicant friars. Well before the twelfth
century the Confiteor, etc., in use at the beginning of Mass, was said
whenever the sick communicated in their homes, and the rite which
properly belongs to the Ritual was then transferred to the Mass
whenever the faithful communicated.2 Though it is actually a
duplication of the prayers said at the beginning, and a repetition of
the sentiments expressed throughout in various prayers, liturgical
writers, especially Callcwacrt,3 arc at pains to show that it is fittingly
said at this place, and ‘here arc indications of its recital in some
rites by the celebrant even when no communicants were present.
The absolution formula following its recital is a sacramental with
1 Cf. Fr Davis in The Clergy Review, 1939, XVII, p. 456, where this direction is
applied to air-raids.
2 Crogacrt, Rites et Prières du Saint Sacrifice de la Messe, III, p. 332 ; Jungmann,
Missarum Solemnia, II, p. 449·
3 Collationes Brugenses, 1932» p. 1 sG.
Q. 83
The Mass (Rubrics and Liturgy)
115
the effect of remitting venial sins or of securing the grace of contrition
for grave sins.1
ii. We know of only one tone in use when it is chanted, as printed
in the Liber Usualis from Caere moniale Episcoporum, II, χχχίχ, for the
episcopal indulgence; and other indications in this book lead most
most writers to direct that at a Pontifical Mass it must always be
sung.2 This we think correct; the reply, S.R.C., 28 November, 1902,
n. 4104.2, permits it to be recited as an alternative alla voce, if that
is the custom, in all non-pontifical solemn Masses. We can find no
express ruling about the sung Mass celebrated without sacred
ministers, but seeing that its chanting is a diaconal function wherever
it is mentioned, we think it is incorrect for anyone else to sing it ;
the Confiteor should be recited at these Masses exactly as at Low Mass.
iii. Throughout Caeremoniale Episcoporum “pater” without any
prefix is the rule whenever the Confiteor is said ; equally the Missal
rubrics3 direct the Confiteor to be recited as in Caeremoniale Episcoporum,
even when it is being said with the supreme pontiff. It is wrong,
apart from customs or induits, to add any prefix to “pater”.
iv. The distinction between “ bcatus” and “sanctus” for denoting
the difference between a beatified and a canonised person is not
found in the ancient liturgical prayers of the Mass, in which either
word is used indifferently for a canonised saint. The distinction used
in the Confiteor is also found in the prayer Suscipe sancta Trinilas. Some
think that the epithet “sanctus” is used of the Apostles because it
is so found in Ephes., iii, 5, “sicuti nunc revelatum est sanctis
apostolis”,4 but we have found no certain explanation of the distinc
tion, which might possibly be due simply to euphony; “bcatus” is
moreover frequently found applied to the apostles, as in the preface
and the A Cunctis.
83.
THE people’s SACRIFICE
Is there not a rule that the Hosts already consecrated must be consumed
before those newly consecrated? How is this harmonised with the wish of the
Holy Father that the faithful should receive Hosts consecrated at the Mass at
which they are assisting ?
Canon 1272: Hostiae consecratae, sive propter fidelium com
munionem, sive propter expositionem sanctissimi Sacramenti, et
1 Cf. The Clergy Review, 1944, XXIV, p. 31.
4 O'Connell, The Celebration of Mass, III, p. <35·
* Rit. Celebr. Miss., Ill, 2 and 3.
*L'Ami du Clergé, 1947, p. 622.
116
Priests' Problems
Q. β3
recentes sint et frequenter renoventur, veteribus rite consumptis, ita
ut nullum sit periculum corruptionis. . . .
Rituale Romanum, V, i, 7: Sanctissimae Eucharistiae particulas
frequenter renovabit. Hostiae vero seu particulae consecrandae sint
recentes ; et ubi eas consecraverit, veteres primo distribuat vel sumat.
Mediator Dei, 20 November, 1947 ; A.A.S., 1947, XXXIX, p. 565;
Eng. tr., n. 128: . . . atque, ut supra scripsimus, ii dilaudandi sunt,
qui, Sacro adstantes hostias in eodem sacrificio consecratas accipiant,
ita quidem ut reapse contingat “ ut quotquot ex hac altaris partic
ipatione sacrosanctum Filii tui coipus et sanguinem sumpserimus,
omni benedictione caelesti et gratia repleamur”.
i. When Mass is being said at an altar on which the Blessed
Sacrament is reserved, and the faithful receive Holy Communion
from a ciborium consecrated at that Mass, there does appear to be
some little conflict between the existing rubrics and the desire of
the Holy Father expressed in the encyclical. Assuming for the
moment that there is a conflict, the right solution, following the
accepted rule for all such cases, is for the more important thing to
take precedence. The papal direction is the more important, firstly,
because it deals with the faithful’s share in the Sacrifice of the Mass,
whereas the rubric is concerned with precautions against the danger
of corruption of the Sacred Species ; secondly, because it is more
recent and it must be presumed that the Holy Father is aware of
the existing rubric. The previous paragraph, to which the words
“ut supra scripsimus” refer, contains a quotation from Benedict
XIV, which affirms that priests arc to be blamed who deny this
sharing of the sacrifice to the faithful at Mass. In other parts of the
encyclical it is taught that the faithful communicating from a pre
consecrated ciborium also share in the sacrifice, and there is usually
some reasonable cause for this method of distributing Holy Com
munion, but the preference for the faithful communicating from
hosts consecrated in the Mass at which they assist is firmly
maintained.
ii. It could be argued, however, that there is actually no conflict,
because the rubrics cited and the papal direction arc dealing with
distinct and separate things, the purpose of each being expressed in
the clause “ita ut” at the conclusion of the above extracts from
canon and encyclical. Canon 1272 comes within Tit. xv, “De
custodia et cultu sanctissimae Eucharistiae” which is explanatory
of everything connected with reservation of the Holy Eucharist and
the worship due ; similarly the rubric of the Ritual is within Tit. iv,
“De Sanctissimo Eucharistiae Sacramento”. The papal direction,
on the other hand, though within the portion of the document
The Mass {Rubrics and Liturgy)
Q. 84
117
explaining Holy Communion, is directly concerned not with
reservation of the Holy Eucharist but with the share of the faithful
in the sacrifice of the Mass. The rule of the canon and of the rubric
must always be observed, whenever Holy Communion is distributed
from ciboria reserved in the tabernacle; the direction of the
encyclical should be observed, if it is possible conveniently to do so,
whenever the faithful communicate in the Mass at which they are
assisting. The canon and the rubric arc laws relating to the reserva
tion of the Holy Eucharist, laws which all priests are bound to
observe; the papal direction is not a law but a counsel which it is
praiseworthy to observe.
84.
PURIFYING COMMUNION PLATE
The direction is that any particles on the plate are to be placed in the
chalice, when Communion is given during Mass. Does this apply when a
second Mass isfollowing immediately at the same altar celebrated by the same
priest?
S.C. Sacram., 26 March, 1929, n. 7: Fragmenta autem quae in
patina post sacram fidelium communionem exstabunt, quoties haec
intra Missam fuerit diribita, in calicem sedulissime, digiti ope,
inficiantur; in pyxidem vero, si extra Missam sacra Synaxis a
fidelibus recipiatur.
S.R.C., ii March, 1858, in Appendix to Rituale Romanum:
. completo ultimo Evangelio, rursus stet in medio Altaris, et
detecto calice, inspiciat, an aliquid divini Sanguinis necne ad imum
se receperit. ... Si itaque divini Sanguinis gutta quaedam supersit
adhuc, ca rursus ac diligenter sorbeatur . . . Quando vero Sacerdos
eadem die duas Missas in eadem Ecclesia offerre debet, se gerat uti
supra dictum est, sed absoluta Missa quin Calicem purificet . . .
eum eodem modo supra Altare relinquet.”
We can find no explicit discussion of this point by the commen
tators, but it seems to us that, in the above circumstances, the plate
should be purified into the Ciborium, as the Instruction n. 7 directs
whenever Communion is distributed outside Mass. Since the rubric
requires the priest, even when duplicating at the same altar,1 to
consume at the end of Mass whatever drops of the Sacred Species
may be discernible in the chalice, it is clearly unreasonable to place
in this chalice any further particles from the plate; moreover, it
would scarcely be possible to consume them except with the aid of
a fmger.
lCf. The Clergy Review, 1940, XVIII, ρ· 71·
5*
118
Priests' Problems
Q. 85
If the altar at which both Masses arc being said has no Taber
nacle, a ciborium with an exact number of particles for the com
municants being consecrated at the first Mass, the solution given
above will not apply. We think the best practice is then to leave the
ciborium unpurified with the chalice, until the conclusion of the
second Mass. If there is to be an interval between the Masses, the
difficulty does not arise; the chalice can be purified, under the new
discipline, at least with water.
85. PRAYER FOR THE QUEEN AFTER MASS
What is now the correct form of this prayer? Should it be in English or in
Latin? Is it correct to insert “ cum principe consorte" before “et prole regia”?
In the Preces of the breviary, the prayer for the civil ruler is always
“Domine salvum fac regem”, whether the ruler be a king, queen or
president, because the invocation has no “N” and the word “rex”
has the generic meaning of “ruler”. The prayer after Mass, on the
contrary, is the Oratio Diversa η. 6 of the Missal, which has “N” and
therefore requires the sovereign to be mentioned by name. For the
rest, the ruling of the local Ordinary must be observed, or, failing
any such ruling, the directions of the rector of the church.
i. Before Cardinal Wiseman’s time certain indefensible practices
were current, such as mentioning the sovereign’s name in the Canon
of the Mass, or adding the prayer, n. 6, to those assigned for the day.
With the sanction of the Holy See the Cardinal introduced the
prayer to which we are accustomed, as printed in the Ritus Servandus,
and it is held to have become obligatory from that time.1 No formal
decree for the whole country can be discovered and the matter is
not mentioned in the IV Westminster Councils. We think it is
certainly of obligation at the present time, at least on a principle
of custom, unless the local Ordinary allows it to be omitted. In
addition, local diocesan law in many places asserts its obligation*
and frequently the direction is that the prayer may be said in Latin
or in English. In some dioceses the prayer is: “O God by whom
kings reign” as given in the Manual of Prayers.
ii. Assuming that the prayer based on n. 6 of the Missal is being
said in Latin, we think that “Elizabeth” is more correctly undeclincd ; that the conclusion may always be “ Per Christum
Dominum nostrum”, as given in the Ritus Servandus, not with1 Ward, The Sequel to Catholic Emancipation, I, p. 201.
2 Cf. The Clergy Review. 1936, XI, p. 249; Westminster Synod. XXXIL 1893:
Liverpool, Synod XXIII, 1945, n. 198·
Q. 86
The Mass {Rubrics and Liturgy)
119
standing some arguments which can be produced for “Per eumdem
Christum Dominum nostrum” j1 and that “cum principe consorte”
may be inserted before “et prole regia”, since the Duke of Edin
burgh is a prince, and the appellation was popularly used of Queen
Victoria’s consort before it was officially sanctioned. Subject, as we
have said, to an authoritative ruling, we think a correct form of the
prayer is :
Γ. Domine, salvam fac reginam nostram Elizabeth.
R. Et exaudi nos in dic qua invocaverimus te.
Oremus. Quaesumus, omnipotens Deus, ut famula tua Elizabeth,
regina nostra, quae tua miseratione suscepit regni gubernacula,
virtutum etiam omnium percipiat incrementum: quibus decenter
ornata, et vitiorum monstra devitare {tempore belli hostes superare)
et ad te qui via, veritas et vita es, cum principe consorte et prole
regia, gratiosa valeat pervenire. Per Christum Dominum nostrum.
Amen.
86. ANGELUS AFTER MASS
It is my custom to recite the Angelus at the conclusion of the last Mass on
Sundays, usually about 12 midday, whether this Mass is sung or recited. Is
then any substance in the criticism made by some colleagues that one is not
permitted to say any prayers in Mass vestments after Mass except on the
authority of the local Ordinary?
S.R.C., 31 August, 1867, η. 3157-7- An possint praecipi, aut
saltem permitti, aliquae preces recitandae ad Altare post Missam,
non depositis sacris vestibus? Resp. Affirmative; dummodo preces
dicantur assentiente Ordinario.
Wc think that the Angelus should not be recited after a sung Mass
by the celebrant at the altar, except with the Ordinary’s sanction,
since no vernacular prayers, not even those ordered by Leo XIII,
arc then recited. After low Mass, the Leonine prayers, and in certain
localities others as well, arc prescribed, and usually the problem
presented is whether a priest is entitled, for this reason or that, to
omit them. If he desires to add to those ordered, the above reply
leaves it with the local Ordinary to determine its legality, and the
writers concede a certain latitude on the supposition that the
Ordinary’s permission may sometimes be presumed ; in fact, the
replies of the Sacred Congregation of Rites in nn. 3537, 1, and
3805, can be harmonised with n. 3157 quoted above only by sup
posing that a presumed permission suffices. It may be presumed when
1 The Clergy Review, 1934, VIII, p. 331.
Priests' Problems
120
Q.87
there exists some good reason for adding prayers : it seems to us
that the end of Mass coinciding with the ringing of the Angelus
bell is a just reason ; but the more obvious course is to get the
Ordinary’s permission if the practice is habitual.
87. “divine
praises” after low mass
In the promulgation of the additional invocation of our Lady's Assumption
does not the official text suppose that there is an obligation (“recitandis”) of
reciting the Divine Praises together with the Leonine Prayers after Mass?
S.R.C., 23 December, 1952; The Clergy Review, 1953, XXXVIII,
p. 367: “S.D.N. . . . statuere benigne dignatis est ut invocationibus
in fine Missae et in Benedictione Ssmo Sacramenti recitandis ...
addatur: Benedetta la sua gloriosa Assunzione.
The obligation of reciting the Leonine Prayers, notwithstanding
many attempts under succeeding pontiffs to evade it, is firmly
established at the moment: Pius XI, in a consistorial allocution,
30 June, 1930, ordered them to be continued for Russia.1 The triple
invocation of the Sacred Heart is also said because Pius X exhorted
priests to do so without imposing an obligation, which nevertheless
now exists, in our view, owing to the legal force of custom.2
We do not know of any obligation in the common law to recite
after Mass the Divine Praises as well as the above prayers. The force
of “recitandis” can only mean that in those localities where their
recitation is obligatory', whether by custom or by direction of the
local Ordinary, the additional invocation is to be added.
Commenting on this decree, 23 December, 1952, in the Roman
journal Monitor Ecclesiasticus, 1953, p. 211, Dr Silvcrius Mattei who
is described as “S. Rituum Congr. a Studiis” summarises for his
part what arc the views of many priests and lay people about these
prayers after Mass. Owing to his position and authority his words
may be of interest to many of our readers. “Praefatis dispositionibus
Precum recitationem imperantibus non obstantibus, Ritus servandus
in celebratione Missae (XII, 5, 6) habet et nunc: ‘Finito Evangelio
Sancti Joannis, sacerdos, descendens ab altari, pro gratiarum actione
dicit Antiphonam Trium Puerorum cum reliquis, ut habetur in
principio Missalis, mentionem minime faciens ipsarum precum, quod
clare indicat easdem proprias non esse liturgiae eucharisticac. In·
congruum enim est alias preces recitare quando fidelibus dictum est:
Ite Missa est! Curandum est igitur ut fideles activam partem habeant
1 Æ.4.S., 1930, XXII, p. 296.
2 The Clerg» Review, 1944, XXIV, p. 428.
Q. 88
The Mass {Rubrics and Liturgy}
121
Sacrorum Mysteriorum celebrationi, et ubi maior huiusmodi par
ticipatio, ibi minor necessitas alias collectivas preces addendi.” It
should be remembered that in the rite of the Paschal Vigil, in which
the faithful have an active part, even the last Gospel is omitted at
the conclusion of the Mass.
88.
VOTIVE MASS OF CHRIST ETERNAL HIGH PRIEST
T/wi1 special devotions for the sanctification of priests justify the special
ahbration of the Mass as a solemn votive Mass on the first Thursday of each
month?
S.R.C., ii March, 1936; A.A.S., XXVIII, p. 240: . . . Sanctitas
porro Sua . . . benigne indulgere dignatus est ut primis feriis V
cuiusque mensis in ecclesiis vel oratoriis, ubi de consensu respectivi
Ordinarii peculiaria exercitia pietatis pro Cleri sanctificatione mane
peraguntur, una Missa votiva de lesu Christo Summo et Aeterno
Sacerdote litari possit, dummodo non occurrat festum duplex. . . .
The occasion of this concession, explained in the decree, was a
pious practice, already flourishing in Germany and elsewhere, of
devoting a day each month to celebrating Mass, receiving Holy
Communion, and offering various prayers and good works for the
sanctification of the clergy. The practice is encouraged by permitting
a special votive Mass on those days, the development being very
similar to the special votive Mass permitted on the first Friday of
each month in churches where there are devotions to the Sacred
Heart. In both cases the exact nature of the devotions is not specified
in the decrees, but inasmuch as the Ordinary's sanction is required,
this will not normally be given, we suppose, unless the devotions
arc specified when his permission is being sought.1
The commentators on the decree arc not very helpful in making
suggestions. One writer has the following: “Requiruntur specialia
pietatis opera, quorum scopus sit orare pro sanctificatione sacer
dotum et adspirantium ad sacerdotium in universo orbe; quae
autem et quanta esse debeant, non determinatur. Sufficiunt ex
positio cum pyxide SSmi Sacramenti, Litaniae Cordis lesu, lauretanac, et ita porro. Ea mane peragantur oportet, sive ante
sive post Missam ; non tamen opus est ut physicam cum eadem
coniunctioncm habeant et unum actum constituant, sed sufficit
coniunctio moralis”.2 To these suggestions may be added the indulgcnced prayers for the sanctification of the clergy' contained in
1 Cf. The Clergy Review, 1943, XXIII, p. 282.
1 Ephemeride} Liturgicae, 1937, p. 82.
122
Priests'Problems
Q. 8g
Enchiridion Indulgentiarum, nn. 656-660. The indulgences attached to
“Dies Cleri Sanctificationi Sacer”, in η. 657, require certain pious
practices, such as receiving Holy Communion, and they are more
clearly defined than those required for the votive Mass. The two
things are really distinct,1 but they could very suitably be united as
a popular devotion, and the pious practices which are conditions
for the indulgences amply satisfy the conditions for the votive Mass.
For the liturgical rules applicable to this special votive Mass, the
days on which it is not permitted, and other details, cf. O’Connell,
The Celebration of Mass, I, p. 105.
89. SOLEMN VOTIVE MASS: “CONCURSUS POPULl”
What is the exact meaning of “concursus populi ', which is one of the
conditions required for a solemn votive Mass?
Since the votive Mass is a departure from the rule requiring the
Mass to be in conformity with the office of the day, it is only per
mitted on certain conditions: a grave cause of a public nature;
the mandate or permission of the Ordinary ; and that the Mass shall
be a sung Mass in the presence of a concourse of people. In Addit,
et Variat., IV, 2, we read “cum magno populi concursu, cuius rei
judex est Ordinarius”. The Ordinary will not presumably give his
permission unless this condition is likely to be fulfilled, and the
question is equivalent to asking when one may reasonably seek
permission with some prospect of success.
The best account of this votive sung Mass that we have seen is
in Ephemerides Lilurgicae (Jus et Praxis), 1942, p. 56. It explains all
the liturgical rules which apply to it, but we have not found cither
in this article or in the other authorities consulted a definition of
“concursus populi”. Since all the conditions required must exist
together, one could imagine a grave public cause being verified
but a large congregation unlikely owing to the hour chosen being
unsuitable; for example, if war is impending a sung Mass pro Pact
would not be lawful if celebrated at a late hour on a weekday in a
working-class parish where few, if any, would be free to attend. Il
is for this reason, no doubt, that it is becoming customary to select
a Sunday for these and similar votive Niasses.
Λη examination of the official decisions as to what constitutes a
grave and public cause- has likewise revealed no definition of
“concursus populi”. We think therefore that, if the day chosen is
1 Periodica^ 1937» p. 201.
2 Cf. Crogaert, Rubricae Missalis, p. 131 ; O’Connell, Celebration of Mass, I, p. 72.
I
1
QQ,· 9°> 91
The Mass {Rubrics and Liturgy)
123
Sunday or a holy day of obligation, this condition will always be
verified. On other days, the likelihood of a good attendance should
be mentioned when applying to the Ordinary for the faculty : the
expectation of an attendance equal to that on a Sunday or holy day
would be too conservative an estimate in our opinion ; it suffices if
the number anticipated is far in excess of the usual congregation of
devout people.
90.
FIRST FRIDAY VOTIVE MASS
May this Mass of the Sacred Heart be said by all priests who choose to do
so, including the celebrant not only of the principal Mass but of any private
Mass?
The rules for this votive Mass, like many of the innovations of
Leo XIII, are sui generis, and may be studied in O’Connell, The
Celebration of Mass I, p. 101, or in The Clergy Review, 1943, XXIII,
p. 281. The principle underlying the use of this privilege is that the
Mass is part of the Sacred Heart devotions on the First Friday, and
though the exact nature of the devotions is not specified, they need
to be sanctioned by the local Ordinary. Only one votive Mass is
permitted in principle, but some think that it may be repeated
when, with the Ordinary’s consent, the devotions arc themselves
repeated for a different congregation.
Variations of the above rule may happen when, in addition to
the privilege of the common law, all priests arc permitted to say
this votive Mass by induit : this may be granted through the local
Ordinary, and recourse to him is recommended for the solution of
any other doubts arising, since his permission for the devotions has
always been a sine qua non for the use of the privilege in the common
law. Other variations are apparent rather than real, as when the
First Friday happens to fall on a day when all votive Masses are
permitted, including, if desired, the votive Mass of the Sacred Heart,
which then conforms to the common law on votive Masses, and not
to the special Leonine provisions.
91.
OMISSION OF
“pax”
DURING “TRIDUUM”
Why is the “Pax” omitted in the restored rite of the Paschal Vigil, an
occasion when, it would appear, the ceremony of exchanging the kiss of peace
is eminently suitable?
i. It is omitted in the recently restored rite because, apart from
the additional features contained therein, the Mass remains sub
stantially that of the Roman Missal. The above question could be
124
Priests' Problems
Q. g2
seeking the reason for its omission in the Roman Missal, or it could
contain the suggestion that, amongst the rites restored, it would be
fitting to depart from the directions of the Roman Missal and restore
the Pax during the Masses on Holy Thursday and Easter Eve, as it
is given throughout the year during all solemn Masses except
Requiems. The latter suggestion has found much favour amongst
liturgical writers commenting on the restored rite.1
ii. The reason for its omission in the Roman Missal for centuries
was explained on mystical grounds by mediaeval writers, and this
is still repeated by many modern scholars. “Cur vero non datur
pax in Feria Quinta Cocna Domini audiendum est ab Alcuino in
libro qui De Cocna Domini inscribitur: ‘A pacis osculo sive saluta
tione (hac die) abstinetur, non quod malum sit, ubi ex caritate
profertur, sed ad evitandam salutationem pestiferam, qualem Judas
proditor exercuit. . . In Sabbato Sancto autem non danda est pax
quia adhuc perseverat memoria osculi Judae proditoris, sive quia
Christus Dominus nondum pacem dederat Discipulis suis.”2
iii. Mystical reasons, though always to be encouraged as assisting
devotion, are not always the most convincing explanation of ancient
ecclesiastical practices in the rites of the Mass. The true historical
reason appears to be that during this rite the Pax had already been
given in the early Roman Church : to reconciled penitents on Holy
Thursday and to neophytes on Easter Eve ; there was no reason to
repeat it and every reason to omit it during the Mass.3
iv. Some think that if the Pax is restored on these two days it
would be more in accordance with the practice of the primitive
Church in Rome to place it somewhere before the Canon rather
than at the end. The letter of Innocent I (401-417) to Decentius,
an important liturgical document, appears to be the first definite
mention of its position at the end, a practice which is at variance
with most other ancient rites.4
92. ORDINATION ANNIVERSARY — MASS FORMULA
What is the most suitable votive Mass formula to use, if permitted by the
rubrics, at the Mass celebrated by a priest on the anniversary of ordination?
Are there any special concessions for the silver and golden jubilee?
Addit, et Variat., VI, 3. In anniversario propriae ordinationis
sacerdotalis, a die fixa mensis computando, si Vigilia Nativitatis
1 Ephemerides Liturgicae, 1952, p. 136.
2 Op. cit., 1925, p. 84; Crogacrt, Les Riles . . . de la Messe, III, n. ano.
3 Hebert, Le Missel Romain, p. 281.
4 Cf. Theological Studies, 1948, p. 4, for a nice edition of this document with 3
translation and commentary.
Q- 93
The Mass {Rubrics and Liturgy)
125
vel Pentecostes, Dominica Palmarum aut Duplex I classis non
occurrerit, secus autem in proximiori sequenti die, quae a Duplici
item I classis sit libera, cuivis Sacerdoti licet, extra Missas defunc
torum, et post Orationes a Rubricis praescriptas, addere Orationem
pro seipso Sacerdote, ut inter Orationes diversas.
This is the only modification now permitted on the anniversary
of a priest’s ordination, and nothing further is conceded even for a
diamond jubilee. In some ancient sacramentaries a formula is found
containing a proper preface, Hanc igitur and prayers.1 These all dis
appeared with the reform of the Missal by St Pius V. Permission to
use the formula of a votive Mass of the Blessed Trinity or of the
Holy Eucharist was seriously considered before the 1920 edition of
the Missal rubrics, which incorporated the reforms of Divino Afflatu,
but the concessions actually made in Addit. & Variat., II, 5 & 6, are
for bishops only. On the anniversary of a priest’s ordination (not
that of his first Mass) n. 20 in Orationes Diversae may be added in
accordance with the rubric above. There is no permission for a
votive Mass unless the day happens to be one on which votive
Masses arc permitted, as in the general rubrics of the Missal, IV, 3.
The votive Mass then chosen may very suitably be that of the
Eternal Priesthood of our Lord, but there is no rule about the choice
to be made, nor is there an obligation but merely a permission to
add the prayer n. 20. If used its place will be after the special and
common commemorations but before an oratio imperata.2
93.
SUNG NUPTIAL MASS
Is there any reason against having the nuptial Mass sung, whether in the
form of a solemn Mass, or of a “Missa Cantata” without sacred ministers?
Apart from the discouraging reasons which apply to any sung
Mass, such as lack of servers or of an adequate choir, there is nothing
against having a nuptial Mass sung, and there may be reasons in
some cases, as when the choir master is getting married, which
would make a sung Mass eminently suitable. Owing to the fact
that we arc accustomed to low Mass and the comparative rarity
of a sung Mass, and also to the fact that even a low Mass is by
no means common at weddings, the impression may be abroad
that there is something anomalous about a sung nuptial Mass.
1 The Clergy Review, 1950, XXXIV, p. 38.
* Ephemerides Liturgicae, 1938, p. 16α.—11 is subject to the new rule of Cum Nostra,
tit. tn, n. 3, and therefore may not be added if the prayers which must precede
it already number three (cf. O’Connell ,Simplifying the Rubrics, p. 41) [Editor].
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Priests ' Problems
Liturgically speaking the reverse is the truth, since the sung Mass
is still the ideal form of celebrating the Sacred Mysteries.
The writers, therefore, do not fail to observe that the nuptial Mass
may be sung if desired.1 If any confirmation of their teaching is
wanted, it may be seen indirectly in S.R.C., i8 August, 1913,2 which
agrees that the Leonine prayers may be omitted at this Mass and
at others attended by some solemnity on the principle “haberi possit
ut solcmnis”. It is confirmed also by the inclusion of the chant for a
nuptial Mass in the Vatican Gradual, and in the Liber Usualis.
The above is consistent with an episcopal prohibition of a sung
nuptial Mass in a given case, either as a penalty in the case of a
marriage already invalidly attempted,3 or when there arc some
special reasons against a sung Mass of any kind or on any occasion.
94. NUPTIAL MASS AND BLESSING
Il is the custom in most of our churches for the bride and bridegroom to be
inside the sanctuary all through the nuptial Mass. Is it lawful and how did
it come about?
Some writers on the subject, in order to preserve as far as possible
their preference for excluding the couple from the sanctuary, direct
them to come within the sanctuary only for the blessing.4 Our own
view is that they may remain within the sanctuary throughout the
Mass. This is, as our correspondent states, customary in most
churches, a custom which in this country is traced back to at least
four centuries. Λ ritual printed at Douay in 1610 reads: “Finitis
orationibus quae dicebantur super eos prostratos ad gradum altaris,
et introductis illis in presbyterium (scilicet inter chorum et altare)
ex parte Ecclesiae australi, et statuta muliere a dextris viri (videlicet
inter ipsum et altare) incipiatur Missa.”6 It is a reasonable custom,
assuming the nuptial blessing to be an exception to the rule ex
cluding laity from the sanctuary, since otherwise the parties will
have to make some rather embarrassing journeys from their places
in the nave to the foot of the altar. Those commentators who prefer
the couple to be outside the sanctuary even for the nuptial blessing
allow an exception if a bishop is the celebrant. The best modern
writer on the Pontifical is Nabuco, who, correctly in our view,
recommends the parties to be on the sanctuary' throughout the Mass :
1 Ephemerides Liturgicae, 1941, p. «37; O’Connell, The Celebration of Mass, I, p. 91.
* Decreta Authentica, η. 4305.
3 The Clergy Review, 1947, XXVII, p. 119.
Cf. Dunne, The Ritual Explained, p. 133.
6 The Clergy Review, 1939, XVI, p. 129.
Q. 95
The Mass (Rubrics and Liturgy)
127
“Sedes pro sponsis locentur quatuor vel quinque passus ab altari ne
impediant episcopum et ministros. . . . Stricto iure sponsi (et non
sponsa sola) ad altare accedunt pro matrimonio et pro duabus
benedictionibus intra missam, reliquo tempore ad loca sua recedunt
extra presbyterium. Usus tamen receptus est prout exposuimus, nam
si genuflcxoria locentur extra chorum, sponsi tenentur ter ad altare
accedere, praeterea extra presbyterium nequeunt Eucharistiam
convenienter recipere.”1
Our view is supported by an interesting private reply, S.R.C.,
20 November, 1940,2 which denies that parents and relatives may
also be within the sanctuary for the nuptial Mass, and therefore by
implication seems to assert that the parties may be there. The reply
is not dealing exclusively with a pontifical Mass.
Granted the variety of views on the whole subject, it is for the
parish priest, unless there is a local diocesan ruling, to make what
rules he thinks proper about the position of the bridal couple for
the blessing and Mass.
95.
NUPTIAL BLESSING AND HOLY COMMUNION
Tanquercy, “De Matrimonio”, §926, teaches that it is the mind of the
rubric that persons receiving the nuptial blessing should receive at the Com
munion two hosts consecrated at that Mass, thereby communicating “ per
modum sacrificii ’. Is tins a common practice? If so what is the meaning of
"ptr modum sacrificii ” ?
Missale Romanum, “Missa votiva pro Sponso et Sponsa”: Tunc
sacerdos. . . postquam sumpserit sanguinem, communicet Sponsos.
S.R.C., 21 March, 1874, n. 3329: . . . curent tamen parochi et
animarum rectores adhortari fideles nupturos, ut in Missa, in qua
benedictiones nuptiales impertiuntur, communicent.
Pius XII, Mediator Dei, C.T.S., n. 126: Pope Benedict XIV, in
order that it might be more evident that by receiving Holy Com
munion the faithful take part in the sacrifice, praised the devotion
that prompts the desire of some, not only to communicate when
present at Mass, but preferably to receive particles consecrated at
the same Mass—although, as he himself explains, the sacrifice is
shared by the faithfid even when they communicate with hosts
previously consecrated.
Tanquercy, De Matrimonio, §926 : Juxta rubricas Missalis, sacerdos
“postquam sumpserit Sanguinem communicet sponsos”; proinde
1 Pontificalis Romani Expositio, III, pp. 345 & 360, n. 188.
* Bouscarcn, Digest Supplement, 1948, p. 167·
128
Priests' Problems
Q. gj
hacc communio fieri decet infra Missam, et juxta mentem rubricae,
per modum sacrificii, quatenus videlicer duae parvae hostiae in hac
Missa pro sponso et sponsa consecrari debent. Quod quidem
omnino decet, sed non stricte obligat. . . .
i. The nuptial blessing is one of the few remaining examples of
the Benedictiones Episcopales which used to be given after the Paler
Noster of the Mass.1 It is quite clear that in days when it was cus
tomary at all Masses for the faithful to bring offerings of bread and
wine, part of the offering was consecrated at the Mass, and the
faithful communicated from the same. On special occasions the
offerers were mentioned at the Hanc Igitur, the formula at Easter
and Pentecost being the sole remaining examples in our Missal.
Thus the “Velatio Nuptialis” of the Leonine Sacramentary, regarding
the offering as specifically the bride’s, reads: “Hanc igitur obla
tionem famulae tuae illius quam tibi offerimus pro famula tua illa
quaesumus Domine placatus aspicias pro qua maiestatem tuam
supplices exoramus ut sicut eam ad aetatem nuptiis congruentem
pervenire tribuisti sic consortio maritali tuo munere copulatam
desiderata subole gaudere perficias atque ad optatam seriem cum
suo coniuge provehas benignus annorum.”2
ii. An examination of all the available writers on the subject has
not revealed any text resembling that of Tanquerey. It may be a
local custom which is rightly preserved, as canon i too directs, and
there are many rites both on the continent and in this country
subject to the same rule. In some places, for example, the Host is
always divided and shared by the newly married ; in other places
the two parties kiss the altar before the prayer of the blessing.3*It is
on this principle of customary law, if not also indeed the letter of the
rubric, that the newly married enter the sanctuary and kneel on the
altar steps for the blessing,1 and stand when exchanging their
marriage consent.6 They have done both these things for centuries
in this country', and should continue to do so until the appropriate
authority directs the custom to be changed. Similarly the custom of
consecrating hosts specially for the newly wed should continue.
Even if there is no custom, it is certain from the words of the. Holy
Father, quoting Benedict XIV in the encyclical Mediator Dei, that
the newly wed who expressly request to be communicated from
Hosts consecrated at the nuptial Mass are well within their right.
The quotation goes on to say that a refusal is blameworthy.
1 Diet. Archiol., II, 716; Diet. Droit. Canon., II, 37g; Coital. Brugen., 1914, p. 402.
2 Fcltoc, p. 141·
.
3 De Smet, De Matrimonio, § 1 g8.
* The Clergy Review, 1945, XXV, p. 176.
s Op. cit., 1942, XXII, p. 464.
QQ. 9θ> 97
{Rubrics and Liturgy)
129
But we cannot agree with the implication in Tanquerey’s state
ment that the newly wed who receive Holy Communion from a
ciborium consecrated in a previous Mass are, as it were, not fully
and properly sharing in the sacrifice. This view is expressly rejected
in the Encyclical, and it applies to all Masses. The request to com
municate from Hosts consecrated in the Mass at which the faithful
are assisting is a pious and just request : it is an external observance
which portrays more vividly their share in the sacrifice which is
being offered, and there are occasions, such as the nuptial Mass,
when the practice will cause no inconvenience.
96. “alleluia” IN VOTIVE MASSES
Certain Masses outside Paschal time have “Alleluia” concluding Introit,
Offertory and Communion, presumably because of the prominence of the feast,
as on Corpus Christi. Should these “Alleluias” be omitted when the Mass
ΰ Votive outside Paschal time? S.R.C., n. 3764, X, seems to direct their
retention.
The reply given by S.R.C. in n. 3764, X, deciding this point for
the Mass Miserebitur (now changed) of the Sacred Heart, was
corrected when the Index came to be printed: affirmative must be
read for negative. The Alleluia at the Introit, Offertory and Com
munion should be omitted at Votive Masses outside Paschal time.
More recent Missals indicate this ruling. Thus the Votive Mass of
the Blessed Sacrament permitted on Fcria V indicates that Alleluia
is said at these places only during Paschal time. The Mass Cogitationes
of the Sacred Heart gives for use during Paschal time a special text
in these places, omitting Alleluia. Moreover the general principle is
reaffirmed for all Votive Masses in a reply given to the Friars
Minor, 9 May, 1941 : “ Utrum norma a S. Rituum Congregationi in
Decreto η. 3764 Linciensi sub die 6 Februarii ... ad omnes Missas
votivas, de respective Missis festivis desumptas, applicanda sit, ita
ut Alleluia ratione festivitatis in istis Missis ad Introitum vel Offer
torium vel Communionem additum, in Missis votivis extra tempus
Paschale omitti debet. Resp. . . . affirmative."1 The rule is limited to
the three texts mentioned, and docs not apply to the Gradual
Alleluia outside Paschal time.
97· GENUFLEXION AT
ADIUVA NOS DEUS
When celebrating Low Mass on certain days of Lent, should the celebrant
remain in genuflexion whilst reciting the whole versicle “Adiuva nos Deus’.
etc. ?
1 Ephemerides LUttrgicae, 1941 (lus et Praxis), p. 16·
Priests' Problems
130
Q. gO
Rubricae Generales, XVII, I : In Missa privata Sacerdos genuflccüt
quando ... in Quadragesima dicit in Tractu V. Adiuva nos Deus,
etc. 3 : In Missa sollemni . . . Ad versum vero Adiuva nos Deus,
etc. . . . genuflectit usque ad finem.
Fcria IV Cinerum: . . . quia pauperes facti sumus nimis. (Hic
genuflectitur) V. Adiuva nos Deus. . . .
The correct practice, according to the obvious meaning of the
rubrics, is to remain in genuflexion whilst the whole versicle is
recited, and in a solemn Mass this is done whilst the versicle is being
chanted. In Low Mass the observance of this rule would mean that
the celebrant must know by heart these few words ; if he has not
memorised them, he must rise before the text is finished in order to
read the words from the Missal, as De Herdt recommends : “. . . in
missa privata ad verba . . . Adiuva nos . . . genuflcctere tantum in
initio, et statim surgere, ut lectionem commode prosequi possit.”1
De Herdt is the only commentator we have found who adverts to
the difficulty. Some assume that the genuflexion will continue
during the recital of the text,2 whilst making no suggestion as to the
procedure if the text is not known by heart. Rubricians generally,
however, after describing the simple genuflexion in terms of touching
the floor and rising immediately, include the Adiuva nos amongst the
occasions on which this genuflexion should be made.3 This common
teaching, which is also the usual practice, should be followed, even
though it is, perhaps, not according to the strict letter of the rubric.
98.
METHOD OF SINGING THE P/VSSION
Is it in order for laymen or the congregation to sing the portions assigned
to “Synagoga”?
S.R.C., 7 July, 1899, n· 4044.2: An permitti possit ut in cantu
Passionis Diaconus, qui repraesentat Synagogam, eas tantum sen
tentias cantet quae ab uno proferuntur ut a Petro, Caipha, Pilato,
etc.; sententiae vero turbae cantentur a schola, ordinarie ex laicis
conflata? Resp. Permitti posse.
It is with some surprise that we learn that a method of singing the
Passion which is extremely common is actually a practice which is
merely permitted. A reply dated 1677, n. 1589, described this as
sumption by lay persons of an office proper to deacons as a scandalous
abuse, and one must suppose that the custom of a choir “turba”
1 Sacrae Lilurgiae Praxis, I, §116.
s Collationes lirugenses, 1939. p. 51 ; l'Ami du Clergé, 1922, p. 384,
3 Crogaert, Caeremoniale, II, p. 5; O’Connell, The Celebration of Mass, II, p. 25.
Q.gg
The Mass {Rubrics and Liturgy)
131
began with a choir of deacons or at least of clerics, for the music
of these responses written by Vitoria and other polyphonic com
posers existed at least two centuries before the permission given in
n. 4044.
The method of its singing has naturally developed into its present
form after many modifications. Originally, like the Exultel, it was
sung by one deacon, but three had become customary by the
fifteenth century, and the signs
C” and “S” were used
though not universally, to denote the portions of each.1 Caeremoniale
Episcoporum, II, xxi, 15, still supposes that the three deacons are
using one book and gives directions for the assistance of acolytes
in passing the book from one to the other. At Rouen in the eighteenth
century the ancient custom continued of one deacon singing the
passion in the tone of a gospel. “S” which we are accustomed to
take as “Synagoga”, was, perhaps, originally an abbreviation for
"Sursum”. Certainly by 1706 the custom of the choir in collegiate
churches singing the plural passages of “S” was accepted, for a
reply, 17 June °f that year, n. 2169, very sternly forbids a choir of
nuns to do the same.2
If a congregation could be taught how to sing the portions re
presenting “turba”, this could be brought within the direction of
n. 4044., and indeed would be an excellent way of encouraging their
active participation in the liturgical office.
99· THE LITURGICAL ACTION OF GOOD FRIDAY
Suing that the Mass is a memorial of Christ's death, why is Good Friday
the only day when it is not celebrated?
Canon 820 : Missae sacrificium omnibus diebus celebrari potest,
exceptis iis qui proprio sacerdotis ritu excluduntur.
Summa Theol., III, 82, 2, ad 2 : Ad secundum dicendum quod,
veniente veritate, cessat figura. Hoc autem sacramentum est figura
quaedam et exemplum passionis Dominicae, sicut dictum est. Et
ideo in dic quo ipsa passio Domini recolitur prout rcaliter gesta est,
non celebratur consecratio huius sacramenti. Ne tamen Ecclesia eo
etiam dic sit sine fructu passionis per hoc sacramentum nobis
exhibito, corpus Christi consecratum in die praecedenti reservatur
sumendum in illa dic.
Innocentius I (401-417), ad Decentium ; P.L., XX, 551, ad 7 : Nam
utique constat Apostolos biduo isto et in moerore fuisse, et propter
1 The Clergy Review, 1947» XXVII, p. 353·
2 Q.L.P., 1923, pp. i-15, gives a good historical account oi the subject.
132
Priests' Problems
Q. g9
metum Judaeorum se occuluisse. Quod utiquc non dubium est, in
tantum eos jejunasse biduo memorato, ut traditio Ecclesiae habeat,
isto biduo sacramenta penitus non celebrari.
i. As in many other rites the symbolic reason is subsequent to
the historical one. It is clear that in early centuries the celebration
of Mass, being a joyful occasion, was considered to be incompatible
with the penitential practice of the ecclesiastical fast, so that even
in St Thomas’s day Mass on fast days was “hora nona”,1 that is to
say at 3 p.m., after which the chief meal could be taken. In more
primitive times, when the chief meal was not permitted before the
evening, Mass was not celebrated till the evening.2 Long before the
Lenten fast of forty days became established it was the rule, dating
probably from Apostolic times, to fast rigidly, that is to say to take
no nourishment whatever, on the Friday and Saturday of Holy
Week, the biduum to which Pope Innocent I refers.3 The Pope is
arguing for the fittingness of every Friday and Saturday being days
of fasting (in the mitigated sense of one meal) since every week is,
so to speak, a little Holy Week. The primitive practice of rigidly
fasting on Friday and Saturday of Holy Week accounts for the
liturgical rule of not celebrating on those days, a rule which con
tinued to be observed even though the fast became mitigated.
ii. What was called the “Mass” of the Presanctified is, in its
ultimate analysis, no more than a very solemn reception of Holy
Communion. In the East these “ Masses ” were the rule on practically
all fasting days, whereas in the West that of Good Friday is the only
known example even in primitive times.4 The custom wras borrowed
from the East and became practically universal in the West. There
is abundant proof that all the faithful communicated at this “ Mass”
in Rome up to the end of the eighth century, and in parts of France,
as at Rouen, up to the end of the seventeenth century.5 The Missal
of Pius V, in the rubric of Holy Thursday, permitted Holy Com
munion on Good Friday only to the sick, and notwithstanding the
opinion of many older writers who permitted all the faithful to
communicate, this rule became firmly established.
iii. In popular explanations it is possible to give the symbolic
reasons, including St Thomas’s explanation which is universally
accepted, whilst preserving the historical ones. The Mass is not
exclusively a memorial of Christ’s death: “memores . . . necnon et
1 III, 82, 2, ad 3.
2 Ct. The Clergy Review, 1947, XXVII, p. 40g.
9 This letter ad Decentium, of importance for several liturgical points, is con
veniently reprinted with a translation and commentary by Fr Ellard, S.J., in
Theological Studies, 1948, pp. 1—19.
’’
♦ Did. Archiol., XI, 770, and a much fuller account in Did. Théol., XIII. 78-1 to.
4 L'Ami du Clergi, 1914—19, p. 310.
Q, ιοο
The Mass {Rubrics and Liturgy)
133
ab inferis resurrectionis, sed et in coelos gloriosae ascensionis.” It is
essentially a joyful rite and therefore omitted on the day when the
Church, by fasting and other penitential signs, is mourning Christ’s
death; this omission, like the veiling of images during Passiontide,
senes to bring into greater prominence the joy of Easter. It is also
arguable that Mass could not validly be celebrated during the
period when the body of Christ was in the tomb.
100. HOLY SATURDAY — BLESSING OF FIRE
The symbolism of these rites is sufficiently evident from the prayers ac
companying them. But where may one find a full treatment of the origins of
this ceremony?
The fullest modern discussion of which we are aware is by
Schuster in his Liber Sacramentorum, Book IV, ch. i, “Eucharistia
Lucernaris”; also Book III, c. ii, “The Paschal Triduum”. Fr
Thurston’s Lent and Holy Week (1904), the substance of which may
be read in various articles of The Catholic Encyclopedia, is full of
interesting facts.
The Lucernarium was an evening ceremony which accompanied
the lighting of lamps, taken over by the early Church from the
Mosaic law, the sacrificium vespertinum mentioned in the psalms. It
disappeared from Roman liturgical use in the third century but
returned four centuries later when Gallican customs of eastern
origin, particularly the Paschal candle, became gradually incor
porated in the Roman liturgy. r\s with all these early rites and
observances, the history of their rise and development is somewhat
complicated. In Schuster’s view, the ceremony which we now have
on Holy Saturday of blessing the fire, incense and candle, is ultim
ately traceable to this ancient Lucernarium, which took on a special
solemnity at the Paschal vigil. Hence its assignation to the deacon,
whose duty it was to perform the rites of the Lucernarium.
IX. HOLY COMMUNION
ΙΟΙ. COMMUNION BEFORE CONVENTUAL MASS
If the conventual Mass is a low Mass, may the celebrant distribute Holy
Communion immediately beforehand, as he is permitted to do at any low Mass?
Canon 846, §1 : Quilibet sacerdos intra Missam et, si privatim
celebret, etiam proxime ante ct statiin post, sacram communionem
ministrare potest. . . .
S.R.C., 19 January, 1906, n. 4177.3: An sacerdos sacris vestibus
Sacrificii indutus, possit administrare Sacram Communionem, data
rationabili causa, ante vel post Missam solemnem aut cantatam aut
etiam convcntualcm, sicut permittitur ante vel post Missam
privatam? Resp. Negative.
The word “private” in the canon, though capable of many
meanings, is taken by the Sacred Congregation to mean a Mass
which is neither sung nor conventual, and the latter can only
mean a conventual low Mass in the context of the reply. The
reason for applying the rule to the conventual Mass may be the
fact that it is immediately preceded and followed by the recitation
of divine office, which it is unseemly to interrupt by a distinct rite
of distributing Holy Communion; or the reason may be that the
conventual Mass is, from canon 413, §2, normally a sung Mass and
retains the rules proper thereto even when it is not sung.
102. VIATICUM TO THE UNCONSCIOUS
Is it lawful, and if so is it obligatory on the priest, to administer the Holy
Eucharist to a dying person who is unconscious?
Canon 854, §2: In periculo mortis, ut sanctissima Eucharistia
pueris ministrari possit ac debeat, satis est ut sciant Corpus Christi
a communi cibo discernere illudque reverenter adorare.
Rituale Romanum, V, i, 10. Amentibus praeterea, seu phreneticis
communicare non licet; licebit tamen, si quando habeant lucida
intervalla, et devotionem ostendant, dum in eo statu manent, si
nullum indignitatis periculum adsit.
The unconscious, other things being equal, may receive Holy
Conununion validly, and our question is limited to whether they
134
Q, 102
Holy Communion
135
may do so lawfully, namely having regard to the positive law of
the Church at the present time. Unfortunately the law docs not
anywhere expressly decide the point, but the commentators try to
reach a decision on analogy with the law of the Code about infants,
and also by applying to the unconscious the rubric of the Ritual
about persons who have lost the use of reason. We assume, therefore,
that before becoming unconscious the person could lawfully receive
Viaticum, and it is understood that, though unconscious, the Sacred
Species can be consumed without danger of irreverence.
i. The view which has most support from analogous laws is that
Viaticum may not lawfully be given to a person who is completely
unconscious, and this view is accepted in practice by most priests,
we believe, in this country ; though their outlook is very likely based
on the fear of irreverence, a circumstance which is not strictly
relevant, since the danger of vomiting, for example, would forbid
Holy Communion to both conscious and unconscious persons. The
rubric of the Ritual, without distinguishing between Holy Com
munion and Viaticum, requires a lucid interval, and canon 854
the ability to distinguish between the Holy Eucharist and ordinary
food; in a person completely unconscious both qualifications are
clearly lacking.
ii. It is maintained, however, by many that the rubric of the
Ritual does not necessarily apply to Holy Communion as Viaticum,
and that the criterion in canon 854 should be restricted to infants
who have not made their First Communion ; for the case of an adult,
who before losing consciousness could have expressly desired Holy
Communion, is not the same as that of a child who has never formed
this desire at all. The condition of the adult is identical with that
discussed by St Thomas,1
. tunc, si prius, quando erant com
potes suae mentis, apparuit in cis devotio huius sacramenti, dcbel
cis in articulo mortis hoc sacramentum exhiberi : nisi forte timeatur
periculum vomitus.” Relying chiefly on this Thomistic text, the
practice of giving Viaticum to the unconscious can be justified,
notwithstanding the words of the rubric.2
iii. If it is lawful to administer Viaticum to the unconscious, it
would seem to follow that the priest is bound to do so, at least on a
principle of charity, lest the dying should be deprived of the grace
of this sacrament, and some of the writers, such as Iorio, expressly
teach that there is an obligation. The situation is similar to the case
of administering certain sacraments to those who arc apparently
1 Summa Thcol., III, 80, 9.
. T <·
▼ · -n ,
2 Gury-Fcrrcres, Casus, II, §319; Cappello, De Sacramentis, I, §402 ; Iorio, Dieol.
Moralis, III, §149.4 ; Ecclesiastical Review, July 1948, p. 24.
136
Priests' Problems
Q· 103
dead, about which the rubrics equally have nothing to say,i and we
incline to the view that in both situations the administration of the
appropriate sacraments is obligatory.
Since, however, the law on the whole subject is so uncertain,
priests may decide that there is no obligation, and probably the
summing up of Gasparri is the best solution to adopt : “ Praxis cappcllanorum in hospitalibus eadem ubique non est: nonnulli
auctorum sententiam sequuntur et in illis circumstantiis viaticum
ministrant; plerique verbis Ritualis stricte adhaerent et nunquam
viaticum praebent ; tacente auctoriatc ecclesiastica, nos nec illos ncc
istos damnare audemus.”2
103. RECEPTION OF VIATICUM BY THE INSANE
Is a completely insane person to be given Viaticum, and if there is no strict
obligation on the priest in such cases may he nevertheless give Viaticum, always
supposing that there is no reason to fear irreverence ?
Canon 864, §1 : In periculo mortis, quavis ex causa procedat,
fideles sacrae communionis recipiendae praecepto tenentur.
Canon 865: Sanctum Viaticum infirmis nc nimium differatur; et
qui animarum curam gerunt, sedulo advigilent ut eo infirmi sui
compotes reficiantur.
Rit. Rom., V, i, 10: Amentibus praeterea seu phreneticis com
municare non licet ; licebit tamen, si quando habeant lucida inter
valla, ct devotionem ostendant, dum in eo statu manent, si nullum
indignitatis periculum adsit.
Summa TheoL, III, 80, 9: . . . aliqui dicuntur non habere usum
rationis dupliciter. Uno modo quia habent debilem usum rationis:
sicut dicitur non videns quia male videt. Et quia tales possunt
aliquam devotionem concipere huius sacramenti, non est cis hoc
sacramentum negandum. Alio modo dicuntur aliqui non habere
totaliter usum rationis. Aut igitur nunquam habuerunt usum
rationis, sed sic a nativitate permanserunt : et sic talibus non est hoc
sacramentum exhibendum, quia in cis nullo modo praecessit huius
sacramenti devotio. Aut non semper caruerunt usu rationis. Et
tunc, si prius, quando erant suae mentis compotes, apparuit in
cis huius sacramenti devotio, debet cis in articulo mortis hoc
sacramentum exhiberi, nisi forte timeatur periculum vomitus vel
exspuitionis.
1 The Clergy Review, 1932, III, p. 228; 1941, XXI, p. 114.
» De Eucharistia, II, §1124.
Q, 103
137
Holy Communion
Cattchismus Romanus, De Euch., n. 57 :. . . si antequam in
insaniam inciderint, piam et religiosam animi voluntatem prae se
tulerunt, licebit cis in fine vitae ex Concilii Cathagincnsis (IV, 76)
decreto Eucharistiam administrare; modo . . . periculum nullum
liniendum sit.
i. We eliminate, firstly, some points about which there is no
particular problem. If danger of irreverence is feared Viaticum must
be refused, and the decision is with the priest after consultation with
die sick person’s attendants. Some disallow, in the case of an insane
person, an experiment with an unconsecrated host,1 since the
recipient will presumably not know that it is an experiment and
there is danger of idolatry ; but the common teaching, following St
Alphonsus, rightly disregards this danger, and recommends the
experiment.2 If the sacred Host is rejected, readers are referred to
the discussion in Question 116 concerning the best way of
disposal. When the person is not wholly insane but is capable of
reverently communicating, his position is that of children referred
to in canon 854, §2: “satis est ut sciant Corpus Christi a communi
dbo discernere illudque reverenter adorare”. The issue, more
over, to be clarified is not whether an insane person can receive
Viaticum validly and fruitfully, assuming baptism and the ab
sence of any obex : for it was a primitive custom to communicate
baptised infants before they enjoyed the use of reason, and the
insane from birth arc in the same category. It is the positive law
of the Church, as in the Ritual, which now forbids them Holy
Communion.
ii. The only problem, therefore, relates to a dying person who
at some previous time was capable of a rudimentary desire, even
an implied desire, for the Holy Eucharist, but who is at the moment
completely insane. Two questions emerge : is it lawful to commun
icate such and, if lawful, is it obligatory? That it is lawful to
administer Viaticum (not Holy Communion outside danger of
death) is the teaching of St Thomas and of the Roman Catechism,
followed by the majority of modern writers. Our opinion also is that
if a sacrament may be lawfully received by the dying, a priest is
bound to administer it at least on a principle of charity, though
for reasons to be next explained it is not a grave obligation, and we
would not agree with Woutcrs that the practice of not giving Via
ticum in such cases is a real abuse.3
iii. That it is unlawful to administer it in the circumstances
1 Amman Ecclesiastical Review, July 1948, p. 24.
*E.g. Iorio, Theol. Moralis, III, §149·
lThtol. Moralis, II, §«74-
1
Priests' Problems
138
Q. 104
outlined in (ii) rests chiefly on the rubric of the Ritual which draw
no distinction between Viaticum and Holy Communion at other
times, and prohibits it indiscriminately, a prohibition which was
not, it appears, the law in St Thomas’s day. Notwithstanding the
opinion of most theologians Gasparri,1 relying on the Ritual and
the practice of many priests, and observing that the law is silent
on the point, declines to blame those who refuse Viaticum. For
the needs of a person dying insane are met by Extreme Unction,
if by conditional absolution, except in cases where no priest
is obtainable, when probability may be conceded to the view
that Holy Communion will remit mortal sin in one who has
merely attrition. If, however, a priest is unobtainable the question
about his obligations cannot arise. Gasparri may be followed
by those who prefer not to administer Viaticum to the insane,
and as he himself notes, the hypothesis that the sacrament is
going to be administered without danger of irreverence can rarely
be verified.
104. VIATICUM “SUB SPECIE VINI ”
Since there is a grave obligation to receive Viaticum, may a sick person
unable to swallow anything except liquid receive Holy Communion “sub
specie vini”?
Canon 852 : Sanctissima Eucharistia sub sola specie panis
praebeatur.
The law in the Western Church is of great antiquity and is due
partly to heretical doctrines on the subject, partly to the difficulty
of communicating the laity from the chalice, especially when it must
be carried to the sick. In earlier times this was permissible, and a
conciliar decree of Toledo in 675 is quoted directing the sick to
receive Viaticum from the chalice if unable otherwise to commun
icate owing to the nature of the sickness. Cappello permits it only
when the Holy Eucharist sub specie panis is unobtainable, which
seems to be hardly a practical contingency,2 but he does not discuss
its permission in the circumstances of the above question, and we
cannot find any author who allows it. Until better informed we think
it is unlawful, firstly because Viaticum is not a sacrament necessary
for salvation, and secondly because the sick person in this condition
can surely receive a very small portion of a Host administered with
water, as all the writers permit.
1 De Eucharistia, § 1, 124.
2 De Extrema Unctione, §88.
q, j 05
Holy Communion
139
IO5. DECISION ON FIRST COMMUNION
In a Catholic Institution is it the religious superior, the confessor or the
chaplain who has to make a final decision on the fitness of children to make
their First Communion ?
Quam Singulari, 8 August, 1910; Dcnz. 2140: Obligatio praecepti
confessionis ct communionis, quae puerum gravat, in cos praecipue
recidit, qui ipsius curam habere debent, hoc est in parentes, in
confessarium, in institutores et in parochum. Ad patrem vero, aut
ad illos qui vices eius gerunt, et ad confessarium, secundum
Catechismum Romanum, pertinet admittere puerum ad primam
communionem.
Canon 854, §4 : De sufficienti puerorum dispositione ad primam
communionem iudicium esto sacerdoti a confessionibus eorumque
parentibus aut iis qui loco parentum sunt.
§5: Parocho autem est officium advigilandi, etiam per examen,
si opportunum prudenter iudicavcrit, ne pueri ad sacram Synaxim
accedant ante adeptum usum rationis vel sine sufficienti disposi
tione; itemque curandi ut usum rationis assecuti et sufficienter
dispositi quamprimum hoc divino cibo reficiantur.
Canon 860 : Obligatio praecepti communionis sumendae, quae
impuberes gravat, in cos quoque ac praecipue recidit, qui ipsorum
curam habere debent, idest in parentes, tutores, confessarium,
institutores et parochum.
i. There is usually no problem since parent, confessor, teacher
and parish priest will be in agreement on the point, and only
occasionally there may be a little disagreement. We may eliminate
the parent from the question only on the assumption that the
religious superior is the parent’s delegate or in loco parentis in the
circumstances of the question. Canon 854, §4, reverses the order of
parent and confessor as set out in Quam Singulari, but we believe
this to be of no special significance ; in canon 860 the order is the
same. We assume also that the chaplain is the parish priest’s delegate,
and that if there is more than one confessor the superior may rely
on the judgement of any one of them at choice. The problem is then
a particular application of the general principle that the sacraments
arc to be given to those who seek them reasonably, and in so far as
the rights or obligations of persons other than the children arc
concerned, it is merely another aspect of the question discussed in
Tht Clergy Review, 1943, XXIII, p. 224, relating to the attendance
of children at Sunday Mass.
ii. The decision that a child is ready for first Communion rests
primarily with the religious superior who, for the time being, is
140
Priests' Problems
Q. 105
taking the place of the parent. I he parental right must, however,
be maintained intact, in eases where the parent is in disagreement
with the superior, subject always to the duty of the parish priest or
of his delegate to correct parental abuses or neglect. Administering
first Communion is not, however, amongst the reserved parochial
rights enumerated in canon 462.1
iii. The confessor in this context means a priest with faculties for
hearing confessions, in our opinion, and not exclusively the con
fessor who actually hears a child’s confession. In the latter case, he
will tell the penitent that he should make his first Communion
and let him so inform the superior; the law obviously cannot con
template a situation in which, after hearing a child’s confession, the
confessor discusses the findings with some third party.
rXccording to some, parents are within their rights in deciding on
a child’s fitness, even without obtaining a confessor’s judgement, but
they will be acting imprudently, since a confessor is the best person
to assist them in deciding on the age of discretion being reached and
on the other necessary qualifications. The confessor functions in
the internal forum only, and it is not for him to forbid the superior
to present a child for Holy Communion ; the most he may say is
that, in his judgement, the law of the Church prohibits it,2 and he
may refer the matter to the parish priest.
iv. Finally, the chaplain as the parish priest’s delegate functions
in the external forum, for the souls committed to his care, by seeing
that the law is observed, in rather the same way as the bishop
functions for the whole diocese from canon 336, §2, and there is
always the remedy of recourse to the parish priest or to the bishop
on the part of superiors or others who arc dissatisfied with his
intervention. His duty is clearly set out in canon 854, §5, its exercise
being qualified by the important words “opportunum” and “pru
denter”. Unless it is absolutely manifest that a child kneeling at the
altar rails is lacking the right to Holy Communion, the chaplain,
the parish priest or any priest is not only imprudent but gravely
wrong in refusing this sacrament. Short of denying Holy Communion
at the altar to a child presented by superiors he acts as described in
canon 854, §5, and he must always do so when he has a well-founded
suspicion that the superior or the confessor is not observing the law.
He is within his right in holding a routine instruction or examination
of all first communicants in his jurisdiction, and local law, as
Malines, IV, n. 188, frequently strengthens his position by requiring
parents, superiors and others, to inform him when children under
their care are about to make their first Communion.
1 The Clergy Review, 1932, III, p. 324.
2 Collationes Brugenses, 1946, p. 469.
Qt Ι0β
Holy Communion
141
106. ADMISSION TO COMMUNION OF RE-MARRIED
DIVORCEE
“J” after a civil divorce from “ Æ” contracts a civil union and cohabits
uith“C”. If “A” repents and seriously promises to live in continence under
the same roof with “Cf may a confessor absolve him and allow him publicly
to receive Holy Communion ?
Canon 855, §1 : Arcendi sunt ab Eucharistia publice indigni,
quales sunt excommunicat i, interdicti manifestoque infames, nisi
de corum poenitentia et emendatione constet et publico scandalo
prius satisfecerint.
§2: Occultos vero peccatores, si occulte petant et cos non emen
datos agnoverit, minister repellat; non autem si publice petant et
sine scandalo ipsos praeterire nequeat.
Canon 2356: Bigami, idest qui, obstante coniugali vinculo, aliud
matrimonium etsi tantum civile, ut aiunt, attentaverint, sunt ipso
facto infames; et si, spreta Ordinarii monitione, in illicito contub
ernio persistant, pro diversa reatus gravitate excommunicentur vel
personali interdicto plectantur.
i. The ordinary application of the law to “A” requires for his
rehabilitation that he should return to “B”, the partner of his valid
marriage, unless there exists a canonical cause justifying separation ;
if this reconciliation can be effected, “A” could get the Ordinary’s
permission to obtain a civil divorce from “ C ”. Usually reconciliation
is impossible, and the ordinary application of the law then requires
per st that, on repentance, “A” should cease living under the same
roof with “C” before being allowed to receive the sacraments. But
even this will often be morally impossible, owing to the necessity of
rearing children, for example, or owing to the civil penalties con
sequent on desertion. Though the moral and the canon law cannot
condone such serious delinquencies, a confessor is rightly anxious
to make the path of repentance as smooth as possible, and a
correct solution will turn on whether the situation is publicly known
or not.
ii. It is public, according to canon 2197.1, “si iam divulgatum
est aut talibus contigit seu versatur in ad iu net is ut prudenter
indicari possit et debeat facile divulgatum iri”. Dealing in The
Clergy Review, 1941, XX, p. i8r, with the condition of a divorced
person, similarly repentant though not again “married”, our
opinion was that the Ordinary’s intervention is required, and the
same must be said a fortiori in the present case. His intervention will
determine measures for removing the scandal which must inevitably
occur if “A” receives the sacraments publicly whilst living with
6+
142
Priests' Problems
Q. Io6
“C”. The measures suggested by the authors are, for example, a
statement to be made by “A” outside the tribunal of penance before
the parish priest or witnesses, to the effect that cohabitation will
cease when morally possible; this undertaking could be published
in the measure necessary for avoiding scandal.1 A penitent who
seriously promises to have this recourse to the parish priest or
Ordinary could, in our opinion, immediately be absolved by a
confessor, with safeguards against the occasion of sin, but he may
not receive Holy Communion except secretly or, what amounts to
the same thing, in a place where his condition is unknown.2
iii. The case is occult when it is publicly thought that “A” is
married to “C”, which could quite easily happen if his earlier
matrimonial history took place in another part of the world.
Natural justice then excuses him from publicly giving undertakings
which will seriously defame his own character, and it suffices for
the promise of ceasing cohabitation (when morally possible) to be
made before the confessor, who will then deal with the penitent
according to the rules formulated by the moral theologians for
absolving a person living in a necessary proximate occasion of
sin.3
iv. The penalty of infamia iuris which is incurred by bigamists, in
virtue of canon 2356, and which largely consists in the list of
deprivations set out in canon 2294, may have to continue notwith
standing repentance and admission to the sacraments. This is clear
enough in regard to the “irregularity” which accompanies infamia
iuris ; but it applies equally to the lesser privations, such as the
exclusion from sponsorship at baptisms. Thus Sole, De Delictis d
Poenis, n. 279: “Infamia iuris ... in genere est poena perpetua,
quae imponitur absque temporis limitatione; proindeque adnexa
delicto non cessat poenitentia aut emendatione.”
If the case is occult, the penalty may be suspended by any confessor,
as provided in canon 2290, §1. If it is public, the penalty cannot be
suspended or remitted except by the Holy Sec, and the clause of
canon 2232, §1, “ quoties cam servare sine infamia nequit” obviously
does not apply. The publicity of a bigamous marriage is notorious,
in our opinion, and therefore the person cannot even claim the
relief mentioned at the end of canon 2232, §1. If he desires to
exercise rights, of which the punishment of infamia iuris deprives him,
1 Cf. Collationes Brugenses, 1946, p. 486.
2 These principles arc applied occasionally by the Sacred Penitentiary, though
with more stringent safeguards against scandal, to the circumstances of civil mamage contracted by a priest. Lex Sacri Coelibatus, ιβ April, 1036. Cf. The Clergy Retint ,
1936, XII, p. 158, and «937- -Kill, P· 271.
• Cf. Ter Haar, Casus Conscientiae, I, §161.
143
Holy Communion
Q. 107
he must petition the Holy See for a dispensation ; but he may be
admitted to the sacraments, even publicly, with the safeguards
mentioned above.
107. MOTIVES OF THE EUCHARISTIC FAST
In explaining the new rules to the faithful the question has arisen about the
reasons or motives of this law. Is the stress to be placed on the reverence due to
the Body of Christ, or rather on the necessity of self-denial and mortification ?
The teaching of St T homas in Summa Theologica, III, 80, 8, is still
the best traditional explanation of the motives of this law: “Primo
quidem, sicut Augustinus dicit, in honorem huius sacramenti : ut
scilicet in os hominis intret nondum aliquo cibo vel potu infectum.
Secundo, propter significationem: ut scilicet detur intclligi quod
Christus, qui est res huius sacramenti, et caritas eius, debet primo
fundari in cordibus nostris; secundum illud Matth. vi: Primo
quaerite regnum Dei. Tertio propter periculum vomitus et ebrietatis,
quae quandoque contingunt ex hoc quod homines inordinate cibis
utuntur: sicut et Apostolus dicit, 1 Cor. xi.” To these reasons is
often added a symbolic one, the hunger we should have for the
Body of Christ.
The penitential motive, though not excluded from the above
considerations, necessarily becomes less prominent if 12 midnight is
the reckoning of the terminus a quo of the fast, and the first two
reasons given by St 1 homas have a meaning only if the matter is
regarded from the point of view of a new day beginning, as noted
in the answer to the fifth objection : the beginning of a new day can
be reckoned, indeed, in various ways, but the Roman reckoning is
from 12 midnight. With the introduction, first by induits and now
by a general relaxation, of a terminus a quo reckoned not from mid
night but from the time ol receiving Holy Communion, the rev
erential motive still remains, except for invalids, in the prohibition
of food and drink for a certain previous period of time. But the
notion of priority in the day’s nourishment has begun to disappear
for the large number of people who benefit by the new rules, and
the penitential motive is proportionately to be stressed, as we read
in the words of the Holy Father towards the end of the Constitu
tion Christus Dominus1 which underline the penitential value of the
Eucharistic fast and urge us all to compensate for the relaxations
by other good works and penitential practices, being mindful that
the Holy Eucharist is a memorial of our Lord’s passion.
1 Dr Bride in L'Ami du Clergé, 1953, p. 2ti, rightly notes: "c’est un aspect déjà
un peu nouveau”.
144
Priests' Problems
QQ· 108. 109
IOS. “ QU GAD POTUM ”
The occurrence of this phrase in the recent legislation about the Eucharistic
fast seems to call for some definition of what constitutes liquid. Is there an)
official definition ?
S.C. Sacram., 24 March 1952 (private); The Jurist, 1952, XII,
p. 474: Nomine potus veniunt potiones ex cafaeo, thea, lacte, iurc
cetcrisquc substantiis etiam vim nutritivam habentibus, dummodo
liquidi formam praescierant.
The notion in this context of liquid is quite distinct from that
which determines its nature in the ecclesiastical fast, on Ash Wednes
day for example: in the latter case the adage “potus non frangit
ieiunium” assumes that the liquid contains, practically speaking, no
nourishing substance such as eggs, whereas in the former case the
nourishing character of the liquid is irrelevant provided only that it
is liquid and not solid food. The meaning of the phrase, as explained
by the canonists, may best be studied in their commentary on canon
8585 §2, where the common law permits liquid nourishment to
invalids, a concession which is now amply covered and extended by
the new law. Unlike the culinary' distinction between solids, slops, and
liquid, the canon law in this context recognises only two kinds of
nourishment, and whatever doubts arise on the margins will be in
determining whether “slops” arc solid or liquid.1 This is to be
decided on the common estimation : it is liquid if one can pour it
from the containing vessel, and if it is in the state of liquidity before
being introduced into the mouth. Thus solids such as soup cubes
may be reduced to liquid in preparing a drink, and there is no limit
to the process of strengthening a liquid with various additions
provided it can still be called liquid in its final stage. To milk may
be added beaten eggs, Bovril, Ovaltine, and all the various prepa
rations designed for invalids. The result may be an unattractive
brew but it remains a liquid in the common estimation. What
one must resist, however, is the temptation to enliven this mix
ture with even a little drop of brandy.
109. EUCHARISTIC FAST: OLD AGE AN INFIRMITY
The writers all seem to accept old age as the equivalent of bodily infirmity
for the concession of a drink before communicating. Is there any agreement
on the number ofyears which merit the description of old age in this context?
Some suggest with probability that, on analogy with the fasting
law of canon 1254, §2, old age begins when one’s sixtieth year is
1 Questions and Answers, I, qu. 147.
Q. no
Holy Communion
145
reached, that is to say after one’s fifty-ninth birthday.1 Others
suggest seventy on analogy with the Jubilee concession in 1950 which
permitted persons of this age, on the ground of infirmity, to gain
the indulgence without making a Roman pilgrimage.2
Pending an official clarification sixty may be taken as probably
die age which is equivalent, presumptively at least, to infirmity,
and confessors may grant the necessary permission to persons of
this age who, though not suffering any other infirmity, assert that
they find the fast difficult to observe.
IIO. EASTER OR ANNUAL COMMUNION
Inasmuch as the law of annual reception is graver, it seems, than that of
moling one's Communion at paschal tide; and inasmuch as a priest may
extend the paschal time, could this time be anticipated? For example, there is
a mission during January, when all the people receive Holy Communion. May
the parish priest, fearing that many will not go again during the paschal time,
declare that the January Communion fulfils the Easter precept ?
Canon 859, §1 : Omnis utriusque sexus fidelis, postquam ad annos
discretionis, idest ad rationis usum, pervenerit, debet semel in anno,
saltem in Paschatc, Eucharistiae sacramentum recipere, nisi forte
de consilio proprii sacerdotis, ob aliquam rationabilem causam, ad
tempus ab eius perceptione duxerit abstinendum.
i. It is true that the law of annual Communion is graver than that
of communicating at paschal tide, for the latter is a purely ec
clesiastical law, whereas the obligation of an annual Communion is
an ecclesiastical declaration of what is actually a divine law from
John vi, 54 seq. The computation of paschal tide is clear in the
common law of canon 859, §2, and local induits often anticipate or
extend the time beyond the extensions permitted in the canon. But
the computation of the year is not certain, various estimates about
its beginning and ending being possible : we prefer the view which
fixes the beginning of the year for this purpose from the day on
which the obligation of the Easter precept begins,3 and if this view
is accepted, the answer we suggest to die above question is also
more easily formulated. The solution of all questions arising from
this canon requires us to bear in mind that there is a double precept
contained in it, and though the one may be graver than the other,
they both certainly bind sub gravi.
1 Ford, The New Eucharistic Legislation, p. 75.
* Reed, S.J., in Theological Studies, 1953,,p. 220.
J The Clergy Review, 1940, XIX, p. 74· Coronata, De Sacramentis, I, §322
146
Priests' Problems
Q,. no
ii. “Proprius sacerdos” in this context means not only the parish
priest but probably the confessor as well,1 and the parish priest as
such enjoys no special faculties in the matter. It is certain that the
priest may sanction an extension of the time for Easter Communion
for any reasonable cause, that is to say the law does not require a
grave cause. The writers suggest as adequate reasons : the case of a
sick person when it is not convenient to receive Communion at home;
the circumstances of a person travelling abroad who, being unable
to speak a foreign language, prefers to wait until returning to his
own country ; or when persons arc not yet fully instructed, as might
often happen with the first Communion of children. In all these
and similar instances the canon docs not speak of the priest dis
pensing from the observance of law, but of his counselling a
recipient to postpone Easter Communion.2
There is no warrant, either in the canon or in the opinion of
commentators, for counselling the anticipation of paschal time.
What might easily happen is that some persons attending the
January mission have not observed the grave law of Easter Com
munion for the previous year, and have not yet kept the still graver
law of annual Communion for the current year ; by communicating
at the mission they fulfil the annual obligation, but they must com
municate again when the paschal time commences in order to fulfil
the paschal tide obligation.
iii. It is recognised, however, that it might often be for the good
of souls to permit the precept of annual Communion to cover that
of Easter as well, no matter at what time of the year Holy Com
munion is received, and induits may be obtained for this purpose
from the Congregation of the Council. Thus the French Capucins,
with the consent of the local Ordinary, may declare that the
reception of Holy Communion during a mission given by these
fathers fulfils the Easter precept for that year: “(Conceditur ut)
Christifideles qui sacris missionibus atque exercitiis spiritualibus
interfuerunt, quae a concionatoribus praefatae Provinciae (Savoy)
in variis Galliae paroeciis constituuntur, per sacramenta Poeniten
tiae et Eucharistiae durante cursu missionis aut exercitiorum
suscepta, quocunquc anni tempore praecepto annuae confessionis
et Communionis paschalis satisfacere valeant.”3 A similar faculty is
enjoyed, we believe, by the Society of Jesus, and no doubt by other
religious Institutes engaged in giving missions and retreats, its lawful
use being always conditioned by the local Ordinary’s consent.
1 The Clergy Review, 1939, XVI, p. 547.
2 Collationis Brugenses, 1937· PP· *θ4 and 492.
3 Ephemerides Theologicae Lovanicnses, 1940, p. 128, quoting II Monitore
Q. in
Holy Communion
147
III. FREQUENT COMMUNION — CONFE8SOR
Is it the law that for daily Communion a confessor's counsel is necessary ?
Canon 863 : Excitentur fideles ut frequenter, etiam quotidie, pane
Eucharistico reficiantur ad normas in decretis Apostolicae Sedis
traditas.. . .
S.C. Sacram., 8 December, 1938, II : “Itaque ad abusum omnem,
quatenus fieri potest, praecavendum, huic Sacrae Congregationi
visum est necessarium investigare opportuna remedia. . . . Concionatores atque spiritus moderatores, hortantes publice vel
privatim fideles, adolcscentulos praesertim, ad frequentem et
quotidianam Communionem . . . aperte doceant . . . eandem fieri
non posse nisi necessariis concurrentibus conditionibus. . . . Ideo
requiritur pracprimis status gratiae . . . Requiritur quoque recta
seu pia intentio . . . Praeterea ut frequens et quotidiana Communio
maiore prudentia fiat uberioreque merito augeatur, oportet ut confessarii
consilium intercedat."
The concluding italicised words of the above extract repeat the
admonition of Sacra Tridentina Synodus, 20 December, 1905, n. 5. The
document, dated 8 December, 1938, was entitled Instructio Reservata
and was not printed in the A.A.S. A summary was given in The
Cltrgy Review, 1939, XVII, p. in, and extracts in 1940, XVIII,
p. 166.
The Instruction, repeating the original conditions laid down by
Pius X, quite clearly requires a confessor’s counsel. In practically
every case the confessor will counsel frequent Communion, and in
PiusX’s decree he is warned against dissuading from frequent Com
munion anyone who is in a state of grace and has a right intention.
It might happen occasionally, particularly in school communities
where all arc more or less expected to communicate frequently, that
there may be some doubt about the right intention. The confessor
will then explore the matter for the penitent’s benefit and counsel
him accordingly.
The rule has this further advantage, which is, in fact, the chief
purpose of the 1938 Instruction: the decision on more frequent or
less frequent Communion is for the individual conscience, and the
obvious person to advise on a matter of conscience is the confessor :
the requirement that a confessor’s counsel should intervene makes
it evident that it is not for the superiors or the teachers to decide
which children under their care should communicate frequently or
not./\s the Instruction states, “Frequens et quotidiana Communio
valde quidem commendatur, sed nulla lege praecipitur Relinquitur
ideo uniuscuiusque devotioni ac pietati.”
148
Priests' Problems
112. RELIGIOUS HOUSES — FREQUENT COMMUNION
Is there still an obligation for religious superiors to have read annually in
their houses the decree “Sacra Tridentina Synodus” on the subject of
frequent Communion ?
Sacra Tridentina Synodus, 20 December, 1905; Fontes, n. 4326.8. Ut
autem omnes utriusque sexus Religiosi huius decreti dispositiones
rite cognoscere queant, singularum domorum moderatores cur
abunt, ut illud quotannis vernacula lingua in communi legatur intra
Octavam festivitatis Corporis Christi.
i. This rule, faithfully observed everywhere for some years after
its promulgation, has in recent years fallen into disuse, and one of
the most reliable commentators on religious discipline states : “nunc
post Codicis promulgationem haec praescriptio non iam valet”,1
whilst observing nevertheless that some others are not of his opinion.
The practical solution for each individual religious house is for the
local superior to observe the rule if required to do so by his im
mediate superior : otherwise he may please himself about observing
it or not, relying on the opinion of Schaefer.
ii. The same applies, it seems to us, with regard to a number of
similar regulations made during the time of Pius X for Cathedral
and parish churches. It cannot be the wish of the Church that these
should all bind till the end of time, and on the other hand they have
not been expressly withdrawn. It is for the rectors of churches to
obey the directives of the local Ordinary, to be found cither in
diocesan synods2 or in the diocesan Ordo, on such matters as the
annual explanation of Quam Singulari about First Communion, or
the sermon on the Sunday within the octave of Corpus Christi on
Frequent Communion. If directives arc lacking, rectors of churches
are not, in our view, strictly bound to observe the terms of the
Pian documents. Both superiors and rectors should, however, bear
in mind the Instruction of the Congregation of the Sacraments,
8 December, 19383 concerning the safeguards to be observed in the
practice of frequent Communion, an important and more recent
document which, owing to the reserved method of its promulgation,
is not sufficiently known.
iii. What might appear to be contempt of the law in gradually
ceasing practices which have been lawfully imposed is met by the
rules on custom, especially canon 25: the consent of ecclesiastical
authority required for the justification of a custom contrary to the
1 Schaefer, De Religiosis, §1144.
2Cf. Liverpool, 1945, XXIII, n. 125; Northampton, 1047. Xu nn
» The Clergy Renew, 1939, XVII, p. in ; 1940, XVIII, p.167 ’
ΊΊ
Q. n3
Holy Communion
149
law may be tacit—“qui tacet consentire videtur-’. Remarking a
custom of disregarding some law the superior authority may enforce
its observance, or he may think it more prudent to tolerate the
custom.1
II3. SEMINARIANS AND FREQUENT COMMUNION
There seems to be some little conflict in the text of Roman instructions
relating to frequent Communion in seminaries. Are the superiors entitled to
consider the frequency of a candidate's reception of Holy Communion in
forming an opinion about his fitness for sacred orders ?
Canon 1367: Curent episcopi ut alumni Scminarii ... 2. Semel
saltern in hebdomada ad sacramentum poenitentiae accedant et
frequenter, qua par est pietate, Eucharistico pane se reficiant; cf.
also canons 973, §3, and 974, §1.2.
S.C. Sacram. Instr. Quam Ingens, 27 December, 1930; J.J.A’., 1931,
XXIII, p. 120; English tr., Bouscaren, Digest, I, p. 463; §2, 5:
Seminarii moderator diligentissime notitiam de promovendis ex
quirere curabit ... ab iis qui in Seminario doctorum gerunt
munus, ipsosque non solum seorsum audiet, sed etiam insimul
convocatos, de singularibus nempe vocationis signis ... ad quod
inservire poterunt interrogatoria, congrua congruis referendo, quae
in Appendice habentur, iuxta Mod. II and III.
Mod., II, 2. Num ad sacram Confessionem et ad sacram Synaxim
crebro ac devote accedat.
S.C. Sacram., Instr. Postquam Pius, 8 December, 1938; Periodica,
*939> P· 31?; English tr., Bouscaren, Digest, II, p. 208; II, 3, a.:
In Seminariis vero aliisque id genus institutis, ubi statis temporibus
iudicium profertur a Superioribus de unoquoque alumno, quod ad
pietatem, studium et disciplinam attinet, iidem Superiores, in
promenda sententia dc iuvenis in pietate profectu, de maiore vel
minore assiduitate ipsius in Ss. Eucharistia sumenda rationem ne
habeant.
i. Quam Ingens is a document promulgated like any other in the
official acts of the Holy Sec, whereas Postquam Pius was sent, in the
first place, to individual Ordinaries; it was entitled “Instructio
Reservata” and has never appeared in the Acta Apostolicae Sedis.
Some ecclesiastical journals, however, published it like any other
Roman document, and it appeared in Apollinaris, 1940, p. 14, with
out the qualification “Reservata” and with a commentary by Mgr
Zerba, an official of the Sacred Congregation. Permission was
*Op. cit., 1943, XXIII, p. 83.
6*
150
Priests' Problems
Q,· 113
obtained for the summary which was printed in The Clergy Review,
1939» XVII, p. in. It may well be that no great significance
attaches to its alleged “reserved” character, and according to one
commentator, Mgr Bracci: “il Santo Padre Pio XI d’immortalc
memoria ha solo voluto che della medcsima fosse fatto dai Vescovi
c Superiori un uso prudente, riservato e discreto”1 ; but, in our view,
the solution of the proposed difficulty ultimately rests on the
respective authority of the two documents.
ii. The manualists writing on the subject of frequent Communion
or of holy orders appear not to have adverted to this conflict
between the two Roman instructions, and the only writer known to
us who gives it serious consideration is Fr U. Lopez, S. J., in Periodica,
1940, p. 302. He reflects on the different character and purpose of
the two documents and concludes: “Non datur oppositio, perse,
inter has duas Instructiones, sed bene inter se concordari possunt,
ita ut utriusque, secundum proprium spiritum, observantia impleri
possit.” The spirit of each would be preserved, it is thought, by
restricting Quam Ingens to candidates on the eve of receiving orders,
that is to say to those in the first year of theology; by refraining,
even with regard to these candidates, from interrogating or reproving
individuals who are remiss in receiving daily Communion; by
requiring always the testimony of parish priests during vacations,
as expressly indicated in Quam Ingens, Mod., II, 2, bearing in mind
that the warnings in Postquam Pius refer specifically to persons living
in community, since it is these who are more likely to approach the
sacred table with inadequate intentions. We think, however, with
great respect, that Fr Lopez does not fully succeed in harmonising
the two documents.
iii. They set up, in our view, a dubium iuris, which it is for the
Ordinary to resolve as seems to him best, instructing the superion
of the seminary on the right way of implementing both documents.
It is not for this writer to anticipate the Ordinary’s ruling or to tell
seminary superiors what they should do. We would only make a
purely academic observation which might apply just as well to any
two documents which give contradictory directions: the preference
is to be given to Quam Ingens since this alone has been properly
promulgated. Cardinal Iorio, prefect of the Congregation which
issued it, explains Mod., II, 2, as meaning “An assiduus sit . . . ad
frequentem aut etiam quotidianam communionem”.2 Pius XI, in
the encyclical on the priesthood, 20 December, 1935, expressly
mentions and urges in general the observance of the precautions
set out in Quam Ingens. It is to be read annually to candidates in
1 Quoted in Periodica, 1940, p. 304.
a Periodica, loc. cit., p. 302.
Q. 114
Holy Communion
151
seminaries. The other document has not, it seems to us, quite the
same weight because it lacks the publicity of official promulgation,
and it is even possible that some seminary superiors may not know
of its existence. The directions of Quam Ingens should be faithfully
observed in all seminaries until they have been officially withdrawn
by the Holy See.
II4- FREQUENT COMMUNION: M.D. CHILDREN
Is there any ruling as to how often Holy Communion should be received by
fttble-minded children in our Catholic institutions ?
S.C. Cone., 16 December, 1905; Denz. 1985: Communio frequens
et quotidiana . . . omnibus Christifidelibus cuiusvis ordinis aut
conditionis pateat, ita ut nemo, qui in statu gratiae sit et cum
recta piaque mente ad s. mensam accedat, impediri ab ea possit.
i. We cannot find any theologian who deals fully with this point.
The manualists are usually content with repeating what St Alphonsus
has to say “de semi-fatuis” in Book VI, §303, of his Moral Theology :
he cites a number of writers to the effect that the reception of Holy
Communion by such should be limited to fulfilling the Easter
precept and receiving Viaticum, but Leander is mentioned for the
view that its reception is permitted “toties quoties”. AertnysDamen adds to St Alphonsus “aliquoties per annum, pro maiori
vel minori gradu discretionis quo utuntur”.1 We must remember
that writers previous to the reform of Pius X on frequent Com
munion must be read with caution, and it seems to us that the
modern commentators have not sufficiently revised the view of St
Alphonsus. If we assume that the feeble-minded in question, no
matter what their actual age, have at least attained the discretion
required in a child of seven, no reason can be discerned why Holy
Communion should be permitted only a certain number of times.
If they arc in a state of grace and have a right intention, they may
communicate daily like anyone else : a state of grace is, for various
reasons, more easily to be taken for granted in the feeble-minded,
and the right intention must be measured exactly as it is for the
faithful in general. There was something to be said, perhaps, for the
view that they may communicate only at Easter and when receiving
Viaticum; but we cannot see in what principle they may com
municate only a certain number of times, which one writer interprets
to mean once a month.2 Dr M. McGowan, in a C. 1 ,S. pamphlet
1 Theol. Moralis, II, §137.
'· Irish Ecclesiastical Record, 1921, XVIII, p. 19«.
152
Priests' Problems
Q,· I!5
on Mental Deficiency, mentions incidentally that at Besford Court
many of the boys communicate daily. Why not ?
ii. The restriction, if any, on the number of times they may com
municate is to be determined exactly as it is for any children living
in an institution, and the Congregation of the Sacraments, 8 Dec
ember, 1938, found it necessary to suggest rules for safeguarding
the right intention of these communicants.1 It may well be, in the
case of certain categories of the feeble-minded, that greater caution
is necessary for preventing abuse. The judgement of the superiors,
who arc trained in dealing with these cases, must be accepted,
provided it is not based on the principle that the feeble-minded arc
ipso facto, and by reason of their condition, permitted Holy Com
munion less frequently than those normally constituted; but the
persons themselves, in so far as it is possible, must take the decision
on the usual principles which apply to all frequent communicants.
I 15’ REMOVING the pyx during another’s mass
The priest at Mass prepares the pyx, leaves it in the tabernacle, and later,
whilst another Mass is in progress at the same altar, approaches unvested in
cassock and cotta to take the pyx in order to communicate a sick person. Is
this custom lawful ?
i. O’Kane-Fallon is the chief authority who sanctions opening
the tabernacle improperly vested, in order to remove the prepared
pyx for communicating the sick,2 but he appears to assume that
this is being done at an altar in a private oratory situated in the
priest’s house.
We think that cassock, cotta and white stoic should always be
worn, as directed by the Roman Ritual, V, iv, 12, whether the pyx
is already prepared or not ; and that we have no lawful custom in
this country justifying a non-observance of the law, at least when
the action is being performed in a church or public oratory.3
ii. Likewise, in principle, it is not permitted to impose one rite
upon another, as would happen when a priest administers Holy
Communion at an altar where another priest is already engaged in
celebrating Mass. The practice described above is not, indeed,
actually that of administering Holy Communion, but it is a rite
distinct from the Mass, with its own set of rubrics.
iii. Both (i) and (ii) arc positive laws which, on the usual prin
ciples, need not be observed for a proportionately grave reason.
1 The Clergy Review, 1939· XVII, p. 111.
2 Rubrics of the Roman Ritual, 1938, §773.
3 Cf. The Clergy Review, 1943, XXIII, p. 4G9.
153
Holy Communion
Q. 116
There is sufficient authority amongst die writers to justify admin
istering Holy Communion at an altar where a priest is already
celebrating, provided it docs not interfere with the progress of the
Mass: a moment would have to be chosen when the celebrating
priest is not standing in front of the tabernacle.1 A sufficient reason
for tolerating the practice would exist, for example, on a day when
many of the faithful who wish to communicate are unable to remain
for Mass, and when the church contains no other tabernacle;
similarly a grave reason, such as administering viaticum, certainly
suffices as a justification for removing the pyx. Whether any less
obvious reason suffices, in the ordinary administration of Holy
Communion to the sick, the priest’s conscience must decide. One
cannot easily imagine what this reason could be, neither is it
apparent why the priest taking Communion to the sick cannot wait
till the Mass is finished. It is still more difficult to discern any
justifying reason at all for opening the tabernacle improperly
vested, unless perhaps for the purpose of administering viaticum.
I16. DISPOSAL OF UNCONSUMED HOST
In practice what is the correct thing to do with a Host which has been
removedfrom a sick person's tongue owing to his inability to swallow?
De Defectibus, X, 14: Si Sacerdos evoinat Eucharistiam, si species
integrae appareant, reverenter sumantur, nisi nausea fiat : tunc enim
species consecratae caute separentur, ct in aliquo loco reponantur,
donec corrumpantur, ct postea in sacrarium projiciantur. Quod si
species non apparent, comburatur vomitus, ct cineres in sacrarium
mittantur.
Rituale Romanum, lit. iv, cap. iv, n. 4: Potest quidem Viaticum
brevi morituris dari non ieiunis ; id tamen diligenter curandum est,
ne iis tribuatur, a quibus ob phrenesim, sive ob assiduam tussim,
aliumvc similem morbum, aliqua indecentia cum ini uria tanti
Sacramenti timeri potest.
Summa Theol., III, 83, 6, ad 7: . . . hoc tamen observandum est,
quod ubicunque species integrae inveniuntur, sunt reverenter con
servandae, vel etiam sumendae; quia manentibus speciebus, manet
ibi corpus Christi, ut supra dictum est ; ea vero in quibus inveniuntur,
si commode fieri potest, sunt comburenda, cinere in sacrario
recondito . . .
Though the rubrics on Communion more laicorum make no express
•Cf. The Clergy Review, 1938, XIV, p. 446.
Priests' Problems
154
Q,. 116
reference to this contingency, all the commentators apply the direc
tions contained in De Defectibus, from which it is clear that disposal
by burning refers only to a rejected substance in which the Sacred
Species cannot be discerned. Deliberately to burn what one discerns
to be the Sacred Species is obviously sacrilegious ; if it cannot be
consumed, one must allow it to corrupt by natural processes. The
situation described in the above question is equivalent to that in
De Defectibus where the Sacred Species can be discerned.
The simplest and most expeditious method, if it can be done
without nausea, is for the priest, after removing it from the tongue
with his finger, to consume it himself: prevention of irreverence is
one of the reasons which justify non-fasting Communion.
If this is not possible, the Sacred Species, after being removed
with the finger, should be transferred to a piece of linen, e.g. the
purificator, the lavabo cloth, or a clean handkerchief; failing a piece
of linen, cotton wool or a piece of clean paper may be used.
The Sacred Species in its wrapping is taken back to the sacristy,
and after separation from the wrapping, which is either purified or
burned and placed in the sacrarium, it must be preserved till
corrupt before being placed therein. The commentators are not
very helpful in describing this stage of the process, for it is well
established that a dry host will remain uncorrupted for years in
suitable conditions. Many recommend placing the sacred species in
a small glass vessel containing a little water, on analogy with the
purifying vase usually put near the tabernacle, the vessel being kept
in a locked cupboard. Those, however, who had experimented with
an unconsecratcd host find that, even when placed in water, a
softening of the substance occurs but not corruption. We should be
extremely glad to hear from any priest who, on following the
directions of the rubrics, has found the host corrupted after a
reasonable time. One way out of the difficulty is suggested from a
private reply of the Congregation of Rites, 19 February, 1909,1
which directs that the particles collected from a ciborium used in
communicating lepers need not be consumed by the celebrant in
the ordinary way; they may be placed in a vessel containing water
and cotton wooI and burned immediately. By this procedure the
particles, though present and uncorrupted, arc no longer discernible,
and it occurs to us that a rejected Host might be separated into
small particles, and dealt with in the same way.
As noted in The Clergy Review, 1940, XVIII, p. 344, the piscina or
sacrarium provided in most sacristies, though suitable for the disposal
of liquid, is not sufficiently large for receiving other sacred remains.1
1 Sylloge, n. 14.
2 Cf. Roulin, Nos Églises, pp. 639-43.
Q.
ji6
Holy Communion
155
If the Sacred Species, after corruption has set in, cannot be placed
in die sacristy sacrarium or in that of the baptistery, the only alterna
tive, we suppose, must be to use a spot in the garden reserved for
the purpose.
Distressing incidents of this kind may often be avoided by first
giving the sick person, whose ability to swallow is in doubt, an
unconsecrated particle before Holy Communion.1
[The author summarised subsequent correspondence on the
subject as follows :]
The rubric, De Defectibus, X, 14, directs that the unconsumed host
should be kept safely until corrupted, and then consigned to the
sacrarium. Since experience shows that corruption does not take
place, even after some years, the following suggestions have been
made with a view to expediting corruption : (a) the use of chemicals ;
(i) die addition of a little w'ater in the containing vessel ; (c) the
addition of a little wine (in either case the vessel being exposed to
the air) ; (d) separation of the host into small portions, with the aid
of cotton wool moistened, so that the particles become indiscernible.
I can find no authorisation for the use of chemicals, and there
would seem to be no difference between this method and burning,
which is not permitted if the host is discernible. A disinfectant may,
however, be added, when its immediate object is not the unconsumed host but the sputum of a tubercular patient. The addition of
wine is said to reduce the host to a greenish slime, provided only a
small quantity is used and it is left exposed to the air; this is
permissible.
Having placed one unconsccratcd host in a small vessel of water,
and another in a small vessel of wine, I found at the end of two
months that the one placed in wine had become brown but remained
firm and incorrupt. The one placed in water, on the other hand,
was so soft at the end of a month that with a little disturbance it
became completely dissolved in the water, which had the appearance
of a thin milky fluid.
I regret not having arrived at a completely satisfactory conclusion,
but it seems to me that, of the various methods suggested, dissolving
in water is the most expeditious as well as being in accordance with
the teaching of many of the authors. The disturbance necessary to
make it dissolve is equivalent to (d).
1 O’Kane-Fallon, The Rubrics of the Roman Ritual, n. 751.
X. PENANCE
117· CONFESSIONS OF RELIGIOUS ON A PARISH
PILGRIMAGE
A religious house “iuris pontificii” is withdrawn from the pastoral cart
of the local parish priest. May the parish priest, nevertheless, validly and
lawfully absolve the religious when they accompany him on a parish pilgrimage
outside the diocese ?
Canon 464, §1 : Parochus ex officio tenetur curam animarum
exercere in omnes suos paroecianos, qui non sint legitime exempti,
§2 : Potest episcopus iusta ct gravi de causa religiosas familias et
pias domos, quae in paroeciae territorio sint et a iure non exemptae,
a parochi cura subducere.
Canon 519: Firmis constitutionibus quae confessionem statis
temporibus praecipiunt vel suadent apud determinatos confessarios
peragendam, si religiosus, etiam exemptus, ad suae conscientiae
quietem, confcssarium adeat ab Ordinario loci approbatum ...
confessio . . . valida et licita est. . . . Cf. also canon 522.
Canon 873, §1 : Ordinaria iurisdictione ad confessiones ex
cipiendas . . . pro suo quisque territorio Ordinarius loci, et parochus
aliique qui loco parochi sunt.
Canon 881, §2: Qui ordinariam habent absolvendi potestatem,
possunt subditos absolvere ubique terrarum.
i. Since the exemption of persons within his territory limits the
parish priest’s rights and duties, it will be necessary to establish
beyond all dispute that the local Ordinary has withdrawn them from
parochial jurisdiction. In many instances in this country, where a
religious house has its own chaplain, it is assumed as a matter of
practical convenience that the chaplain will function therein instead
of the parish priest ; but this practical arrangement docs not imply
exemption with all its consequences, unless the Ordinary has
expressly so decreed. Elsewhere the practice of expressly exempting
religious houses from parochial jurisdiction is fairly common.1 If the
house is certainly exempt the parish priest enjoys no jurisdiction
therein, except what is conceded by the common law in given
instances: he may, for example, hear the confession of any religious
1 Cf. Collationes Brugtnses, 1948, p. 23.
156
t
Q. u8
Penance
157
within the terms of canon 51g; or he may administer confirmation
to die dying.1
ii. If the house is not exempt, the religious, being subject in
principle to the jurisdiction of the parish priest, are on much the
same footing as other parishioners in regard to canon 519. When
outside the diocese they may use the faculty of this canon and go
to confession, not only to any priest approved by the local Ordinary,
but also to their own parish priest who enjoys ordinary jurisdiction
over them from canon 881, §2.
In die case, however, of religious exempted by the Ordinary from
parochial jurisdiction, and a fortiori of those who may be exempted
by a papal privilege, the matter is not so clear. They may certainly
be lawfully and validly absolved by the parish priest within the
parish in which the religious house is situated, since he comes within
the clause “ab Ordinario loci approbatum” of canon 519; with
equal certainty they may be absolved outside the parish, but within
the diocese, if the parish priest enjoys the usual delegated faculties
throughout the diocese. Outside the diocese it might appear that
the parish priest has no jurisdiction over them, unless delegated by
the local Ordinary, since they have been withdrawn from his
jurisdiction. Schaefer solves the point as follows:
. etsi non esset
delegatus, non videtur improbabilis sententia, quae etiam hoc in
casu tenet praelaudatos Religiosos absolvi posse, cum in favorabilibus
radicalis potestas parochi non sit destructa, practice autem sententia
fiat ccrta vi can. 209”.2 The reasons for this view which we think
may be accepted arc not explained, but we imagine them to rest on
the wish of the Church in modern times to facilitate the confessions
of religious; a liberal interpretation of this wish preserves the radical
ordinary jurisdiction of the parish priest in absolving religious, even
though in other respects they have been withdrawn from his care.
118. FACULTIES ON A SEA VOYAGE
In the diocesan “pagella” of confessional faculties powers are enjoyed
over certain censures reserved to the Ordinary and to the Holy See “sim
pliciter”, and these diocesan faculties are the basis offaculties enjoyed at sea
from canon 883. Are these reserved cases excluded at sea?
Canon 883, §1 : Sacerdotes omnes maritimum iter arripientes,
dummodo vel a proprio Ordinario, vel ab Ordinario portus in quo
* Spiritus Sancti, 14 September, 1946; The Clergy Review, 1947, XXVII, p. 57.
2 De Religiosis, §417.
158
Priests' Problems
Q. π8
navim conscendunt, vel etiam ab Ordinario cuiusvis portus intericcti
per quem in itinere transeunt, facultatem rite acceperint confes
siones audiendi, possunt, toto itinere, quorumlibet fidelium secum
navigantium confessiones in navi excipere, quamvis in itinere
transeat vel etiam aliqvandiu consistat variis in locis diversorum
Ordinariorum Jurisdiction! subiectis.
§2 : Quoties vero navis in itinere consistat, possunt confessiones
excipere tum fidelium qui quavis de causa ad navim accedant, tum
eorum qui ipsis ad terram obiter appellentibus confiteri petant
cosque valide ac licite absolvere etiam a casibus Ordinario loci
reservatis.
Unlike the ordinary jurisdiction which is enjoyed by a parish
priest over his parishioners, from canons 873, §1, and 881, §2,
wherever they may be,1 the faculties of canon 883 are delegated
a iure to all approved priests on sea voyages, and the Holy See
decided, 16 December, 1947,2 that for the purposes of this canon 883
a voyage by aeroplane is subject to the same provisions.
i. The delegated faculty covers cases reserved to the local
Ordinary' whenever the ship is stationary in a port, though there is
some dispute as to the meaning of “cases” in this context.3 If she
is outside territorial waters, and therefore outside the territory of
any local Ordinary, there can obviously be no cases reserved to the
Ordinary, and consequently no restriction in this respect on the use
of the faculty granted by the canon. If she is within territorial waters
we agree with the solution given by Fr Vcrmccrsch: “Dubium
tantum superest, de facultate absolvendi a casibus quos sibi réser
vant Ordinarius loci quando navis quidem non consistit in itinere,
sed in mari territoriali navigat. Putamus tamen canone 883 expe
ditam iurisdictioncm tribui, quae non impediatur scrupulosa
observatione partis maris in qua navis navigat. . . ,”4 The conclu
sion must be, as regards reservations to the Ordinary, that they
cease throughout the voyage.6
ii. Since, however, the canon makes no reference whatever to
papal reservations, it is certain that these are not included ; we think,
also, that since faculties over papal reservations delegated by a local
Ordinary' arc not valid beyond the territory of that Ordinary, they
arc not included in the powers granted by the canon. If they occur,
the voyaging priest may absolve them only with the procedure of
canon 2254.
1 Cf. The Clergy Review, 1947, XXVIII, p. 125.
2 Op cit., 1948, XXX, p. 344.
3 Op. cit., 1941, XXI, p. I7O.
< Periodica, 1930, p. 119.
* Cf. Code Commission, 20 May, 1923, limiting their use beyond three days in
ports.
Q. 119
Penance
II9. CONFESSIONS DURING A TRAIN JOURNEY
The law now extends the faculty of canon 883 to a journey by air, an
extension which was permitted by some canonists even before the law expressly
did so. Are there any canonists who now extend the faculty to a long journey
by train, an extension which is not yet expressly sanctioned by the law? If so,
may this opinion be followed ?
Pius XII, Motu Proprio, 16 December, 1947*· Nos . . . motu
proprio, certa scientia et matura deliberatione, de Apostolicae
potestatis plenitudine, statuimus ac decernimus ut quae can. 883
C.I.C. de facultate excipiendi confessiones sanciuntur pro sacer
dotibus maritimum iter habentibus, valeant atque extendantur,
consentaneis quidem clausulis, ad sacerdotes iter aerium facientes.
Canon 20 : Si certa de re desit expressum praescriptum legis sive
generalis sive particularis, norma sumenda est, nisi agatur de poenis
applicandis, a legibus latis in similibus ; a generalibus iuris principiis
cum aequitate canonica servatis ; a stylo et praxi Curiae Romanae ;
a communi sententia doctorum.
i. Long before the 1947 Motu Proprio, certain commentators
sufficient in number and authority to establish a probable opinion,
relying on the principle of canon 20, held that the faculty of canon
883 also applied to a journey by air ; there were also some who took
the gloomy view that a journey by air was always accompanied by
danger of death, and that confessional faculties were therefore
enjoyed from canon 882 in any case.1
ii. The Motu Proprio was issued in response to the petitions of many
Ordinaries, and it is not unlikely that, at some future time, the
Holy See will extend the faculty to a journey by train. Examples
exist of this favour being granted by induit, for example during
pilgrimages, and the reasons which make it desirable to facilitate
confession on a voyage by sea or air apply equally to a long train
joumey. Cappello, writing before the Motu Proprio, thought it
probable that canon 883 was applicable both to travelling by air
and to long journeys, for example across Siberia, by train.2 Since
the Motu Proprio appeared the view favouring the extension of the
faculty to a train journey has been defended3 by applying canon 20
to the case.
iii. Whilst admitting the right of any confessor to form his own
judgement on the matter, it is our opinion that the faculty may not
be extended beyond the limits of canon 883 and of the Motu Proprio.
The difficulty of obtaining faculties from the local Ordinary', one
1 The Clergy Review, 1941, XX, p. 552 î Periodica, 1945, p. 32.
2 De Poenitentia, §300.
’ Periodica, 1949, p. 30.
I
160
Priests' Problems
Q. 120
of the reasons for the extended faculty, applies equally indeed to a
journey by train. There is, however, a point which is verified when
journeying by sea or air, but not verified when travelling by train:
in a ship or in an aeroplane it is rarely known which diocese, if any,
is being traversed, whereas in a train the boundaries of dioceses are
capable of being ascertained, and it appears that this local or
territorial aspect is a most important element to consider in the law
of canon 883, since the rights of local Ordinaries arc not patently
infringed ; the law permitting confessions to be heard at ports of call,
when faculties arc obtained from canon 883, is merely accessory to
the chief benefit of the canon, which is to facilitate confessions during
a voyage. The desirability of providing for confessions during a
long train journey must have been apparent to the Holy See when
the Motu Proprio was issued, and nevertheless no provision was made
for the situation.1
The most reliable commentators, accordingly, so far decline to
extend the faculty beyond the terms of canon 883 and the Motu
Proprio.2 They also express the wish, which all priests will share,
that the Holy Sec may make some provision for a journey by train.
The difficulty is in defining the limits of such journeys. The fringes
of the existing law have produced a number of casuistical questions
in defining the nature of a voyage by sea3 and these will be in
creased if the faculty is extended to land journeys. If trains arc
included it will be difficult to exclude motor-cars, cycles, or even a
journey on foot. A train journey across Siberia, as Cappello intimates,
seems to call for some concession, but what of a train journey from
Charing Cross to Waterloo?
120. PILGRIMAGE CONFESSIONAL FACULTIES
May a priest pilgrim to Lourdes, provided he already possesses faculties,
hear the confessions of his fellow pilgrims on the journey and during his stay
in Lourdes?
i. He possesses in the common law a limited confessional jurisdic
tion from canon 883, enabling him to absolve fellow' voyagers on
that part of the journey which is by sea, and also to absolve all
comers at the port of arrival for three days. For details of interpreta
tion in using the common law faculty cf. The Clergy Review, 1940,
XIX, p. 69, and 1941, XX, p. 86.
The motu proprio of Pius XII, 16 December, 1947, reprinted in that
1 Periodica, loc. cit.
2 E.T.L., 1948, p. 46a · «949» P· 250.
3 Cf- The Clergy Review, 1941, XX, p. 86.
Q. 120
Penance
161
journal, 1948, XXX, p. 344, extended the terms of canon 883 to
those travelling by air, which means that the three days rule about
the sea port applies equally to the air port. If, however, the air
port is in a place which is distant from Lourdes, the faculty in the
common law docs not, in our view, extend to Lourdes.
A few commentators apply the terms of the above to a journey by
train, and some priests accept this view. In our opinion, as explained
in qu. 119, it is not permissible to extend the terms of canon 883
and of the motu proprio to journeys by train.
ii. In many countries all doubts concerning the margins of the
common law are set at rest by induits granted to priest pilgrims.
The induit, if it exists, will be communicated to all priests who are
members of group pilgrimages arranged under the authority of the
bishops. An example of such, which no doubt is the pattern of those
conceded elsewhere, is printed in Collationes Brugenses, 1948, p. 320,
and in Ephemerides Theologicae Lovanienses, 1948, p. 467. The text is
as follows :
Emus Archicpiscopus Mcchlinien., ad pedes S.V. provolutus, nomine
omnium Belgii Episcoporum, humiliter postulat pro sacerdotibus tum
saccularibus tum religiosis, in aliqua Belgii dioecesi commorantibus
ibique iurisdictione ad confessiones audiendas gaudentibus, qui peregri
nationem ad pia loca extra Belgium comitantur, durante itinere, camdcm
iurisdictioncm quam in Belgio obtinent, dummodo praedicta peregrinatio
ab uno pluribusve Belgii Episcopis sit adprobata.
Ex audientia SSmi dici 12 Aprilis, 1948.
Sanctissimus Dominus Noster Pius Papa XII, audita relatione infrascripti
Card. Pro-Praefecti Sacrae Congregationis de Sacramentis, attentis
expositis ab Emo. Archiepiscopo Mcchlinien., gratiam benigne indulgere
dignatus est iuxta preces; dummodo revera cnunciati sacerdotes ad
confessiones audiendas in Belgio ab Ordinariis sint adprobati; ceteris
servatis de iurc servandis; contrariis quibuslibet minime obstantibus.
Praesentibus valituris ad biennium. B. Card. Aloisi Masclla.
Assuming that a priest in England has a similar induit com
municated to him, one or two points arc worth attention:
i. The proviso in the reply, dummodo revera etc., makes it clear
that the Belgian priest using this induit must already be in possession
of faculties granted by a Belgian Ordinary, faculties which might be
obtained cither de iure, e.g. from being appointed a parish priest, or
ab homine by delegation. In our view “Ordinary” in this context
means a local Ordinary not a major religious superior, an inter
pretation which seems necessary on analogy with the Code Com
mission reply, 30 July, 1934, about the meaning of the word in
canon 883.1
i The Clergy Review, 1934, VIII, p. 49^·
162
Priests' Problems
Q. 121
ii. The only commentary we have seen on this document, that of
Dr Onclin in E.T.L. cited above, restricts the faculty to the journey
alone, and will not permit its use at the place of pilgrimage. But
local faculties, for use within the domain, are commonly granted to
confessors on approved pilgrimages.
121. CONFESSION : GRAVE PENANCE
The view is held by some confessors that, for example, “Pater Ave &
Gloria” five times is in itself a grave penance and therefore suffices for grave
sins. If this is so, could you explain on what principles this penance is to be
considered grave ?
Cone. Trid (Sess. 14. c. 8.) Debent ergo sacerdotes Domini
quantum spiritus et prudentia suggesserit, pro qualitate criminum
et paenitentium facultate, salutares et convenientes satisfactiones
iniungerc, ne, si forte peccatis conniveant et indulgentius cum
paenitentibus agant, levissima quaedam opera pro gravissimis
delictis iniungendo, alienorum peccatorum participes efficiantur.
Habeant autem prae oculis ut satisfactio, quam imponunt, non sit
tantum ad novae vitae custodiam et infirmitatis medicamentum, sed
etiam ad praeteritorum peccatorum vindictam et castigationem.
Canon 887 : Pro qualitate et numero peccatorum et conditione
poenitentis salutares et convenientes satisfactiones confessarius
iniungat ; quas pocnitens volenti animo excipere atque ipse per se
debet implere.
i. The penance is to be proportioned to the conditions of the
penitent. Therefore, on various grounds, whether of weakness bodily
or spiritual, or for the encouragement of a penitent, the confessor
is permitted to impose a light penance for grave sins if he judges
this to be a right course. It might appear that in these days confessors
as a class do always and habitually give light penances, especially
in the case of penitents who frequently confess. From the nature of
the case it is, perhaps, difficult to come to any certain conclusions as
to whether this is or is not the common practice. Certainly, those of
us who are more advanced in years recollect that much larger
penances, often lasting for several days, were given by the generality
of confessors, and not always by any means for what theologians
would class as grave sins. The reason for this change in discipline is
that, since the Pian reforms on Frequent Communion, confessions
also arc more frequent than they used to be, and the practice of
giving penances consisting of prayers to be said for several days is
rightly to be discouraged, at least for those penitents who confess
Q. 122
Penance
163
frequently, lest they become worried or harassed about penances
overlapping.
ii. Assuming, however, that there is no particular reason for
giving a light penance for grave sins in a given instance, and
assuming that the confessor wishes to give the minimum grave
penance, which is to be in the usual form of reciting prayers rather
than in the form of actions such as almsgiving, we have to determine
on what principle the gravity of a penance is determined. The
principle usually accepted is that a grave penance is that which, on
some other count, can be a grave obligation : the rosary', for example,
is occasionally substituted by induit for a portion at least of the
divine office, in which ease the recital of five mysteries is a grave
obligation.1 In our view this is the simplest unit of measurement in
deciding what constitutes the minimum grave penance : it is familiar
to all and it may be varied by imposing prayers of approximately
the same length.
iii. A search through the writers on this subject has not produced
one who is of the opinion that Paler Ave & Gloria five times is a
grave penance. On the contrary, it is sometimes cited by theologians
who are habitually benign and amiable as not being a grave
penance2 and we agree that it is not. If this is imposed it will be
on the principle discussed above under (i), and not because it is of
its nature grave.
122. PENANCE AFTER ABSOLUTION
Siting that the acts of the penitent, which include satisfaction, are the
matter of the sacrament, what is the position if the penitent declines the
ptnance after having received absolution ?
Canon 887 : Pro qualitate et numero peccatorum et conditione
poenitentis salutares et convenientes satisfactiones confessarius
iniungat ; quas pocnitcns volenti animo excipere atque per se debet
implere.
The position is that the absolution is valid if, at the time it was
given, the penitent has the will to accept a sacramental penance as
satisfaction. His unwillingness to accept what is imposed must be
held to refer to what he considers the unreasonable nature ol the
penance, and not to the necessity of accepting a penance in principle.
Unless the confessor elects to commute it, the penitent s remedy is
to get it commuted by another confessor, which will not normally
1 The Clergy Review, 1935, X, p· 3°3·
1 Génicot, Theol. Moralis, II, §279·
164
Priests' Problems
Q.· 123
be done unless it is manifestly unreasonable. One is breaking no
law in imposing penances after absolution, but the manualists
usually recommend that the penance should be indicated before
absolution.
I23. RESERVED CASES
How is the theory or principle about episcopal reservations applied to the
following instances? (a) A case is reserved “ratione peccati” both in
diocese A and B. May a penitent domiciled in diocese A be absolved by a
simple confessor in dioccsc B? (b) A case is reserved “ratione censurae”
both in diocese A and B. May a penitent who has incurred the censure in
diocese A be absolved by a simple confessor in diocese B ?
Canon 900.3 : Quaevis reservatio omni vi caret : . . . Extra ter
ritorium reservantis, etiamsi dumtaxat ad absolutionem obtinendam
pocnitcns ex eo discesserit.
Canon 2247, §2 : Reservatio censurae in particulari territorio vim
suam extra illius territorii fines non exerit, etiamsi censuratus ad
absolutionem obtinendam e territorio egrediatur; censura vero ab
homine est ubique locorum reservata ita ut censuratus nullibi
absolvi sine debitis facultatibus possit.
Code Commission, 24 November, 1920: Utrum ad normam
canonis 893, §1 et 2, peregrinus teneatur reservationibus loci in
quo degit. Resp. affirmative.
Ibid. 10 November, 1925, VII. Utrum quaevis reservatio, de qua in
can. 900, sit tantum ratione peccati an etiam ratione censurae.
Resp. Affirmative ad primam partem, negative ad secundam.
The reservations arc the comparatively rare cases reserved by the
local Ordinary to himself, whether ratione peccati or ratione censurae,
in addition to the cases ratione censurae which arc reserved by the
common law of the Code to the local Ordinary' : about these Code
reservations there is no problem to discuss. The situation is that the
penitent is a traveller outside his own diocese, and he desires to be
absolved from a case which is reserved in his own dioccsc and also
in the diocese in which he is travelling. We assume that the censure
here discussed is not ab homine.
i. Many of the older problems concerning confessional jurisdic
tion over a penitent travelling outside his own diocese have been
solved by the Code: from canons such as 874, §t, and 881, it is
certain that he is absolved from sin by virtue of jurisdiction obtained
from the Ordinary of the place where he makes his confession.
Reservation of a case ratione peccati made by this Ordinary affects
directly the confessor’s powers and only indirectly the penitent’s
Q. 124
Penance
165
condition. Hence a simple confessor in diocese B cannot absolve
from his sin, apart from the circumstances provided for in the Code ;
it is completely irrelevant whether the penitent is domiciled in B
or is merely travelling therein, and it is equally irrelevant whether
the sin was committed in diocese B or elsewhere.
ii It might seem that the same solution should apply where the
reservation is ralione censurae. Actually it does not, because the
reservation of a censure directly affects the penitent who has in
curred it and only indirectly the confessor. The Ordinary of diocese
A by attaching a censure l.s. to a given act, and reserving its absolu
tion to his own tribunal, has made a local law, which from the
general principle of canon 14 does not bind outside his own diocesan
territory. The penitent travelling in diocese B is outside the territory
of diocese Λ in which the censure is reserved and can therefore be
absolved by a simple confessor in B. It is purely accidental that in
B a similar reserved censure exists for crimes there committed by
those persons who arc subjects of B. Assuming, as we must, that the
reserved censure is incurred by a penitent outside B’s jurisdiction
and by virtue of a local law in A, the Ordinary of B cannot reserve
it to himself.
A superficial reading of the two replies of the Code Commission
might suggest that we arc adopting a wrong solution. When they
are more carefully examined, however, it is clear that the law about
reservation of sins must be kept quite distinct from the law on the
reservation of censures. The 1920 reply therefore must be limited to
a reservation ratione peccati, the reason being, as pointed out in (a)
supra, that reservation of a sin means a direct restriction of the
confessor’s powers. The reply of 1925 is chiefly concerned with
establishing the distinction between reserved censures and reserved
sins : the very wide and sweeping law of canon 900, which practically
makes the episcopal reservations of sins a dead letter, must not be
applied to reserved censures, though there is a certain resemblance
between the two, as in the wording of canon 900.3 and 2247, §2.
Whatever difficulty exists in the application of the law to the
above case arises because the two dioceses happen to have a local
censure l.s. attached by the local Ordinary’ to crimes committed by
subjects in their jurisdiction. The solution we have given is sup
ported by Ferreres, Theologia Moralis, II, §634. Cf. also The Clergy
Review, 1947, XXVII, p. 194.
124. REFUSAL OF ABSOLUTION
Must the penitent who has been denied absolution by one priest mention
this fact when confessing to another priest ?
Priests' Problems
166
Q· 125
Canon 901 : Qui post baptismum mortalia perpetravit, quae
nondum per claves Ecclesiae directe remissa sunt, debet omnia
quorum post diligentem sui discussionem conscientiam habeat,
confiteri et circumstantias in confessione explicare, quae speciem
peccati mutent.
An obligation to mention the previous refusal could arise, firstly,
if the penitent was conscious of having made a bad confession e.g.
by lying to the first confessor ; it could arise, secondly, if a question
on the point was expressly put by the second confessor.
Otherwise there is no obligation, since refusal of absolution is not
a sin on the penitent’s part, and it might happen that the refusal
was wholly unjustified owing to the confessor not fully understanding
the state of the penitent’s conscience. Apart from this case, the
penitent is counselled to mention the first refusal, since the in
adequate dispositions which occasioned it might still persist. But
there is no obligation to do so, since we know of no law requiring
it, provided the directions of canon 901 are observed. Thus, a
penitent who is refused absolution because he declines to promise
restitution, which was clearly obligatory and which he was able to
make, having come to a proper state of mind may confess the same
sin to another confessor and promise restitution, without being
obliged to mention the previous confession when absolution was
refused.
125.
CONFESSION OF PRE-B APTISMAL SINS
Though not necessary matter, may one hold that pre-baptismal sins an
free matter for absolution in the sacrament of Penance? Could an adult
convert, baptised absolutely, receive a valid absolution by confessing solely
pre-baptismal sin already remitted by Baptism? The faithful are accustomed
to submit as free matter post-baptismal sins already remitted by absolution,
and there seems no good reason why pre-baptismal sins should not also be
submitted, as Priimmer appears to teach. Some colleagues, however, with whom
I have discussed the point, maintain that pre-baptismal sin is not even free
valid matter for absolution.
Canon 870: In poenitentiae sacramento, per iudicialem absolu
tionem a legitimo ministro impertitam, fideli rite disposito remit
tuntur peccata post baptismum commissa.
Canon 902 : Peccata post baptismum commissa, sive mortalia
directe potestate clavium iam remissa, sive venialia, sunt materia
sufficiens, sed non necessaria, sacramenti poenitentiae.
Cone. Trid., Denz. 807: Etenim pro iis, qui post baptismum in
Penance
167
Q· '25
peccata labuntur, Christus Jesus sacramentum instituit poeni
tentiae. . . .
894: ... sacramentum videlicet poenitentiae, quo lapsis post
baptismum beneficium mortis Christi applicatur.
911: . . . sacramentum pro fidelibus, quoties post baptismum in
peccata labuntur.
Priimmcr, Theol. Moralis, III, §321, a: Peccata quae ante baptis
mum commissa sunt . . . nunquam sunt materia necessaria sacra
menti poenitentiae, etiamsi baptismus est sacrilege susceptus, ac
proinde nunquam adest stricta obligatio ea confitendi.
The case of an adult convert conditionally baptised on being
reconciled to the Church is excluded from this discussion ; neither
do we touch upon the teaching of many authors who recommend
a voluntary confession of pre-baptismal sin as an exercise in humility ;
nor do we deal with the various explanations justifying the practice
of submitting again for absolution sins in general already absolved.
But assuming, as we must do, that post-baptismal sin already remitted
is valid though not necessary matter for a fresh absolution, we have
to examine whether the same may be said of pre-baptismal sin.
i. The manuals do not, except by implication, deal with this
point, but a complete and satisfactory account may be seen in
Cellationes Brugcnses, 1927, p. 115, in which Canon V. Coucke shows
that, though not de fide, it is quite certain that pre-baptismal sin is
neither necessary nor free valid matter for absolution in the sacra
ment of Penance. It cannot be denied, indeed, that God could have
given to the priesthood, had He so wished, power to remit sins
committed by the unbaptised, but actually He has ordained
membership of the Church as a necessary means for salvation, from
which it follows that the power of remitting sin can be exercised
only upon those who arc subjects of the Church by Baptism, which
is the gate opening upon all the other sacraments. /X penitent, though
at the moment a member of the Church, who desires freely to submit
to the power of the keys sins committed before membership, is
presenting matter for judgement to a tribunal which is not com
petent to deal with it. “Why should I claim jurisdiction over those
who arc without? No, it is for you to pass judgement within your
own number, leaving God to judge those who are without.”1
ii. Priimmcr in no way departs from this teaching, for in the
context he is dealing with necessary matter, and is explaining the
mode by which pre-baptismal sins arc eventually remitted when
baptism has been unfruitfully received owing to a conscious obex’.
the sin of sacrilegiously receiving baptism must be confessed and
I Cor. v, 12, 13 (Knox),
Priests' Problems
168
Q. 126
absolved, whereupon the reviviscence of baptismal grace causes the
remission of pre-baptismal sin. By stating that there is no strict
obligation to confess the latter, an unwary reader might conclude
that their confession is free. The following sentence, however, makes
it clear that these sins are not even free valid matter: “Ratio est
quia ista peccata commissa sunt eo tempore quo Ecclesia nondum
habuit in hunc peccatorem iurisdictionem atque potestatem absol
vendi.” In the following §322 the usual teaching is given about fret
matter, namely that it is restricted to post-baptismal sin whether
mortal or venial.
126.
CONFESSION ΛΤ THE RECEPTION OF CONVERTS
The prospect of having to make a full confession of the mortal sins of his
past life is so disturbing for the average convert that the reception ceremony
is a time offear and anxiety rather than ofjoy and gratitude, kor this reason
many priests, I understand, allow the convert to make his confession up to
twenty-four hours before his reception and then defer the giving ofpenance and
absolution until after the absolution from censure during the ceremony. I shall
be glad to know whether this practice is lawful in the view of canonists.
Ordo Administrandi, III, iv, 3 : Post receptionem in sinum Ecclesiae,
si nco-convcrsus vel non fuit baptizatus, vel rebaptizatus fuit sub
conditione, tenetur peragere confessionem integram peccatorum
praeteritae vitae, et danda illi est absolutio modo sive absoluto sive
conditional!, prout Baptismus vel non fuit iteratus vel iteratus fuit
sub conditione, uti constat ex Declaratione S.C. Inquis., 17 Dec.,
1868 (Cf. Cone. I. Weslmon., Decr. xvi, n. 8, et Cone. IV, Append. 18.)
Potest etiam confiteri ante Baptismum sub conditione iterandum,
et deinde post Baptismum, repetita summaria confessione, sub
conditione absolvi, ut declaravit S.C. Inquis., mense Nov. 1875.
i. In some parts of the Church, but not in this country, no
confession at all is required from a convert who is baptised con
ditionally at his reception, for if the convert’s first baptism is
doubtful it must follow that the obligation to confess is also doubtful,
which means in practice on probabilistic principles that there is no
obligation.1 In this country the obligation to confess is certain from
the direction of the Ordo Administrandi and from the documents there
referred to. But, unfortunately perhaps in a liturgical rite, an
alternative procedure is permissible: the confession may either
precede or follow the conditional baptism. We believe the more
1 The Clergy Reeietu, 19.14, XXIV, p. 82.
Q. 127
Penance
169
usual practice is for it to precede, since the oral confession will
assure the requisite attrition for a fruitful baptism.
ii. Assuming it precedes conditional baptism the rubric of the
Ordo Administrandi itself sanctions an interval between confession and
sacramental absolution, and the commentator on whom we all rely
in these matters observes : “ The evening before, or at any other
convenient time, the convert makes his Confession to the priest, and
is by him urged to make an act of contrition, in preparation for the
Sacraments of Baptism and Penance which he is going to receive.”1
Therefore the suggestion of our correspondent is quite permissible,
if the convert finds it easier that way, provided of course that the
priest who heard the confession the day before also gives sacramental
absolution on the following day. He remembers the sins confessed,
the penitent accuses himself again in a general way, and having at
least attrition receives absolution. There is, in fact, nothing about
this procedure which applies uniquely to the confession of a convert
at the time of his reception into the Church : it could be used in any
confession, except that there is usually no reason why absolution
should be deferred.
I27. CONFESSION IN A FOREIGN LANGUAGE
What are the obligations of a penitent subsequent to a confession made to a
priest who, being ignorant of the language used, could form no judgement
about the sins confessed?
We will assume that the penitent has at least attrition, and also
that he is in good faith, by which is meant in this connexion that the
penitent cannot speak the confessor’s language, and that he has not
expressly chosen a foreigner when a priest speaking his own tongue
could easily be approached.
The situation is then almost exactly similar to that of a penitent
who has received a general absolution : the principle that all postbaptismal mortal sins must be submitted in their number and species
for direct absolution requires him, when he can conveniently do so,
to confess again to a priest who understands what he is saying; or in
the event of the confessor understanding one sin only among the
many confessed, he must confess again the sins which have not been
understood. The question is discussed by the authors s.v. integritas
materialis, e.g. Noldin, De Sacramentis, §284, and a good summary of
the point is in Collationes Brugenses, 1939, P·
· Ccrte confcssarius
nihil distincte intellexit, sed tamen cognovit poenitentem se accusare
1 Dunne, The Ritual Explained, p. 36.
i
170
Priests' Problems
Q. 128
de peccatis commissis cumque de illis dolere ac absolutionem petere.
Igitur confessio, coram tali confcssario instituta, aequivalebat con
fessioni omnino genericae, quae in quibusdam adiunctis, nempe si
alia sit moraliter impossibilis, sufficit ut confcssarius valide et licite
absolvat. Peccata sic accusata non directe sed indirecte remissa sunt,
i.e. . . . absolutione data poenitenti bene disposito huius animae
infunditur gratia sanctificans, quacum necessario connectitur
remissio cuiusvis peccati mortalis. Peccata mortalia sic accusata,
utpote indirecte tantum remissa, iure divino manent in confessione
distincte accusanda, et quidem ut patet, sacerdoti linguam
poenitentis intelligcnti.”
If the situation can be foreseen, the confessor must, for his part,
do what is possible to understand the confession : a simple method
is to have one of the small manuals prepared for this purpose with
lists of sins in parallel columns, printed in different languages, to
which the penitent may point. Pustet publishes one by Fr M.
Krebs; there is another prepared by Fr M. D’Herbigny in sixteen
languages.
128. PERFECT CONTRITION
The opinion is now widely held that contrition motived by a love of God
based on gratitude for the divine benefits is “ perfect". The opinion has very
much in its favour, but in given circumstances an act of perfect contrition if
necessary for salvation and it is the common teaching that we may not follow
probable opinions in matters of this kind. May we, therefore, teach thefaithful,
without reservations, that this motive suffices for perfect contrition?
It is not possible, in the space at our disposal, to enter upon the
controversies about the nature of perfect contrition. Some writers are
more exacting than others in defining its motive, but there is a
respectable number of authorities for the view that a love of God
based on gratitude suffices. We cannot, however, find anyone who
relates this view to the accepted teaching, denying the use of
probable opinions in matters which are necessary for salvation.
i. Ί hose in favour of the sufficiency of a love of God based on
gratitude could rightly maintain that this teaching is not always
and necessarily related to an act necessary necessitate medii for salva
tion: it could be followed, for example, before celebrating Mass on
occasions when a priest who believes himself to be in a state of
mortal sin cannot get to confession and is yet bound to celebrate.
Moreover, the defenders of this view may think, with some reason,
that it is more probable than the stricter view, in which case the
Penance
Q. 129
171
common teaching about excluding probable opinions in matters
pertaining to eternal salvation scarcely applies: degrees of prob
ability, based on evidence intrinsic or extrinsic to the matter under
discussion, obviously do not tally with the degrees of safety: thus it
is more safe to elect to walk ten miles to fulfil the Sunday obligation,
but the view that one is bound to do so is not more probable. It
should also be remembered that the motive of gratitude can with
little difficulty be elevated to a motive based on the love of God for
His own sake. Why has God conferred these benefits on me?
Clearly not because of my own merits and perfections ; and therefore
He has done it because He is good in Himself.
ii. If we assume, however, for the sake of the argument, that the
sufficiency of a motive based on gratitude is merely probable, it
must follow, we think, that die faithful should be instructed that,
in danger of death, an act of contrition should be based on the
highest possible motives, and that they should not then rely on the
sufficiency of an act based on the motive of gratitude merely. This
teaching, it might happen, will not be put into practice by individuals
who arc unable to rise to anything beyond a motive of gratitude ; in
their case, it would seem, their act of contrition will suffice for
justification on the principle facienti quod in se est Deus non denegat
gratiam.
W’c have not thought it ncccssaiy to give references to writers on
the subject, whose number is legion, but our readers arc referred to
two long replies in the Irish Ecclesiastical Record, 1943, LXII, p. 265,
and 1944, LXII!, p. 337, in which the sufficiency of a motive
based on gratitude is ably defended by Dr McCarthy.
129.
CONFESSIONAL FOR MEN
The church having only one confessional box, it is proposed to accommodate
one of the fathers during a mission in a secluded corner of the building, for
the purpose of receiving men's confessions. Is this in order?
Canon 908: Sacramcntalis confessionis proprius locus est ecclesia
vel oratorium publicum aut semi-publicum.
Canon 910, §1 : Feminarum confessiones extra sedem confcssionalem ne audiantur, nisi ex causa infirmitatis. . . .
§2 : Confessiones virorum etiam in aedibus privatis excipere licet.
Code Commission, 24 November, 1920: Utrum canon 909, §2 : sedes
confessionalis crate fixa ac tenuiter perforata inter poenitentem et confessarium
sii instructa, pro mulieribus tantum, an generaliter pro poenitentibus
uti forma propria audiendi confessiones in ecclesiis et publicis
172
Priests' Problems
Q. 129
oratoriis sit servanda. Resp. Negative ad primam partem, affirmative
ad secundam, firmo tamen praescripto canonis 910, §2.
The Code Commission's reply caused some surprise, since in Rome
it is not customary to insist on the use of a confessional for receiving
the confessions of men,1 and even Maroto has some difficulty in
harmonising it with canon 910, which by implication seems to assert
that it is not necessary' for male penitents to use the confessional
box.2 In this country’ the reply is in perfect accordance with our
customs.
The reply is not at variance with the canons, since the proper
place for all confessions, from canon 908, is a church or oratory;
but from canon 910, §2, men’s confessions may lawfully be heard in
private houses or rooms, which is the common practice with us in
colleges and seminaries : this must be regarded as an exception to
the rule of canon 908, and it is assumed that there is always a reason,
not necessarily a grave one, for not using the church or oratory.
What the Code Commission asserts is that when confessions are heard
in a church or oratory, men as well as women should use the
confessional box as a general rule—generaliter. This obviously permits
exceptions, for just reasons and saving local law to the contrary, as
in the circumstances mentioned in the above question ; in any case
the official reply is universally held not to bind sub gravi.2
1 Periodica, 1921, p. 256, V.
3 Diet, Droit Canon., IV, col. 65.
2 Apollinaris, 1928, p. 407.
XL INDULGENCES
130.
“en ego”:
receiving holy communion
Applying the general principles of canons 931 and 933, does it not follow
that a plenary indulgence may be gained daily by reciting “En Ego” each
dayfor a week provided Holy Communion is received once during the week ?
Canon 931, §1 : Ad quaslibet indulgentias lucrandas confessio
forte requisita peragi potest intra octo dies qui immediate praecedunt
diem cui indulgentia fuit affixa; communio autem in pervigilio
eiusdem diei; utraque vero etiam intra subsequentem totam
octavam.
Canon 933: Uni eidemque rei vel loco plures ex variis titulis
adnecti possunt indulgentiae ; sed uno eodemque opere, cui ex variis
titulis indulgentiae adnexae sint, non possunt plures acquiri indul
gentiae, nisi opus requisitum sit confessio vel communio, aut nisi
aliud expresse cautum fuerit.
Enchiridion Indulgentiarum, n. 201 : Fidelibus, supra relatam ora
tionem coram lesu Christi Crucifixi imagine pie recitantibus,
conceditur. . . . Indulgentia plenaria, si praeterea sacramentalem
confessionem instituerint, caelestem Panem sumpserint ct ad mentem
Summi Pontificis oraverint.
S. Poenit., 13 March, 1928 (private); Periodica, 1928, p. 74: . . .
orator petit an sufficiat, ad lucrandam dictam indulgentiam plen
ariam, Communio facta in pervigilio vel intra subsequentem totam
octavam, ad normam Can. 931 C.I.C. Resp. . . . Non spectare, et
rem proponendam esse ad Commissionem pro authentica inter
pretatione canonum C.I.C.
i. The En Ego prayer, to which a plenary indulgence was at
tached in 1858, was at one time the only pious exercise of its kind so
enriched with a daily plenary indulgence. We have, now, a prayer
to Christ the King (n. 272), and the recitation of a third part of the
Rosary (n. 395 (c)) before the Blessed Sacrament, by which a
plenary indulgence may be gained daily. The reply of the Sacred
Penitentiary, 13 March, 1928, related to this recitation of the
Rosary, the question put being on the meaning of the words “iuxta
morem”, omitted in n. 395, which qualified reception of Holy
Communion in the original rescript dated 4 September, 1927.
Rather surprisingly the Sacred Penitentiary declined to elucidate
7+
173
174
Priests' Problems
Q. 130
their meaning, and referred the questioner to the Code Commission
since, apparently, the doubt was concerned with the two canons
931 and 933. We have never seen the Commission’s answer, and
perhaps the question was not put. But it is clear that the solution
will apply equally to the recitation of En Ego.
ii. An affirmative answer was given by Vermeersch in Periodica,
1928, p. 75: “Et cum c. 933 confessionem et s. communionem
excipiat ab operibus quibus, nisi repetantur, plures indulgentiae
acquiri, variis titulis, nequeant, inde diximus cotidie memoratam
indulgentiam prostare ei qui singulis hebdomadis ad s. synaxim
accedat, quotiescumque tertiam partem Rosarii coram Sanctissimo
recitaverit.” This solution may be accepted, if desired, and applied
to the prayer En Ego. Owing to this prayer being printed, for nearly
a century, amongst devotions after Holy Communion, we have
grown accustomed to the notion that, to gain the indulgence, it
must be recited immediately after receiving this sacrament, and
many think it must be said before they leave the church. Actually,
as is evident, the condition of receiving the sacraments is practically
identical with the condition attached to many other indulgenced
devotions.
The solution favoured by Vermeersch was also given, indepen
dently, by a writer in The Ecclesiastical Review, August, 1941,
p. 138. The usual commentators on the Code and the writers on
indulgences consulted do not advert to the point, with one important
exception.
iii. A negative answer is favoured by De Angelis, an official of
the Sacred Penitentiary, in De Indulgentiis, §81, and though the
writer is careful to explain in the preface that his office adds nothing
to the authority of his treatise (agitur enim de libera dissertatione
quam omnes fas est participare), one cannot help thinking that his
opinion will eventually prove to be correct: “Putamus igitur quod
Communio utique fieri potest in pervigilio diei cui indulgentia fuit
affixa et per totam subsequentem octavam, sed tot requiruntur
Communiones quot sunt dies quibus una vel plures indulgentiae
acquiri possunt.”
The reason for this opinion is, of course, that the opposite view
appears to contradict the well-known rule of canon 931, §3, declaring
a daily (or almost daily) Communion to suffice for obtaining all
indulgences requiring the reception of the sacraments as a condition.1
It would appear that the opinion given in (ii) substitutes weekly
Communion for the (almost) daily Communion required in canon
93 b §3·
1 Cf. The Clergy Review, 193g, XVII, p. 69.
Q. i3j
Indulgences
175
De Angelis interprets canon 933 to mean that many indulgences
obtainable on the same day may be gained by receiving Holy Com
munion once, whenever its reception is a condition. But this
meaning, though likely, is not certain, and we must await a decision
of the Code Commission on the point.
131. INDULGENCES
ATTACHED
TO
BREVIARY
RECITATION
Can a priest gain indulgences simply by reciting his office? If so how does
this harmonise with the rule which, in principle, denies indulgences to works
already of obligation ?
Canon 932 : Opere, cui praestando quis lege aut precepto
obligatur, nequit indulgentia lucrifieri, nisi in eiusdem concessione
aliud expresse dicatur. . . .
i. The indulgences granted at various times during the last few
years are contained in nn. 731 and 736 of the 1950 Enchiridion
Indulgentiarum', this book, we understand, has already been sup
planted by another, in which possibly some modifications of these
indulgences are contained.1
There is a plenary indulgence on the usual conditions (confession,
Communion and prayer for the Pope’s intentions) for reciting
devoutly the day’s divine office before the Blessed Sacrament,
whether exposed or not; and five hundred days for reciting each
canonical hour. The indulgence may also be gained by those in
major orders whose obligation has been commuted into the
recitation of some prayers other than the breviary office.
Granted originally in 1932 to those in major orders the indulgences
were extended in 1937 to tonsured clerics, novices and students of
religious institutes, whether they were bound or not, on some title
or other, to the recitation of the divine office.
ii. The rule of canon 932 is not affected by the above concessions,
though there are some other recent indulgences which do seem to
be in conflict with it. For the indulgence is granted precisely in
relation to the circumstance of place—before the Blessed Sacrament
—which is not of obligation.
Similarly the indulgences granted for the prayer Aperi, Domine and
Sacrosanctae,2 before and after the office is recited, do not conflict
with the rule, since they are not part of the office and one is not bound
to recite them.
1 The 1952 edition makes no change (Editor).
2 “The induit and indulgences granted for the saying of the prayer Sacrosanclat
are (now) attached to the final antiphon’ (S. Rit. Congr., Cum nostra, IV , 4).
Priests" Problems
176
132.
QQ. 132, 133
INDULGENCE AT CONSECRATION OF ALTAR
Is the indulgence providedfor in canon 1166, §3, granted in the case of an
altar being consecrated by a specially delegated priest ? What formula is to
be used?
Canon 1166, §3: Cum consecratur ecclesia vel altare, Episcopus
consecrator, licet iurisdictione in territorio careat, indulgentiam
concedit unius anni ecclesiam vel altare visitantibus in ipsa
consecrationis die. . . .
Quinquennial Faculties, formula III, ex S.R.C. Deputandi Vicarium
Generalem vel alium sacerdotem, in aliqua ecclesiastica dignitate
constitutum, ad altaria fixa et portatilia consecranda, servato ritu et
forma Pontificalis Romani.
S.R.C., 26 October, 1931 (private); Apollinaris, 1936, p. 186. An
delegatio sacerdotis ad altare fixum consecrandum secundum Ritum
Pontificalis Romani, data ex facultate quinquenniali, etiam con
tineat delegationem validam ad Indulgentiam concedendam ... et
quatenus negative, an ipse Episcopus Ordinarius loci, qui sacerdotem
delegat . . . intelligi possit tamquam Episcopus consecrator . ..
Resp. Indulgentiae in consecratione altaris conceduntur ab Episcopo
qui altare consecrat, vel consecrare deberet, et tantum promul
gantur ab ipso delegato.
Inasmuch as a bishop consecrator even though not the Ordinary
of the place where the altar is being consecrated, grants the in
dulgence, there was some reason for supposing that a priest lawfully
delegated to consecrate was also lawfully delegated to grant the
indulgence. The Sacred Congregation, however, makes it quite
clear that the priest consecrator merely announces that the in
dulgence is granted by the local Ordinary.
The formula is that used at a Pontifical Mass as read by the
assistant priest, but modified as follows: “N.N. . . . dat et concedit
omnibus Christi fidelibus altare hoc visitantibus hodie unum annum
et in dic anniversario consecrationis huiusmodi centum dies dc vera
indulgentia in forma Ecclesiae consueta. Rogate Deum. . . ,”1 The
formula may be read in the vernacular.
133.
RE-ERECTION OF STATIONS
In a certain church the Stations of the Cross consist of large marble or stone
carvings with the cross fixed in the centre of each. In recent years the position
1 Nabuco, Pontipcalu Romani Expositio, II, p. 147.
q.
Indulgences
J34
177
of most of these Stations has been altered more than once: does this invalidate
their canonical erection and consequently the obtaining of indulgences
attached?
S.C.Indulg., 22 August, 1842; Fontes, n. 5028.4. An mutatio
crucium de loco in locum in eadem ecclesia secum importet annihilationem indulgentiarum Viae Crucis adnexarum? Resp.
Negative.
The rules about erecting the Stations, which used to be rather
intricate, were simplified 12 March, 1938,1 but all the other decisions
of the Holy See about various details remain unchanged. Amongst
them is the ruling that the crosses must be made of wood,2 the
erection being otherwise invalid ; pictures or carvings, though usual,
arc unnecessary and may be of any material provided the crosses
arc of wood. Everything, therefore, which is settled about the
Stations refers always to these wooden crosses.
If the greater part of the wooden crosses has been removed for
the purpose of renovation or for any other reason, the indulgences
cannot be gained during their absence, but no renewal ceremony
of erection is necessary on their replacement.3 Moreover, within
the building in which they have been once validly erected, the
crosses may be re-arranged in position as often as desired. Hence
the principle is that the indulgence is attached to the wooden crosses,
and it continues provided the greater number of the crosses remains
somewhere within the church in which they were first erected.
134.
STATIONS’ CRUCIFIX — COLLECTION
FOR THE HOLY PLACES
A question has arisen about the Collection for the Holy Places. In addition
to certain indulgences, the parish priest who arranged this collection in his
church was granted the faculty of blessing crucifixes for the Stations1 indul
gence obtainable by persons prevented from making the Stations in the usual
way. Could it be held that, notwithstanding the general withdrawal of such
faculties in 1933, this particular one remains? If not, how does one apply for
it?
i. The faculty as described was granted by the Holy Sec, 26 June,
1894, confirming the previous grant of 8 June, 1887. The text is not
in the usual collections but is described by Bcringer, Les Indulgences
(1925), I, §801, with a reference to Analect. Ord. Min., XIII, 131.
1 The Clergy Review, 1938, XIV, p. 550.
Op. cit., 1936, XII, p. 409.
*30 January, 1839; Fontes n. 5011.5.
178
Priests' Problems
Q. 135
The important decree1 which withdrew such faculties from
i April, 1933, was not retrospective. Priests already in possession of
this and other faculties, which used to be obtained easily by joining
some pious association, retain them; on the other hand, priests
joining such associations after 1 April, 1933, obtain only very
reduced faculties, excluding amongst others the faculty of blessing
a Stations’ Crucifix.
ii. For the view that the faculty is still obtained by arranging the
Holy Places Collection, it could be argued that it was not granted
to those joining a pious association but to parish priests performing
a specified pious work, and that it was given moreover in perpetuity.
For the opposite view, it may be claimed that the intention under
lying the decree of withdrawal in 1933 covers this faculty also, and
it could also be held that it was actually attached to a pious associa
tion, namely, the Franciscan “Pium Opus a Terra Sancta”; and
that, accordingly, the faculty ceases at least in regard to parish
priests not attached to this pious work before 1 April, 1933.
A private reply of the Sacred Penitentiary, 9 April, 1940,2 is as
follows: “luxta hodiernam praxim parochi, de quibus in precibus,
ad hoc S. Tribunal recurrere debent ut facultate, de qua supra, uti
possint.” The decision neither states that the faculty has ceased, nor
that it is still existing, but that recourse should be had to the Sacred
Penitentiary before the faculty can be used. The question discussed
in the previous paragraph seems therefore to be still alive, since it is
not clear whether “possint” means for the valid or the merely lawful
use of the faculty. However, for all practical purposes, one must have
recourse to the Holy See.
iii. The formula of application given by the most recent writer
on indulgences is as follows:3 “Beatissime Pater, N.N. sacerdos
dioecesis . . . (vel Ordinis seu Congretationis . . .) ad pedes Sanctitatis
Tuae provolutus, humillime petit facultatem benedicendi crucifixos
ad lucrandas sacrae Viae Crucis Indulgentias pro legitime impeditis
a visitandis eiusdem Viae Crucis stationibus ad normam Sanctae
Sedis ad rem concessionum. Et Deus, etc.” The petition must be
sent to Rome through one’s own Ordinary together with his own
recommendation.
135· STATIONS OF THE CROSS: ROSARY
May the indulgences attached to the Stations be gained by using a rosary
offourteen medals, each containing a representation of the Station ?
1 S. Penitentiary, 20 March, 1933.
3 Ephemerides Liturgicne, 1940, p. 92.
3 De Angelis, De Indulgentiis (1946), p. 318.
Q. 135
Indulgences
179
5. Off., 24 July, 1912; A.A.S., IV, p. 529: Cum igitur per huiusmodi concessionem (i.c. crucifixum ad hoc benedictum) omnium
fidelium utilitati satis consultum fuerit . . . consulendum Sanctis
simo decreverunt, ut quascunque alias, praeter mox memoratam,
hac super re concessiones, nominatim vero quae Coronas, quas
vocant, Viae Crucis respiciunt, revocare, abrogare ac penitus abolere
dignaretur: insimul declarando, facultates omnes Coronas supradictas hunc in effectum benedicendi, sacerdotibus quibuslibet, tam
saecularibus, quam regularibus, in praestantioribus etiam dignita
tibus constitutis, hucusque quomodocumque impertitas, statim ab
huius decreti promulgatione, nullius amplius esse roboris. Et
sequenti feria V. . . .
S. Poenit., 14 December, 1917, ad. 2; A.A.S., X, p. 30: Utrum
abrogatio coronarum, quas vocant Viae Crucis, et cuiusvis conces
sionis, quae eas respiciat, se extendat etiam ad illas Viae Cnicis
coronas, quae ante abrogationis Decretum fuerant legitime bene
dictae, indulgentiis ditatae et fidelibus iam distributae? Resp.
Affirmative.
i. The normal method of gaining the indulgences attached to
the Stations of the Cross is by performing the devotion before the
wooden crosses, properly erected by one who has the faculty, as
determined by the Sacred Penitentiary, 12 March, 1938, a decree
which simplified the previously existing rules.1
ii. For those lawfully impeded from performing the devotion in
the normal way, the indulgences arc obtainable by the use of a
crucifix, blessed for the purpose by one who has the faculty, as
summarised in Enchiridion Indulgentiarum, n. 194, a. This method
requires the recitation twenty times of Pater Ave and Gloria, once for
each station, five times in honour of the Sacred Wounds, and once
for die Pope’s intention.
iii. The sick who arc impeded from performing the devotion,
even in the form given under (ii), may gain the indulgences by
kissing, or merely gazing upon, a crucifix blessed for the purpose,
as explained in Enchiridion Indulgentiarum, n. 194, b.2
iv. All other methods, though authorised at some former time,
are now abrogated and the abrogation is retrospective, a ruling
which applies specifically to the Stations rosary. There is nothing
objectionable about the article—quite the contrary—and the beads
could assist a person in saying the requisite prayers as in (ii),
provided a specially blessed crucifix was also used, if it is desired
10 gain the indulgences. The article is not clearly condemned by
> The Clergy Review, 1939, XVII, p. 544> and 1942, XXII, p. 128.
s The Clergy Review, 1931, II, ρ· θ4» antl *943» ΧΧΠ*» P· 5b7·
Priests' Problems
180
Q· Ι3θ
the above decrees, but it would seem better not to encourage its
manufacture lest persons should wrongly imagine that the indul
gences may be gained by using it.
136.
CROZIER INDULGENCES
What precisely is the Crozier indulgence, and how is the faculty for
granting it obtained?
S.C. Indulg., 15 March, 1884 (Supplment to Ferraris, Bibliotheca,
IX, p. 262) :
i. Utrum Indulgentia quingentorum dierum quoties in Rosariis
per Crucigcros benedictis oratio dominica, vel salutatio angelica
devote dicatur revocanda sit :
(a) vel ut apocrypha, seu ratione dubiae authenticitatis ;
(ά) vel uti indiscreta, seu ratione indiscretae concessionis;
(c) vel ob alias extrinsecas rationes ?
Et quatenus negative ad omnes primi dubii partes:
ii. Utrum eadem Indulgentia rata habenda sit et confirmanda,
vel potius dicenda sit ratihabitione et confirmatione non indigere?
iii. Utrum pro acquirenda eadem Indulgentia necesse sit
integrum Rosarium devote recitare?
iv. Utrum expediat aliis etiam Sacerdotibus concedi privilegium
benedicendi Rosaria cum applicatione Indulgentiae quo gaudent
Sodales Crucigeri?
Resp. Ad i. Negative in omnibus. Ad ii. Non indigere. Ad iii and
iv. Negative.
The indulgence was first granted by Leo X, 20 August, 1516,
to the Master-General of the Canons Regular of St Augustine of
the Order of the Cross, and the decree given above, which is the
principal document now quoted by the authors, restricted it to the
fathers of that Order. The rule, however, has since become relaxed
and the faculty may be obtained, like any other, from the Sacred
Penitentiary. It used to be obtainable by joining some pious
association, but the decree Consilium suum persequens, 20 March, 1933,
abolished this very attractive and simple way of obtaining faculties,
as from 1 April, 1933, the date of its promulgation; priests joining
pious associations after that date must apply to the Holy See, through
their own Ordinaries, for whatever special faculties they may desire;
priests enjoying such faculties before that date retain them.1
The special character of this indulgence, which may be attached
1 Cf. The Clergy Review, 1933, VI, pp. 73 and 165; 1934, VII, pp. 70 and 434;
1937, XIII, p. 192 ; 1940, XIX, p. 374.
Indulgences
Q. ’37
181
to the ordinary rosary, consists in the grant of 500 days indulgence
for the separate recitation of a Paler or Ave, without reciting the
whole rosary or even a decade, and without meditating on the
mysteries. Moreover, from S.C. Indulg., 12 June, 1907,1 the Crozier
indulgence may be gained cumulatively with the Dominican whilst
reciting the rosary on beads blessed for both purposes, a special
favour which is an exception to the general rule of canon 933.
The faculty for blessing beads with this indulgence usually permits
the blessing unico signo crucis, without a specified formula and without
the use of holy water.
I37.
BRIGITTINE INDULGENCE
What precisely is this indulgence and how is the faculty for imparting it
obtained? Why is it not mentioned in “Enchiridion Indulgentiarum”?
Only those indulgenced prayers are listed in Enchiridion Indul
gentiarum for which there is not required either the blessing of some
pious object by a priest enjoying the faculty, or a visit to some
special pious locality, or inscription in some pious association. Books
entitled Raccolta, circulating before the first edition in 1929 of the
official Preces et Pia Opera,2 used to give a more or less complete list
of all indulgences. At the present time, for current and authentic
indulgences other than those in Enchiridion Indulgentiarum, one must
consult special pamphlets or leaflets, or else refer to the larger
commentaries on indulgences in general, such as those by Beringer
or Gougnard.3
The Brigittinc rosary, traced to St Brigit of Sweden as its origina
tor, consists of six decades with three additional beads; as noted in
The Clergy Review, 1946, XXVI, p. 44, this is very likely the explana
tion of the three additional beads found on all rosaries at the present
time. T he devotion consists of reciting for each decade a Pater, an
Ave ten times and a Credo, with an additional Pater at the end com
memorating the seven dolours, and an additional triple Ave com
memorating the traditional sixty-three years of Our Lady’s life.
Meditation on certain mysteries is not required.
From Leo X, 10 July, 1515, to Leo XIII, 8 December, 1897,
many papal rescripts have enriched this devotion with ample in
dulgences, including a plenary indulgence obtainable on certain
days by fulfilling the usual conditions, and too days for each Pater,
1 Periodica, III, p. 350.
2 Now called Enchiridion Indulgentiarum.
’For the Brigittine indulgence cf. Beringer, Les Indulgences (1925), I, p. 457;
Gougnard, De Indulgentiis (1933), p. 226; Schrevcl-Legrand, Florilegium (1933),
p. 226 ; Collationes Brugenses, 1928, p. 216.
7*
182
Priests' Problems
Q. 138
Ave and Credo. Unlike the Crozier indulgence,1 the one for each
bead cannot be obtained, in principle, except by having the inten
tion at least of reciting the whole rosaiy.
The faculty of blessing these rosaries, originally granted to an
Order founded by St Brigit which is now extinct, is proper to the
Canons Regular of the Lateran. It may no longer be obtained by
joining some pious association, but must be requested by secular
priests through their Ordinary’ from the Sacred Penitentiary.2
Though a proper form of blessing exists in the current Roman
Ritual, n. 39, among the blessings proper to religious Institutes, it
may be given by those who obtain the faculty by making a simple
sign of the Cross.
138.
ROSARY RINGS
Was there a faculty given during the war permitting a rosary ring to be
indulgenced like any ordinary set of beads? May the Apostolic Indulgences
be attached to this pious article ?
S.Poenit., 22 May, 1940; Ephemerides Liturgicae, lus ct Praxis, 1940,
p. 93: Utrum liceat christifidelibus, in recitatione SSmi Rosarii
B.V.M., uti peculiari parva coronula ad modum anuli confecta,
quin Indulgentias, memoratae recitationi adnexas, amittant. Resp.
Negative.
21 June, 1918; De Angelis, De Indulgentiis, §225, e: Possuntnc
applicari indulgentiae SS. Rosarii armillis metallicis {vulgo braccialctti), quibus coronula quinque decadum cum crucifixo, item
metallica, ita solide applicatur, ut immobilis permaneat, apta
nihilominus sit usui cui destinatur? Resp. Permitti benedictionem
signi supra descripti, cum applicatione indulgentiarum Apostolicarum per sacerdotes ad id facultate praeditos, exclusis tamen iis,
quae pro recitatione Rosarii concessae fuerunt.
The details about indulgences, especially when attached to pious
objects, are at present somewhat congested, and doubts of all kinds
are constantly arising. Subject to some more authoritative informa
tion being obtained, we suggest the following solution :
i. The indulgences obtainable by reciting the rosary, as given in
Enchiridion Indulgentiarum, n. 395, do not require any beads at all,
and there is no reason why the faithful should not use the rosary
ring or any other contrivance as an aid to counting. In addition to
these indulgences, further ones arc granted if a properly blessed set
1 Cf. 77i/ Cfcrgy Review, 1946, XXVI, p. 214.
2 5. Poenit., 20 March, 1933; The Clergy Review, 1946, XXVI, p. 316.
«
Indulgences
Q. 139
183
of beads is used for this devotion, as note 2 of n. 395 reminds us. All
variations and changes in the form of these rosaries, for example
the use of medals instead of beads, have been consistently rejected
by the Holy See.1 It is certain that the ring or the bracelet, though
an effective help in counting, is not permitted as a substitute for
the accustomed type of rosary to which indulgences may be attached
additional to those granted in n. 395. If we are to say more than this
and maintain that the article itself is prohibited even as an aid to
counting, it could only be because it is a devotional novelty coming
within the prohibition of the Holy Office, 26 May, 1937.2 This is,
in our view, a harsh and unwarranted conclusion.
ii. What are known as Apostolic Indulgences2 are those obtainable
by possessing a pious object blessed by the Pope or his delegate.
The rosary bracelet comes within this definition and it would seem
that the rosary' ring is not excluded, since it could contain a small
medal and thus come within the Holy See’s description of “res
apta” for the Apostolic Indulgences, namely “tantummodo cor
onae, rosaria, cruces, crucifixi, parvae statuae, numismata, dum
modo non sint ex stanno, plumbo, vitro conflato ac vacuo aliave
simili materia, quae facile confringi vel consumi potest”. Since,
however, the special additional rosary indulgences are not obtain
able by the possession of the bracelet, a fortiori the same must be
said of the ring.
iii. It is possible that some special concession was granted for
certain categories of the faithful during the war, permitting the
rosary' ring to be blessed with the additional indulgences which
normally are excluded. We can find no reference to the subject in
the faculties enjoyed by army chaplains and others, and the con
cession in any case would very likely be restricted to those on active
service during the war.
139.
PAPAL BLESSING OF SACRED ARTICLES
At papal audiences the Holy Father is accustomed to bless crucifixes,
rosaries and any other pious objects presented by the faithful present. The
popular view is that the article is then indulgenced to the fullest possible
extent : thus a crucifix would have attached to it a plenary indulgence at the
hour of death and the persons using it would, in appropriate circumstances,
gain the indulgences attached to a “Stations” crucifix; a rosary would have
all and every kind of indulgence which it is possible to attach to rosaries by
ecclesiastics having the faculty. Is this correct?
1 The Clergy Review, 1941, XXL P· 3^’·
*Op. cit., 1937, XIII, p- 3’5·
3 Op. cit., 194.}, XXIV, p. 471.
Priests' Problems
184
Q· 14°
Canon 912: . . . Romanum Pontificem, cui totius spiritualis Ec
clesiae thesauri a Christo Domino commissa est dispensatio. . . .
Canon 239, §1.5 : . . . Cardinales . . . facultate gaudent . . .Bene
dicendi ubique, solo crucis signo, cum omnibus indulgentiis a
Sancta Sede concedi solitis, rosaria, aliasque coronas precatorias,
cruces, numismata, statuas, scapularia a Sede Apostolica probata....
S. Off., 12 June, 1913; A.A.S., V, p. 305. S.D.N. Pius div. prov.
Pp. X, in audientia R.P.D. Assessori supremae Congregationis
sancti Officii impertita, benigne declarare dignatus est, Indulgentias,
quas Ipse solet annectere crucibus, crucifixis, rosariis, coronis, ss.
numismatibus et parvis statuis, Sibi a fidelibus porrectis, illas
tantummodo esse intellegendas, quae in elencho, a sacra Congrega
tione Indulgentiarum die 28 Augusti 1903 edito, recensentur, quae
apostolicae nuncupantur; nisi expressis verbis significet, alias insuper
velle annectere.v.gr. S. Birgittae, vel Crucifigerorum, specifice ac
nominatim eas designando . . . M. Card. Rampolla.
The above explanation given by the Holy Office in 1913 precedes
the Code, and since we find therein that Cardinals possess de iure
the faculty of applying every kind of indulgence to pious articles,
which they are presumed to intend whenever they bless these
things, it might seem reasonable to suppose that the Holy Father
has a similar intention. We think, nevertheless, that the rule form
ulated by Pius X in 1913 is still operative, since it is reprinted by
Mgr De Angelis, an official of the Sacred Penitentiary, in his
treatise on Indulgences issued as a second edition in 1950. Clearly
the question is not what the Holy Father can do, for in the matter
of granting indulgences his power is unlimited, but what he intends
to do ; similarly Cardinals enjoy the faculty and can use it, but on
each occasion of its use the question is what they intend to do. The
“ Apostolic” indulgences referred to in the document are those which
it is customary for the Holy Father to announce shortly after his
election.1
140.
MISSIONARY UNION FACULTY---- APOSTOLIC
INDULGENCES
What is to be understood by the faculty, enjoyed by certain members of the
“Pia Unio Cleri pro Missionibus”, of blessing with a sign of the cross
certain pious objects and of applying to them the Apostolic Indulgences?
Facultas (dummodo adscriptus ad sacramentales confessiones
audiendas sit approbatus) benedicendi, extra Urbem, unico Crucis
1 For the current list of Pope Pius XII, cf.
1939, XXXI, p. 132.
Indulgences
185
Q. 140
signo, coronas, rosaria, cruces, crucifixos, numismata et parvas
statuas cum applicatione Indulgentiarum Apostolicarum.1
Nearly the whole legislation about indulgences is contained in
this question and we must be content with indicating the salient
points.
i. The “Pia Unio Cleri pro Missionibus” exists for the purpose of
encouraging a zealous interest amongst the clergy in foreign missions.
Cf. an article on the subject in The Clergy Review, 1939, XVII, p. 226 ;
also p. 264.
ii. In order to encourage recruiting of new members various
spiritual favours are granted, following a well-established practice
in these associations, and amongst these favours used to be included
for all members a faculty to bless certain objects and attach indul
gences to them, e.g. a Stations’ Crucifix. This faculty was, unhappily,
withdrawn by the Holy See from all Pious Associations, with effect
from i April, 1933; cf. The Clergy Review, 1946, XXVI, p. 316. But
the decree was not retrospective, and accordingly all members who
had joined before 1 April, 1933, retained these faculties, including
the one we are discussing. All other priests who desire faculties of
this kind must apply for them specifically through their own Ord
inaries, according to the decree which came into effect on 1 April,
1933. The Missionary Union, however, makes this application on
behalf of its members and obtains for them certain faculties,
including the one in question.
iii. The faculty of giving a blessing “unico signo crucis” means
that the priest possessing it need not employ the usual formula of
the Ritual in blessing some object, but may use instead a simple
sign of the cross ; this is a useful privilege, since the faithful often
produce objects to be blessed when the priest has not got the formula.
In our view, following the best authorities, this blessing should be
given with the words In nomine Patris, etc. Cf. The Clergy Review, toi l
XXIV, p. 469.
iv. The Apostolic indulgences are not, of course, all the papal
indulgences; they are the indulgences, plenary or partial, which
the Holy Father is accustomed to publish soon after his election,
and which are attached to the pious objects mentioned in the above
faculty; e.g. the indulgences for reciting the rosary are obtainable
by having in one’s possession a pious object, such as a medal,
blessed with the above faculty. The list of these indulgences granted
by the present Holy Father is in A.A.S., XXXI, 1939, p., 132, and
The Clergy Review, 1944, XXIV, p. 471.
1 A.A.S., XI, 1919, p. 20; The Clergy Review, 1943, XXIII, p. 43.
186
Priests' Problems
Q· Hi
I4I. MISSIONARY UNION FACULTIES---- CONFESSIONAL
JURISDICTION
Certain powers enjoyed by priest members are granted to priests approved
for hearing confessions. Does this mean that they may not validly be used in
places where the priest does not hold faculties for confession? Is it sufficient
to be approvedfor hearing the confessions of men only ?
Missionary Union Faculties, ad III. The Clergy Review, 1943, XXIII,
p. 42 : Facultas (dummodo adscriptus ad sacramentales confessiones
audiendas sit approbatus) benedicendi ac imponendi. . . .
Propaganda, 28 March, 1927; Periodica, 1928, p. 140: An sacerdos
adscriptus, extra etiam locum in quo ad sacramentales confessiones
audiendas approbatus est facultate cuius usui pracrequiritur iurisdictio uti possit? Resp. Nulla iurisdictio praerequiritur; solummodo
pro benedictionibus requiritur ut sacerdos approbatus sit ad sacramentales confessiones audiendas ; seu sit confessarius. Cum vero nulla
fiat distinctio circa diversa loca in quibus sacerdos sodalis Piae
Unionis adesse possit, haec circumstantia de diversitate locorum
non est attendenda. . . .
S. Paenit., 2 March, 1942; Ephemerides Liturgicae, 1942, p. 32:
Utrum clausula “dummodo sit adprobatus ad recipiendas sacramentales confessiones” quae invenitur in aliquibus facultatibus
applicandi indulgentias obiectis religiosis, intelligenda sit de sacer
dotibus tantum, qui ad recipiendas fidelium utriusque sexus confes
siones adprobati sint, an etiam de illis qui ad christifidelium unius
sexus confessiones recipiendas adprobati sint? Resp. Negative ad
primam partem; affirmative ad secundam.
i. Occasionally the use of some delegated power is certainly
limited to places where the priest enjoys confessional faculties:
examples of this may be seen in certain portions of the 1950 Jubilee
documents, e.g. “Dispensare possint, in foro conscientiae et sacramentali tantum circa visitationes quatuor Basilicarum . . ,”1; or a
rescript might contain a clause “audita prius sacramcntali confes
sione”; cf. also canons 1044, 1045 and 2254.
ii. There was some reason for supposing, from the words of the
formula, that confessional jurisdiction was required on the part of
priest members of the Missionary Union. The Propaganda reply
makes it clear that these words mean that the priest must be
qualified by enjoying confessional faculties somewhere; their pos
session assures a certain degree of knowledge and fitness, exactly
as the common law requires a doctorate or a licentiate for certain
1 A.AS., 1949, XLI, p. 344.
QQ. 142, 143
Indulgences
187
offices. In this country priests are usually approved for both sexes;
the reply of the Sacred Penitentiary declares, however, that a
limited approbation suffices.
142.
APOSTOLIC INDULGENCES DURING VACANCY
OF HOLY SEE
Those who have been members of the Missionary Union since before 1 April,
1933, have the faculty of applying to religious objects the Apostolic indul
gences, which it is customary for the Holy Father soon after his election to
promulgate. Does this faculty continue during the vacancy of the Holy See?
Canon 61 : Per Apostolicae Sedis aut dioecesis vacationem nullum
eiusdem Sedis Apostolicae aut Ordinarii rescriptum perimitur, nisi
aliud ex additis clausulis appareat. . . .
The difference between members before and after 1 April, 1933,
is that ampler faculties are enjoyed by the earlier members simply
by adscription to the Missionary Union,1 whereas after that date
the faculty must be communicated to them expressly.2 There is
reason behind the above query since what are known as “Apostolic”
indulgences are published afresh by each Pope ; this does not mean
that articles blessed with the faculty granted by a deceased Pope
lose the indulgence at his death, but there is some reason for doubting
whether the faculty of imparting them ceases until a new list is
promulgated by his successor, since these concessions have a special
personal relation to the Holy Father.
That the faculty docs not cease during the vacancy of the Holy
See is the common opinion based on the terms of canons 61, 66, §1,
70 and 207, §1, and it is supported by Mgr de Angelis, an official of
die Sacred Penitentiary,3 and by the interpretation officially given
by Propaganda respecting the faculties, including that of attaching
the Apostolic indulgences, granted to places within the jurisdiction
of that Congregation.
143.
RESCRIPTS CONCERNING INDULGENCES
I am informed that a tax is payable to the Sacred Penitentiary when
certain rescripts for obtaining indulgences are granted. If this is correct, does
it not confieI with the generally accepted principle that money payments never
enter into the matter of indulgences ?
i. If instead of the word “obtaining” we read “granting” our
correspondent’s information is substantially correct. One must
1 The Clergy Review, 1946, XXVI, p. 316.
2 Qu, ,40.
.
3 De Indulgentiis, §238.
Priests' Problems
188
Q. 144
remember, at the outset, that there is no principle forbidding parting
with money even when the indulgence, and not merely a rescript
for its granting, is desired. The abuses connected with the matter in
the past, especially on the eve of the Reformation in Germany, have
rightly caused a reaction against a practice which was a fertile
source of scandal. But examples could be cited in modern times of
almsgiving being included amongst the conditions for obtaining
certain indulgences, as for example an “extraordinary” Jubilee.
The condition may be commuted in the case of people who cannot
afford anything, but the authors continue to discuss various
casuistical questions arising from it.1
ii. Like other sections of the Roman Curia the Sacred Peni
tentiary needs income in order to function. The tradition, however,
is in principle to issue rescripts for the internal forum gratis, for
example the commutation of private vows reserved to the Holy See
in canon 1309, and it is likewise the tradition, which the experience
of many confessors substantiates, to reply to all petitions with the
utmost despatch : in normal times a week will usually suffice.
iii. Some writers explaining the practice of the Roman Curia
state that a rescript granting faculties, for example, to bless and
indulgence rosaries, is always gratis2 and it may be that this is the
rule at the present time. On the other hand the Constitution of
Pius XI Quae Divinitus, 25 March, 19353 promulgating a new set of
rules for the Sacred Penitentiary, definitely provided for taxation in
para. 10. Canestri, in his well-informed commentary, states: “In
sectione vero indulgentiarum sunt taxae pro rescriptis . . . Itaque
pro altari privilégiât©, pro facultate benedicendi res sacras adnectendo eis indulgentias, et similia, quaedam taxae hodie impositae
sunt ad subveniendum Sanctae Sedis necessitatibus pro dicastcriorum expensis.”4
144.
INDULGENCES NOT OBTAINABLE TILL DEATH
In a discussion on the formula of Apostolic Blessing, which usually ac
companies the last sacraments, some maintained that this was the only kind
of indulgence which had its effect not on the completion of the conditions
but at the hour of death. Are there, in fact, others of this kind?
i. There are a number of ways in which a plenary indulgence
may be gained at the hour of death : the concession appears amongst
many other favours granted to members of various confraternities
1 De Angelis, De Indulgentiis, §191.
2 Sartori, Jurisprudentiae Ecclesiasticae Elementa, 1940, nn 71-e
3 A^S.t XXVII, p. 974 Apollinaris, 1935, P 588.
Q. 145
Indulgences
189
and pious unions; or it may be imparted by a priest who has
obtained the faculty from the Holy See ; or it may be attached to a
crucifix or other object blessed by the Holy Father or his delegate.
All these indulgences require in some measure the intervention of a
priest, as is the case with the Apostolic Blessing which usually
accompanies the last sacraments, or when the indulgence is obtain
able by inscription in a confraternity, or by kissing a crucifix or
other blessed object.
ii. Enchiridion Indulgentiarum, the official collection of indulgenccd
prayers and practices, of which the last edition appeared in 1952,
contains some plenary indulgences of this deferred kind which do
not require the intervention of a priest except in observing the
accustomed condition of receiving the sacraments : n. 638, willing
acceptance of death at the hand of God ; n. 452, the invocation
Angele Dei, etc., frequently recited during life; n. 332, the Salve
Regina often recited ; many others could be indicated.
iii. If it is asked what purpose is served by multiplying a conces
sion which, in any case, can only be gained once, the reply usually
given is that one thereby has greater assurance of obtaining a
plenary indulgence at the hour of death, since the conditions have
to be verified in each instance, and if they arc perhaps inadvertently
not observed in one type of indulgence they will very likely be
observed properly in one of the other types.1 Moreover it is not to
be assumed that the faithful will all set about obtaining this title
to a plenary indulgence by observing all the conditions attached to
every prayer or pious practice to which the concession has been
attached. The idea of multiplying the various channels seems to be
to offer the faithful a choice; each will select according to his
devotional taste and circumstances one or other of those offered.
145.
INDULGENCED PRAYERS: TEXTUAL VARIATIONS
Does the rule of canon 934, §2, apply to the addition of the word “our” in
the English version of the prayer “Fidelium Deus”: “by our pious supplica
tions” instead of “by pious supplications” ?
Canon 934, §2 : Si peculiaris oratio assignata fuerit, indulgentiae
acquiri possunt quocunque idiomate oratio recitetur, dummodo de
fidelitate versionis constet ex declaratione vel Sacrae Poenitentiariae
vel unius ex Ordinariis loci ubi vulgaris est lingua in quam vertitur
oratio; sed indulgentiae penitus cessant ob quamlibet additionem,
detractionem, vel interpolationem.
S. Poenit., 26 November, 1934; A.A.S., 1934, XXVI, p. 643:
1 Hcylcn, De Indulgentiis, p. 276.
190
Priests Problems
Q· 145
Pluries a Sacra Pocnitcntiaria quaesitum est : Utrum verba can. 934,
§2, C.I.C. indulgentiae penitus cessant ob quamlibet additionem, detrac
tionem vel interpolationem rigorose intelligi debeant de quibusvis
additionibus, detractionibus vel interpolationibus an potius dc iis
tantum quae carumdcm substantiam alterent . . . Resp. Negative ad
primam partem ; affirmative ad secundam, facto verbo cum Ssmo.
i. The rule of canon 934 is reasonable enough: if the faithful
want to gain an indulgence attached to a prayer, they must recite
the prayer and not some other prayer resembling it. The reply of
26 November, 1934, is equally reasonable, especially when it is a
question of a translation, and is meant to allay scrupulosity. Com
menting on this reply in The Clergy Review,
IX, p. 65, the
writer correctly applied it to the hymn verse Maria Mater Gratiae,
deciding that the substance of the prayer remained the same
whether one used the Breviary form “Dulcis parens clementiae” or
“Mater Misericordiae” as in the authorised text to which an in
dulgence was attached. On the other hand, apart from induit,
additions to the Hail Mary when reciting the Rosary must be
regarded as substantial changes1 ; similarly, the recitation of the
Litany of Loreto with three invocations to one Ora pro nobis does not
suffice for gaining the indulgences.2 In these instances an official
declaration has resolved the doubt; in other instances one has to
decide whether a change is substantial or not.
ii. There can be no dispute that the word “our” is an addition
in the translation which is not found in the original. It is so printed
in the Ordo Administrandi, p. 311, and in many prayer books. The
word was omitted in the 1886 edition of the Manual of Prayers, p. 161,
and is omitted in the English version of Preces et Pia Opera, η. 549.
It might be argued that the change is substantial, inasmuch as the
original docs not exclude the prayers of the Holy Souls for them
selves, whereas the addition in the translation limits the sense to our
prayers on their behalf.
We think, however, that the change is not substantial, for there
is no reason why the holy souls should not be included in the word
“our”, relying on the doctrine of the communion of saints. With
still greater reason one may regard “that pardon” instead of “the
pardon” as a negligible modification, if any, of the concluding
words of the prayer. The Ordo Administrandi has the reading “that”.
The best form, nevertheless, is the one given in many missals and
prayer books: “that through pious supplications they may obtain
the pardon they have always desired”.
1 Cf. The Clergy Review, 1935, X, p. 306.
s Cf. The Clergy Review, «946, XXVI, p. 609.
I
XII. EXTREME UNCTION AND LAST
BLESSING
I46. APPARENT DEATH — ANOINTING
Relying on the commonly accepted teaching about apparent deaths is there
an obligation to anoint conditionally the sick person who expires just before
the priest arrives? If so, is this obligation taught in any instruction from the
Holy See ?
i. Passing over medical discussion about the possibility of life not
being extinct after death has apparently taken place, and conse
quently passing over also an examination of the various views about
the length of time for which life may continue, we assume that
according to the accepted teaching life is not certainly extinct,1 as
will be the case when the priest arrives just after expiry if the
common teaching is correct. A direction to anoint such persons
conditionally appears in some local rituals as in Cambrai (1927):
“Hic animadvertere oportet mortem veram cum specie mortis non
necessario congruere, ac proinde extremam unctionem quibusdam
esse ministrandam qui spiritum iam emisisse videntur.” It was
expected that a new edition of the Roman Ritual might contain
some rubric to this effect, but the book which has recently appeared,
authorised by a decree S.R.C., 25 January, 1952,2 contains no
positive direction. What it docs do, however, is to omit from the
introductory rubrics n. 13 of the previous rituals: “Si vero dum
iniungitur infirmus decedat, Presbyter ultra non procedat, ct prae
dictas Orationes omittat.” This rubric, dating from a time when the
“apparent death” theory' was not yet thought of, is in evident
conflict with it; for if the priest should cease the rite when the
person expires during the anointing, obviously he should not begin
it if the person has expired before he arrives. This conflict is now
removed, and n. 13 is now the former n. 14 directing conditional
anointing if death is uncertain : it cannot be doubted that the
modern doctrine is responsible for this deletion, and to this extent
the current Ritual sanctions the teaching of the authors.
1 On these points cf. t'Arni du ClergL 195*» Ρ· *7>
<1 Halluin, La Moris cette
inconnue, Beauchesne (1952), prefaced by the Archbishop of Cambrai; Cahiers
Laênruc. 10.16. η.
Ρ· 5θ·
2 Reviewed in The Clergy Review, 1952, XXXVII. p. 633.
191
Priests' Problems
192
Q. 147
ii. Relying, amongst other reasons, on this rubric now deleted,
the distinguished Roman canonist Maroto held in 1928 that an
obligation to anoint even conditionally could not be established.1
Bearing in mind, however, the practically unanimous modern
teaching on the subject, the deletion of the former rubric n. 13,
and the principle obliging a priest to do what is possible for a
person in extremis, when anointing might in given circumstances be
the only means of salvation available, we think that there is an
obligation ; but owing to the degree of uncertainty surrounding this
question the obligation does not bind sub gravi unless local law orders
anointing in these cases.
iii. Supposing the obligation is established, it is properly ob
served, in our view, by a conditional anointing on the forehead
only, as the Ritual directs in cases of necessity, without any other
rites or prayers. This procedure seems the best interpretation of the
current rubrics, and also by its brevity safeguards the necessity of
avoiding scandal, a point on which all the writers insist. The scandal
is that, if people know that a priest will anoint a dying person after
expiry, they may delay summoning him whilst the person is
conscious : the unwillingness of relatives and attendants to allow a
sick person to suspect that he is dying, from mistaken motives of
kindness, is a grave abuse which the Holy See has reproved.2
Arriving after death has apparently taken place, the priest will
recite some prayers during which it should be easy for him, without
unnecessarily attracting attention, to give conditional absolution
and the one anointing requisite.
147.
ANOINTING UNCONSCIOUS AFTER A REFUSAL
May one follow the opinion of Génicot, Theol. Moralis, II, §423, who
teaches, against the common opinion and the rule of canon 942, that an un
conscious person may be anointed conditionally even though he refused the
sacraments up to the time of losing consciousness ?
Canon 942 and Rituale Romanum, VI, i, 10 : Hoc sacramentum non
est conferendum illis qui impoenitentes in manifesto peccato mortali
contumaciter perseverant; quod si hoc dubium fuerit, conferatur
sub conditione.
Génicot, loc, cit. : Probabiliter tamen conferri potest iis qui in
actu peccati, ex. gr. ex vulnere in duello accepto, sensibus destitu
untur; immo iis qui usque ad sensuum destitutionem sacramenta
1 Apollinaris, 1928, p. 180.
2 12 November, 1944; Documentation Catholique, 1947, p. 960.
Q. 147
Extreme Unction and Last Blessing
193
'|
respuerunt . . . nam cum aliqua ven similitudine speranpotest eos
internum contritionis actum elicuisse.
i. The termsof the canon and Ritual, the rubric of which was
sterner in the pre-Code edition, V, i, 8, cause some little difficulty,
since the text appears to direct the use of a condition turning upon
the good dispositions of the recipient which are required for the
fruitful reception of this sacrament ; whereas it is the universally
accepted principle that a condition should turn only upon what is
required for valid reception, in order that the possibility of revivisccnce should not be excluded. The best way of harmonising this
conflict, though it is not accepted by everyone, is to interpret the
canon as referring to the lack of a minimum intention manifested
externally in contumacious impenitence.1 If the condition, even
merely mental, is made to turn solely on the recipient’s intention,
the sacrament will be received validly but unfruitfully, until it
becomes fruitful by removal of the obex.
ii. Ί he canon most certainly, in the more obvious meaning of its
terms, supports the common opinion2 that, in the case of a person
who up to the moment of losing consciousness has refused to be
anointed, there is no probable ground for supposing the existence
of a minimum intention ; in any case, the law directs refusal as a
penal measure.
iii. The milder view favoured by Génicot is shared by Vermecrsch3 and by Fr Davis.4 It means giving the most generous
interpretation to the word “dubium”, especially bearing in mind,
as Fr Davis notes, cataleptic states in which the person is unable to
speak or move and yet may be aware of everything going on around
him, as the theologian Diana narrates of his own experience. In
the case of a lapsed Catholic we may indulgently allow for the
possibility of an adequate intention, owing to the resurgence of
convictions formerly held, even though priestly ministration was
refused whilst he was able to speak ; each case must be dealt with
on its own merits and the danger of scandal effectively removed.
To this extent we agree with the writers mentioned who all, it
appears, have in mind a lapsed Catholic. “Benignior vero sententia
appellat clementiam Ecclesiae, quae hodie tantopere in indulgentiam
propendet. In hanc benignitatem ipsi nos inclinamus donec S. Sedes,
si id opportunum declaraverit, sua declaratione dubium istud
evacuaverit.”5
j
I il
11
|
1 Cf. Irish Ecclesiastical Record, June 1945, p. 406, and November 1945, p. 369;
American Ecclesiastical Review, May 1939, p. 458.
2 E.g. Noldin, Theol. Moralis, III, §443·
1 Periodica, 1925, p. 10.
4 Moral and Pastoral Theology, IV, p. 9.
5 Vcrnicersch, loc. cit.
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Jlïl
Priests' Problems
194
Q. 148
iv. In the case, however, of a dying non-Catholic, who up to the
moment of losing consciousness has refused the priest’s ministration,
there seems no basis whatever for supposing an adequate minimum
intention1; positive refusal destroys the general intention he may
have of doing whatever God requires, and there is no reason for
supposing that this refusal is later modified.2
148.
EXTREME UNCTION BEFORE OPERATIONS
Some of my colleagues maintain that Extreme Unction is always permissible
before a serious operation, and that this is now the accepted practice. Is this
correct ?
Canon 940, §1 : Extrema Unctio praeberi non potest nisi fideli,
qui post adeptum usum rationis ob infirmitatem vel senium in
periculo mortis versetur.
Canon 941 : Quando dubitatur num infirmus usum rationis
attigerit, num in periculo mortis reipsa versetur vel num mortuus
sit, hoc sacramentum ministretur sub conditione.
If the practice exists, as stated in the question, and Extreme
Unction is always given as a matter of course before serious opera
tions, it is probably due to not keeping the conditions for Extreme
Unction quite distinct from those justifying Viaticum or the Last
Blessing. More often than not the conditions for all three coincide,
and a habit of mind is formed of not distinguishing between them.
The difference is that Viaticum and the Last Blessing may and should
be given whenever a person is in danger of death from whatever
cause, whether it be intrinsic, such as sickness, or extrinsic, such as
the imminence of a serious operation, or going into battle, or
suffering the death penalty.
Extreme Unction, however, cannot validly be received except by
those who are in danger of death from sickness. No doubt, it usually
happens that a person about to undergo a serious operation is
already in danger of death from sickness, but this is not always and
necessarily the case: it may be that the serious operation is for
removing some disability or deformity which in no way threatens
the person’s life at the moment, and it is then quite certain that
Extreme Unction cannot validly be received. Cappello, in stating
this common doctrine, adds: “paucis rcccntioribus immerito con
tradicentibus”.3 He gives no references and we do not remember
1 Cappello, §262.
2 Cf. S.Off., 17 May, 1916; Denz. 2181 a., »5 November, 1941: Bouscaren,
Digest (1948), p. 103.
3 De Extrema Unctione, §212.
Q. 14g
Extreme Unction, and Last Blessing
195
ever seeing the opposite view in print ; a probable danger suffices,
and in doubt Extreme Unction should be administered, at least
conditionally.
149.
EXTREME UNCTION: MONTHLY REPETITION
In the case of a person dying of consumption whose condition is growing
slowly but steadily worse, with no amelioration whatever, is it permissible or
even obligatory to repeat this sacrament at intervals of a month ?
Rituale Romanum, cd. 1913, V, i, 14: In eadem infirmitate hoc
sacramentum iterari non debet, nisi diuturna sit ; ut si, cum infirmus
convaluerit, iterum in periculum mortis incidat.
Ed. 1952, VI, i, 8, and canon 940, §2 : In eadem infirmitate hoc
sacramentum iterari non potest, nisi infirmus post susceptam
unctionem convaluerit et in aliud vitae discrimen inciderit.
St Thomas, Supplementum, 33, 2 : Quaedam vero sunt aegritudines
diuturnae, ut hcctica, hydropsis et huiusmodi : et in talibus non
debet fieri unctio, nisi quando videntur perducere ad periculum
mortis: et si homo illum articulum evadat, eadem infirmitate
durante, et iterum ad similem statum per illam aegritudinem
reducatur, iterum potest iniungi, quia iam quasi est alius infirmitatis
status, quamvis non sit alia infirmitas simpliciter.
The repetition of this sacrament in the same danger of death is
unlawful, and in the view of some invalid, an opinion which is sup
ported, perhaps, by the “non potest” of the Code and of the
typical current edition of the Roman Ritual; in the 1913 edition
the rubric read “non debet”. Also “nisi diuturna sit” is no longer
in the rubric, for the mere fact of an illness, with the same danger
of death, lasting a long time, does not justify repetition. Recovery
from danger of death followed by a relapse into danger, even from
the same disease, justifies repetition, and it is agreed that if a sick
person can validly and lawfully have this sacrament repeated, the
priest has an obligation to repeat it.
It is thought by some, with plausibility, that the rule of monthly
repetition has arisen from the teaching of St Alphonsus and others,
who required a month’s partial convalescence as an indication that
the sick person had emerged from the original danger of death.1
Whatever its origin it is a useful calculation for applying to cases
where the new danger of death is doubtful, but it may not be applied
indiscriminately to all protracted illness. If it is certain that a person
in danger of death is steadily worsening, without any amelioration,
1 Cf. Dr Barry in The Clergy Review, 1933, \ , p· 201.
-
Priests' Problems
196
Q. 150
the sacrament should not be repeated, even though the first anointing
took place more than a month ago. If it is certain that a new danger
of death has threatened, following a period of amelioration, the
sacrament should be repeated even though this period is less than a
month. If it is doubtful, one must seek a method for resolving the
doubt, and the writers arc generally agreed that if a person lives
for a month subsequent to the first anointing, the presumption in all
cases of doubt is that there is a new danger of death. But to apply this
monthly rule to all cases, instead of restricting to those which are
doubtful, is wrong. Cf. Cappello, De Extrema Unctione, §259; Noldin,
Ι50.
THE POSITION OF EXTREME UNCTION
Why is it, when all the last sacraments are administered at one lime, that
Extreme Unction follows on Viaticum ? It would seem more correct for it to
follow immediately after Penance of which it is the complement. May one
change the order of the Ritual ?
i. The most authoritative discussion of this point is by Benedict
XIV1 who quotes other Rituals and the authority of Cardinal de
Rohan for permitting the anointing before Viaticum whenever the
sick person so desired, for anointing which has the effect of removing
the remnants of sin would appear to be more correctly given before
Viaticum. Ancient rituals prescribed this order, and it so remains
to this day in the Dominican use. It is fairly certain that the order
in the Roman Ritual, which is that of the Roman Catechism, is due
to mediaeval influences : anointing was considered as the sacramentum
exeuntium, the “last” rite the Church has to offer, and therefore
should follow all the others. The custom of delaying anointing until
death is imminent now being discouraged by canon 944: “omni
studio et diligentia curandum ut infirmi, dum sui plene compotes
sunt, illud recipiant”, the tendency amongst modern writers is to
eliminate from the minds of the faithful the idea that Extreme
Unction is administered only when there is absolutely no hope,
humanly speaking, of the sick person’s recovery. Suarez, however,
writing in the full mediaeval tradition, justifies anointing after
Viaticum:
. . cibus ad confortandum in via praebetur, et ideo,
ut detur, non est cxpcctandum ultimum vitae periculum : hoc vero
sacramentum exeuntium est, quasi in ultimum subsidium insti
tutum”.2
ii. Cappello teaches3 that any slight or reasonable cause justifies
1 De Synodo. VIII, viii, i ; Ed. 1844, Vol. XI, p. 260.
2 Quoted by Benedict XIV, loc. cit.
3 [)c Extrema Unctione. §88.
Q. 151
Extreme Unction and Last Blessing
197
inverting the order of the Ritual, and Benedict XIV is himself un
willing to affix any blame if this is done. The Pope, nevertheless,
recommends parish priests always to follow the order of the Ritual,
since this is the custom of the Roman Church and is followed
practically everywhere. Our own view, based on preserving the
stability and uniformity of liturgical rites, is that the order of the
Ritual should always be followed whenever the last sacraments are
administered together. But priests are permitted, with Dom Botte,1*
to agitate for a change in the order now existing, for it does appear
that the older tradition regards Viaticum, and not Extreme Unction,
as the last or closing sanctifying rite offered by the Church to the
dying. “Last” anointing should then have the meaning of the last
of many anointings received from the Church in the course of one’s
life.
151. “oleum infirmorum”: priestly blessing
May it be held that in cases of extreme necessity, when episcopally con
secrated holy oil cannot be obtained, a priest may bless it himself?
Canon 945 : Oleum infirmorum, in sacramento extremae unctionis
adhibendum, debet esse ad hoc benedictum ab Episcopo, vel a
presbytero qui facultatem benedicendi a Sede Apostolica obtinuerit.
£
May, 1878; Fontes, n. 1055: Proposito casu cuiusdam
sacerdotis qui vocatus ad assistendum infirmum destitutum sensibus,
deficiente oleo sancto, commune oleum benedixit ut inungeret
infirmum cique conferret illud tantum sacramentum cuius capax
erat, et quaesito: 1. An talis praxis probanda sit; 2. Vel saltem
tolerari possit; Emi PP. responderunt: Ad utrumque, Negative.
i. An earlier reply, 14 September, 1842,2 declared this priestly
blessing of oil to be invalid, and quoted a decree of 13 January’,
1611,3 to the effect that it was temerarious and proximate to error
to hold that Extreme Unction could validly be administered with
holy oil not episcopally blessed. The teaching of the mediaeval
scholastics who denied that a priest could validly bless this holy oil
is erroneous, for it is certain that he can do so with an apostolic
commission express or implied, and perhaps even with an episcopal
commission. The well-known problem about the exact nature of a
priest’s commission to confirm has an echo in the discussions about
a priest’s commissioned faculty to bless oil of the sick, and, as in
administering confirmation, so also in blessing this oil, the practice
1 La Maison Dieu, n. 15, p. 105.
* Fonks, n. 891.
5 Fontes, n. 717.
198
Priests' Problems
Q. 152
of the Eastern Church is at variance with that of the West, where the
tradition requiring episcopal blessing has been firmly maintained
for centuries.1 Various explanations are offered by Cappello2 and
other writers, and a definitive pronouncement of the Holy See on
the lines of that given for Holy Orders, 30 November, 1947,3 would
be welcome.
ii. In the meanwhile the only writer known to us who answers
the above question affirmatively is Cappello,4 provided the extreme
necessity is of a general character in a region where priests cannot
communicate with their bishops; his affirmative is given with less
assurance5 in the case of one individual who is unable to confess
and is dying unconscious. The difficulty is, of course, the decision
of the Holy Office on the subject, which is met by holding that in
cases of extreme necessity, especially if they are of a general character
and applicable to a whole district, the Holy See is presumed to give
the necessary commission to priests. Faculties expressly conceded
will, no doubt, direct what form is to be used in consecrating the
oil, presumably the exorcism and prayer of blessing contained in
the Pontifical for the episcopal ceremony on Holy Thursday.0 This
opinion may be safely accepted in cases at least of general necessity,
and the sacrament administered conditionally ; we may hope,
perhaps, that in course of time a faculty to consecrate the oil of the
sick in cases of necessity will be given de iure to parish priests, since
this sacrament is occasionally a necessary means of salvation,
whereas confirmation never is.
152. HANDLING THE HOLY OILS
Is a lay person permitted to handle the holy oils, for example the person
acting as sacristan, at least if there is a grave reason? This might happen
when the priest called to a sick person is unwilling to leave him, and sends a
lay person back to the church for the holy oils.
Rituale Romanum, II, i, η. 54 · Parochus, quantum fieri potest, curet,
ne per laicos, sed per se, vel alium sacerdotem, vel saltem per alium
Ecclesiae ministrum haec Olea deferantur. . . .
The holy oils, solemnly blessed by the bishop on Holy Thursday,
have always been held in great veneration, and various rules exist
1 Collât. Brugen., 1949, p. 200; Did. Thiol., \r, 1989.
2 Dt Confirmatione, §44 scq.
3 The Clergy Review, 1948, XXX, p. 62.
* Op. cit. §54·
6 Op. cit. §280.
8 The form in the Roman Ritual, Tit. IX, cap. vii, 8, is a sacramental insti
tuted by the Church in imitation of the sacrament of Extreme Unction.
Q. 152
Extreme Unction and Last Blessing
199
for their safe custody. Since they arc solely for the use of the sacred
ministers in administering the sacraments, these ministers alone have
the custody and the right of handling them, unless some necessity
intervenes.
i. If it is a question merely of carrying the vessels or stocks con
taining the holy oils, Gardellini in the notes given in Volume V of
Decreta Authentica states: “. . . notandum est quod non absolute
praefata Rubrica excludit laicos ab eorundem delatione. . . . Quum
igitur parochus per se nequeat, aliumque non habeat, nisi laicum
ministrum Clerici vices fungentem, huic committere cogitur ut hoc
praestet officium. Id tamen, quantum fieri potest, vitandum est”.1
He is dealing with practically the same circumstances as occur in
die above question, and other instances are clearly included when
some proportionate necessity justifies the handling of the holy oil
stocks by a lay person who is acting as the priest’s minister or
sacristan. The modern commentators agree with this interpretation
in principle,2 but it is always to be supposed that there is some
necessity. Hence, in most dioceses where there are sufficient priests,
the diocesan regulations usually insist on a priest coming to the
Cathedral on Holy Thursday for the Holy Oils, and their curator is
forbidden to entrust them to laymen.
ii. If, however, the question is of a layman touching the Holy
Oils, and not merely handling their stocks, we can find no similar
toleration, and all the rubrics which require careful wiping with
cotton wool whenever a person is anointed simply take for granted
that this touching is irreverent. Touching would be well nigh un
avoidable, for example, when replenishing small stocks with holy oil
from a larger container. This office must be performed by a priest
or at least by a deacon who, as the extraord inary minister of solemn
baptism, has to touch the holy oils, and therefore may lawfully do
so on other occasions. Extreme necessity may require a layman to
touch them, as he may touch even the Holy Eucharist, for example
to prevent irreverence. But, unlike the situation described above in
(i), the necessity is not likely to arise very often. In cathedrals and
in large churches, where a large supply of holy oils is kept for sur
rounding districts, the office of distributing it must be restricted, wc
think, to deacons and priests. No doubt some commentators will be
found who extend the permission to all tonsured clerics, but we have
not succeeded in tracing this tcacliing in any of the books on the
subject.
1 D./l., V, p. 285, adnotatio in n. 2650, V. 2.
8 O’Kanc-Fallon, Rubrics of the Roman Ritual, §856; Collin». The Church Edifice
and its Appointments, p. 184.
200
Priests" Problems
I53.
QQ. *53» 154
ADMINISTERING EXTREME UNCTION----DANGER
OF INFECTION
What should be the priest's practice in administering Extreme Unction, if
infection is feared through touching the recipient ?
Canon 947, §4: Extra casum gravis necessitatis, unctiones ipsa
ministri manu nulloque adhibito instrumento fiant.
Except where the imposition of hands is essential to the validity
of the sacrament, as in the anointing at Confirmation, it is permitted
to use some instrument such as cotton wool when there is danger of
infection.1 This meets the difficulty for the anointings at Baptism
and Extreme Unction; administering the salt at Baptism is possible
without touching the child; the saliva rite may be omitted for
reasonable cause such as danger of infection, as S.R.C. 14 January,
1944, explicitly directs2; the touch necessary for valid sponsorship
suffices if made over the vestments.3
There remain the touches prescribed by certain rubrics in the rite
of Baptism at the imposition of hands, about which we can find no
explicit reference in the manuals. On analogy with the decisions
already reached about the anointings and other sacramentals and
exorcisms, as described above, it suffices in our opinion to recite
the formula with extended hands if there is grave danger of infection.
154.
VALIDITY OF BLESSING “ IN ARTICULO MORTIS”
What is the minimum requiredfor the valid imparting of this blessing with
its plenary indulgence ? I have in mind the requirements in the form used and
the dispositions of the recipient.
Canon 468, §2: Parocho aliive sacerdoti qui infirmis assistat,
facultas est cis concedendi benedictionem apostolicam cum in
dulgentia plenaria in articulo mortis, secundum formam a probatis
liturgicis libris traditam. . . .
5. C. Indulg., 5 February, 1841 ; Fontes, n. 5017: 5. Utrum sufficiat
recitatio Confessionis, idest Confiteor, etc., in Sacramento Poeniten
tiae habita, pro recitatione illius praescripta, quando impertienda
sit benedictio cum indulgentia in mortis articulo? Resp. Negative
iuxta praxim et rubricas, nisi necessitas urgeat.
6. Utrum necesse sit tribus vicibus recitare Confiteor, etc., quando
administratur sacrum Viaticum, extrema Unctio, ac indulgentia in
1 Cf. Dunne, The Ritual Explained, p. 73.
2 The Clergy Review, 1944, XXIV, p. 521.
’ Op. at., 1935, X, p. 482.
Q.
Extreme Unction and Last Blessing
201
mortis articulo impertitur? Resp. Affirmative iuxta praxim ct
rubricas.
8. Utrum sacerdos valide conferat indulgentiam plenariam in
mortis articulo omissa formula a Summo Pontifice praescripta, ob
libri deficientiam? Resp. Negative, quia formula non est tantum
directiva, sed praeceptiva.
S. Off., i September, 1851 ; A.S.S., XXVIII, p. 67; De Angelis,
De Indulgentiis, p. 105 : Si on peut se tenir au Confiteor recité une fois
dans l’administration du SS Viatique et de l’Extrême Onction
données de suite à un malade, et aussi dans l’application de
l’indulgence in articulo mortis, quand celle-ci a lieu en même temps
que l’administration de l’un et de l’autre de ces deux sacraments.
Rtsp. Si immineat necessitas conferendi unum post aliud immediate,
licere semel in casu, secus repetatur.
S.R.C., 8 March, 1879, n. 3483 : . . . num liceat in impertienda
absolutione generali papali, ad contagium evitandum, uti brevissima
formula. . . . Resp. Affirmative in casu.
S.C. Indulg., 22 September, 1892; Fontes, n. 5115: . . . invocatio,
saltem mentalis, SSmi Nominis Jesu est conditio sine qua non pro
universis Christifidelibus, qui in mortis articulo constituti, plenariam
indulgentiam assequi volunt, vi huius Benedictionis. . . .
In these days a plenary indulgence, with or without the papal
blessing, may be gained at the hour of death on any number of
titles, such as adscription to some pious association or the possession
of an indulgenccd crucifix ; this multiplication is not entirely futile
since certain conditions ad validitatem are attached to them all, and
if one tide is inoperative the indulgence may be gained on another.1
The following notes are limited to the blessing referred to in canon
468, §2, which concedes to all what used to be the privilege of those
enjoying the faculty stabilised and explained by Benedict XIV in
Pia Mater, 5 April, 1747.2*This papal constitution imposed a formula,
substantially that of our present ritual, the composition of Cardinal
Camillus Cybo-Malaspina in 1726.3
i. It is clear from the above citations that, in principle, the
formula of the Ritual, Tit. VI, cap. vi, must be used for die valid
imparting of the blessing and indulgence. S.R.C., 3 June, 1904,
requires the formula to be in Latin “quia haec benedictio est
precatio stricto sensu liturgica”,4 but its force is somewhat weakened
owing to the omission of this decision from the Decreta Authentica of
the Congregation. We diink that the vernacular form is valid.
1 Thus Gougnard, De Indulgentiis, p. 137·
! F°nllst η· 3θ°·
1 Ephemerides Liturgicae, lus ct Praxis, 1937» P· 25·
4 Bcringcr, Les Indulgences, I, p. 596; Q..L.P., I9ao> P· 3°θ·
202
Priests' Problems
ii. The strict interpretation of Fontes, n. 5017, 6, repeated in all
the manuals, was considerably relaxed by the Holy Office, 1 Sept
ember, 1851, in the sense that when it is necessary to confer all the
last sacraments at one time a single recitation of the Confiteor suffices.
Nearly all the writers rely on Fontes, n. 5017, and ignore the reply
of the Holy Office in 1851. We think there is sufficient authority
for a single recitation in the circumstances;! the necessity need not
be grave, and still less the kind of urgency that would justify the
short form.1
2
iii. For reasons which are not quite clear the ritual gives under
n. 7 a duplicate short form for use in cases of necessity : the second
(the shorter of the two) may always be used when the complete
form has to be omitted, and most priests know it by heart. The
necessity which most of the official texts have in view is that of the
recipient, especially the proximity of death, but S.R.C., n. 3483,
extends the notion of necessity to cover that of the priest in cases of
contagious disease. Some writers extend it to the case where the
priest lacks a ritual but knows the short formula by heart, and it is
doubtful whether the sick person will live long enough for a ritual
to be obtained.3 The short form could be used also, in our opinion,
when a priest is attending a number of dying people and speed is
necessary in order to be sure of reaching them all.
If we suppose that, without any real necessity, the short form is
wrongly used, the efficacy of the blessing is doubtful : this is inferred
from the insistence of all the official directions on the use of the
authorised form, but we can find no commentator who expressly
draws any conclusion either for or against its validity. We suggest
that, in these circumstances, the blessing should be repeated ad
cautelam ; otherwise, no repetition is necessary if, in a case of real
necessity, the sick person continues alive after receiving the blessing
with the short form.4
iv. On the recipient’s part the conditions required for validity,
in addition to those necessary for all indulgences, arc the invocation
of the name of Jesus and the resigned acceptance of death.5 Sacra
mental confession is not required, nor even an act of contrition,
except when either may be necessary for getting into a state of
1 Dunne, The Ritual Explained, p. 87; American Ecclesiastical Review, 1919, LXI,
p· 590·
- It is now certain from a reply of S.R.C., 30 October 1953, that, in the case of
continuous administration, the opening prayers of each rite and the Confitear need
be recited once only. Cf. The Clergy Review, October 1954, p. 627. [Editor.]
3 Dunne, The Ritual Explained, p. 82.
4 Cf. Ephemerides Liturgicae, 1926, p. 231.
3 The Clergy Review, 19SO.XXXIII, p. 54.
Extreme Unction and Last Blessing
Q.
203
grace. Though the earlier texts seem to limit the blessing to sick
people, it is now certain that it may be given to those in danger of
death from other causes.
155.
LAST BLESSING : RESIGNATION TO DEATH
One of the conditions for gaining this indulgence is the resigned acceptance
of death. Does it suffice if one secures this disposition not at the time the
blessing is given but later on ?
Benedict XIV, Pia Mater, 5 April, 1747; Fontes, n. 380, p.
117:... ideo quo certius praedicti omnes Indulgentiae fructum
consequi valeant, praefatis sacerdotibus mandamus, ut omni
ratione studeant moribundos fideles excitare ad novos de admissis
peccatis doloris actus eliciendos, concipiendosque ferventissimae
in Deum charitatis affectus; praesertim vero ad ipsam mortem
aequo ac libenti animo de manu Domini suscipiendam. Hoc enim
praecipue opus in huiusmodi articulo constitutis imponimus et
iniungimus. . . .
Rituale Romanum, VI, vi, 3 : . . . hortetur . . . ut morbi incommoda
ac dolores in anteactac vitae expiationem libenter perferat. Deoque
sese paratum offerat ad . . . mortem ipsam patienter obeundam. . ..
5. Postea dicat : V. Adiutorium, etc.
i. As in other indulgences, there are several different methods of
gaining a plenary7 indulgence in the hour of death, and the multipli
cation is not altogether useless since the actual gaining of the
indulgence is thereby made more secure; in this reply we arc
concerned only with the indulgence mentioned in canon 468, the
formula of which is in the Rituale Romanum, VI, vi, and the locus
classicus for everything pertaining to it is the Pia Mater of Benedict
XIV, as interpreted by many later decrees.
ii. For the blessing to be lawfully given the act of resignation
must be made, or at least prompted by the priest, before the formula
is spoken, as the rubric of the ritual clearly directs. The only
obvious exception to this rule is when the recipient is unconscious
at the time.
iii. We cannot find any commentator who deals with the question
whether a departure from the procedure described in (ii) exposes
the blessing, and consequently the indulgence, to invalidity. In our
dew, applying general principles of interpretation, the act though
unlawful is valid. The conditions for a valid grant arc the use of the
formula on the part of the priest and the dispositions, including
resignation, in the recipient; the indulgence, or in this case the title
Priests' Problems
204
Q. 156
to it in articulo mortis, is received when the last prescribed condition
is fulfilled. Canon 925> §2> states that the works enjoined for an in
dulgence must be fulfilled “statuto tempore ac debito modo”, which
might perhaps support the view that the indulgence is invalid unless
the act of resignation precedes the formula, as the ritual directs.
We think, however, owing to the special nature of this indulgence,
which is not actually obtained till the moment of death, that it
suffices to have fulfilled the conditions before this moment arrives.
This is supported by one commentator who writes: “It is necessary
that at the moment of death the dying person have the dispositions
of sorrow for sin, fervent love of God and resignation to His
Will. . . ,”1 It is supported also by the phrase in Pia Mater quoted
above. Bearing in mind that the formula may not be given more
than once in the same danger of death, there is every reason to
hold that it is valid even though the order of the conditions is not
observed.
156.
LAST BLESSING IN CASES OF APPARENT DEATH
Is one permitted to impart this blessing conditionally in cases of apparent
death when the priest decides, following the common teaching, to absolve and
anoint conditionally ?
Canon 468, §2: Parocho aliive sacerdoti qui infirmis assistat,
facultas est eis concedendi benedictionem apostolicam cum
indulgentia plenaria in articulo mortis, secundum formam a
probatis liturgicis libris traditam, quam benedictionem impertiri ne
omittat.
i. The common teaching on this subject, now accepted in some
local rituals and approved implicitly, it would appear, in the 1952
edition of Rituale Romanum,2 offers no special difficulty as regards
conditional absolution and anointing. It is true that most Catholics
obtain a plenary indulgence at the moment of death, a concession
obtained by the due performance of some pious works during life,
and the writers often describe this as “indulgentia lata” ; the above
question refers to what may be styled conveniently “indulgentia
ferenda”3 which to be valid must be granted by a priest with the
formula of the ritual to a person who has complied with the
conditions.4
1 Irish Ecclesiastical Record, 1945, LXV, p. igg.
2 The Clergy Review, 1953, XXXVIII, p. 290.
3 De Angelis, De Indulgentiis, §§160, 167.
* For a discussion of the minimum, both in formula and conditions cf. Question
154·
Extreme Unction and Last Blessing
Q.· 157
205
ii. There is some reason for doubting whether in cases of apparent
death this indulgence should be given, since the teaching about
conditional absolution and anointing in these circumstances is based
on the supposition that these sacraments may be necessary for
salvation, which an indulgence is not, and it is desirable for a
variety of reasons, particularly the avoidance of scandal, to limit
the priest’s ministrations.
We think, nevertheless, that this blessing may and should be given
conditionally with the short form of the ritual : the conditions in the
recipient may be assumed as they are for the reception of sacraments ;
the indulgence is a complement of the sacrament of Penance ; the
concluding words of the canon stress the obligation in general ; and
in principle a priest should always do what in him lies to bring
every benefit the Church has to offer in articulo mortis.
157.
REPETITION OF THE LAST BLESSING
Since it is certain that the plenary indulgence is obtained not at the time of
receiving the blessing but at the moment of death, it would appear that its
reception once in a lifetime should suffice. Why, then, do we repeat the blessing
when the recipient has recovered and is again placed in danger of death ?
S.C. Indulg., 23 April, 1675, ad 2; Fontes, n. 4947: Utrum indul
gentia plenaria in articulo mortis, quae sine alia declaratione adiecta
concedi solet, in vero mortis articulo accipienda sit, an in prae
sumpto, an demum in utroque? Resp. In vero tantum articulo
accipi.
23 September, 1775, ad 6; Fontes, η. 4996: Benedictio supradicta
potestne bis aut amplius in eodem morbo, qui insperate protrahitur,
impertiri, etiamsi non convaluerit aegrotus? Si possit iterari haec
benedictio, quodnam requiritur intervallum inter eius largitiones?
Resp. Semel in eodem statu morbi.
20 June, 1836, ad 7; Fontes, n. 5005: Licetne aut saltem convenitne iterum applicare indulgentiam in articulo mortis . . . quando
post applicationem (aegrotus) diuturna laborat aegritudine, uno
verbo, quando Rituale permittit, aut praecipit iterationem Ex
tremae Unctionis, aut confessarius iudicat iterandam esse absolu
tionem? Resp. Prout iacet, negative in omnibus.
24 September, 1838, ad 2; Fontes, n. 5008: Utrum Benedictio
Apostolica pluries impertiri possit infirmis, novo mortis periculo
redeunte? Resp. Negative, eadem permanente infirmitate etsi diu
turna; affirmative, si infirmus convaluerit, ac deinde quacunque de
causa in novum mortis periculo redeat.
8+
206
Priests1 Problems
Q. 157
Extreme Unction may be repeated when a fresh danger of death
intervenes, even though the person has not ceased to be in danger,
but the last blessing may be repeated only when the person has
recovered and is again in danger. The reason for this distinction is
seen in the fact that the sacrament has its effect when administered,
but the plenary indulgence is obtained, not when the blessing is
given, but at the moment of death. Accordingly it is useless to
repeat it, and those manualists who teach that the blessing may be
given as often as Extreme Unction is given are not quite accurate.
Undoubtedly, the logical conclusion is that the last blessing need
never be repeated, even when the person has fully recovered, and
no matter what length of time separates its first reception from a
subsequent danger of death. This conclusion is drawn by Béringcr,
Les Indulgences, p. 680 and p. 682 ; by the writer of an article in Dic
tionnaire de Théologie, I, col. 259; and by Fr McKenna writing in
The Clergy Review, 1931, II, p. 326.
Nevertheless, the above decrees, whilst not ordering its repetition,
do permit it whenever the person has recovered and is again in
danger. The writers mentioned observe that the Church permits
repetition, in such cases, for the purpose of removing all doubt and
for the consolation of the recipient ; and, indeed, if there is some
doubt whether the blessing has been received, this observation is
just. But de jure the above decrees do not limit repetition to cases of
doubt, and de facto priests repeat the blessing, in circumstances
which permit it, even when they are absolutely certain that it has
been received on some former occasion. They rightly do so, it seems
to us, since, on a principle of charity, nothing should be omitted
which, even though not ordered, is likely to be of some spiritual
benefit to persons in danger of death. The decrees clearly say that,
in given circumstances, the blessing may be repeated.
If, however, one asks the reason why the Church permits repeti
tion in cases where there is no doubt of its former reception, we must
confess that we have been unable to discover a completely satis
factory answer. It is not an adequate reason to suggest that it is for
the consolation of the recipient, for properly instructed he would
understand that he is receiving nothing that he does not already
possess. One possible reason may be based on the common presump
tion that there is always some doubt in such cases. Or it may be
discerned, perhaps, in the papal blessing as something distinct
from the plenary indulgence, a blessing which the Church permits
to be repeated, not whenever Extreme Unction is repeated, but
in the contingencies determined by the positive law in the above
decrees.
*
Q_. 158
Extreme Unction and Last Blessing
2U7
158. “commendatio animae’’
Are the prayers of the Ritual entitled “ Ordo Commendationis Animae” of
obligation on the part of a priest with care of souls, or may other vernacular
prayers be used instead?
Rituale Romanum, Tit. VI, cap. ii, n. 15: . . . statim ipsum Paro
chum accersant, ut morientem adiuvet, eiusque animam Deo
commendat. . . .
Cap. v, n. i : ... si periculum immineat, statim commendationis
animae officium praestabit, de quo infra.
Canon 468, §1 : Sedula cura . . . maxime vero morti proximos
adiuvare, eos sollicite Sacramentis reficiendo, eorumque animas Deo
commendando.
The rite of Extreme Unction (Cap. ii) in the Roman Ritual is
followed by the Penitential Psalms and Litanies for recital by the
faithful assisting (Cap. iii), Prayers when visiting the Sick (Cap. iv),
the Manner of Assisting the Dying (Cap. v), the Apostolic Blessing
(Cap. vi), the Order of Commending a Soul (Cap. vii), and the
Expiry (Cap. viii).
No priest ever voluntarily omits Caps, ii and vi. A careful reading
of the rubrics of the other chapters, apart from Cap. vii, does not
indicate any sort of obligation, but rather the contrary: Cap. iv,
n. 18, “pro arbitrio sacerdotis dici vel omitti possunt” ; Cap. v, n. 1,
“sequentia pietatis officia praestare poterit, si ita expedire iudicaverit”; Cap. viii, n. 1, “assistens sive sacerdos pro eo clara voce
pronuntiet”. Throughout the rubrics of these rites, which occupy
many pages of the Ritual, it is clear that their use is not obligatory,
or that the prayers may be said by anyone assisting die dying
person.
The query is consequently restricted to Cap. vii, itself of consider
able length. From n. 5 onwards, including the Passion according to
St John, the rubrics read “poterit legi super aegrotum” or “dici
praeterea possunt”. But nn. 1-5 arc not so expressed, and taking
this in conjunction with canon 468 and the two rubrics quoted
above, one cannot avoid the conclusion that there is an obligation
on the priest with care of souls to commend the dying to God and
to do so with the prayers in Cap. vii, nn. 1-5.1 Inasmuch as these
prayers should not follow Extreme Unction immediately unless the
person is actually dying, it will often happen that the priest cannot
conveniently be present; the obligation is in any case not grave and
a proportionate reason will excuse his attendance. But without
1 Fanfani, De lure Parochorum, n. 342.
208
Priests' Problems
Q· 158
wishing to multiply priestly obligations, wc think that this one should
not lightly be forgone. Many of the faithful know these liturgical
texts from their inclusion in The Dream of Gerontius and are some
times surprised when they are not recited over a dying person by
the priest. Other prayers may be used as well, but these have a
special value as a suffrage from their liturgical character, even
though the dying person does not understand them ; since they are
found in English in the Ordo Administrandi, the priest may recite
them in English.1
1 Dunne, The Ritual Explained, p. 94.
XIII. HOLY ORDERS
15g. PROPER BISHOP FOR TONSURE
A student in the Seminary of diocese X, who has no domicile anywhere,
desires to be tonsured for the service of diocese Y. Who is the proper bishop
for conferring the tonsure?
1.
MM
Canon 92, §1 : Domicilium acquiritur commoratione m aliqua
paroecia aut quasi-paroecia, aut saltem in dioecesi, vicariatu apostolico, praefectura apostolica; quae commoratio vel coniuncta sit
cum animo ibi perpetuo manendi, si nihil inde avocet, vel sit
protracta ad decennium completum.
Canon 955, §1 : Unusquisque a proprio Episcopo ordinetur aut
cum legitimis eiusdem litteris dimissoriis.
Canon 956: Episcopus proprius, quod attinet ad ordinationem
saccularium, est tantum Episcopus dioecesis in qua promovendus
habeat domicilium una cum origine aut simplex domicilium sine
origine; sed in hoc altero casu promovendus debet animum in
dioecesi perpetuo manendi iureiurando firmare, nisi agatur de
promovendo . . . qui servitio alius dioecesis destinatur ad normam
can. 969, §2. . . .
Code Commission, 17 August, 1919 : Quisnam sit episcopus proprius
pro ordinatione illorum qui nullum domicilium habent? Resp. Prout
dubium exponitur, est episcopus loci in quo fit ordinatio, modo
tamen ordinandus praevie acquirat domicilium cum iuramento
ad normam can. 956. (Private Reply. Cf. Periodica, 1923, XII,
I
I I
iI
I
I
I
P· 73>)
...
The various problems which arise in determining the proper
bishop for ordination have been, for the most part, solved by official
and public Roman decisions, and the present difiiculty seems to be
the only serious one remaining. A qualified domicile is, under the
law of the Code, essential for establishing the proper bishop for
ordination : if the candidate has no domicile he has no proper
bishop for this purpose. One solution of the difficulty outlined above
is for the student to visit his future diocese Y, to acquire a domicile
therein by staying one night, and to take an oath to remain ; the
bishop of Y will then be the proper bishop. This is a cumbersome
method, especially if the two dioceses arc far apart, though it has
frequently been adopted as being the only certain and safe
209
· .
210
Priests' Problems
Q· 159
procedure; bearing in mind the severe penalties of canon 2373.1,
Ordinaries arc naturally averse to running any risk. There is always,
of course, the remedy of seeking an induit, but this is also
an unattractive procedure. Bouscaren, writing in Periodica, 1940,
p. 144, favours an induit as the only correct solution: “. . .
si certo constet ordinandum nullum habere domicilium, et illud
in loco ordinationis—loquimur de prima tonsura—acquirere
nequeat, putamus adhuc verum manere quod citati auctores
de illo casu docent, sc. restat ut per indultum apostolicum
provideatur”.
Bouscaren, it will be noted, agrees that an induit must be obtained
if the candidate is unable to acquire a domicile in the diocese where
he is dwelling, namely the diocese in which the Seminary is situated.
The apparent obstacle to his so doing, assuming he has reached his
majority, is that he cannot have the intention of remaining there
permanently since it is his intention to be tonsured for the service
of another diocese. If this obstacle can be surmounted, one will
have a solution of the difficulty which avoids the other cumbersome
procedures suggested.
The generality of canonists consulted take it for granted that the
obstacle, in the present state of the law, cannot be surmounted, and
we know of only one writer who appears to teach the contrary'. De
Heneghan, writing in The Jurist, 1943, p. 329, states that the can
didate, when he reaches his majority, may acquire a domicile in
the diocese in which the seminary' is located ; the bishop of that
diocese is then the proper bishop for conferring the tonsure, which
he does under an agreement with the bishop of the diocese for the
service of which the candidate is destined, by which, on receiving
the tonsure, the candidate is incardinated in the distant diocese,
whose bishop is henceforth the only proper bishop for promoting
him to orders.
This is a reasonable solution, provided the intention of remaining
permanently can be harmonised with the intention of becoming
incardinated elsewhere, and we are offered no solution of this
difficulty. It is scarcely covered by the clause in canon 92, §1, “si
nihil inde avocet”, according to the best canonists. Thus Michiels,
De Personis, p. 106: “. . . requiritur vero ut hic et nunc, vi voluntatis
praesentis, intendatur commoratio in determinato loco in indefinitum
protrahenda, ita ut discessus futurus nondum sit determinatus et
volitus. . . .” Accordingly, until this very attractive solution of the
problem is more firmly established, it is our opinion that the
candidate must either acquire a domicile in his future diocese or
seek an induit dispensing from the law of canon 955, §1.
Holy Orders
Q. 160
211
160. PRIVATE STUDY FOR THE PRIESTHOOD
Could permission properly be asked from one's own Ordinary to study for
the secular priesthood elsewhere than in a seminary ?
Canon 972, §1 : Curandum ut ad sacros ordines adspirantes inde
a teneris annis in Seminario recipiantur; sed omnes ibidem
commorari tenentur saltem per integrum sacrae theologiae
curriculum, nisi Ordinarius in casibus peculiaribus, gravi de
causa, onerata cius conscientia, dispensaverit. §2. Qui ad ordines
adspirant et extra Seminarium legitime morantur, commendentur
pio et idoneo sacerdoti, qui eis invigilet eosque ad pietatem
informet.
Canon 976, §3: Cursus theologicus peractus esse debet non
privatim, sed in scholis ad id institutis secundum studiorum rationem
can. 1365 determinatam.
The law refers to those of an age to take the theological course :
the word curandum in relation to the training of boys in seminaries
from their earliest years implies a strong recommendation rather
than a law, though local legislation may make this recommendation
of the common law an obligation. Moreover the question of living
in a seminary is quite distinct from the law of canon 976, §3, which
disallows private study as the equivalent of a course of lectures in a
qualified institution. It is for the Ordinary to dispense from the law
of residence in a seminary, and a request for this favour could
properly be made ; but a papal induit would be required for private
study,1 since the law gives no power to an Ordinary to dispense and
canon 81 is scarcely applicable. Evidently canon 976, §3, is of far
greater moment than canon 972, §1.
The commonest reason for desiring a clerical education outside a
seminary is the opportunity of obtaining theological degrees at a
Catholic University, and most of them have institutions under
episcopal surveillance where the students live an ordered life under
a rule which is practically that of a seminary, except that they go
out for lectures; the ecclesiastic in charge of this house is the “pius
et idoneus sacerdos” of canon 972, §2. But it is rightly noted by the
commentators that the law does not actually require the candidate
for holy orders to live under the same roof with the priest to whose
care he is commended, if dispensed from living in a seminary by his
Ordinary; Catholic Universities, however, as a rule do not accept
candidates for theological degrees who are not priests unless they
live in an approved house ruled by a priest. Other reasons which
1 L’Ami du Clergé, 1950, p. 317.
212
Q. 161
Priests' Problems
might persuade an Ordinary to use his right under canon 972, §1, are
ill-health or advanced age.
The Ordinary to be approached for this permission is the proper
Ordinary, by incardination, of the cleric ; or, if the candidate is not
tonsured, the Ordinary who has the right to ordain him or to give
dimissorials.
l6l. INTERSTICES----EXERCISE OF ORDER
Is there a law requiring the exercise of the powers received in one order
before receiving a higher order, or is this no more than a praiseworthy
custom ?
Canon 978, §1 : In ordinationibus serventur temporum interstitia
quibus promoti in receptis ordinibus, secundum Episcopi praescrip
tum, sese exerceant.
Since the whole point of intei*stices consists in a period of trial in
a lower order before being promoted to a higher, it would seem that,
unless a dispensation is obtained, a deacon, for example, must
exercise his diaconal office before being promoted to the priesthood.
The common law, however, in canon 978, §2, permits a bishop to
dispense from the interstices, within the terms of the canon, so that
in a case of necessity a deacon ordained, say, on Ember Saturday
could be promoted to the priesthood on the following Sunday, in
which case there would be no opportunity of exercising the diaconal
function. Accordingly, most modern commentators, whilst stressing
the law of interstices, teach that there is actually no common law
obligation to exercise during this period the order received, though
there is often a local episcopal law on the point ; the wording of
canon 978, §1, “secundum Episcopi praescriptum”, supports this
interpretation.1
A minority, including Gasparri,2 hold that there is an obligation
of the common law sub levi, to exercise during interstices the order
received before receiving a higher one, unless of course it is dispensed ;
a dispensation is implied, it seems, whenever a bishop so dispenses3
interstices as to leave no time free for exercising an order, and
examples exist of papal dispensations explicitly granted to certain
Roman colleges. Wc prefer this view, owing to the very clear
directions of the Pontifical in the opening rubric De Ordinibus
Conferendis, and because otherwise the law of interstices becomes
almost meaningless. If this view is correct, it follows that every
1 Cappello, De Ordine, 5pi ; Coronala, §78.
3 Cf. The Clergy Review, 1946, XXVI, p. 263.
2 De Sacra Ordinatione, §512.
Q. 162
Holy Orders
213
effort should be made to provide ordinands in seminaries with an
opportunity of exercising the orders received before proceeding
higher, and wc believe this to be the established custom in this
country.
162. “titulus patrimonii”
What is the minimum annual income required for ordination on this title ?
May the income from Mass offerings be reckoned as part of the patrimony ?
Is a priest ordained on this title less subject to his own Ordinary than one
ordained “titulo servitii dioecesis”?
Canon 979, §1 : Pro clericis saecularibus titulus canonicus est
titulus beneficii, eoque deficiente, patrimonii aut pensionis.
§2 : Hic titulus debet esse ct vere securus pro tota ordinati vita et
vere sufficiens ad congruam eiusdem sustentationem, secundum
nonnas ab Ordinariis pro diversis locorum ct temporum neces
sitatibus et adiunctis dandas.
Canon 980, §2 : Qui, citra apostolicum indultum, suum subditum
in sacris sine titulo canonico scienter ordinaverint aut ordinari
permiserint, debent ipsi eorumque successores eidem egenti alimenta
necessaria praebere, donec congruae eiusdem sustentationi aliter
provisum fuerit.
i. It is for the Ordinary in whose diocese the priest will be incardinated to decide what is the minimum, since what is a fitting
sustenance for a priest will vary according to localities; and it is
for the same Ordinary to get assured that the candidate for ordina
tion possesses this minimum income, because otherwise he may
become responsible for the priest’s support. In places where this
ordination title is fairly common, the minimum is determined by
local law ; to the best of our knowledge, no local regulations of the
kind exist in this country, and it is accordingly to be left to the
Ordinary's decision. Λ cleric wishing to be ordained on the tide of
his own patrimony must prove to his Ordinary’s satisfaction that he
possesses, in his own right, an adequate income.
ii. Whether the income from Mass offerings may rightly be
estimated as part of the patrimony is in dispute; some canonists
definitely reject the notion,1 whilst others admit it provided the
Mass offerings are not entirely fortuitous but certain, in the sense
that the priest, whether by inheritance or some other title, has an
assured income from this source, as might happen if he enjoyed an
office which was not a benefice.2 We think that a cleric could rightly
1 Many, De Sacra Ordinatione, § 138.
* Cf. Apollinaris, 1928, 1 p. «82.
8·
214
Priests' Problems
Q. 163
represent this source of income as part of his patrimony, leaving it
to the Ordinary' to accept or reject it. Moreover, it is stated that the
Holy See sanctioned titulus Missarum, 4 April, 1946, as an adequate
title for German students banished from their country,1 though this
is probably an induit, provided for in canon 980, §2, rather than a
decision bringing Mass offerings within the notion of patrimony.
iii. A priest ordained on the title of his patrimony is bound, like
clerics ordained on any other title, to obey his own Ordinary, and
the canons make no distinction in liis favour.2 The only difference
is that one ordained titulo servitii dioecesis is bound not only by his
ordination promise and the law of canons 127 and 128, which apply
to all secular clerics indiscriminately, but in addition by his ordina
tion title, which is in effect a contract between him and the diocese;
by disobedience he is guilty of a breach of diis contract. It may
happen, in practice, that an Ordinary is less exigent in the demands
he may lawfully make on those ordained on their own patrimony,
but in principle he is within his right in exacting canonical obedience
from all his clerics, and coercing them by ecclesiastical penalties if
necessary'. The title of patrimony, from canon 979, §1, is considered
as something abnormal and may be used only when the normal
title is lacking.
163. IRREGULARITY — “OCULUS CANONIS”
Does a candidate for the priesthood lacking his left eye require a dispensa
tion, at least ad cautelam, from irregularity?
Canon 984: Sunt irregulares ex defectu: ... 2. Corpore vitiati
qui secure propter debilitatem, vel decenter propter deformitatem,
altaris ministerio defungi non valeant. . . .
S.C. Relig,, 28 November, 1924: Periodica, 1925, p. 78. Haec S.
Congregatio, mature perpenso exposito dubio utrum, sub iurc
Codicis, quis, ceteris omnibus dotibus praedictus atque optimi
ingenii, dicendus sit irregularis ad recipiendos Sacros Ordines ob
solum defectum oculi sinistri, nulla existente deformitate vel exercitii
difficultate; attentis omnibus ad rem facientibus, rescribendum
censuit prout rescribit: “Prout exponitur in casu non constare de
irregularitate”.
Some of the older prc-Code canonists held that die lack of the
left eye must be considered, apart from any other consequent
disabilities, to constitute irregularity, since it made reading the
’ Rulletin des Facultés Catholiques de Lyon, July 1950, p. 63.
2 The Clergy Review, 193g, XVII, p. 67.
Holy Orders
Q. 164
215
Canon of the Mass difficult. The reply of the Holy See in 1924 related
to a Capuchin refused ordination by a bishop because of this defect,
and it confirmed what had long been the common opinion. It is
quite possible to read the Canon with the right eye and for the
afflicted person to have a glass left eye, thus complying with the
requirements “secure” and “decenter” of canon 984. The lack of
both eyes is obviously an irregularity, though examples exist in
modern times of dispensations being granted.1 The criterion as to
whether irregularity exists or not, assuming there is no revolting
deformity in the person’s facial appearance, is whether it is possible
for him to read the Missal at Mass. Total blindness subsequent to
ordination is met by induit permitting the habitual use of a mem
orised votive Mass of Our Lady and of the Requiem Mass.
164.
RELIGIOUS SUPERIOR FOR DI.MISSORIALS
A religious belonging to an English province is living, for purposes of study,
in a French province. Which provincial is competent to issue dimissorials for
ordination?
Canon 995, §1 : Etiam Superior religiosus suis litteris dimissoriis
non solum testari debet promovendum professionem religiosam
emisisse et esse de familia domus religiosae sibi subditae, sed etiam
de studiis peractis, deque aliis iure requisitis. §2 : Episcopus, acceptis
iis litteris dimissoriis, aliis testimonialibus litteris non indiget.
Ί he difficulty is that the French provincial can testify about studies
but not about other matters required by the law, and the English
provincial who can testify about everything concerning the ordinandus
cannot say that he is dwelling in a religious house subject to him.
The law takes it for granted, on the other hand, that dimissorials
will be issued from one religious superior. The solution which is
usually given and which wc think correct is that the dimissorials
should be given by the English provincial who will state that the
ordinandus is his subject though dwelling for the time being in the
diocese of the ordaining bishop. Thus Regatillo: “Cum ordinandus
degit in domo alienae provinciae, cius Provincialis proprius nequit
vere testari illum esse de familia domus sibi subditae; sed esse
subditum suum ; nam canon respicit id quod communiter contingit :
ut quisque religiosus in sua provincia studeat (can. 587, §3). Imo,
in quovis casu mens c. 995 est ut superior maior in dimissoriis
testetur candidatum esse subditum suum. Quae rcdactio proprior
esset et casus omnes complectens. Vel forsan melius, testetur esse
1 Cappello, De Ordine, §472.
216
Priests' Problems
Q· 165
subditum suum ct de familia domus religiosae in dioecesi ordinantis
sitae.”1
165.
PARENTAL BLESSING OF NE WL Y - O RD AI N E D PRIEST
Is there any ruling on the custom of a newly-ordained priest receiving the
blessing of his own parents after his first Mass ?
S.R.C., 30 July, 1910, n. 4257.2. Absoluta sua prima Missa, NeoSacerdos, retenta vel interdum deposita casula et sumpto pluviali,
a matre sua in Presbyterium ingressa et stante, genuflexus benedic
tionem sic paratus recipit; mox surgens, matri genuflexae et ipse
benedicit. Eodem modo fit quoad patrem Neo-Sacerdotis. Quae
ritur: An haec consuetudo, quae vetustissima videtur, retineri
queat? Resp. Prout exponitur, negative, et ad mentem. Mens est:
consuetudinem in casu continuari posse, non tamen in Presbyterio,
sed in sacristia vel alibi ; et postquam Neo-Sacerdos deposuerit sacra
paramenta.
The formula used by the priest is Benedictio Dei omnipotentis, etc.
The parents may use any suitable words or none at all.
1 Jui Sacramenlarium (1949)1 §θ9θ·
l66. SACRAMENTAL MARRIAGE---- MUST BOTH
BE BAPTISED ?
Is it more probable, as Tanquerey says, that a marriage between a baptised
and an unbaptised person is a sacrament for the baptised party ?
Tanquerey-Cimeticr, Theol. Moralis (1945), I, §832: Posterior
(quaestio) est num matrimonium fidelis cum infideli sit sacramen
tum, quando tale matrimonium fuit ab Ecclesia permissum. (1)
Multi negant. ... (2) alii autem et quidem nostro iudicioprobabilius,
affirmant matrimonium huiusmodi esse sacramentum in parte
fideli.. . .
At one time this disputed question had almost equal arguments
and authorities on both sides. When, however, 5 November, 1924,
the Holy See dissolved a marriage of this kind, and especially when
it became known that it was by no means a solitary instance, the
Thomist opinion which denies a sacramental character to such
marriages began to prevail over the opposite view, and at the
present time the opinion is not only more probable than its opposite
but is almost universally held. It must be observed that Tanquerey’s
text refers expressly to a marriage contracted with the sanction of
the Church, either given as a dispensation from the impediment of
difference of worship, or contracted under the common law since
the Code (canon 1070, §1) by a baptised non-Catholic. The point is
that the non-sacramental character of these marriages is in general
held to be proved from the fact that the Holy See can dissolve them
even after consummation, whereas if the marriage is a sacrament,
or as it is commonly described “ratum et consummatum”, it is
indissoluble except by death. Examples exist of papal dissolution of
marriages contracted with a dispensation from difference of wor
ship.1 Perhaps the text in Tanquerey, originally written before 1924,
was passed inadvertently by the modern editor, who is certainly
aware of the practice of the Holy See.2
1 Bouscaren, Digest, III, p. 485.
1 Cimcticr, Pour Etudier le Code, 1927. p. I71·
217
218
167.
Priests' Problems
Q. 167
SACRAMENTAL MARRIAGE BY SUBSEQUENT BAPTISM
Does a legitimate marriage become sacramental when both parties receive
baptism, even if a civil divorce has meanwhile intervened?
Canon 1012, §2: Quare inter baptizatos nequit matrimonialis
contractus validus consistere, quin sit eo ipso sacramentum.
Prümmer, Thcol. Moralis, III, §650: Sin autem consensus in
infidelitate datus expresse revocatus est, e. gr. per divortium civile,
difficulter intelligitur, quomodo tunc tale matrimonium per baptis
mum amborum coniugum evadat sacramentum. Reciperent enim
tunc isti coniuges sacramentum contra ipsorum voluntatem et
intentionem. Quod quidem videtur non esse possibile. Praeterea
causa efficiens sacramenti matrimonii est consensus contrahentium.'
lam vero in casu revocationis talis causa efficiens deest. Ergo et
desit sacramentum oportet.
It is assumed, in discussing this question, that there was a valid
marriage contracted in infidelity, and that the Pauline Privilege is
not being used. It seems to us that Prümmer’s teaching is scarcely
probable, and we have not found another modern author who puts
the proposition as Prümmer does. In the past, when the identity of
the contract with the sacrament was not clearly perceived, some
used to require renewal of marriage consent at or after Baptism,1
and many still refer to the marriage consent continuing virtually as
the explanation of the process whereby a legitimate marriage
becomes ratum by receiving baptism.
The correct doctrine, however, regards it as irrelevant whether
the parties validly married in infidelity have revoked the marriage
consent by divorce before baptism. For it is evident, on reflection,
that if they arc validly married they cannot revoke, since the
contract is intrinsically indissoluble ; nor can even the natural bond
of valid marriage be dissolved extrinsically by the State.2 The
marriage bond, therefore, continues no matter how much the parties
desire it to cease, and the most one can say about the civil divorce is
that it is the canonical equivalent of separation. The valid marriage
of all baptised Christians is a sacrament, and it does not matter
whether the contract precedes or follows baptism ; the teaching of
St Paul on marriage clearly applies to all the Christians he was
addressing, without exception, and many of them must have been
married before their conversion.
Accordingly, a writer such as Payen, who is experienced in all
1 Cf. Joyce, Christian Marriage, p. 210.
* For the distinction between intrinsic and extrinsic indissolubility, cf. The
Clergy Review, 1942, XXII, p. 176.
Q. 168
Marriage—The Different Kinds
•
·
’ -4 ZT*
marriage questions affecting the unbaptised, writes very differently :
“Dcniquc nihil refert consensum validum fuisse, ab una vel ab
utraque parte, illicite et invalide seu inefficaciter, revocatum:
baptizato utroque coniugc infideli, eorum matrimonium, velint nolint,
crescit in sacramentum.”1 Similarly Cappello: “Dicendum matcriam et formam consistere equidem in consensu ; porro consensus
matrimonialis valide praestitus, adhuc perseverat, nec profecto
potuit aut potest valide revocari, ob coniugii indissolubilitatem.
Quare materia ct forma, in ipso consensu coniugali existentes, revera
adsunt quando coniuges baptizantur, ideoque per ipsum baptismum
matrimonium efficitur sacramentum, quatenus consensus matri
monialis valide praestitus et adhuc perseverans, posita conditione
baptismi a Christo D. requisita, fit statim signum efficax gratiae seu
sacramentum.”2
Our practice fits well with the theory, since married converts are
never required to renew consent at the time of baptism; if they are
validly married, the renewal of consent, even virtually or implicitly,
does not in any way affect their status as married Christians, and
therefore as having the sacrament of marriage from the moment of
baptism. Payen gives some useful practical advice for the case of
persons civilly divorced seeking baptism, and the difficulties existing
in such instances are an added reason why the law requires all
adult baptisms to be referred to the Ordinary.
l68.
I H
219
I I t| ! UI '
I
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. ,
', H
INDISSOLUBILITY OF SACRAMENTAL MARRIAGE
How explain canon 1013, §2, which states that Christian marriage has a
special firmness “because of the sacrament”, seeing that the contractsacrament may be dissolved by the Pope if it has not been consummated?
Canon 1013, §2: Essentiales matrimonii proprietates sunt unitas
ac indissolubilitas, quae in matrimonio Christiano peculiarem
obtinent firmitatem ratione sacramenti.
Canon 1119: Matrimonium non consummatum inter baptizatos
vel inter partein baptizatam ct partem non baptizatam, dissolvitur
tum ipso iure per sollemnem professionem religiosam, tum per dis
pensationem a Sede Apostolica ex iusta causa concessam, utraque
parte rogante vel alterutra, etsi altera sit invita.
i. The difficulty arises from the equivocal use of the word
“sacrament”. In the sense commonly understood by Catholics it
means one of the seven external signs instituted by Christ as efficacious signs of grace; in a wider and less well-defined sense it means
1 Dt Matrimonio, I, §§36 and 41.
-Dr Matrimonio, §35.
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220
Priests' Problems
Q. 168
“mystery ’, as in Ephesians v, 32, and frequently in liturgical texts,
especially those of Leonine origin, as “sacramentum nativitatis
Christi” (1 January, lectio iv). The Vulgate version of Ephesians
v, 32, renders the Greek “mysterion” as “sacramentum”, and the
Protestant reformers who denied that marriage was one of the seven
sacraments thought that the Catholic doctrine affirming it to be one
could be traced to the Vulgate “sacramentum hoc magnum est”.
Hence Article XXV of the Church of England teaches that matri
mony has not the nature of a sacrament with Baptism and the
Lord’s Supper, for it lacks any visible sign or ceremony ordained by
God. The Pauline text is indeed used by theologians as an indirect
proof that marriage is one of the seven sacraments, but the words
themselves do not directly establish the doctrine, and the Tri
dentine teaching is content with the statement: “Quod Paulus
Apostolus innuit dicens . . . sacramentum hoc magnum est.”1
ii. There is a correct sense in which the reception of the sacrament
by two Christians gives their union a firmness lacking in the legit
imate marriages of the unbaptised : it cannot, for example, be dis
solved by the Pauline privilege ; but the best solution of the difficulty
in the wording of canon 1013, §2, is to give the word “sacramenti”
therein its second and less usual meaning of “mystery”. “Matri
monium Christianum non est absolute indissolubile ob sacramentum
ut signum efficax gratiae, sed in quantum est signum perfectae
coniunctionis Christi et Ecclesiae. Verba can. 1013, §2, hoc modo
intclligenda sunt.”2 The ultimate and intrinsic reason for the
absolute indissolubility of the marriage of two Christians validly
contracted and consummated lies in its mysterious symbolism of the
Incarnation as taught by St Paul. Its indissolubility is certain from
the teaching of Christ in the Gospels, but to quote the words of
Pius XI : “If we seek with reverence to discover the intrinsic
reason of this divine ordinance, we shall easily find it in the mystical
signification of Christian wedlock, seen in its full perfection in con
summated marriage between Christians. The Apostle . . . tells us
that Christian wedlock signifies that most perfect union which
subsists betw’ecn Christ and the Church ... a union which cer
tainly, as long as Christ lives and the Church lives by Him, can
never cease or be dissolved.”2 “It is incorrect to say,” writes Fr
Joyce, S.J., in a book which cannot be too highly praised, “that it
is the sacrament of Matrimony which confers on Christian marriage
its peculiar indissolubility. The reason why the bond of wedlock
between Christians can under no conceivable circumstances be
1 Denz., 969.
« Jus Pontificium, 1936, XVI, p. 324.
3 Casti Connubii, C.T.S. Do î 13 (Tr. Canon Smith), §35.
Marriage—The Different Kinds
Q. 169
221
broken lies not in the sacrament as such, but in the sacramental
symbolism, which in this case is not quite the same thing. It is
because Christian marriage represents the indissoluble union of the
Son of God with human nature that all severance is impossible. But
that symbolism is found fully only in the consummated union.”1
The doctrine is reflected in the canonical practice of centuries, which
is still in full use, of referring to a condition or an intention of con
tracting a dissoluble marriage as a condition or intention “contra
bonum sacramenti”. On the other hand, the word is used in its
more usual sense referring to one of the seven sacraments in canon
1084: “Simplex error circa matrimonii unitatem vel indissolubilitatem aut sacramcntalem dignitatem, etsi det causam contractui,
non vitiat consensum matrimonialem.”
169.
MEANING OF “MATRIMONIUM RATUM’’
Is there any doubt that this term means a valid marriage contracted by two
baptised persons? Hcylen uses it to mean also a marriage between a baptised
and an unbaptised person.
Canon 1015, §1 : Matrimonium baptizatorum validum dicitur
ratum, si nondum consummatione completum est. . . .
§3: Matrimonium inter non baptizatos valide celebratum, dicitur
legitimum.
Canon 1118: Matrimonium validum ratum et consummatum
nulla humana potestate nullaque causa, praeterquam morte,
dissolvi potest.
Hcylcn, Dc Matrimonio (1945), P· 324· Duplex datur in Ecclesia
casus dissolutionis seu divortii matrimonii valide contracti : primus
respicit matrimonium valide contractum inter fideles aut inter
fidelem ct infidelem (quod dicitur ratum) ; alter respicit matrim
onium infidelium (quod dicitur legitimum).
The word “ratum” qualifying a marriage has had at various
times different meanings, and mediaeval canonists used it in a sense
which is exactly opposite to the modern use: it was taught by
Gratian, for example, that consent constituted merely matrimonium
initiatum, and that consummation was required to make it matri
monium ratum.2 Tn the context in which it occurs in Heylen’s excellent
treatise the author appears to be stressing the non-consummation
clement in marriages so described, and Payen notes that the descrip
tion “ratum” is sometimes applied to an unconsummatcd matri
monium legitimum.3 One should not, we suppose, attach too much
1 Christian Marriage, cd. 1948^.446.
* Joyce, Christian Marriage, p. 58.
.
.
Matnmomo, I, §129.3.
222
Priests' Problems
Q. 170
importance to a term, provided that the doctrine is preserved intact,
and the Code itself gives to matrimonium legitimum in canon 331, §1
n. i a meaning different from that which is clearly defined in canon
1015, §3 ; otherwise we should have to hold that one of the qualifica
tions for the episcopate is to be born of unbaptised parents !
We think, however, that under the Code discipline the word
“ratum” when used as a qualification of a valid marriage should
be used restrictively for a marriage between two baptised persons,
namely a marriage which is a sacrament. Otherwise confusion is
likely to arise, especially having regard to the clear statement in
canon 1118, for it is not now in dispute that a marriage between a
baptised and an unbaptised person can be dissolved even though it
is consummated, since it is not a sacrament. We find that this is the
meaning attached to the word “ratum” by nearly all the post-Code
writers: Vermeersch Creusen, Epitome, II, §227 ; Gasparri, De Matri
monio, I, §41 ; Aertnys-Damen, Theologia Moralis, II, §634. This
meaning should be retained notwithstanding the historical justifica
tion for using the term in a slightly different sense.
170. CONSUMMATION AND CONTRACEPTION
It appears from all the manuals that intercourse with contraceptives is not
consummation of marriage. Does not this interpretation put, as it were, a
premium on sinful behaviour, since the parlies may seek a papal dissolution of
marriage which is not consummated?
S.C. Sacram., y May, 1923, n. 11 (A.A.S., XV, p. 389) : §1 : Si ex
supplici libello oratoris, vel ex causae instructione iam inchoata, vel
ex aliis investigationibus iuxta n. 9, constiterit, matrimonii consum
mationem coniugcs omnimode devitasse ex detestabili onanismi
vitio, tunc orator vel uterque coniux, si hi concorditer dispensa
tionem petant, sunt monendi, causam non posse institui vel ad
ulteriora produci.
§2 : Quod si orator significet se criminis nullimodo fuisse partic
ipem, sed depravatos alterius coniugis mores passum esse, aut,
etiamsi fateatur se non esse innoxium, ostendat tamen hodie res
eo devenisse ut coniugalis consortii instauratio non sit possibilis, ac
sincere sit facti pocnitcns, et serio promittat se in altero coniugio
forte inituro huiusmodi nefando facinori nullimodo operam esse
daturum, tunc iudex rem deferat ad H. S. C.
Canon 1015, §1 : . . . consummatum, si inter coniugcs locum habu
erit coniugalis actus, ad quem natura sua ordinatur contractus
matrimonialis et quo coniugcs fiunt una caro.
Q. 171
Marnage—The Different Kinds
223
The description of consummation of marriage in canon 1015, §1,
and 1081, §2, “actus per se aptos ad prolis generationem”, is given
more explicitly by the canonists as “ actio qua vir verum semen modo
naturali effundit in vaginam mulieris.”1 Contraceptive intercourse,
whether with the aid of instruments or not, clearly falls short of this
definition and is not consummation of marriage.
It must be observed that, unlike those who seek to get a marriage
declared null by an ecclesiastical court, parties who have not con
summated their marriage have no right to a papal dissolution, even
though their proof of non-consummation is certain, and no immoral
actions have taken place. It is a favour which the Holy See may
grant for grave reasons, and more often than not it is a method
employed in cases of alleged impotence which cannot be settled as
such. Ί he granting of this favour to parties whose non-consummation
of marriage is admittedly due to contraceptive practices is extremely
rare. It is not possible when contraceptive devices are employed after
natural intercourse, since the marriage is then consummated.
Though possible in other cases, it is not usual even in the circum
stances of n. 11, §2 of the 1923 decree,2 but we have no information
as to the number of these exceptional cases which succeed in
securing a papal dissolution.
There remains the objection that, no matter how rare the success
ful cases may be, the possibility of obtaining a papal dissolution is,
in these circumstances, a premium on sinful behaviour. The reply
must be that the same may be said of all nullity causes due to the
fault of the petitioners,3 and there may exist, nevertheless, the
gravest reasons for conceding to them, after repentance, the legal
remedy.
I7I. CIVIL MARRIAGE
Seeing thaï the State has omitted, from civil marriage the words “ till death
do us part", and considering that it does not treat the civil marriage as a
permanent contract, how can the Church recognize such marriages as valid?
The essential quality of indissolubility is lacking.
Canon 1013, §2: Essentiales matrimonii proprietates sunt unitas
ac indissolubilitas. . . .
Canon 1084: Simplex error circa matrimonii unitatem vel indissolubilitatcm aut sacramentalem dignitatem, etsi det causam
contractui, non vitiat consensum matrimonialem.
1 Wemz-Vidal, V, §218.
2 Cf. The Jurist, 1941, I, p. 216.
’Cf. The Clergy Review, 1946, XXVT. p. 660.
224
Priests' Problems
Q. 171
Canon 1086, §2: At si alterutra vel utraque pars positivo volun
tatis actu excludat matrimonium ipsum, aut omne ius ad coniugalem
actum, vel essentialem aliquam matrimonii proprietatem, invalide
contrahit.
The formula spoken by the contracting parties, in the presence of
the registrar and two witnesses, is the same as that which follows a
Catholic marriage : “I do solemnly declare that I know not of any
lawful impediment why I, Λ.Β., may not be joined in matrimony
to C.D.” and “I call upon these persons here present to witness
that I, A.B., do take thee, C.D., to be my lawful wedded wife (or
husband).”
In the Roman Ritual the form is even simpler: “N. Vis accipere
N, hic praesentem in tuam (tuum) legitimam (legitimum) uxorem
(maritum) juxta ritum sanctae matris Ecclesiae? Rcsp. Volo.”
The words “till death do us part” arc used by us in England, as
well as by Anglicans, because they are part of the ancient Sarum
pre-Reformation rite, which the Church desires to retain, as well as
other local rites and customs connected with the exchange of
consent.
The question of a valid marriage consent before a civil registrar
arises only for those persons who are not bound to observe the
canonical form. If the two parties are baptised and free to marry,
their marriage consent before a registrar is “ratum”, that is to say
it is in all respects equal to the marriage of two Catholics before a
priest except that it lacks the priestly blessing.
The use of the words “matrimony”, “wedded wife”, “wedded
husband” in the civil formula, like the words “uxorem”, “maritum”
in the Roman Ritual include the notion of “indissolubility”, since
marriage is of its nature indissoluble. The parties before the registrar
may hold the erroneous belief that the marriage they are contracting
may be dissolved quoad vinculum by the State, but this error docs
not suffice, as canon 1084 clearly states, to make the consent
invalid, unless by a positive act of the will, the quality of indis
solubility is excluded by one of the contracting parties ; even so, an
ecclesiastical declaration of nullity cannot be obtained unless
this internal defective consent can be proved by some external
evidence.1
Since the intention of marriage predominates, notwithstanding
erroneous views on die subject, it follows that marriage in a register
office by persons not bound to the canonical form is prima facie
valid in the eyes of the Church, not precisely because it is civilly
1 Cf. The Clergy Review, 1931, I, p. 27, where these ideas are elaborated in the
light of canonical jurisprudence.
Q. 172
Marriage—The Different Kinds
225
contracted before a civil official, which the Church in principle
deprecates, but because it is a proof of marriage consent externally
expressed.1
172.
CIVIL MARRIAGE SOLELY FOR CIVIL EFFECTS
A, divorced from B, who is still alive, lives in concubinage with C, and
children have issued from this illicit union. A and C repent and with all due
precautions for avoiding scandal are, with the Ordinary's sanction, admitted
to the sacraments, whilst continuing to live under the same roof in chastity.
They now desire to contract a civil marriage solely for the civil effects. Could
the parish priest properly, and with any prospect of success, seek permission
from the Ordinary for this action ? All the parties are Catholics.
Canon 1016: Baptizatorum matrimonium regitur iure non solum
divino, sed etiam canonico, salva competentia civilis potestatis circa
mere civiles eiusdem matrimonii effectus.
Canon 2356 : Bigami, idest qui, obstante coniugali vinculo, aliud
matrimonium etsi tantum civile, ut aiunt, attentaverint, sunt ipso
facto infames; et si, spreta Ordinarii monitione, in illicito con
tubernio persistant, pro diversa gravitate excommunicentur vel
personali interdicto plectantur.
i. The term “civil marriage” has two senses, one of which is
consistent with Catholic doctrine and practice and the other not.
For parties who cannot contract marriage except with the canonical
form, the Church tolerates the civil contract, in order to secure the
civil effects attached to and issuing from a valid marriage, as in
canon 1016. The correct relationship, however, between Church and
State, which is secured even nowadays in some places, is for the
State to recognise and enforce the civil effects of all marriages
contracted with the canonical form, and without requiring any
further civil ceremony beyond a simple registration. The second
sense of the term “civil marriage” is not limited to civil effects but
is understood by the legislator to mean the marriage bond itself,
the substance of the contract, whether entered upon by the un
baptised or by the baptised, and whether the latter arc bound or
not bound to observe the canonical form. It is by implication a
claim on the part of the State to control one of the sacraments, over
1 Since the above was written, the following appeared in the press of 11 Nov
ember, 1947:
Register office couples will in future be told:
....
"It is my duty to remind you of the solemn and binding character of the vow»
you arc about to make. Marriage, according to the law of this country, is the union
of one man with one woman, voluntarily entered into for life, to the exclusion of
all others."
226
Priests' Problems
Q. j?2
which the Church alone has power, a claim which the Church has
always resisted and denounced as intrinsically wrong.
ii. It must inevitably follow, in our opinion, that the priest cannot
with any prospect of success request permission from the Ordinary
for the civil marriage of Λ and C. For, quite apart from scandal and
the impediment of ligamen, it is a request which totally disregards
the just rights of the Church over the marriages of Christians. One
may not discuss the civil effects of marriage, and the various
problems arising therefrom, except on the assumption that these
effects arise from a valid marriage. If the parties themselves contract
on their own initiative a civil marriage, a subsequent rectification
of their status is possible, though difficult, as suggested in The Clergy
Review, 1949, XXXI, p. 184. But a merciful rectification of people’s
follies is a very different thing from sanctioning their perpetration.
XV. MARRIAGE PRELIMINARIES
173. RELIGIOUS RITE OF CANONICAL ENGAGEMENT
In the rare event of parties wishing to become engaged with the canonical
form, they expect some religious ceremony to accompany the signatures. Is
there any formula for this in existence ?
Canon 1017, §1 : Matrimonii promissio sive unilateralis, sive
bilateralis seu sponsalitia, irrita est pro utroque foro, nisi facta
fuerit per scripturam subsignatam a partibus et vel a parocho aut
loci Ordinario, vel a duobus saltem testibus.
i. A suggested formula for the essential act of signing was given
in The Clergy Review, 1939, XVI, p. 157, and the question of a
religious ceremony will scarcely arise unless the parties elect to have
the parish priest or Ordinary as the official witness. There are good
reasons for doubting whether the parish priest may validly delegate
another priest to act in his name;1 therefore, in the event of an
assistant priest being approached, it is advisable for him to secure a
second witness to sign the document, but he may always accompany
the act by some religious rite, subject to the ruling of the parish
priest on the matter.
ii. The most recent Rituale Romanum of 1952 contains no formula
for use on these occasions. The American translation of the Ritual
gives one in the Appendix consisting of Ps. 126, an allocution, an
exchange of promises, a blessing of the engagement ring which is
placed on the index finger of the woman’s left hand by the man,
and a concluding Mass. Failing an authorised formula there is
hardly any limit to what a priest may do to solemnise these occa
sions. The minimum is a blessing of the ring with the formula
“Benedictio ad omnia” of the Ritual, a blessing of the parties with
the usual formula “Benedictio Dei Omnipotentis, etc.”, and they
may hear Mass and receive Holy Communion exactly as they would
on any other day. What should be absolutely avoided is any resem
blance to the rite of marriage with a nuptial blessing, and we think
the American suggestion rather offends in this respect, especially if
it is publicly carried out at the altar rail. Nevertheless, it is permitted
apparently in America, and failing any ruling by the local Ordinary’,
it is hard to sec on what principle it can be forbidden elsewhere.
1 Tht C.ltrgf Review, 1949, XXXII, ρ· ·32·
227
Priests' Problems
228
I74.
Q. 174
INVALID ENGAGEMENT
A young man of twenty desired me to witness his engagement. The lady,
aged thirty-five, was not a Catholic, and the man's parents had refused their
consent on the grounds that her age, religion, family and reputation made the
match undesirable. Did I act lawfully in refusing my signature ?
Canon 1017, §1: Matrimonii promissio sive unilateralis, sive
bilateralis seu sponsalitia, irrita est pro utroque foro, nisi facta
fuerit per scripturam subsignatam a partibus et vel a parocho aut
loci Ordinario, vel a duobus saltem testibus.
Canon 1034: Parochus graviter filiosfamilias minores hortetur ne
nuptias ineant, insciis aut rationabiliter invitis parentibus; quod si
abnuerint, eorum matrimonio ne assistat, nisi consulto prius loci
Ordinario.
There is reason in the query because the marriage may be valid
and lawful, and the faithful have a right to the priest’s assistance in
making a formal engagement.
i. On the grounds of the man’s minority some maintain that a
promise of marriage is invalid, unless the parental consent is
obtained.1 This is, however, by no means certain, since the refusal
may be unjust, and marriage may be contracted, with the procedure
of canon 1034, if there are sufficient reasons to justify it. The law
nowhere states that persons under twenty-one are barred from
entering upon a valid engagement to marry except with parental
consent. On a principle of giving due honour to parents even those
over twenty-one should consult them before marriage, but the
Church has firmly maintained, even in the remote past when
parents arranged the marriages of their children without consulting
their wishes, that the election of a state of life is ultimately for the
persons concerned, not for their parents, to determine.
The engagement of a minor without parental consent is not for
that reason alone invalid. It is unlawful, however, in our opinion,
because canon 1034 though referring explicitly only to marriage,
seems to include by implication the promise of marriage also.
Therefore, on the ground of minority alone the priest rightly
refuses his signature, at least until he has consulted the Ordinary.
ii. The impediment of mixed religion, though not diriment of
marriage, renders the Catholic party incapable of marrying lawfully
unless a dispensation is obtained. It is held by some modern com
mentators that persons may make a valid and lawful engagement,
notwithstanding impediments whether prohibiting or diriment,
1 Sipos, Enchiridion, p. 504.
Q· U5
Marriage Preliminaries
229
provided the promise of marriage is conditioned upon obtaining a
dispensation, and the impediment is one from which the Church is
accustomed to dispense.1 Others maintain that an engagement of
this kind is invalid, so that when the condition is verified it is
necessary for the contract to be renewed. Accordingly, relying on
this latter opinion, which is fully supported by some Roman deci
sions, the parish priest is entitled to refuse his signature until a dis
pensation has been obtained.
iii. Supposing the difficulties mentioned have been surmounted
and the priest is not disposed to refuse his signature precisely for
the reasons outlined in (i) and (ii), there remains the general un
desirability of the marriage on which the parental refusal is based.
The point to notice here is that it is wrong because imprudent for
persons to contract a marriage which has every likelihood of being
unhappy, and it remains wrong even though the parents consent
and there are no canonical impediments. One could argue, in fact,
that an engagement to contract a marriage of this kind is not only
unlawful but invalid, since a contract of promising to do something
wrong is invalid from the natural law. Other reasons, of course,
may be present which, in all the circumstances, argue that a given
marriage though wrong and undesirable is the lesser of two evils.
The priest is within his right in using his own judgement about the
matter and deciding that, on the whole, the proposed marriage is a
folly or a scandal. He then justly refuses his signature, and he can
do it the more easily because, if the parties are aggrieved, their
remedy is to make their engagement, in so far as it is possible to do
so validly, before two lay witnesses.
I75. FORM OF ENGAGEMENT TO MARRY
May an assistant priest, delegated by the Ordinary for all marriages in the
parish to which he is attached, witness a formal engagement to marry; if not,
may the parish priest delegate him for this office?
Canon 1017, §1 : Matrimonii promissio sive unilateralis, sive
bilateralis seu sponsalitia, irrita est pro utroque foro, nisi facta fuerit
per scripturam subsignatam a partibus ct vel a parocho aut loci
Ordinario, vel a duobus saltem testibus.
Canon 199, §1 : Qui iurisdictionis potestatem habeat ordinariam,
potest eam alteri ex toto vel ex parte delegare, nisi aliud expresse
caveatur.
S.C. Concil., 28 March, 1908; Fontes, n. 4349, ad VI: Utrum
1 Cf. Cappello, De Matrimonio, §85 ; Hcylen, De Matrimonio, p. 25.
230
Priests' Problems
Q. 176
sponsalia, praeterquam coram Ordinario aut parocho, celebrari
valeant etiam coram alterutro delegato? Resp. Negative.
Motu Proprio ... pro Ecclesia Orientali, canon 6, §1 ; A.A.S., 1949,
XLI, p. 91 : Matrimonii promissio, etsi bilateralis seu sponsalitia,
irrita est in utroque foro, nisi facta fuerit coram parocho aut loci
Hierarcha aut sacerdote cui ab alterutro facta sit facultas assistendi.
The law of Ne Temere on the subject of engagement is codified
in canon 1017, which makes no mention of delegation. It is not,
indeed, self-evident why the parish priest who can delegate his
powers for the marriage cannot also delegate for the engagement,
and anterior to S.C. Concil., 28 March, 1908, many thought that he
could.1 The reasons alleged for denying the parish priest a delegating
power are not, as a matter of fact, very convincing,2 but the positive
law is clear enough for the period, at least, between Ne Temere and
the Code.
Λ very good reason for doubting whether the reply of S.C. Concil.,
28 March, 1908, is still the law is seen in the Instruction S.C.
Sacram., 1 July, 1929, issued for the Italian clergy after the Lateran
Treaty. It contains a formula for use at engagements3 which expressly
leaves a space for the signature of the parish priest or his delegate.
A writer in Periodica, 1928, p. 183, explains that the inclusion of a
delegate in this formula is simply a mistake, and he points out that
the witnessing may not be delegated because the parish priest, from
his position, is able to give advice about the suitability of the
engagement ; there seems little force in this reason, seeing that the
parties can make a valid engagement, if they wish, without con
sulting the parish priest at all. A further interesting point, though of
no immediate value as an authentic interpretation of Western law,
is the wording of canon 6 of the Eastern Church Marriage Code,
which sets out to secure, as far as possible, uniformity of practice in
East and West.
However, there is no point in pressing the argument. There are
solid reasons for doubting the validity of delegation, and any
priest who is not a parish priest should always find it easy enough
to secure the validity of his own signature by bringing another
witness to sign with him.
176. OBEYING THE INSTRUCTION “ SACROS ANCTUM ”
Are the clergy under an obligation to observe all the provisions of this
Instruction, even when their own Ordinaries have not ordered this to be done ?
1 Choupin, Les Fiançailles . . . Ne Temere, p. 27.
2 L'Ami du Clergé, 1923, p. 236.
s Mod. V in the document reprinted in Gasparri, De Matrimonio, p. 591.
Q. 176
Marriage Preliminaries
231
Canon 1020, §3: Ordinarii loci est peculiares normas pro huiusmodi parochi investigatione dare.
Sacrosanctum, 29 June, 1941, n. 3; A.A.S., 1941, XXXIII, p. 297:
... Sacra Congregatio . . . opportunum ccnsuit alteram conficere
Instructionem, qua adiutriccm praebendo manum Revmis Ordi
nariis, quibus hoc onus ex §3 relati can. 1020 incumbit, eis suppedi
taret idoneas normas ad nupturientium examen rite diligenterque
explendum. . . .
An affirmative reply to the above question would be the safest
line to take, since all the provisions of this Instruction are worthy
of adoption, and reverence for the Holy See prompts acceptance
without peering too closely into their preceptive force. We think,
nevertheless, that those parts of the Instruction which are neither
the common law, nor unequivocally preceptive from the wording
of the document, are not of strict obligation unless the local
Ordinary has so determined.
The function of a Sacred Roman Congregation is primarily and
essentially administrative and executive,1 and the two leading com
mentators on the Code Prolegomena write as follows about their
Instructions: “non exhibentur per modum legis neque vim legis
obtinent, sed de se indicant normas simpliciter declarativas, quarum
directio servanda est potius quam urgenda est litteralis observatio.”2
This docs not exclude a preceptive force in those parts of an Instruc
tion which arc clearly so expressed. One has to discover from the
document what the Sacred Congregation, in its administrative and
executive capacity, expressly imposes, and in the nihil obstat of
Sacrosanctum, n. 4, a, we have a clear example of a precept being
imposed. The rest of the document is meant, as stated in the extract
quoted above, to be a directive for Ordinaries in carrying out the
obligations of canon 1020, §3. If it is to be argued that practically
the whole of the document is preceptive, the clergy at least may
rightly regard it as not their immediate concern, but as a matter
between the Sacred Congregation and Ordinaries ; it is for the clergy
to accept and obey the regulations made by their own Ordinaries
in the measure determined cither from the document or from
induit.
Though many of the commentators seem to assume that every
single point in the document is of obligation on all priests investig
ating marriages, those who have examined this point more carefully
support our contention. This is particularly true of the quasi-ofhcial
interpretation given for the Bruges diocese, which is noted for the
1 Cf. The Clergy Review, IO41» XXI» P· 357·
,
1 Michich, Normae Generales, p. 502: Van Hove, Prolegomena, §72.
232
Priests' Problems
Q. 177
competence of its clergy and for their loyal attachment to the Holy
See.1 Our view is also confirmed by the practice of Ordinaries
everywhere who, whilst enforcing the nihil obstat which is of precept,
have not required their clergy to accept every suggestion or recom
mendation in the Instruction; for example, the document plainly
directs that the exchange of documents shall be done through the
diocesan curia, but many Ordinaries are content with the exchange
being effected directly between the parish priests concerned; a
previous oath is required by the Instruction as part of the routine
examination of all parties, but most Ordinaries are content with
the common law, as for example in canon 1031, § 1, 1, which requires
an oath only in cases of doubt. Our view is supported equally by
the practice of good parish priests who, confronted with new laws
and formalities in every direction, remember the axiom onera sunt
restringenda and quite reasonably are loth to recognise new obliga
tions in the Instruction, unless these are certainly imposed by their
immediate superiors.
177. DIOCESAN “NIHIL OBSTAT ”
The bride belongs to diocese “ri”, the bridegroom to diocese “B”, but
the marriage is to be celebrated, with permission from the bride's parish priest,
in my church in diocese “C”. From which Ordinary should a “nihil obstat"
be obtained?
S.C. Sacram., 29 June, 1941 ; A.A.S., XXXIII, p. 299: Ast, cum
parochi sunt diversae dioecesis, documentorum istorum paroecialium transmissio fiat semper per tramitem canccllariae Curiae
Episcopalis dioecesis sponsi—cuius insuper erit litteras testimoniales
dare de libertate status sponsi—ad sponsae parochum, quoties hic,
prout de more, matrimonio assistit: versa vice per cancellariam
Curiae Episcopalis dioecesis sponsae id fiat, si quandoque accidat
ut matrimonio assistat parochus sponsi.
Haec S. Congregatio autem valde exoptat ut, antequam parochus
ad matrimonii assistendam procedat, licentiam suae Curiae, quam
nihil obstat nuncupant, consequatur: id vero praecipit cum nup
turientium parochi sunt diversae dioececis.
The document docs not expressly consider a case as put above,
but the solution is found in the second paragraph, which directs
that a parish priest shall not assist at the marriage of a person
belonging to another diocese except after obtaining a nihil obstat
from his own Curia. To be in order the previous investigations made
1 Collationes Brugenses, 1946, pp. 61-72.
Q. 178
Marriage Preliminaries
233
by the parish priests of the two parties must have the visa of the
Curia of “A” and “B” respectively, which is described in the text
as “litterae testimoniales”. But it is not for the Curia of either
“A” or “B”, in our opinion, to give a nihil obstat, unless the
marriage is to be contracted in either of these dioceses. The nihil
obstat is the final stage in the rather ample collection of documents
now required by the common law, and it is to be issued by the
Curia of the diocese “C” in which the marriage is celebrated, after
an inspection by the same of all the documents from “A” and
“B”.
178.
USE OF INDULT DISPENSING FROM “NIHIL OBSTAT ”
John, living in Edinburgh, is marrying Mary, living in Birmingham, and
previous to the marriage he has a month's residence in Birmingham. May the
induit dispensing from Curial intervention be usedfor the marriage, which is
to be celebrated in Birmingham ?
Canon 94, §1 : Sive per domicilium sive per quasi-domicilium
suum quisque parochum et Ordinarium sortitur.
Canon 1097, §1 : Parochus autem vel loci Ordinarius matrimonio
licite assistunt : 1. Constito sibi legitime de libero statu contrahen
tium ad normam iuris; 2. Constito insuper de domicilio vel quasidomicilio vel menstrua commoratione alterutrius contrahentis in
loco matrimonii; 3. Habita, si conditiones deficiant de quibus in
n. 2, licentia parochi vel Ordinarii domicilii vel quasi-domicilii aut
menstruae commorationis, nisi . . . gravis necessitas intercedat quae
a licentia petenda excuset.
S.C. Sacram., 29 June, 1941, 4, a: Quod ad parochum attinet: qui
habet ius et onus inquirendi, is est cui competit assistentia matri
monio. . . . Haec S. Congregatio autem valde exoptat ut, antequam
parochus ad matrimonii assistentiam procedat, licentiam suae
Curiae, quam nihil obstat nuncupant, consequatur : id vero praecipit
cum nupturientium parochi sunt diversae dioecesis.
Induit, 6 November, 1947; The Clergy Review, 1948, XXIX, p.
195: .. . petitas dispensationes pro universis dioecesibus Angliac ct
Cambriac ad sexennium concessit, dummodo: (1) Nupturientes ambo
pertineant Angliac ct Cambriac. . . .
i. In the common law of the Code and of the Instruction Sacro
sanctum, a month’s previous continuous residence constitutes the
parish priest of that residence competent to assist at the marriage.
Discussions as to the meaning and method of computing the month
arc not relevant to our question, but it should be observed that a
234
Priests' Problems
Q. 178
parish priest does not enjoy the right and duty of investigating a
marriage unless he has the right to assist at it, which does not occur
until the month is completed, so that in practice a residence of at
least seven weeks before the wedding will be required. We think it
is certain that for all questions relating to the parish priest’s rights
and duties the month’s residence is on an equal footing in the com
mon law with domicile and quasi-domicilc. It must follow inevitably,
in our opinion, that in the common law no reference to any diocesan
curia is necessary in the above case : not for a nihil obstat or testim
onial letters, since the parish priest is competent exactly as though
the parties had a domicile in his parish ; nor for observing the law
of canon 1032, since the parties are not persons of no fixed abode,
the vagi of canon 91. It might be objected that the law of the
Instruction is ineffective if people can evade it so easily. That is true,
perhaps, and it applies to the fringes of many positive laws. But
evasion is not easy, and it is unlikely that anyone would take such
trouble solely to avoid a simple procedure. Laws are made for the
generality of cases. The solution, which we think is correct, is
accepted, at least by implication, in some of the commentaries on
the Instruction: Heylcn, De Matrimonio, p. 80; Moing, L'Enquite
Religieuse, p. 29, n. 1.
ii. But the text of the Induit, which derogates from the common
law requiring a nihil obstat, creates a little difficulty, since it departs
from the terminology of the Instruction: instead of reading “dum
modo ambo nupturientium parochi pertineant Angliae et Cambriae”, it reads “dummodo nupturientes ambo . .
The difficulty
is that the wording of the Induit seems to require that the parties
who benefit by it must have a domicile or quasidomicile in England
or Wales (canon 94), and that those who have merely a month’s
residence are excluded; canon 67 states: “Privilegium ex ipsius
tenore aestimandum est, nec licet illud extendere aut restringere”.
If this is the correct interpretation of the Indult’s terms, it means
that the price we have to pay, so to speak, for the Induit, is that the
qualification of a month’s previous residence, as explained above, is
inapplicable. This raises many other points, including the rule of
canon 69 about not being bound to use an Induit, which we will
not discuss.
Seeing that canons 50 and 68 justify a wide and more friendly
interpretation of an Induit such as the one we possess, it may be
doubted whether the different terminology employed has really
such great significance. It could be held that “ pertaining to England
and Wales” means “belonging to an English or Welsh parish or
parish priest’ , i.e. for marriage investigation purposes, which is the
4
Q. 17g
Marriage Preliminaries
235
equivalent of the common law interpretation explained in (i).
However, it is for the local Ordinaries to decide which interpretation
is to be chosen, and failing any decision we think that the wording
of the Induit may be interpreted in the same way as the wording
of the Code and of the Instruction itself.
It is evident from the relatively small amount of space given in
the Instruction to defining the investigating priest that the Sacred
Congregation is less concerned with this legalistic question than
with securing a thorough investigation, no matter by whom it is
done. It might happen quite easily that the parties could acquire a
quasi-domicilc by staying one night with the intention of remaining
for six months and a day, in which case they would “belong” to
the country in the fullest sense of the word ; yet they would be even
less well known to the parish priest of the quasi-domicile than the
parties who have actually dwelt continuously in the parish for seven
weeks or so.
179.
NIHIL OBSTAT
: TRANSMISSION OF DOCUMENTS
The T94! Instruction directs that, when the parish priests of the parties
belong to different dioceses, the documents shall be transmitted by the respective
curial officials. In some dioceses, however, the transmission is done directly
between the two parish priests concerned. Does this mean that an induit has
been obtained?
Induits may have been obtained in addition to the one discussed
in the previous question, but there seems no need for an induit
permitting the transmission of documents to be done directly
between the parish priests, instead of through curial officials, since
the praecipit of the Sacred Congregation applies to the curial nihil
obstat not to the method of transmitting it. In principle, Sacrosanctum
is meant to strengthen the authority of the bishops (n. 3) by sug
gesting rules for their acceptance, except only where it is clear, as
in the granting of a nihil obstat, that some new direction is not only
recommended but imposed by the Sacred Congregation.
Many of the commentaries we have examined, some issued with
express episcopal approval, take for granted that the recommenda
tion of Sacrosanctum on the transmission of documents is to be
observed : e.g. Guide Pratique for the diocese of Evreux, p. 35. Also
some Ordinaries have directed this method to be followed by parish
priests within their jurisdiction : e.g. Irish Ecclesiastical Record, 1947,
p. 256.
One of the best commentaries is that in Collationes Brugenses, 1946,
236
Priests’ Problems
Q. 180
pp. 61-72. The writer notes that in Bruges die local law promulgated
24 June, 1942, requires transmission through the Bruges curia, but
he also observes correctly: “Transmissio documentorum ad paro
chum alius dioecesis per tramitem Curiae episcopalis valde urgetur
in laudata Instructione (‘fiat semper per tramitem’) quin explicite
dicatur id a S. Congregatione praecipi.”
Accordingly, the clergy’ have only to follow die instructions of
their own Ordinaries, and any difficulties arising through the
practice of the two dioceses concerned being different must be
settled by the respective curial officials. Transmission through the
diocesan curia is simpler and has the advantage of reducing postal
expenses, but until the Sacred Congregation declares otherwise, it
cannot be said, we think, that this method is of strict obligation;
therefore, no induit is strictly required to justify a different method.
180. “nihil obstat” : which diocese?
John and Mary, both domiciled in Glasgow, propose to be married in
Brighton, where they have no residence. Which diocese issues the “nihil
obstat”?
The Instruction does not expressly decide what is to be done in
the circumstances of the above question. For, on the one hand, no
nihil obstat at all is required when the parish priests of the parties
belong to the same diocese, in this case the diocese of Glasgow; on
the other hand, the parish priest assisting at the wedding requires
the nihil obstat “of his own Curia”, in this case the Southwark
Curia, whenever the parish priest of one of the parties belongs to a
diocese other than Southwark and a fortiori, it would seem, when the
parish priest(s) of both parties belong elsewhere. (The Induit is not
relevant to the question.)
i. A correct solution, saving the right of the Ordinary of the place
of the wedding to decide differently, is that no reference to any
Curia is necessary in the above circumstances. The Glasgow parish
priest(s) will conduct the investigation, the parish priest of the bride
will send his certificate of freedom together with the licence required
by canon 1097, §1, 3, to the Brighton parish priest, and everything
will be in order.
ii. Local law, however, relying on canon 1020, §3, may require
such marriages contracted within the diocese to have the nihil obstet
of the local Curia, or the words of the Instruction “licentiam suae
Curiae” may be interpreted locally in this strict sense. The only
commentary we have seen on this particular point,1 written by the
1 Guide Pratique pour Vapplication de l'instruction "Sacrosanctum", p. 36.
QQ. 181, 182
Marriage Preliminaries
237
Vicar-General of Evreux chiefly for that diocese, adopts this solution,
and requires die local nihil obstat even for cases where neither of the
parties belongs to Evreux.
181. MIXED MARRIAGE ‘ NIHIL OBSTAT”
Granted that the competent priest in a mixed marriage is the parish priest
of the place where the Catholic party is domiciled, does it follow that no
“nihil obstat” is required from the diocesan curia even when the non
Catholic belongs to a different diocese ?
The two ecclesiastical territories are cither dioceses of the same
country, as determined by the common law of the instruction
Sacrosanctum, or dioceses in different countries as permitted by
induit.1
The suggested conclusion does not follow, because the parish
priest either of the Catholic or of the non-Catholic party may have
a diocesan curia which does not accept the solution offered, and
prefers the opposite one given in the reply (i). The point about the
reply related to the respective rights and obligations of the two
parish priests, and if they both belong to the same diocese the curia
is not called upon except for the issue of a dispensation. But the
point now raised affects the rights and obligations of the curia ir
respective of granting a dispensation : a nihil obstat is required as a
check or visa certifying that die documents are in order and the
marriage may proceed. Receiving the dossier from the parish priest
of the Catholic party, the curia will not issue a nihil obstat, even if
the view given in our former reply (ii) is accepted, until it has been
assured that die curia of the diocese in which the non-Catholic
lives also takes this view. If it does not, the diocesan curia of die
non-Catholic party is entitled to be consulted and to issue its
testimonial on the freedom of die non-Catholic, which may be done
either by accepting the examination carried out by the parish
priest of the Cadiolic—the simplest procedure to adopt—or by
requiring the parish priest of die non-Catholic to funedon as he
would do in the case of a Catholic parishioner.
182. PRENUPTIAL INQUIRY: WHOSE DUTY?
The two parties, domiciled in the neighbouring parish St Mary’s, have
always frequented the church of my parish St Joseph's; also my parish is
included in the registrar’s district to which the residence of the parties belongs,
1 See question 178.
9+
Priests' Problems
238
Q. 183
whereas St Mary's parish is not. The parish priest of St Mary's has no
objection to the wedding being at St Joseph's, but he maintains that it is his
duty to make the prenuptial investigation and give a certificate of freedom,
though he would gladly be relieved of the task. Is it permissible for me to make
the prenuptial investigation ?
Sacrosanctum, 29 June, 1941, 4, a: Munus vero inquirendi parocho
sub gravi incumbere patet ex gravitate rei ; neque a tali onere ipse
eximitur, licet moraliter certus sit nihil obstare validae et licitae
matrimonii celebrationi. Examen peragatur personaliter a parocho
nisi iusta causa excusetur.
Banns must be published in St Mary’s parish, and its parish
priest is within his right, if he wishes to use it, in conducting the
prenuptial investigation personally. When it is satisfactorily com
pleted he sends his certificate of freedom and the licence required by
canon 1097, §1, 3, to the parish priest of St Joseph’s. The best
method, however, is for him to delegate the parish priest of St
Joseph’s to make all the prenuptial investigations, which is permitted
for a just reason (a grave one is not required), as is clearly verified
in the above case.
There is no problem if both parish priests arc agreeable to give
and accept delegation for the inquiry, as they happily are in this
instance. If the parish priest of St Mary’s will neither give delegation
nor make the inquiry personally, recourse to the Ordinary will be
necessary, who may either compel him to do his duty, or appoint
the parish priest of St Mary’s to examine the parties as the Ord
inary’s delegate. If the parish priest of St Joseph’s will not accept
delegation, either the investigation must be done by the parish
priest of St Mary’s or he can request the Ordinary’ to appoint the
parish priest of St Joseph’s.
What is quite certain is that the parish priest of St Joseph’s is
bound sub gravi not to assist at the wedding until the prenuptial
inquiry’ has been completed.
183.
banns: marriage of catechumen
If the non-Catholic is under instruction with a view to being received into
the Church, is it not more correct to publish the banns?
Canon 1026: Publicationes ne fiant pro matrimoniis quae con
trahuntur cum dispensatione ab impedimento disparitatis cultus aut
mixtae religionis, nisi loci Ordinarius pro sua prudentia, remoto
scandalo, eas permittere opportunum duxerit, dummodo apostolica
q.
ιβ4
Marriage Preliminaries
239
dispensatio praecesserit ct mentio omittatur religionis partis non
catholicae.
Some Ordinaries interpret this law in the sense that they require
the banns of all mixed marriages to be published, provided the
impediment has been dispensed ; publication may be omitted with
episcopal permission. Thus Middlesbrough Decrees, 1933, n. 170.
Others direct that banns in these cases are not to be published, and
this is, we believe, the more common rule in England. It is, there
fore, for the Ordinary to interpret or to relax this ruling in cases
where the non-Catholic is to be received into the Church subsequent
to marriage. If the reception is to take place before marriage is
contracted, it seems to us that the banns should be published, unless
the Ordinary has ruled differently, for the marriage is not being
contracted with a dispensation from the impediment of mixed
religion, and is in all respects equivalent to the marriage of two
Catholics.
184.
WITNESSES AS PROOF OF FREEDOM TO MARRY
When making prenuptial investigations, is it necessary in all cases to
question witnesses as in Appendix II of Sacrosanctum ?
Canon 1031, §1, 1 : Exorto dubio de existentia alicuius impedi
menti: Parochus rem accuratius investiget, interrogando sub iuramento duos saltem testes fide dignos ... et, si necesse fuerit, ipsas
quoque partes.
Sacrosanctum, 29 June, 1941, 6: . . . neque ab iisdem (proclamationibus) dispensetur nisi legitima causa comprobata (can. 1028),
neque facile, ceteris neglectis probationis argumentis (Alleg. II and
III), procedatur ad iusiurandum supplctorium (Alleg. IV). . . .
Allegatum II. examen testium ad comprobandam libertatem
status nupturientium (Interrogandi sunt duo testes, a parocho
cogniti, pro unoquoque nupturiente; iidem vero testes pro utroque
inservire possunt, dummodo seorsum de unoquoque testificentur).
Ten questions follow.
i. In the common law the obligation to question witnesses arises
only when there is a doubt on the freedom of the parties. The
Instruction docs not, indeed, expressly state that Allegatum II is for
use in doubtful cases, though this is stated for Allegatum III, which is
a similar kind of questionnaire addressed to the parents or guardians
of minors. But the context of n. 6, dealing with persons who have
lived in other places for six months after the age of puberty, seems
to assume that Allegatum II is for use only when doubt exists.
Priests' Problems
240
Q. 185
ii. The local law is ruled by canon 1020, §3, which directs that
Ordinaries should make laws for their dioceses about the method of
making prenuptial investigations. Also, the Instruction itself is
chiefly meant as a series of suggestions for Ordinaries in thenprudence to adopt, as stated in n. 3. Unless some new measure
contained in this Instruction is clearly preceptive, as n. 4, a, on the
nihil obstat^ which applies everywhere, parish priests are not bound
to observe it except in the measure directed by their own Ordinaries.
In many dioceses, long before the Instruction appeared, die local
law required the testimony of some other person as a routine part
of the prenuptial examination in all mixed marriages and the forms
for dispensation may contain a reference to it. The reason is the
will of the local Ordinary', for which no other justification is required
beyond the rule of canon 1020, §3; it is evident, however, that in
mixed marriages, particularly as the law of canon 1026 requires
banns not to be published, there is nearly always some doubt, which
the testimony of other person (s) assists in removing.
185.
FREEDOM TO MARRY AFTER CIVIL MARRIAGE
AND DIVORCE
A Catholic invalidly attempts marriage in a register office, subsequently
obtains a civil divorce, and now wishes to marry a third party. If he produces
legal evidence of divorce is he free to marry ? Or must the investigating priest
submit the case to the Ordinary?
Canon 1031, §1, 3: Exorto dubio de existentia alicuius impedi
menti. . . . Matrimonio ne assistat, inconsulto Ordinario, si dubium
adhuc superesse prudenter iudicaverit.
Canon 1069, §2: Quamvis prius matrimonium sit irritum aut
solutum qualibet ex causa, non ideo licet aliud contrahere, antequam
de prioris nullitate aut solutione legitime et certo constiterit.
S.C. Sacram., 15 August, 1936, Art. 231, §1 : Si quis certo tenebatur
ad canonicam formam celebrationis matrimonii, et tantum civile
matrimonium contraxit, vel coram ministro acatholico matri
monium inivit, aut si apostatae a fide catholica in apostasia civiliter
vel ritu alieno se iunxerunt, ad hoc ut constet de horum statu libero,
neque iudiciales sollemnitates requiruntur, neque interventus defen
soris vinculi: sed hi casus solvendi sunt ab Ordinario ipso, vel a
parocho, consulto Ordinario, in praevia investigatione ad matri
monii celebrationem, de qua in can. 1019 seq.
Idem., 29 June, 1941, n. 6, a: Praescriptum can. 1069, §2, optime
norint, matrimonii nempe nullitatcm canonica probatione esse evin-
Q, 185
Marriage Preliminaries
241
cendam . . . expletis regulis traditis in supra memorata Instructione
huius S.C. diei 15 augusti 1936, art. 226 seq.
Allegatum I, f.n. 6 : Si civile quod vocant matrimonium cum alia
persona etiam alteruter tantum attentaverit ct resolutum definitive
fuerit, resolutionis definitivae huiusmodi requiratur documentum
authenticum; si adhuc vero vigeat, consulatur Ordinarius.
i. In the common law, the phrase found in a footnote to Allegatum
I, n. 6, of the instruction Sacrosanctum definitely implies that recourse
to the Ordinary is not necessary in principle after a civil marriage
has been dissolved by a civil divorce. It suffices for the investigating
priest to obtain proof of the civil dissolution. From canon 1031, §§ 1,
3, however, recourse is necessary, even in the common law, if it is
doubtful whether the party who has obtained a civil divorce is free
to marry coram ecclesia. It might appear, at first sight, that he is
obviously free and that there can be no reasonable doubt on this
issue. But when it is remembered that in many countries the bishops
enjoy the faculty of rectifying by sanatio mixed marriages invalidly
attempted before a civil official,1 and that this faculty is widely used
whenever the circumstances justify it, and that a sanatio may be
granted even though the non-Catholic party is unaware of it, there
will quite often be a well founded and reasonable doubt whether
the civil marriage subsequently civilly divorced was not, as a matter
of fact, revalidated by sanatio, in which case the civil divorce is ir
relevant, and the party desiring to contract marriage with a third
party is prevented by ligamen, the bond of a previous marriage.
Recourse to the Ordinary is necessary' for resolving this doubt, since
curial archives will contain a notice of any sanatio that has been
granted. In addition, there may' sometimes be a reasonable doubt,
in marriages contracted before 1 January, 1949,2 whether a Catholic
who is only nominally such was bound to observe the canonical
form, since he might have been exempted by' the closing phrase, now
abrogated, in canon 1099, in which case his civil marriage is
valid coram ecclesia. Moreover, in these years of war and rumours of
war, it is distinctly possible for the civil marriage of a member of
the forces to be valid in periculo mortis from canon 1098.1. Taking all
these possibilities into account, it is hard to avoid the conclusion
that the phrase, included as an afterthought in a footnote to Allegatum
I, is not really very helpful, and that the common law is clearer
without it.
ii. Local law nearly everywhere expressly requires recourse to the
Ordinary' after an attempted civil marriage, whether it has been
1 Text in Irish Ecclesiastical Record, April 1948, p. 375.
» The Clergy Review, 1948, XXX, p. 34»·
Priests' Problems
242
Q. 186
civilly divorced or not. The bishops in 1908, when the promulgation
of Ne Temere raised tire whole question of the canonical form in this
country, agreed “that the case of the remarriage of persons who have
gone through the form of marriage in a registry or non-Catholic
place of worship be always referred to the Bishop before re
marriage”,1 an agreement which each bishop presumably com
municated to his clergy. In many American dioceses, recourse is
necessary since the act of contracting a civil marriage is either a sin
reserved to the Ordinary, or is punished by a local l.s. censure.
iii. The following simple rule for the investigation of marriages
may be acceptable to the generality of tire clergy : whenever it is
discovered that either of the parties has at any time possessed married
status, even only civilly and even when it has been subsequently
dissolved, the case must be referred to the Ordinary unless an
authentic death certificate is produced.
186.
INVESTIGATION OF IMPEDIMENT OF CRIME
The instruction Sacrosanctum and occasionally the local Ordinary's list
of questions direct the investigating priest to inquire about the impediment of
crime, an unattractive task since questioning implies the suspicion of grave
immorality and seems to require the revelation, outside the confessional, of
grave sin. What is the minimum required under this heading from the
investigating priest ?
Sacrosanctum, 29 June, 1941, n. 5: Parochus a sponsis percontetur
num aliquo impedimento . . . sive publico . . . sive occulto, immo
hoc potissimum, quod rarius innotescere solet (voti, criminis etc.).
Allegatum I, n. 9 : Diligenter inquiratur utrum sponsi detineantur
aliquo alio impedimento . . . criminis. . . . Footnote Added: De
existentia impedimenti criminis accuratius, licet prudenter, inqui
ratur quando constet prolem adulterinam nupturientes suscepisse;
aut eosdem detineri impedimento affinitatis; aut alia suspicandi
ratio intersit.
Canon 1075: Valide contrahere nequeunt matrimonium: 1. Qui,
perdurante eodem legitimo matrimonio, adulterium inter se con
summarunt et fidem sibi mutuo dederunt de matrimonio ineundo
vel ipsum matrimonium, etiam per civilem actum tantum, atten
tarunt. . . .
Since the root of this problem lies in the ignorance of the faithful,
otherwise well instructed, about marriage impediments, an im
portant section of the document insists on the duty of the parish
1 Lteds Synods, 1911, p. 102.
1
Q, 186
Marriage Preliminaries
243
priest, during his pastoral instructions, to enlighten them. It must
be remembered, also, that the instruction is not a new Code of laws,
and, except when it refers to the existing common law of the Code
or clearly establishes a precept (as the Nihil Obstal'j, it is of obligation
only in the measure enacted by the local Ordinary, particularly as
regards the list of questions.
i. No difficulty arises when the facts are publicly known, for
example if a party, after a civil divorce, has attempted marriage in
a registry office and cohabited either before or after this attempt ;
nor is there any difficulty if the parties, without even a civil marriage,
have been living in public concubinage, for the added element of
the “promise of marriage” necessary to establish the impediment is
not one about which people normally would have any shame in
revealing; on the contrary, it will usually be considered the right
and proper thing to do. Possessing these publicly known facts, the
investigating priest, having decided that the impediment actually
exists,1 will apply for a dispensation in the externalforum as he would
for any other.
ii. Usually the impediment, as the instruction observes, is occult.
The guiding principle then is that the investigating priest should not
put any questions about this impediment unless he has prudent
grounds for suspecting its existence. The Sacred Congregation itself,
in die section about adequate religious knowledge, notes that this
inquiry is not always necessary,2 and the same must apply to the
inquiry about crime. It is necessary, as the footnote to Allegatum I,
n. 9, points out, only when there is a well-founded suspicion that it
may exist, for example if the parties have adulterous children, or if
they are related by affinity. The minimum required, in our view,
from an investigating priest who has a well-founded suspicion about
this impediment, is for him to inform the parties about impediments
in general including that of crime, thereby becoming assured that
the parties know the law. If the impediment is discovered the priest
may send the parties to a confessor, or he may himself function as
such, in a case which is wholly occult, and the dispensation will be
for the sacramental forum of conscience alone ; alternatively, if there
is some prospect of the impediment becoming divulged, he may get
the dispensation in the internal non-sacramental forum, with the
procedure of canon 1047. In neither case will any mention be made
of the impediment on the marriage form, and secrecy is assured
either by reason of the inviolable confessional seal, or by the grave
1 Cf. commentators on canon 1075—res odiosa and to be strictly interpreted.
*N. 8. Ulterius exploret parochus, nisi personarum qualitas hanc explora
tionem mutilem reddat.
Priests' Problems
244
Q. 187
obligation of preserving a natural secret or one discovered by reason
of a person’s office.
The solution of this difficulty given above applies also, in our
opinion, when the local Ordinary, implementing the instruction,
directs questions to be put about this impediment, for it is to be
assumed that his directions are to be interpreted as in the footnote
to Sacrosanctum.
187.
DISPENSATION FROM OCCULT IMPEDIMENT
OF CRIME
A priest when interviewing a Catholic widower who was engaged to a
Protestant lady discovered the impediment of “crimen, neutro patrante". He
was about to mention this impediment on the mixed marriage petition form,
when he was told by a priest friend that the dispensation from the occult
impediment must be asked separately, and fictitious names used. The dispensa
tion from crime was duly granted, and as it was not granted “ in foro sacramentali", the priest thought he was bound to send the names, after the
marriage, to the Ordinary for entry in the secret archives. But his friend again
disagreed, saying that it would be wrong to do this in the case of an occult
defamatory impediment. Would you kindly say what should the priest have
done in the case ?
Canon 202, §2 : Potestas collata pro foro interno exerceri potest
etiam in foro interno extra-sacramentali, nisi sacramentale exigatur.
Canon 1031, §2 : Detecto impedimento certo : 1. si impedimentum
sit occultum, parochus . . . rem deferat, reticens nomina, ad loci
Ordinarium vel ad Sacram Pocnitentiariam.
Canon 1047: Nisi aliud ferat S. Pocnitcntiariae rescriptum, dis
pensatio in foro interno non sacramcntali concessa super impedi
mento occulto, adnotetur in libro diligenter in secreto Curiae
archivo de quo in can. 379 asservando, nec alia dispensatio pro foro
externo est necessaria, etsi postea occultum impedimentum pub
licum evaserit; sed est necessaria, si dispensatio concessa fuerat in
foro interno sacramcntali.
i. The difference between “public” and “occult” is a wellestablished difficulty both for impediments and other laws.1 It is
evident that in some instances, as in the latter part of canon 1075.1,
the impediment is certainly public, and the dispensation will be
obtained for the external forum like any other ; the books give the
formula for application in such cases.2
1 Cf. Apollinaris, 1936, p. 243; Angelicum, 1945, p. 40.
2 Mothon, Formulaire, p. 353.
Qt i8y
Marriage Preliminaries
245
It is equally clear that, from the nature of the impediment, it will
usually be occult in every sense of the word, as well as being defam
atory to the parties concerned. If the priest hears of it as the con
fessor of parties about to be married, he will as a matter of course
seek a dispensation using fictitious names, unless he is able to dis
pense it himself by using the powers he possesses from canons i0431045.1 The parish priest making the pre-matrimonial investigations
is bound to inquire about this impediment, if he suspects its
existence, as directed by S.C. Sacram., 29 June, 1941, Alleg. I, 9, and
he will send the parties to a confessor if it is wholly occult and
defamatory, or deal with it himself exactly as a confessor would.
ii. The difficulty arises when the circumstances of the impedi
ment are such that, though at the moment occult, it is likely to
become publicly known at some future time. For there is no record
of a dispensation granted in the confessional, and in the external
forum the Church must regard the marriage as invalid owing to an
undispensed diriment impediment; even with the penitent’s per
mission to speak the confessor is incapax as a witness from canon
I757> §3» 2·2 This very undesirable, dangerous, and unnecessary
conflict between the internal and the external forum is met by the
procedure of canon 1047. If the facts are likely to become publicly
known, it is for the priest, whether acting as confessor or not,3 to
urge the parties to seek dispensation in the internal non-sacramental
forum with all the safeguards of secrecy provided for in the law. If
the parties are unwilling, the priest will apply for the dispensation
in the sacramental forum, with fictitious names, outlining the
circumstances of a feared divulgation of the impediment, and the
bishop will grant the petition or not according to his discretion.
Episcopal quinquennial faculties usually cover the occult impedi
ment of crime, and permit its dispensation to be either in the
sacramental or non-sacramental internal forum.4 The parties should
be urged to adopt this method, but only when there is a prospect
of the impediment becoming publicly known, for the necessary
secrecy will be securely maintained : application may be made to the
Sacred Penitentiary, and the registration entered in its own secret
archive, if for any reason it is undesirable to approach the local
Ordinary.5
iii. The problem and the difference of opinion in the above
1 Cf. The Clergy Review, 1943, XXIII, p. 514.
2 Previous to the formulation of the clear rule in canon 1047, a confessor's
testimony used to be accepted. Cf. Ephemerides Theologicae Lovanienses, 1925, P· 54·
3 Cappello, De Matrimonio, §238.
< Cf. formula in Bcste, Introductio, p. 1003.
6 Cappello, De Matrimonio, §242, 4.
246
Priests1 Problems
Q. 188
question has arisen, it appears, because the priest was not clear in
his own mind, at the time of sending the petition, whether it was
being sought in the sacramental or the non-sacramental forum. A
decision should have been made on this point from the outset, and
if it was in the sacramental forum the procedure is described in (i).
If for the non-sacramental forum, Heylen recommends that the real
names of the parties should appear in the petition,1 but canon 1031.2
has “reticens nomina” without any distinction, and many com
mentators assume that names will never be mentioned in the
petition. We think it best not to mention them, but the petition
should at least make it clear that the dispensation is being sought in
the non-sacramental forum.2
When the rescript granting the petition is received, the directions
may be that the faculty is to be used only in the act of confession,
or there may be other indications that it is solely for the sacramental
forum, in which case the situation is that dealt with in (i).3
We have not discovered any formula of rescript granting a dis
pensation in the internal non-sacramental forum. In the above
question it seems that it was of this character, and the recipient
has no option except to obey the terms of canon 1047 ; the words
nisi aliud, etc., refer to registration in the secret archive of the
Sacred Penitentiary.
188. “vetitum
ecclesiae’’
In what circumstances is the Church accustomed to forbid a marriage which
is not forbidden by any of the prohibiting or diriment impediments of the Code?
Canon 1038, §2: Eidem supremae auctoritati (ecclesiasticae)
privative ius est alia impedimenta matrimonium impedientia vel
dirimentia pro baptizatis constituendi per modum legis sive univ
ersalis sive particularis.
Canon 1039, §1 : Ordinarii locorum omnibus in suo territorio
vetare possunt matrimonia in casu particulari, sed ad tempus
tantum, iusta de causa eaque perdurante.
§2: Vetito clausulam irritantem una Sedes Apostolica addere
potest.
The power of the Ordinary in canon 1039, §1, could be exercised
when there is the suspicion of an impediment, pending its investiga
tion, or the necessity of avoiding grave scandal ; the person affected
may have recourse to the Holy See. Some hold that the parish priest
1 De Matrimonio, p. 682.
2 Dc Smct> praxis ^iatrimonialis §45.
3 Cf. a lut of clauses likely to occur in Heylen, De Matrimonio, p. 696.
Q. 188
Marriage Preliminaries
*2ΑΊ
enjoys a similar power,1 but a more correct estimate is that he cannot
constitute an impediment in the strict sense : what he can do is to
refuse to assist at a marriage because of some possible infringement
of the common law and pending a clarification of the issue.
The commonest use of the vetitum on the part of the Holy See is
when a marriage is declared invalid owing to the impediment of
impotence, or when it is dissolved by the Holy See ralum non consum
matum; it is then customary for the judicial decision, for example,
of the Rota, to contain a phrase such as “vetito tamen viro transitu
ad alias nuptias inconsulta Sancta Sede.” The prohibition is also
found attached to judgements where a nullity decision has been
obtained notwithstanding the fact that the party is the cause of the
nullity: “vetito mulieri transitu ad alias nuptias, donec sub fide
iurisiurandi coram Ordinario loci promiserit se in novo matrimonio
contrahendo non amplius exclusuram esse bonum prolis seu
generationem filiorum.”
The prohibition, whether of the Holy Sec or of local Ordinaries,
binds sub gravi. It is rare, however, for this vetitum to have the
invalidating effect mentioned in canon 1039, §2.
The right of attaching this prohibition, as an administrative act,
to a judicial decision is vindicated in Decisio LVIII coram Quattrocolo,
of Vol. XXXII of the Rotal decisions for the year 1940. It is by way
of a safeguard to protect the rights of some future partner of the
person under the vetitum, and it is withdrawn after suitable enquiry.2
1 Heylen, De Matrimonio, p. 467.
! Cf. Monitor Ecclesiasticus, 1950, p. 313.
XVI. MARRIAGE IN URGENT CASES
189.
CONFESSOR RECTIFYING MARRIAGE
“in
PERICULO mortis’’
Within the limits set by canon 1044 a confessor may dispense the form of
marriage as well as most of the ecclesiastical impediments when the penitent is
in danger of death. What is the procedure to be followed, and what happens
if the danger passes, in the case of a person publicly considered unmarried, or
barred by a public diriment impediment?
Canon 1044: In eisdem rerum adiunctis de quibus in can. 1043
(Urgente mortis periculo, locorum Ordinarii etc.) et solum pro
casibus in quibus ne loci quidem Ordinarius adiri possit, eadem
dispensandi facultate pollet tum parochus, tum sacerdos qui matri
monio, ad normam can. 1908, n. 2, assistit (Si haberi vel adiri
nequeat sine gravi incommodo parochus), tum confessarius, sed hic
pro foro interno in actu sacramentalis confessionis tantum.
i. A confessor discovers in the course of a confession that a
penitent in danger of death needs, for the relief of conscience, to be
married ; that the party is free to marry except for the obstacle of a
diriment or prohibiting impediment of ecclesiastical law; and that
time docs not permit the marriage to take place with the usual
canonical form and procedure. He should dispense the impediment
verbally by any appropriate words such as: “With the authority
conceded to me by the law of the Church over persons in danger of
death I dispense you from the impediment N. N., enabling you to
marry N. N. (or enabling you, on renewing consent, to revalidate
your union with N. N.). In the name of the Father, etc.”1 If the
impediment is occult and the parties have already observed the
form, renewal of consent is effected privately as directed in canon
1135 ; if it is public, the confessor using a similar verbal formula will
dispense from the ecclesiastical law requiring consent to be renewed
with the canonical form. Similarly, if the parties, e.g. living in con
cubinage, have not yet exchanged any marriage consent, the con
fessor will dispense from the canonical form and instruct the penitent
to exchange a true marriage consent with the other party when the
opportunity offers. The marriage is not registered and the priest
does not inform the Ordinary. This law and procedure illustrates
1 Heylcn, De Matrimonio, p. 672.
248
Q. 189
Marriage in Urgent Cases
249
in a rather sweeping way the age-long doctrine of the Church
matrimonium facit consensus, and puts the clock back, as it were, to
times before the Tridentine decree Tametsi.
ii. Unfortunately, and from the nature of the case, a marriage of
this kind creates a conflict between the internal forum of conscience
and the external forum of ecclesiastical law and government; so
alarming is this conflict that many commentators restrict a confes
sor’s powers in canon 1044 to impediments which are occult in
nature and in fact, e.g. crime.1 Others, more correctly in our opinion,
extend his powers to all impediments of ecclesiastical law whether
occult or not,2 a view which is more consonant with the terms, pur
pose and spirit of canon 1044, 35 wc^ as with the essentials of
marriage consent and the natural right to marry.3
The conflict, however, can often be avoided. For the confessor of
canon 1044 automatically becomes the priest mentioned in canon
1098, whenever the parish priest cannot be obtained, or very likely
the confessor may himself be the parish priest or one delegated for
marriages. He should then rectify the situation by dispensing the
impediment, and if necessary the form of marriage, with effect in
the external forum, or at least in the internal non-sacramental
forum of canon 1047: it will be registered, the Ordinary will be
informed and the marriage will enjoy the status of any other; for
this procedure the priest as confessor must persuade the penitent to
open the matter to him outside the tribunal of Penance.
If this is not possible, either because the penitent is unwilling
or because the other party is absent or for any other reason, the
confessor dispensing a public impediment in danger of death must
instruct the penitent to regulate the marriage before a parish priest
immediately the danger of death ceases; that his own rectification
in confession has no value whatever for the external forum; and
that the penitent will be regarded as living in concubinage, liable
to be refused the sacraments, for example, until the marriage is
ratified in the public law of the Church.
iii. The preliminaries of marriage, which in normal contracts
since Sacrosanctum arc considerable, obviously cannot be complied
with in danger of death. In place of baptismal certificates, certificate
of freedom, nihil obstat and what not, the priest will have to accept
an oath, provided for in canon 1019, §2; and he will question and
1 Wcrnz-Vidal-Aguirrc, De Matrimonio, §428.
2 Prümmcr, Theologia Moralis, III, §859.
3 For the details of this dispute cf. Cappello, De Matrimonio, §238 ; Apollinaris,
1928, p. 81 ; Jus Pontificium, 1929, p. 62 ; Ephemerides luris Canonici, 1946, p. 116.
Canon 1031, §2.2, allows for a public impediment being dispensed in the forum of
conscience.
250
Priests' Problems
Q. igo
instruct the party, as far as time and opportunity permit, about
marriage consent.
190. AFFINITY IN THE DIRECT LINE----WHY EXCEPTED?
Why is the law of canons 1043 an(^ i°44 so strict in excluding a dispensa
tion from affinity in the direct line? Other more serious impediments of closer
relationship, e.g. uncle and niece, which are of ecclesiastical law, are not
excludedfrom dispensation in danger of death.
Canon 1043: Urgente mortis periculo, locorum Ordinarii...
possunt . . . super omnibus et singulis impedimentis iuris eccles
iastici . . . exceptis impedimentis provenientibus ex sacro presbyeratus ordine et ex affinitate in linea recta, consummato matri
monio, dispensare. . . .
Canon 1044: In eisdem rerum adiunctis de quibus in can. 1043
et solum pro casibus in quibus nec loci quidem Ordinarius adiri
possit, eadem dispensandi facultate pollet . . . parochus. . . .
Canon 1076, §3: Nunquam matrimonium permittatur, si quod
subsit dubium num partes sint consanguineae in aliquo gradu
lineae rectae. . . .
i. The church cannot dispense from impediments which arc of
natural or divine law (e.g. impotence or the bond of a previous
marriage). On the fringes of both classes instances may occur which
are doubtfully to be included because it is in dispute whether they
arc of divine law or not. It will be remembered that the validity of
a papal dispensation permitting Henry VIII to marry his deceased
brother’s wife was contested at the time by regal theologians, though
the affinity was only in the collateral line. It is now agreed that
affinity even in the direct line (e.g. the relationship between step
father and stepdaughter) is not of divine law, and canon 1043,
which codifies a papal document dated 20 February, 1888,1 supports
this view. But in the fairly recent past it was not agreed, and the
reason usually given for the Church declining to dispense the im
pediment was the possibility that it might be of divine law.2 This
reason must now be abandoned.
ii. If, however, the marriage which creates affinity has been
consummated, the possibility of infringing divine law in dispensing
it may arise from another cause : the relationship may possibly be
consanguinity. The Code in canon 97, §1, has changed die pivot of
affinity from copula to matrimonium validum, and what we now call
1 Fonks, n. 1109.
* Zitclli, De Dispensationibus Matrimonialibus (1887), p. 55.
Q. igi
Marriage in Urgent Cases
251
affinity in the direct line arising from a consummated valid marriage
is die exact equivalent of the pre-Codc affinity arising from lawful
copula. The Code Commission, 2 June, 1918, decided that if unlaw
ful copula preceding marriage causes doubt whether a relationship
is consanguinity or affinity, the impediment cannot be dispensed
since this is barred by canon 1076, §3. In pre-Code law, affinity
in the direct line arising from unlawful copula was occasionally
dispensed, provided it was established that the copula was sub
sequent to the birth of the person desiring to marry’ a step-parent.1
Similarly under the Code any possible infringement of divine law
arising from suspected consanguinity under the appearance of
affinity is met by canon 1076, §3. Therefore it would seem that this
particular point must also be abandoned in establishing the ultimate
reason for the law of canon 1043, which denies the power of the
Ordinary and others to dispense affinity in the direct line arising
from a consummated marriage, though many writers give this
reason as the explanation.2
iii. It may well be that the outlook described in (i) and (ii) has
influenced the unwillingness of the Church to dispense affinity in
the direct line once the marriage which causes it has been consum
mated. But if these influences arc put aside, the ultimate reasons for
this attitude can only be the social and moral ones which apply
equally to consanguinity in the collateral line; except for the
possibility of defective offspring they are the same in both impedi
ments. Affinity^ even in the direct line, however, being of eccles
iastical not divine law, dispensations are possible though extremely
rare, and examples are quoted occurring both before and after the
Code.3 They are so rare that we regard it as a principle that the
Church can but docs not dispense, exactly' as for the priesthood, and
therefore excludes the dispensing power from the faculties of
Ordinaries and others even in danger of death. A petition for a
dispensation may be sent to the Holy See, and meanwhile, provided
the person is prepared to accept the decision, the last sacraments
may be administered.
191.
AFFINITY IN THE DIRECT LINE : PROOF
OF NON-CONSUMMATION
If the marriage which gives rise to affinity has not been consummated, a
dispensation may be given in danger of death from affinity in the direct line by
1 Oesterlc, Consultationes de lure Matrimonio, p. 119.
2 Ephemerides Theologicae Lovanienses, I925> P· 57·
1 De Smet, De Matrimonio, §622; Chrétien, §17«.
252
Priests' Problems
Q. 192
Ordinaries and others, from canons 1043, 1044. How is non-consummation
established in these circumstances, especially when the alleged non-consumma
tion is due to the practice of contraception ?
Canon 1015, §2: Celebrato matrimonio, si coniuges simul cohabitaverint, praesumitur consummatio, donec contrarium pro
betur.
Canon 1076, §3: Nunquam matrimonium permittatur, si quod
subsit dubium num partes sint consanguineae in aliquo gradu
lineae rectae.
S.C. Sacram., 7 May, 1923, n. 11, §§1 and 2: Si . . . constiterit
matrimonii consummationem coniuges omnimode devitasse ex
detestabili onanismi vitio . . . iudex rem deferat ad H.S.C.
It is correct that, other things being equal, the impediment may
be dispensed if the marriage which has given rise to it has not been
consummated. One answer to the present query might be that non
consummation is to be proved by the process explained in S.C.
Sacram,, 7 May, 1923, which might take a few months or years to
complete, and which will be unusually difficult if the marriage has
been dissolved by the death of one party, as would normally be the
case. In the circumstances of canons 1043, IO44> this process is
clearly out of the question.
Following Oesterle, Fr Dowdall, O.P., in his doctorate thesis The
Celebration of Matrimony in the Hour of Death, p. 70, gives the following
solution which we believe is, in principle, correct. The presumption
of canon 1015, §2, can be disproved, on analogy with canon 1019,
§2, by an oath of the party desiring a dispensation, affirming non
consummation of marriage.
We cannot, however, find any commentator who deals with the
situation when the alleged non-consummation is due to contracep
tive intercourse. It is our opinion, on analogy with the direction of
S.C. Sacram., 7 May, 1923, n. 11, that in these circumstances canon
1043 may not be used to dispense the impediment, and that it will
be necessary to have recourse to the Holy See.
192. MARRIAGE BY PROXY IN DANGER OF DEATH
During the war a parish priest assisting a dying woman declined to rectify
her civil marriage unless he had an instrument of proxy from her consort, a
soldier in the Par East, and she died before it could be obtained. Could this
priest have acted otherwise?
Canon 1044: In eisdem rerum adjunctis de quibus in can. 1043
et solum pro casibus in quibus ne loci quidem Ordinarius adiri possit.
Q· 192
Marriage in Urgent Cases
253
eadem dispensandi facultate (i.e. super forma) pollet tum parochus,
tum sacerdos qui matrimonio, ad normam can. 1098, n. 2, assistit,
tum confessarius, sed hic pro foro interno in actu sacramedtalis
confessionis tantum.
Canon 1088, §1 : Ad matrimonium valide contrahendum necessc
est ut contrahentes sint praesentes sive per se ipsi sive per procu
ratorem.
Canon 1089, §t : Firmis dioccesanis statutis desuper additis, ut
matrimonium per procuratorem valide ineatur, requiritur man
datum speciale ad contrahendum cum certa persona, subscriptum
a mandante et vel a parocho aut Ordinario loci in quo mandatum
fit, vel a sacerdote ab alterutro delegato, vel a duobus saltem
testibus.
§2 : Si mandans scribere nesciat, id in ipso mandato adnotetur et
alius testis addatur qui scripturam ipse quoque subsignet; secus
mandatum irritum est.
§3: Si, antequam procurator nomine mandantis contraxerit, hic
mandatum revocaverit aut in amentiam inciderit, invalidum est
matrimonium, licet sive procurator sive alia pars contrahens haec
ignoraverint.
§4: Ut matrimonium validum sit, procurator debet munere suo
per se ipse fungi.
Canon 1091 : Matrimonio per procuratorem vel per interpretem
contrahendo parochus ne assistat, nisi adsit justa causa et de
authenticitatc mandati vel de interpretis fide dubitari nullo modo
liceat, habita, si tempus suppetat, Ordinarii licentia.
The priest, if time permitted, should have had recourse to the
Ordinary', who could, perhaps, have granted a sanatio if the parties
were free to marry. In what follows we assume that recourse to the
Ordinary was impossible.
Two recent Roman decisions have clarified the law on proxy
marriages,1 but they bear only remotely on the above question,
which we cannot find discussed by the commentators. The kernel
of the doubt is whether the power of dispensing from the canonical
form of marriage in canon 1044 includes dispensing from the law
on proxies in canon 1089.
i. In the case presented above the civil law has been observed
and it is assumed that the parties are free to marry. In recent years,
owing to the exigencies arising from war, many countries have
1 Code Commission, 31 May, 1948 (mandans ipse procuratorem designare debet) ;
S. Off., 26-30 lune, 1949 (canon 1088, §1, applicatur etiam matrimoniis acatholicorum baptizatorum). Cf. Che Clergy Review, 1949»
Ρ· soi, and XXXII,
Ρ· 345·
Priests' Problems
254
Q. 192
brought the civil law into line with canon law by making provision
for the marriages of absent army personnel, the contract being
effected through some method other than the verbal exchange of
consent between two parties in the presence of each other, and the
Church with all due precautions has sanctioned these methods by
assuring the observance of canon 1089 in substance.1 In England
the civil law makes no provision for marriages of this kind, except
that a proxy marriage validly contracted elsewhere is held to be
valid in English law on the principle locus regit actum.2 If in a case of
this kind the civil law has not been observed, the civil penalties to
which a priest is liable may very likely be avoided by arranging for
the contract to be made without a priest’s assistance, i.e. by dis
pensing from the canonical form.
ii. There is some doubt, however, whether this dispensing power
extends to the positive law on marriage proxies, for the two recent
Roman replies mentioned above interpret the law very strictly;
canons 1043 and 1044 have in mind chiefly, if not exclusively,
dispensing from the law requiring the assistance of a competent
priest and two witnesses ; the law about proxies comes within Cap.
v “de consensu matrimoniali”, not within Cap. vi “de forma
celebrationis matrimonii”; a marriage by proxy is always attended
by serious difficulties and it may well be that the Church does not
sanction the process, even in danger of death, unless the positive
law of canon 1088 is observed.
Nevertheless, we can see no compelling reason for accepting this
strict view. Throughout the centuries the Church has always upheld
the principle matrimonium facit consensus, the positive law being
merely a safeguard thereto. In the period immediately following
the Tridentine decree Tametsi, which required the parties themselves
to exchange consent before parish priest and witnesses, some
canonists thought that a proxy marriage was no longer valid, but
the sounder view prevailed and became codified in canon 1088.
The strict interpretation in the two recent replies mentioned above
is applicable to a proxy marriage outside danger of death, and not
withstanding the agreed principle that invalidating laws affecting
the public welfare must be upheld the canonists have always been
prepared to admit epikeia in extreme circumstances affecting the
natural right to marry.3 By limiting its application to the baptised,
the Holy Office in the reply 26-30 June, 1949, clearly allows for
1 S.C. Sacram., 10 September, 1941, mentioned by Bouscarcn, Supplement to
Digest, 1948, p. 155; the text of an earlier instruction, I May, 1932, is in Apollinaris,
1932, Ρ· 4’32 Cf. Apt v. Apt, The Times, 19 March and 11 November, 1947.
3 Riley, The History, Nature and Use oj Epikeia, p. 418 seq.
I
Q· ’93
Marriage in Urgent Cases
255
the validity of marriage between two unbaptised persons when the
canon law on proxies has not been observed. Apart from the dis
positions of positive law, the only thing required for a valid marriage
contract between parties free to marry is consent, which could be
effectively given by an exchange of letters without the intervention
of any proxy, not even one informally appointed by the principal ;
a Rotal pre-Code decision, 19 January, 191ο,1 upheld the validity
of a marriage contract in which the groom’s consent expressed in a
letter was read before the bride’s pastor and two witnesses.
iii. Failing any more explicit and authoritative solution, we sug
gest the following as the best procedure for a priest to follow in the
circumstances of the question. He will obtain the sworn testimony
of the woman as to freedom to marry, and will obtain evidence that
die absent groom expressly wishes this marriage to take place.
Thereupon he will explain to the woman that acting as a confessor
he declares the positive law on proxies to have ceased and that
he dispenses from the necessity of witnesses, so that by expressing
her own consent before him as a confessor she may in conscience
hold herself to be validly married; but he will also explain that
this act is of no value whatever for the external forum, and if
she survives the danger of death the normal procedure must be
observed.
193. marriage: “casus perplexus’’
A parish priestforgot to applyfor a dispensation, third degree consanguinity
collateral line, until the parties and guests were at the church. It is a public
impediment in every sense, and therefore cannot be dispensedfrom canon 1045,
§3. Short of sending the parties away, what is the remedy?
Canon 83 : Parochi nec a lege generali nec a lege peculiari dis
pensare valent, nisi naec potestas expresse eisdem concessa sit.
Canon 1045, §3: In iisdem rerum adiunctis (cum iam omnia
sunt parata ad nuptias), eadem facultate (super impedimentis in
canon 1043) gaudeant omnes de quibus in canon 1044 (parochus,
sacerdos ad normam canon 1098.2, confessarius), sed solum pro
casibus occultis in quibus nec loci quidem Ordinarius adiri possit....
Canon 1092: Conditio semel apposita et non revocata ... 3. si
de futuro licita, valorem matrimonii suspendit.
i. The priest should first try to get in touch with the Ordinary’
by telephone. The rule which discourages this method has its im
portance, inasmuch as the Ordinary is held not to be reachable”
1 A.A.S., II, p. 297; Bouscarcn, Digest, I, p. 53°·
256
Priests' Problems
Q. 193
if he can be approached only by telegraph or telephone1 ; but an
impediment can validly be dispensed in this way, and it is the
obvious course to take.
ii. Failing a dispensation from the Ordinary it is certain that the
priest cannot himself dispense the impediment. He must decide,
firstly, whether it is an impediment which the Church is accustomed
to dispense: in the above case it is. Impediments of ecclesiastical
law which are not usually dispensed are, for example, the priesthood,
affinity in the direct line consummato matrimonio, and crime in its
second and third degrees: in such cases the priest can do nothing
and the parties must be sent away even if the impediment is occult,
unless his knowledge is a confessional secret, in which case he cannot
refuse to assist at the celebration of an invalid marriage but must
try to dissuade the parties from attempting it.
He must decide, secondly, whether in the case of an impediment
which the Church is accustomed to dispense there exists a canonical
cause. In the above case, even if there are no others, “everything
prepared for the wedding” is in our view a canonical cause2;
moreover it is a minor diriment impediment and the law is generous
in overlooking defects in the final cause.3 The graver diriment
impediments are invalidly dispensed unless the final cause is
adequate, and the matter is not always easy to determine. The kind
of canonical causes required, for example, in dispensing certain very
near degrees of consanguinity are defined in an Instruction, S.C.
Sacram., 1 August, 1931.4 If the priest cannot decide that there is an
adequate canonical cause he must refuse to assist at the marriage,
unless his knowledge of the impediment is a confessional secret, as in
the previous paragraph.
iii. We suppose, then, that it is an impediment from which the
Church is accustomed to dispense and that there exists a canonical
cause. The remedy rightly recommended by many5 is for the parties
to make the contract with a suspensive condition “provided a dis
pensation is obtained”. This must be explained to them and they
must clearly understand that they will not be married, notwith
standing the marriage ceremony, until the dispensation is obtained
from the Ordinary. The priest should set about obtaining it as
speedily as possible and inform the parties immediately.
It is true that normally the contracting parties should not intro
duce a lawful condition into their consent except after consulting
1 Code Commission, 12 November, 1922.
2 The Clergy Review, 1944, XXIV, p. 515.
* Cf. The Clergy Review, 193«, II, p. 550.
6 E.g. Heylcn, De Matrimonio, p. 676.
3 Canons 1042 and 1054.
Q· ’93
Marriage in Urgent Cases
257
the Ordinary,1 but in our view this is a positive law or recommenda
tion which docs not bind in the circumstances.
Could it not, however, be argued that since in the circumstances the parties
and the public in general probably think that a dispensation has been obtained,
the existence of the impediment is actually occult, and therefore it can be dis
pensed as such by the parish priest ?
i. Since the intention of the legislator in canon 1045, §3, is to
provide ample faculties for meeting the situation when an impedi
ment is not detected until everything has been prepared for the
marriage, the law is rightly to be interpreted as generously as
possible. An official interpretation of this kind, which does not,
however, cover the case we arc discussing, decided that impediments
public in nature though occult in fact come within the terms of
canon 1045, §3.2 Some commentators use another distinction for
describing a situation where the fact giving rise to an impediment
is public, but where it is not publicly known that the law has
established an impediment: the impediment is said to be “mater
ialiter publicum, formaliter occultum”, for example, in a case where
it is known that one party is the baptismal sponsor of the other party,
but where it is unknown that this constitutes a diriment impediment
of spiritual relationship. It may be held as probable that a case of
this kind is occult within the meaning of canon 1045, §3·3
ii. A writer in Periodica, 1926, p. 85, extends this notion of
‘‘impedimentum formaliter occultum” to a case where the priest
applied for a dispensation and the Ordinary failed to reply. It is
analogous to our case since in both instances it could happen that
the parties and the public in general think that the impediment
has been dispensed. The writer’s solution is: “Si ita res se habent,
dicemus casum considerari posse ut occultum, ad mentem c. 1045,
si defectus obtentae dispensationis non possit revelari sine probabili
gravis mali periculo.” He is supported by Arendt in Jus Pontificium,
1926, p. 152, and quoted with approval by Oesterle in Consultationes
De lure Matrimoniali, p. 143; there is, moreover, some support for
the distinction between “materialiter” and “formaliter” in canon
2197.4, which applies the distinction to “delicta” in the penal law.
iii. In solving the query in The Clergy Review, 1949, XXXII, p. 47,
we did not deal with the case of an impediment which is public
materially but formally occult, and indeed the statement in die
1 Sacrosanctum, n. 9, and Appendix I, n. 17.
2 Code Commission, 28 December, 1927.
» Vromant, De Matrimonio, §116; I’ayen, I, §669 ; id est vulgo notum, quatenus
at factum, sed vulgo ignotum, quatenus est impedimentum.
258
Priests* Problems
Q. 194
question that it was a public impediment “in eveiy sense” was
taken to exclude the distinction altogether. Nevertheless it certainly
could be argued that, in the circumstances, everyone assumes that
the dispensation was obtained. We think that the opinion outlined
above in (ii) is probable and that it can be applied to this case, if
desired ; as an alternative to a conditioned marriage contract, which
is always to be avoided if possible, the parish priest could dispense
from the impediment of third degree consanguinity, relying on the
opinion that “pro casibus occultis” of canon 1045, §3, includes
impediments which are public materially but formally occult.
194.
DISPENSATION GRANTED : ORDINARY
TO BE INFORMED
Why does the law require a priest who dispenses a marriage impediment
to inform the Ordinary ? Is this information necessary for the validity of his
dispensation ?
Canon 204, §2: Attamen rei ad Superiorem delatae ne se im
misceat inferior, nisi ex gravi urgentique causa; et hoc in casu
statim Superiorem de re moneat.
Canon 1046: Parochus aut sacerdos de quo in can. 1044 de
concessa dispensatione pro foro externo Ordinarium loci statim
certiorem faciat; eaque adnotetur in libro matrimoniorum.
Canon 1048: Si petitio dispensationis ad Sanctam Sedem missa
est, Ordinarii locorum suis facultatibus, si quas habeat, ne utatur,
nisi ad nonnam can. 204, §2.
The question relates to the dispensing powers enjoyed by Ord
inaries and by parish priests either in danger of death or in cases of
other urgent necessity, and as regards priests, a chart analysing the
intricate legislation of canons 1043-1045 was suggested in Questions
and Answers, Vol. I, qu. 287.
The direction that the dispensing priest must inform the Ordinary
of what he has done is a grave law, but it clearly has no relevance
to the validity of the dispensation, which is valid or invalid according
as the use of the priest’s powers is or is not contained within the
terms of canons 1043-1045. The reason for the law is to provide a
check on the priest’s action. It is an extraordinary and unusual
occurrence and most priests, even in large parishes, have never used
the faculty. For this reason there is some likelihood of the priest
exceeding his powers in one direction or another, and it is for the
Ordinary to survey the case and cither ratify the priest’s action or
apply a suitable remedy, such as sanatio, if it transpires that the
«
Q. 194
Marriage in Urgent Cases
259
dispensation was invalidly given. “Ratio obligationis est quia agitur
de re gravissima. Ne abusus irrepant aliaque haud levia incommoda
Ordinarius prudenti suo iudicio videre debet, num causa pro dis
pensatione concedenda adfuerit, num conditiones, ct clausulae a
iure requisitae servatae fuerint, num scandalum remotum fuerit
etc.”1 The words “pro foro externo” in canon 1046 make it ciear
that a confessor dispensing in the internal forum of the confessional
is under no obligation to inform the Ordinary. But he could usefully
do so, whilst carefully preserving the sacramental seal, if he is not
sure of the valid use of his powers.
A further reason exists in a petition for a dispensation which has
been sent to the Ordinary in the usual way and which the priest has
himself dispensed before receiving a reply ; the principle of canon
204, §2, requires the Ordinary to be informed, and the rule applies
equally to dispensations granted by the Ordinary in similar circum
stances, as canon 1048 declares.
1 Cappello,
Dt Matrimonio,
§241.
Q. 196
XVII. MARRIAGE IMPEDIMENTS
I95. MIXED MARRIAGE — NULLITY THROUGH
INSINCERE GUARANTEES
Can you suggest an explanation of a statement in “The Times",from
the Roman correspondent, 15 June, 1953, to the effect that a marriage had
been declared invalid because the non-Catholic did not keep his promise to
allow the children of the marriage to be brought up in the Catholic faith ?
The Times, 15 June, 1953: Another marriage was declared void
because the husband, a non-Catholic married to a Catholic, did not
keep his promise to allow the children of the marriage to be brought
up in the Catholic faith.
A.A.S., 1953, p. 334 (Causae quae in Tribunali Sacrae Romanae
Rotae actae sunt anno 1952 . . .) XXXII Detroiten. Nullitatis
matrimonii ob non adimpletam conditionem. . . . Constat dc
nullitate matrimonii in casu . . . diei 19 Februarii.
Monitor Ecclesiasticus, 1952, p. 590. Detroiten, Nullitatis matri
monii (Fallow-Binzit) c.R.P.D. Augusto Fidecicchi, Ponente, n.8.
Momentosa et procul dubio est praesens causa, cuius caput nul
litatis rarissime recurrit. . . . n.n. Aliud quod condicioni subiecit
Silvestra fuit promissio et quidem sincera et ex animo facta cautiones
ab Ecclesiae lege statutas adimpletum iri. . . . n. 12. Hanc condi
cionem ultra et praeter legem non semel sponso clare atque aperte
declaravit. . . . Condicionem renovavit occasione traditionis annuli
sponsalitii, coramque testibus. . . . n.24. Quam ob rem tenuerunt
Patres, toto causae complexu diligenter rimato, actricem veram
condicionem sui consensus matrimonialis validitati apposuisse, quae
verificata non fuit. ... 19 Februarii 1952. . . .
i. The decisions of the Roman Rota, not normally published
until ten years have elapsed, are occasionally printed in the canonical
journals, such as Monitor Ecclesiasticus or Ephemerides luris Eccles
iastici. From the diocese named (Detroit) and from the date of the
judgement, it is as certain as anything can be that Monitor Eccles
iasticus has printed the main part of the judgement mentioned as
η.XXXII amongst the causes decided by the Rota in 1952. But it
is not equally certain that it was this judgement that The Times
correspondent had in mind. Even if it was some other similar judge
ment amongst the causes (188) decided in 1952, there can be only
260
Marriage Impediments
261
one explanation of the words used in relation to “mixed marriage”.
ii. The explanation is that the Catholic party put a condition
determining that consent would not be given to the marriage
contract unless the non-Catholic was favourably inclined towards
Catholicism and seriously intended to be bound by the promises
and guarantees always required by canon law in mixed marriages.
The impediment is not diriment and therefore, if a dispensation
were invalidly granted, the validity of the marriage would be un
affected. A condition, however, could have a nullifying effect if it
were proved, as it was in the present case, to exist. The circum
stances are unusual, indeed, but there have been similar cases in the
past. To state that the marriage wets declared invalid because the
non-Catholic did not keep his promises is a careless way of describing
the situation, besides being utterly at variance with die Catholic
doctrine and law of marriage.
iii. The law and its application to the facts of the case occupy
eight pages of the Monitor Ecclesiasticus, and much of the judgement
has been omitted. The reader is referred to diis Roman journal for
ail the details. One aspect, however, seems important enough to
discuss very briefly. It may be asked whether it is not true that in
all mixed marriages die Catholic party gives a conditioned consent ;
and some may be tempted to think that it would be a good tiling if
the Catholic party were always advised, as a matter of course, to
limit consent in this way. The answer to the first point is that it is
patently untrue to suppose that all mixed marriages are conditioned
contracts: the Catholic party being assured of the promises being
given normally contracts marriage without introducing any condi
tion whatever. To the second point the answer is that it would be
gravely wrong to advise parties in this sense : the Ordinary’s permis
sion is required before limiting the contract by any condition.1 It is
unlikely that permission would ever be given, and if it were, the
parties would be forbidden by the natural law to use their marriage
rights until the condition was verified.
I96.
MARRIAGE OF COMMUNISTS
Is it necessary to obtain a dispensation from the impediment of mixed
religion before assisting al the marriage of a Catholic to a Catholic who is a
member of the communist party?
S. Off, ii August, 1949: Quaesitum est utrum exclusio com
munistarum ab usu Sacramentorum in Decreto S. Oflicii diei 1 iulii
1 Sacrosanctum, n. 9, and Appendix, n. 1 7.
262
Priests' Problems
Q. 156
1949 statuta, secum ferat etiam exclusionem a celebrando maim
monio: et quatenus negative, an communistarum matrimonia
regantur praescriptis canonum 1060-1061.
Ad rem Sacra Congregatio S. Officii declarat: Attenta speciali
natura sacramenti matrimonii, cuius ministri sunt ipsi contrahentes
et in quo sacerdos fungitur munere testis ex officio, sacerdos assistere
potest matrimoniis communistarum ad normam canonum 1065
1066.
In matrimoniis vero eorum, de quibus agit n. 4 praefati Decreti,
servanda erunt praescripta canonum 1061, 1102, 1109, §3.
The communist may be a non-Catholic : as such, and quite apart
from his profession of communism, his marriage to a Catholic must
be preceded by a dispensation from the impediment either of mixed
religion or difference of worship. In what follows we have in mind
a Catholic who has become a communist.
i. There have been a number of Roman decisions in which, as
Dr McReavy pointed out,1 the Church draws a distinction between
communists in the complete sense of the word, those namely who
profess materialistic and anti-Christian doctrine, and those who have
no interest in the philosophy or doctrine of the party but who join
it in the mistaken belief that the just claims of the workers will be
more effectively secured under the communist label. The first kind
are apostates from the Catholic faith and for that reason come under
the excommunication of canon 2314. From the fact, firstly, that the
above declaration of the Holy Office refers to canon 1061 which
describes the procedure for dispensing the impediment of mixed
religion, and, secondly, from the Code Commission reply, 30 July,
1934,2 which declares members of an atheistical sect to be juridically
equivalent to members of a non-Catholic sect as regards marriage
law, it might be thought that a communist-apostate may not marry
a Catholic except after- a dispensation from the impediment of mixed
religion has been granted.3 This would not, however, be a correct
conclusion to draw, since the impediment must be kept within the
terms of its definition in canon 1060.4 Guarantees must, nevertheless,
be obtained before a priest assists at these marriages.
Members of the party who do not subscribe to its materialistic
and anti-Christian doctrines—they may be called “aggregate”
members—are obviously still less to be regarded as barred by the
impediment of mixed religion from marrying a Catholic. They arc
1 The Clergy Review, 1949, XXXII, p. 397.
2 The Clergy Review, 1934, VIII, p. 491.
3 Cloran, Previews and Practical Cases, p. 96.
♦ Periodica, 1949, p. 306; Apollinaris, 1949, p. 102; Monitor Ecclesiasticus, 1950,
p. 480.
4
263
Marriage Impediments
Q-197
public sinners and members of a forbidden society : the Ordinary
may require guarantees before permitting the marriage, as in the
common law of canon 1065.
ii. What then is the difference, for practical purposes, between
the two groups, since both arc condemned, and guarantees must be
obtained (for communist-apostates) or may be required by the
Ordinary (for aggregates) ? The difference is twofold. Firstly, in the
case of a communist-apostate, the guarantees must be obtained and
normally in writing exactly as in the case of a mixed marriage;
whereas in the case of an aggregate member the prudent judgement
of the Ordinary suffices that the faith of the Catholic and of the
offspring is not imperilled. Secondly, the law forbidding a nuptial
Mass and all sacred rites applies only to the communist-apostate :
Mass is always forbidden, but the Ordinary may permit some sacred
rites in church, as is the practice in most English dioceses for mixed
marriages; whereas in the case of a merely aggregate member, unless
the Ordinary has ruled to the contrary, sacred rites including a
nuptial Mass are not forbidden, though Holy Communion must be
refused the member. This seems to us the only logical conclusion to
be drawn from the instructions of the Holy Office on the subject.
They arc difficult to interpret correctly, but one may simplify the
situation, perhaps, by approximating the communist-apostate to a
person who is not a Catholic, and by regarding the communist
aggregate as a Catholic who has forfeited his rights to the sacraments,
excepting marriage, through joining a forbidden society.
197.
MARRIAGE OF NOMINAL CATHOLICS
The number offoreign Catholics in this country, many of whom are merely
nominal, raises the question whether one is entitled to refuse to assist at their
marriages, or to baptise their offspring, seeing that the persons about to be
married do not practise their religion, and that the prospects of the Catholic
education of offspring are dubious.
This topic is frequently raised in the form of a question on the
lawfulness of refusing the sacraments to indifferent Catholics, and
the view is sometimes defended that it is a liability rather than an
asset to the Church to encourage religious indifference, and that
refusal might be a salutary remedy. Questioners arc not always
conscious of the fact, but their contention actually is that it would
be advisable to have the law changed in regard to marriage or
Baptism, making for example the omission of Easter duties an
impediment to marriage, or a bar to the baptism of die offspring of
5ίώ
264
Priests' Problems
non-practising Catholics. It is open to anyone, of course, to make a
plea for a change in the existing law. But, if it is a question of the
law as we have it at present, the principle is that no priest may
refuse the sacraments to persons who have the dispositions required
by the law, no matter how strongly he may feel that their adminis
tration is a lamentable abuse; and in doubtful cases he must ap
proach the Ordinary.
If a child is in danger of death, Baptism should be administered
even though the parents are infidels and are positively averse to its
Baptism.1 If there is no danger of death, Baptism should be ad
ministered if one parent consents and there exists a possible hope of
its Catholic education. The replies of the Holy See and the teaching
of the commentators permit a very liberal meaning to be given to
the words “dummodo catholicae eius educationi cautum sit” of
canon 750. This condition may be verified even though the parents
have not made their Easter duties and affirm that they have no
intention of doing so.2
The law on assisting at marriages has been considerably tightened
by Sacrosanctum, 29 June, 1941. The new regulations, however, arc
chiefly designed to secure a valid consent by holding a more careful
investigation of the parties’ freedom to marry. Their religious
knowledge and practice is also mentioned, and should be investi
gated, but it is very clear that marriage may not be refused solely
because a person neither practises nor knows anything about the
Catholic religion. The existing law is affirmed and no changes are
introduced in this respect. Frequently, the law requires consultation
with the Ordinary before assisting at the marriages of dubious
Catholics.3
I98. MALE STERILISATION AND IMPOTENCE
Does the weight of theological and canonical opinion favour the existence of
impotence in the case of a sterilised male ?
Canon 1068, §1 : Impotentia antecedens et perpetua, sive ex parte
viri sive ex parte mulieris, sive alteri cognita sive non, sive absoluta
sive relativa, matrimonium ipso naturae iure dirimit.
§2 : Si impedimentum impotentiae dubium sit, sive dubio iuris
sive dubio facti, matrimonium non est impediendum.
§3 : Sterilitas matrimonium nec dirimit nec impedit.
1 Cf. The Clergy Review, 1945, XXV, pp. 417, 560.
2 Cf. ibid., 1945. XXV, p. 370.
3 Cf. The Clergy Review, 1939, XVII, p. 451 ; 1942, ΧΧΠ, p. 280.
Marriage Impediments
265
S. Off., 16 February, 1935 (private). Periodica, 1947, p. 14:.An
vir qui subiit vascctomiam bilateralem, totalem et irreparabilem
vel aliam operationem chirurgicam eiusdem effectus, qua scilicet
omnis communicatio cum testiculis irreparabiliter ita intercluditur
ut nulla spermata ex iis traduci et transferri naturali via possint,
nihilominus ad matrimonium ineundum admitti tuto possit iuxta
nonnam in §2 can. 1068 statutam. Resp. In casu sic dictae sterilizationis iniqua lege impositae, matrimonium ad mentem p. 2 can.
1068 non esse impediendum.
S.R. Rota, “coram Maximo Massimi”, 14 June, 1923; R.D. XV,
p. 104: Sed impotentes quoque sunt, qui testes habent adeo informes,
ut semen elaborare nequeant, vel semen forte in testibus elaboratum
transitu clauso nequeunt emittere. . . . Difficilior quidem, quam de
testium carentia, sit probatio de eorum perfecta atrophia vel de
seminis transitu absolute impedito; probatione vero data, par est
omnium horum impotentia, cum omnes verum semen emittere non
possint, et humorem forsan quemdam similem semini effundant ad
generationem ct matrimonii causam minime aptum. Rursus non
interest, utrum veri seminis transitus interclusus fuerit per opera
tionem chirurgicam, quam vasectomiam appellant, an alio modo, e.g.
in exitum venerei morbi, dummodo scilicet obstructio sit absoluta,
atque insanabilis.
‘‘Coram Wynen”, 20 January, 1946; Torre, Processus Matri
monialis, p. 311 : Ad effectum de quo agitur, requiritur utique ut vir,
post penetrationem in vaginam intra eamdem vaginam semen in
testiculis elaboratum deponere valeat et reapse deponat.
i. Though there is no doubt or difficulty about the principle of
canon 1068 that impotence is diriment of marriage, yet from the
nature of the case the fringes of the law produce a number of
obscurities, one of which is in the above question, obscurities wlfich
arise from differences of opinion concerning the conditions required
in the faculties of generation for an act consummating marriage,
and also from developments in medical and surgical science whereby
what used to be thought a permanent disability' is discovered to be
curable. Hence it is not surprising that, in many cases of impotence,
certain Rotal decisions are apparently inconsistent, as the tribunal
itself occasionally admits.1 There has been, however, a marked
consistency in Rotal judgements on the necessity of “verum semen
naturale in testiculis elaboratum”, a phrase constantly recurring as
in the two extracts quoted above, a view which is traceable ulti
mately to the famous Bull Cum Frequenter of Sixtus V on eunuchs,
27 June, 1587.2 T hough this requirement is lacking in the sterilised
1 E.g. R.D., 1926, XVIII, p. 4θ7·
2 FonUs> n· l6»·
266
Priests" Problems
Q. 198
man, there are notable différences between his condition and that
of one castrated ; nor can it be said with certainty to be permanent,
and notwithstanding the prevailing Rotal jurisprudence on the
principle of the matter a number of writers have held that the
sterilised man is not necessarily impotent. For the details of this
controversy we must refer the reader to three excellent and fairly
recent articles.1
ii. The existing obscurity and uncertainty is increased by the
difficulty of obtaining authentic recent Roman decisions, though
many privately given appear in various journals. Thus, writing in
1945, Fr Nowlan could only refer to the 1936 reply of the Holy
Office as being a rumour.2 We must await a public and authentic
decision of the Holy Office before a certain solution of this difficulty
can be accepted, and until that happens the Rotal decisions may or
may not adhere to the view which is the tradition in that tribunal.
Personally we have so far favoured the opinion that sterilisation of
the male, or what some call a double vasectomy, causes the impedi
ment of impotence, but in view of these decisions of the Holy Office,
even though they arc not public, this opinion must be modified.
Owing to the haze, obscurity and uncertainty surrounding the whole
subject, it is at least doubtful whether the impediment exists, and
therefore marriage may be permitted from canon 1068, §2.3 On the
other hand, owing to the doubt, nullity causes may properly be
introduced under this heading, and a decision sought through the
usual channels. There is not, so far as we are aware, any Rotal
judgement explicitly deciding this issue of impotence in a sterilised
man ; the quotations given above and others in the articles referred
to are, as it were, obiter dicta in the course of an argument on some
kindred question. But a recent decision of “Tribunale Regionale
Picenum”4 does maintain that in such cases there is no certain
impotence, owing, amongst other reasons, to the doubt about the
perpetuity of vasectomy, a decision which has perhaps been in
fluenced by the private replies of the Holy Office, although these
arc not mentioned.
[Editorial Note.—At the time of editing this reply, the con
troversy has still not been authoritatively settled. The Rota holds to
its principle that there is impotence when the spermatic ducts are
1 Nowlan, S.J., in Theological Studies, 1945, VI, p. 392 ; Aguirre, S.J., in Periodica,
1947, XXXVI, p. ! ; Fcdele in Ephemerides luris Canonici, 1945, I, p. 183.
2 Op. cit., p. 426, where another private reply of the Sacred Congregation,
8 June, 1939, approximately in the same sense is given.
3 American Ecclesiastical Review, 1947, 116, p. 70.
* This is printed, without a date, in Monitor Ecclesiasticus, 1950, p. 77.
Q· 199
Marriage Impediments
267
definitely closed (cf. coram Wynen, 17 February, 1951, in Monitor
Ecclesiasticus, 1951, p. 261 ff.), but eminent theologians continue to
defend the contrary. Among those who have written in this sense
since the above reply was written, or have maintained that there is
sufficient doubt to make marriage and/or its use lawful, and its
nullity on this score unprovable, the following can be quoted:
McCarthy (The Irish Theological Quarterly, 1951, p. 72 ff; 1953, p.
333 IT.), Bender (Vlaming-Bendcr, Praelectiones luris Matrimonii, 4th
edition, p. 190), Ford (Theological Studies, 1955, p. 533 ff), LanzaPalazzini (De Castitate et Luxuria, ed. 1953, p. 259). It is true that
His Holiness Pope Pius XII, in his allocution to a congress of
Geneticists, 7 September, 1953 (A.A.S., 1953, p. 606 ff), rejected
the claim that eugenic sterilisation certainly has no effect on the right
to marry, adding: “cctte assertion permit les doutes les plus
fondées”; but though these words may be interpreted as implying a
preference on the part of the Holy Father for the Rotal point of
view, they equally clearly indicate that he did not choose, as yet, to
settle the controversy outright.]
199. ‘‘ligamen”: internal and external forum
Titius is certain in his own mind of defective consent in his marriage con
tracted “coram Ecclesia” with Bertha. After obtaining a civil divorce he
marries Anna with the canonical form in a distant country. Is this second
marriage valid in conscience; or, if not, may Titius be left in goodfaith about
it, provided there is no scandal?
Canon 1019, §1 : Antequam matrimonium celebretur, constare
debet nihil eius validae ac licitae celebrationi obsistere.
Canon 1069, §2: Quamvis prius matrimonium sit irritum aut
solutum qualibet ex causa, non licet aliud contrahere, antequam
de prioris nullitatc aut solutione legitime et certo constiterit.
Sacrosanctum, 29 June, 1941, n. 6: Ob rei momentum, specialia
sunt animadvertenda de impedimento ligaminis. Pervigilent parochi ne
contra ius, bona vel mala fide, nova coniugalia foedera ineant qui
praecedentis matrimonii vinculo vinciantur, etsi de huius valore
haud temere ambigatur, immo nullitas ipsa sit in aperto, (a) Prae
scriptum can. 1069, §2, optime norint, matrimonii nempe nullitatem
canonica dumtaxat probatione esse evincendam, id est ordine iudiciali
servato usque ad alteram sententiam conformem contra matrimonii
valorem a qua appellatum non fuerit a vinculi defensore; vel in
casibus exceptis (can. 1990-1992) expletis regulis traditis in supra
memorata Instructione huius S.C. diei 15 Augusti 1936, art. 226 seq.
268
Priests1 Problems
Q. 19g
i. The second marriage of Titius with Anna is invalid in consci
ence as well as in the external forum of canon law, owing to the
impediment of ligamen, the bond of a previous marriage. Marriage
is of its nature a public act with a public status, and cannot validly
and lawfully take place, if barred by a previous marriage, except
after obtaining an official ecclesiastical decision that the previous
marriage is non-existent. This decision is easily obtained, when its
nullity is caused through an undispensed diriment impediment, by
the summary process of canons 1990-1992; and still more easily
when its nullity is due to defect of canonical form.1 It is difficult to
obtain, owing to the lengthy double process, when the nullity is
due to defective consent, as in the above case. The term “marriage
of conscience” has no relation to the circumstances we arc discussing,
but refers to one contracted coram Ecclcsia with the minimum of
publicity as provided for in canons 1104-1107. Titius may marry
Anna after his marriage with Bertha is dissolved or declared null,
but he will need a dispensation from the first degree of crimen.
ii. The principle about leaving persons in good faith concerning
material sin, on the assumption—amongst other things—that their
conscience is clear and cannot safely be disturbed, seems to us
wholly inapplicable to Titius. Since he knows enough about the
marriage contract to discern what he thinks is defective consent, he
must also know, it would seem, that a marriage once contracted
coram Ecclesia cannot be set aside by his own private judgement. His
conscience on the matter would make it unlawful for him to seek
the marriage debt from Bertha, but it does not entitle him to
contract a fresh marriage until the first is disposed of; if he thinks it
does, his conscience is vincibly erroneous, and he is not in good faith.
Pending a settlement of the nullity question of his first marriage, he
could be permitted, provided there is no scandal, to live under the
same roof with Anna but not as a married man.
[Editorial Note.—The author’s solution was disputed in The
Clergy Review, 1952, XXXVII, p. 191, 319, as involving an extensive
interpretation of canon 1069, §2 (which merely says “non licet aliud
contrahere, antequam . . .”), and as equivalent to creating a new
diriment impediment, distinct from ligamen which, if Titius’ unproved
claim happens to be true, does not in fact exist ; because although
the law presumes his first marriage to be valid, until the contrary is
judicially established, and forbids him meanwhile to contract another,
and would presume any such further marriage to be invalid, it
neither does nor can make his first marriage valid, if his consent to
1 Provida, art. 231.
Marriage Impediments
Q. 200
269
it was in fact substantially defective. These and other objections
were further developed by the Rev. Joseph J. Farraher, S.J., of
Alma College, Alma, California (ibid., p. 379). The author, how
ever, while modifying slightly his initial statement (ibid., p. 255) and
admitting that the weight of opinion was against him, held substan
tially to his position and accepted the conclusion that “presumed
ligamen has the same effect as real ligamen11 (ibid., p. 381).]
200. SUPERVENING “ DISPARITAS CULTUS*’
.4» unbaptised woman, validly married to an unbaptised man, is about to
become a Catholic. There is no question of invoking the Pauline Privilege
since she is happily married and wishes so to remain. But the husband will not
consent to the baptism and Catholic education either of their two infant
children or of any other children who may be born. May this woman, neverthe
less, become a Catholic? If so, is a dispensation requiredfrom the impediment
of difference of worship ?
S. Off., 14 December, 1848; Fontes, n. 908: 1. An (in casu matri
monii in infidelitate contracta, et conversionis unius coniugis) si
non daretur talis dispensatio (disparitatis cultus), pars conversa
non posset nec licite nec valide remanere cum sua parte infideli,
sine contumelia Creatoris cohabitare consentiente?
2. Quid si pars infidelis, equidem sine contumelia Creatoris co
habitare consentiret, sed recusaret sincere ut proles nata vel nascitura
in religione instituatur ?
Resp. Ad i. Quando pars infidelis consentit habitare cum fideli
absque contumelia Creatoris matrimonium consistere iuxta D.
Paulum, atque ad huiusmodi effectum nullam in casu necessariam
esse dispensationem. Ad 2. Posse in casu partem fidelem transire ad
alias nuptias cum alia parte catholica ; recusatio enim educationis
prolis in religione catholica aequivalet contumeliae Creatoris.
R.P.D. autem Vicarius Ap. efficaciter insinuet parti fideli ut curet,
eo meliori modo quo potest, pertrahere prolem, si quam habuit, ad
catholicam religionem.
i. Difference of worship supervening is not, canonically speaking,
a diriment impediment, for the marriage contracted in infidelity is
valid and it remains valid after the baptism of one party, though
not a sacrament. The practice of seeking, in a case of this kind, a
dispensation from difference of worship, and of renewing marriage
consent after obtaining it, is rightly described by Payen as un
necessary, useless and of no value whatever.1 The woman, a candi
date for baptism, must keep quite distinct two different questions :
1 De Matrimonio, §2226.
10+
270
Priests" Problems
Q. 200
the first is her grave obligation to receive baptism in the Catholic
Church, the second is concerned with her rights and obligations
after becoming a Catholic. But, since her awareness of these rights
and obligations may influence her decision to be baptised, she
should be informed about them beforehand.
ii. It is certain that the refusal of the unbaptised party to allow
any future children to be baptised and educated in the Catholic
faith comes within the notion of “departure” of which St Paul
speaks in 1 Cor. vii, 15, and is so interpreted by the Holy Office.
From an analogy with the reply of the Code Commission, 16 January,
1942,1*which denied that the guarantees of canon 1061 applied to
children already born, it seems to us likely that the refusal of the
unbaptised party to permit their baptism is not, by itself, to be
considered “departure”. His refusal with regard to future children
certainly is, and the baptised party is therefore entitled with the
appropriate canonical procedure, to use the Pauline Privilege.
iii. In The Clergy Review, 1947, XXVII, p. 266, the question was
discussed whether the baptised party, assuming that the unbaptised
had given all the canonical assurances, was bound to continue co
habitation, and the solution was that a decision rested with the
Ordinary of the convert. The same must be said of the exactly
opposite situation, as in the present case, where the baptised party
desires to cohabit with the unbaptised, even though this is ac
companied by danger to the offspring. The Holy Office, 18 June,
1856/ directed: “. . . neque coniux ad fidem conversus cogendus
est ut infidelem coniugem pacifice ac sine contumelia Creatoris
cohabitare volentem deserat, nisi revera adsit perversionis periculum
sive respective coniugis fidelis, sive prolis”.
Without in any way prejudging what the Ordinary’s decision
will be, it is clear that all the circumstances in a situation of this
kind call for an indulgent decision in accordance with the desire
of the baptised party to continue cohabitation. For one thing, what
ever the theory or principle may be which might establish a duty
to cease cohabitation, the difficulties arc so imposing, having regard
to the civil law as well as to the wishes of the prospective convert,
that one may rightly see in them moral impossibility. It is rather
analogous to the far more serious situation where entering upon
marriage, and not merely its continuance, must be tolerated, even
though accompanied by the prospect of the offspring being brought
up in infidelity.3
1 The Clergy Rcvùw, 1942, XXII, p. 283.
2 Fontes, n. 936.
3 Cf. S. Off.. 23 .April, 1938: Sylloge, n. 206 bis; The Clergy Review, 1938. XV,
p. 54®; >94®. XXIX, p- 104.
« M I I
i
■
•-
Q. 201
Marriage Impediments
271
We think, therefore, in a case of this kind, that it suffices for the
prospective convert to be aware of her obligation regarding the
faith of her children, and to undertake to fulfil it, as the Holy Office
states, “eo meliori modo quo potest”. She must do what in her lies
to secure the baptism and Catholic education of all the children
after her own conversion to the Catholic faith ; but the decision is
with the Ordinary, who should be informed of these circum
stances when the Convert Form is forwarded to him.
201. “DISPARITAS CULTUS”---- EASTERN CHRISTIANS
John, a Russian orthodox schismatic, married and then divorced Mary, an
unbaptised person. He now wishes to marry a Catholic, and it is contended
that his first marriage can be declared null by the summary process of canon
1990, owing to the undispensed impediment of disparity of worship. Is this
correct?
Canon 1070: Nullum est matrimonium contractum a persona
non baptizata cum persona baptizata in Ecclesia Catholica vel ad
eandem ex hacresi aut schismate conversa.
Code Commission, 3 December, 1919 (private) ; Sylloge, n. 75: Pro
testantes vel schismatici in hacresi vel schismate licet valide baptizati,
nec ad Ecclesiam catholicam in (probably a misprint for ex)
haercsi vel schismate conversi, cum Ethnicis matrimonium contra
hentes, valide contrahunt ex novo Codice, quia nec detinentur
impedimento disparitatis cultus, nec tenentur ad formam canonicam
celebrationis matrimonii servandam.
S.C. pro Ecclesia Orientali, 23 November, 1943 (private) ; The Jurist,
1946, p. 40: 2. An Patricia, baptizata et educata in Ecclesia russiaca
dissidentium, volens inire matrimonium cum Roberto, methodista
non baptizato, tenetur, sub poena nullitatis, petere et obtinere dis
pensationem super impedimento disparitatis cultus . . .? Resp. Mat
rimonium Patriciae cum Roberto ex impedimento disparitatis
cultus invalidum est.
The commentator in The Jurist on the reply dated 23 November,
1943, which we presume to be private, thinks that it nullifies the
Code Commission reply, 3 December, 1919. This may well be, since
American writers have great experience of dissident Eastern
Christians, but it occurs to us that there is not, perhaps, any
conflict between the two replies. For canon 1 rules that the laws of
the Code do not apply to the Eastern Church “nisi de iis agatur,
quae ex ipsa rei natura etiam Orientalem afficiunt J 1 he Code
» An example of this—the Index legislation-may be seen in 77ie Clergy Review,
1946, XXVI, p. 383.
.
' r \
272
Priests' Problems
Qt 202
Commission reply may be held to refer to those Western schismatics,
e.g. the Old Catholics of Holland, who have neither been baptised
in the Catholic Church nor converted to it; Eastern schismatics
were not, perhaps, contemplated in this reply because of the principle
in canon I.
The reply given by the Holy See, however, in 1943, emanates
from the Congregation which has charge of the Eastern Church, and
its content must not be held to apply to Western schismatics.
Eastern Christians, whether dissidents or Uniates, are governed by
their own laws, in so far, at least, as these are sanctioned by the
authority of the Church. It is established that in all Eastern rites
marriage between a baptised person and an unbaptised is invalid,1
and the modification of this law introduced into the West by canon
1070 is irrelevant to the marriages of Eastern Christians.2
It seems therefore that the contention in the above question is
correct in principle, though we hesitate to say that a case so unusual
could be dealt with under canon 1990, except under instructions
from the Holy See. Amongst other conditions for the application
of this canon it must be proved that a dispensation from the im
pediment was not obtained ; it appears that there will hardly ever
be a dispensation in such cases, though the reply dated 23 November,
1943, directs under n. 3 that a dispensation from disparity of worship
may be granted to a dissident Russian by the Holy Office.
202. “DISPARITAS CULTUS” — DISPENSATION
‘‘ad
cautelam”
The diocesan rescript dispensing from the impediment of mixed religion
adds a dispensation from the impediment of difference of worship "ad
cautelam ”, in order to cover cases of doubtful baptism. Is the doubt “ dubium
iuris” or “dubium facti”?
Canon 15: Leges, etiam irritantes ct inhabilitantes, in dubio iuris
non urgent; in dubio autem facti potest Ordinarius in cis dispen
sare, dummodo agatur de legibus in quibus Romanus Pontifex dis
pensare solet.
Episcopal Quinquennial Faculties, Formula HI; Irish Eccles
iastical Record, 1948, p. 375: “Dispensandi . . . super impedimento
mixtae religionis, ct, si casus ferat, etiam super disparitate cultus,
ad cautelam ; quoties prudens dubium oriatur de collatione baptismi
partis acatholicac. ...”
1 Cappello, De Matrimonio, §906.
« Periodica, 1936, XXV, p. 41 ; 1938, XXVII, p. 16.
Q. 2O2
Marriage Impediments
273
In our opinion the rescript covers both kind of dubia, but it refers
immediately and directly to dubium facti, being obviously an applica
tion of the rule in canon 15. We refrain from referring to doubts
arising about the meaning of dubium, and will note instead that
whatever “obscurity” there may be in this matter is due partly to
the way in which some writers explain the difference between the
two kinds of doubt, and partly to the wording of the Quinquennial
Faculties.
i. Cappello, discussing the whole subject of doubtful baptism in
relation to marriage, writes: “Dubium versari potest circa colla
tionem baptismi (dubium facti), aut valorem collati baptismi
(dubium iuris).”1 It may be questioned, however, whether a doubt
arising about the validity of a baptism administered by a minister
who, let us suppose, is accustomed to make with his moistened
thumb a sign of the cross on the candidate’s forehead, should
rightly be called dubium iuris. The water might have flowed or it
might not, which is a question not of law but of fact, since there is
no doubt concerning the law.2 Michiels describes dubium facti as
follows: “. . . quando dubitatur scilicet num in casu quodam
particulari, relate ad factum concretum scu rem aut personam
determinatam, reapse verificcntur conditiones physicae vel iuridicae
ad hoc ut lex illi applicetur; puta, quando dubito num persona, de
qua in concreto agitur, sit valide baptizata (idcoquc legibus eccle
siasticis de facto ligata).”3 Even the dubium iuris about baptism in
ultro* is reducible in the concrete to a dubium facti. The true doctrine,
therefore, would appear to be that whenever a doubt exists about
the baptism of this man John Jones, it must always be a dubium facti,
whether the validity of the rite used is in question or whether it
cannot be determined if he ever was a candidate at any rite valid
or invalid. An example of the application of this canon’s dubium iuris
in a matter relating to the impediment of difference of worship is
seen in the doubt arising from the words “baptizata in Ecclesia
Catholica” of canon 1070, §1 : the law is doubtful in certain border
line instances and, therefore, the ecclesiastical impediment of
difference of worship docs not apply;5 nor is the case contemplated
in the terms of the Quinquennial Faculty printed above which we
have next to consider.
ii. The phrase “quoties prudens dubium oriatur de collatione
baptismi partis acatholicac” is not found in some printed texts of
this faculty: e.g. that enjoyed by the Bishop of Bruges in 1922.5
• De Matrimonio, §417.
2 Prümmcr, Theol. Moralis, VI, p. 82.
a Normae, I, p. 147.
.
* Canon 7461
and 5·
6 The Clergy Review, 1943, XXIII» p· 466
i Collations Bn,genres, p. 4‘^i Wcrnz-Vjdal, De Matrimonio (1925), p. 503.
Priests' Problems
274
Q. 203
Without the phrase the faculty is clearer and certainly of much
wider application.
It occurs in Formula III obtained in 1927 and 1948 by the Irish
bishops; in Formula IV which circulates in the United States,1
and in the one obtained by Bruges in 1937.2 The semi-colon after
the word “cautelam”, which appears to limit the faculty of dispen
sing mixed religion to cases of doubtful baptism and hardly makes
sense, should be a comma, according to Dr Kinane’s commentary
on the faculty,3 and it appears as a comma in the Bruges formula.
A further point to observe is that some of these formulae grant the
faculty, with certain restrictions, to dispense difference of worship,
in addition to mixed religion and difference of worship ad cautelam.
It is not too clear why the ad cautelam clause then continues to be
printed. In the very wide powers granted by Propaganda^ faculties
over both impediments are given straightforwardly without any ad
cautelam clause.4
If it is asked why the clause is added, even when the faculty is
limited to mixed religion, seeing that every Ordinary possesses the
power already from canon 15, one reason might be that it makes
clear that difference of worship is an impediment which the Church
is accustomed to dispense ; another reason is the practice of the
Roman Curia of adding to faculties certain phrases which, though
not strictly necessary and though occasionally the cause of obscurity,
do serve as a useful reminder to the recipient of the powers he enjoys
by the common law. The faculties given to army chaplains, for
example, at the outbreak of war5 contain points which arc merely
declarations of the law of the Code. The faculties issued by Propaganda
also contain many explanatory notes and warnings : amongst these
might have been included, with perfect propriety, a reminder of
canon 15 as given in the ad cautelam clause appearing in faculties
elsewhere.
203.
ADULTERY IN THE IMPEDIMENT OF CRIME
Is an act of intercourse with contraceptives considered adultery in the
meaning of the word used in defining the impediment of crime ?
Canon 1075: Valide contrahere nequeunt matrimonium: 1. Qui
perdurante eodem legitimo matrimonio, adulterium inter se con
summarunt et fidem sibi mutuo dederunt. . . .
1 Bcstc, Introductio (1946), p. 997 ; Eaglcton, Diocesan Quinquennial Faculties, p. 50.
2 Collationes Brugenses, 1938, p. 414.
3 Irish Ecclesiastical Record, March 1933, p. 312.
* N. 22. Cf. Paventi, Brevis Commentarius, p. 31.
6 The Clergy Review, 1940, XVIII, p. 304.
Q. 204
Marriage Impediments
275
Any sexual infidelity on the part of married persons has the moral
deformity of adultery, since in addition to the unlawful sexual
pleasure there is injustice towards the innocent party. Considered,
however, as one of the constituents of the rather intricate canonical
impediment of crime, it is certain that the act must be of the kind
required for the consummation of marriage, as described in The
Clergy Review, 1948, XXIX, p. 51. Contraceptive intercourse may,
indeed, be a graver sin, but the law constituting the impediment,
being of a penal character, must be strictly interpreted, and the
doctrine that there is no impediment unless the adultery is an act
of natural intercourse is firmly established in the teaching of
canonists, e.g. Gasparri: “Praeterea impedimentum non oritur,
nisi adulterium fuerit consummatum per copulam perfectam, quae
constat penetratione membri virilis in vaginam mulieris ibidem
verum semen immitentis”1 It is sustained also in Rotal judgements,
e.g. ‘‘Adulterium autem, ut nuptiarum nullitatem inducat, debet
esse perfectum, idest peractum per copulam ad prolis generationem
per se aptam”.2
204. DOUBTFUL IMPEDIMENT OF PUBLIC PROPRIETY
John is living in concubinage with Mary, a widow with a daughter Bertha
by her former marriage, but everyone considers that John is married to Mary,
and thefact that they are unmarried is wholly occult. What impediment, if any,
exists between John and Bertha ?
Canon 97, §1 : Affinitas oritur ex matrimonio valido sive rato
tantum sive rato et consummato.
Canon 1077, §1 : Affinitas in linea recta dirimit matrimonium
in quolibet gradu. . . .
Canon 1078: Impedimentum publicae honestatis oritur ex matri
monio invalido, sive consummato sive non, et ex publico vel
notorio concubinatu ; et nuptias dirimit in primo et secundo gradu
lineae rectae inter virum et consanguineas mulieris, ac vice versa.
This difficulty, which has not been officially solved, arises because
the relationship between John and Bertha is apparently neither
affinity, which under the Code discipline arises only from valid
marriage, nor public propriety, which under the Code discipline
arises only from an invalid marriage or from public and notorious
concubinage.
i. In his first edition De Matrimonio, Cappello held that there is
1 De Matrimonio (1932), §673.
2 R. D., XVI, 1924, p. 174. coram Florczak.
4
276
Priests' Problems
Q. 205
most certainly an impediment between John and Bertha, arising
either from their union considered as an invalid marriage or from
their concubinage: for in the common estimation there is present
that “impropriety” which is the basis of the impediment. In his
current edition, however, this view is modified: “Impedimentum
verius adest; sed practice dubium est.”1
The other commentators we have consulted on the point2 agree
that the impediment is certainly not affinity and is doubtfully public
propriety; the dubium iuris calls for an official solution, pending
which the marriage between John and Bertha would be valid, and
also lawful if it could be contracted without scandal.
ii. We agree with the view that the impediment is doubtful. In
practice, perhaps, there should be no serious difficulty, provided
the canonical investigations previous to the marriage were properly
made: if in the common estimation John and Mary are married,
there is in the common estimation affinity between John and
Bertha, and this could be disproved only by admitting concubinage,
which would then be publicly known3 with the resulting impediment
of public propriety. If the doubt is ever officially settled, it will ver)'
likely be in the sense that there is between John and Bertha an
impediment of public propriety, based on the publicity of the union
between John and Mary, which though not indeed formally known
to be concubinage, is nevertheless materially known to exist on the
mistaken assumption that the parties are married.
205. MATRIMONIAL CONSENT----EXCLUSION OF
“educatio
prolis’*
The primary purpose of marriage is defined as the procreation and education
of children, and about the first mentioned there is no particular difficulty. But
to what extent does the exclusion of the second, namely education of the
children, make the marriage consent invalid?
Canon 1013, §1 : Matrimonii finis primarius est procreatio atque
educatio prolis. . . .
Canon 1080, §2 : Consensus matrimonialis est actus voluntatis quo
utraque pars tradit ct acceptat ius in corpus, perpetuum et exclusivum, in ordine ad actus per se aptos ad prolis generationem.
Canon 1086, §2 : At si alterutra vel utraque pars positivo volun
tatis actu excludat matrimonium ipsum, aut omne ius ad coniugalem
1 De Matrimonio (1939), §554.5.
2 Ferrera, Theologia Moralis, Π, §1043; Wcmz-Vidal, Ius Canonicum, V, §378,
n· 32 ; Chrétien, De Aiatrimonio, §180; Gasparri. De Matrimonio. §730.
3 Canon 2197. i.
Q. 205
Marriage Impediments
277
actum, vel essentialem aliquam matrimonii proprietatem, invalide
contrahit.
Canon 1092: Conditio semel apposita ct non revocata: 1. si de
futuro necessaria vel impossibilis vel turpis, sed non contra matri
monii substantiam, pro non adiecta habeatur. 2. Si de futuro contra
matrimonii substantiam, illud reddit invalidum.
Summa Theol. Suppi. 49, 2, ad 1 ... in prole non solum intelligitur procreatio prolis, sed etiam educatio ipsius ; ad quam, sicut
ad finem, ordinatur tota communicatio operum, quae est inter
virum ct uxorem, inquantum sunt matrimonio coniuncti. . . .
In order to avoid numberless problems which arise whenever the
validity of marriage consent is in question, we assume that the
consent is good in all other respects, but that a condition or positive
act of die will is introduced relating solely to the well being or
education of offspring, for example, that any children of the
marriage should be killed, given to an orphanage or to adoptive
parents, or educated in heresy or infidelity. We must also take it for
granted that the limitation is introduced not merely in the sense of
refusing to fulfil an obligation assumed, but in the sense of refusing
the obligation itself, a rather fine distinction which enters closely
into the analysis of a valid marriage consent.1
i. Ihc clearest and the neatest solution is to maintain, with
Vromant,2 and Vermcersch-Crcusen3 that “educatio prolis” does
not pertain to the substance of marriage, from which it follows that
a condition determining even to kill the offspring, though grossly
immoral, is considered not to have been made, as in canon 1092.1,
a legal presumption iuris ct de iure admitting of no proof to the
contrary in De Smet’s view.4
It is for those holding this opinion to explain how it comes about
that something pertaining to the primary purpose of the contract is
not of its substance. 'I he Catholic tradition linking procreation and
education of children as the primary purpose of marriage is
repeatedly expressed in Casti Connubii and all the official documents,
including the most recent one of the Holy Office, 1 April, 1944.5
Though the opinion has much to recommend it, particularly its
simplicity, the common teaching of theologians and canonists seems
to be against it.0
ii. At the other extreme is the position accepting education of
1 Cf. The Clergy Review, 1931, I, p. 36; 1937, ΧΠΙ, p. 124; 1947, XXVII,
p. 120.
2 De Matrimonio, §175.
3 Epitome, II, §381.
4 De Matrimonio, §154.
s The Clergy Review, 1944, XXIV, p. 5G5.
4 Cf. Tomlin, Conditional Matrimonial Consent, p. 298.
6·
218
Priests' Problems
Q. 205
offspring as belonging to the substance of marriage, and making it
include spiritual formation in the true religion, so that a pact to
bring up the children in heresy or infidelity is against the substance of
marriage, and as such invalidates the contract. This view, held by
some of the older writers,1 is antiquated and in our view to be
rejected, as regards both heresy and infidelity, even when the parties
are Catholics.2 The reason for its rejection is that the contract is a
natural one, with the natural good of offspring in view: married
people as such undertake to secure this natural good for their
children, though as Christians they are also bound to bring up their
children in the true religion. The Church repeatedly insists on this
obligation, even to the extent of attaching a censure, in canon
2319.2, to its non-observance; but the lack of it is not, we think, to
be regarded as invalidating the contract on the ground of being
“contra bonum prolis”. Occasionally, however, it can be shown that
a Catholic party imposed on the non-Catholic a condition dt
praesenti, as in canon 1092.4, safeguarding the faith of the offspring,
and that the non-Catholic did not accept it: the marriage might
then be invalid, not because of a condition “contra bonum prolis”
but because of an unverified condition “de praesenti”.3
iii. We have, lastly, the view which is now commonly held, and
which we believe to be the correct solution : it belongs to the sub
stance of marriage, because entering into its primary purpose, that
parents assume the right and the obligation of physically educating
their children, and if this is positively excluded there is no true and
valid marriage consent.
The exclusion may take the form of an intention to practise
abortion, or to kill the children if born, or to cause them some
grave physical injury. Apart from those who defend the view
explained in (i), there is agreement that this does manifestly
constitute an intention “contra bonum prolis” invalidating the
contract.4
Or it may take the form of intending to exclude the children
from the paternal home, by getting them adopted or brought up in
an institution. This, though morally wrong on other grounds, is
generally held not to invalidate the contract, because not wholly
and necessarily against the physical good of the offspring.3 In our
view, a better explanation is that the parties do, in these circum
1 Cf. Tomlin, op. cit., p. 310; Wemz-Vidal, IV, §518, n. 32.
2 Gougnard-Hcylcn, De Matrimonio·, Priimmer, Theol. Moralis, III §730,
p. 235; Cappello, De Matrimonio, §631.4, retains it in the case of Catholic partie.
3 Cf. Apollinaris, 1928, I, p. 120.
* E.g. Gasparri, De Matrimonio, §905; Payen, De Matrimonio, II, §78.
6 Bayon, De Matrimonio, §773.
Qt 206
Marriage Impediments
279
stances, accept the obligation of educating their children, since they
do at least intend to effect it through some other agency; it is
firmly established that the acceptance of the obligation suffices for
a valid contract.
206. “ BONUM FIDEl” IN THE MARRIAGE CONTRACT
JVe are, unfortunately, familiar with defective marriage consent in relation
to the procreation of children (f bonum prolis") and the indissolubility of
marriage (“bonum sacramenti"'). Is it at all common for a marriage ta be
accused of invalidity owing to the exclusion of mutual fidelity (“bonum
fidei")?
Canon 1013, §2: Essentiales matrimonii proprietates sunt unitas
ac indissolubilitas . . .
Canon 1081, §2: Consensus matrimonialis est actus voluntatis
quo utraque pars tradit et acceptat ius in corpus, perpetuum et
exclusivum, in ordine ad actus per se aptos ad prolis generationem.
Canon 1086, §2: At si alterutra vel utraque pars positivo volun
tatis actu excludat matrimonium ipsum, aut omne ius ad coniugalem
actum, vel essentialem aliquam matrimonii proprietatem, invalide
contrahit.
I he Augustinian triplex bonum is equivalent, in the more modern
analysis, to the primary purpose of marriage, and the two essential
properties which must accompany it. “Nullitas matrimonii porro
sequitur ex defectu consensus . . . etiam quando partialis sit, ut in
casu quo quis alteri parti ius coeundi concedit non autem perpetuum
(contra bonum sacramenti seu indissolubilitatcm matrimonii), vel
perpetuum sed non exclusivum (contra bonum fidei seu fidelitatis
coniugalis) vel perpetuum et exclusivum sed non in ordine ad
generationem (contra bonum prolis). Haec enim tria bona sunt de
substantia matrimonii ... Si deficiat igitur unum ex hisce tribus
bonis, deficit substantia contractus, qui proinde est nullus.”1
In the canons cited above “bonum fidei” is represented by
“unitas” in canon 1013, §2, and “exclusivum” in canon 1081, §2.
The meaning is that the marriage contract necessarily implies a
union between one man and one woman, establishing the right to
the marriage debt between these two parties alone, and conse
quently excluding it between cither of them and a third party. Ina
polygamous society this good or quality would usually be lacking,
in a monogamous society hardly ever.
In respect to “bonum fidei”, the distinction between assuming
1 Coram Prior, 10 July, 1922.
280
Priests' Problems
Q. 206
the obligations and not fulfilling the obligations assumed is of
capital importance, since the first alone is essential to the contract:
“Quoties vero agitur de intentione contraria bono fidei vel prolis,
diligenter cavendum est, ne cum intentione sese non obligandi,
quae matrimonii nullitatem importat, confundatur intentio susceptas
obligationes non implendi, quae matrimonii validitati non obstat.
Quod enim attinet ad exeeutionem seu implementum obligationis,
bonum prolis et fidei de essentia matrimonii non sunt.”1 Quite
often, no doubt, even in a monogamous society, the man contracting
marriage may intend to continue intercourse with a mistress, but
the presumption is that, in so doing, he has accepted the marriage
obligation of fidelity to his wife but has also resolved to violate die
obligation assumed. It is accordingly rare, in a monogamous
society, to have the marriage contract invalidated because of an
intention “ contra bonum fidei ”. Even if the intention was so formed,
it will usually be most difficult to prove. Cases, however, exist
where a marriage has been successfully impugned on this head
alone, as in the one Coram Massimi just quoted ; it was proved from
documents that the man, of a wholly dissolute life, excluded from
his marriage contract the obligation of fidelity to his wife.
1 Coram Massimi,
7 February, 1925.
XVIII. MARRIAGE—FORM AND
CANONICAL EFFECTS
207. MARRIAGE DELEGATION AND REGISTRATION
The parish priest of “ A ”, who at present has only a school building not
available on weekdays, assists at the marriages of his parishioners in a neigh
bouring parish church by courtesy of its rector “B”. Must “ B” give express
delegation each time to “J”? In which parish register should the details be
entered?
Canon 1095, §T : Parochus et loci Ordinarius valide matrimonio
assistunt . . . intra fines dumtaxat sui territorii.
§2: Parochus et loci Ordinarius qui matrimonio possunt valide
assistere, possunt quoque alii sacerdoti licentiam dare ut intra fines
sui territorii matrimonio valide assistat.
Canon 1096, §1 : Licentia assistendi matrimonio concessa ad
normam can. 1095, §2> dari expresse debet sacerdoti determinato ad
matrimonium determinatum, exclusis quibuslibet delegationibus
generalibus, nisi agatur de vicariis cooperatoribus pro paroecia
cui addicti sunt; secus irrita est.
Canon 1103, §1: Celebrato matrimonio, parochus vel qui eius
vices gerit, quamprimum describat in libro matrimoniorum nomina
coniugum . . . idque licet alius sacerdos vel a se vel ab Ordinario
delegatus matrimonio adstiterit.
i. Since “A” is not the vicarius cooperator of “B”, express delega
tion is required for the validity of each marriage contracted within
the limits of the parish of “B”, even when the contracting parties
arc both domiciled in the parish of “A” and the parish priest of
“A” is assisting at the marriage.
ii. The details must be entered into the register of “B” by the
parish priest of “B” or by the priest who is taking his place; “qui
cius vices gerit” refers to an assistant priest of “B” or to a priest
supplying for “B” during his absence. “A” may sign his own name
in the register in the space supplied for the name of the priest
assisting at the marriage. Unless local law directs otherwise in the
above circumstances, there is no need for “A” to enter the details
into his own marriage register as well. The entry in that of “B”
suffices, though an entry is also to be made in the baptismal register
of the place where the parties were baptised, and the obligation of
281
282
Priests' Problems
Q. 208
seeing that this is done also belongs from canon 1103, §2 (matrimonii
parochus), in our opinion, to the parish priest of “B”. Cf. Chretien,
De Matrimonio, p. 373 ; Gougnard, De Matrimonio, p. 283.
208. COMPETENT PRIEST IN MIXED MARRIAGES
Who is the competent priest lawfully to assist at mixed marriages? Are the
rights and obligations of the parish priest of the baptised non-Catholic to be
respected exactly as they would be in the case of his Catholic parishioners? Or
is it more correct to hold that, in such cases, he has no rights with respect to the
marriage of a baptised non-Catholic parishioner?
Canon 1097, §1 : Parochus autem vel loci Ordinarius matrimonio
licite assistunt:
1. Constito sibi legitime de libero statu contrahentium ad
normam iuris ;
2. Constito insuper de domicilio vel quasi-domicilio vel menstrua
commoratione aut, si de vago agatur, actuali commoratione
alterutrius contrahentis in loco matrimonii;
3. Habita, si conditiones deficiant de quibus n. 2, licentia parochi
vel Ordinarii domicilii vel quasi-domicilii aut menstruae com
morationis alterutrius contrahentis, nisi de vagis actu itinerantibus
res sit, qui nullibi commorationis sedem habent, vel gravis neces
sitas intercedat quae a licentia petenda excuset.
The common law of the Code makes no express provision for
these cases. Accordingly, unless local law intervenes, two views are
possible.
i. The law makes no distinction and no special rules for the
marriages of baptised non-Catholics who, therefore, come within
the common law of canon 1097. This view is held by Cappello,1
Woywod,2 Sabetti-Barrett,3 and by Kelly in a doctorate disserta
tion on parochial rights.4
ii. Others, more correctly we think, hold that the parish priest of
the non-Catholic is not competent, his interest in non-Catholic
parishioners being of the very general character expressed in canon
1350, §*> “commendatos in Domino habeant”. This view is
defended when dealing with the more limited question of the rights
of the bride’s parish priest,6 and the same conclusion must follow
in deciding who is competent for all marriage purposes: the com
petent priest for mixed marriages is the parish priest of the Catholic
1 De Matrimonio, §683.6. 2 Practical Commentary, I, §1118. 3 Compendium, p. 918.
♦ The l· unctions Reserved to Pastors, p. 84, quoted in Ecclesiastical Review, 1951,
p. 388.
6 Question 210.
Q. 209
Marriage—Form and Canonical Ejjecls
283
party. This view is supported by analogy with canon 1964 which
decides who is the competent judge in marriage causes: “. . . iudex
competens est iudex loci in quo matrimonium celebratum est aut
in quo pars conventa vel, si una sit acatholica, pars catholica
domicilium vel quasi-domicilium habet”. It is the solution favoured
by Fanfani, a canonist on whom we all chiefly rely in defining
parochial rights :
. si agatur de matrimoniis mixtae religionis .. .
tunc semper coram parocho sponsi catholici matrimonium est cele
brandum”.1 He quotes canon 1097, §2, perhaps because of a certain
analogy with the rule which, apart from local law to the contrary,
favours the rite of the man in marriages of mixed rite. One is on
surer ground in justifying this opinion from the exception “gravis
necessitas” in §1, 3 of the canon.2 Mulder, a Dutch canonist who
has specialised in the subject of parochial rights, states unhesitatingly
“Mixed marriages arc always contracted before the pastor of the
Catholic party ”.3 Martin in a practical treatise on marriage widely
used in France, and Fcuntun in explaining the instruction Sacro
sanctum give the same solution.4
iii. The rather curious thing is that the Code makes no reference
to this point, and consequently the majority of commentators do
not advert to it, whilst going very fully into the law' about diverse
rite. It is a question which could be very suitably settled by local
legislation.
Perhaps one should add a note for the unwary. The question is
not whether the parish priest of the non-Catholic can validly assist
at marriages of non-Catholics within his parish, about which there
can be no dispute whatever : his assistance is valid for all comers in
his territory. It is solely a question of deciding which of the parish
priests who can validly assist is entitled to do so lawfully: we think
it is the parish priest of the Catholic party, who can of course give
permission for the marriage in the non-Catholic’s parish, and even
(if he is lucky) get the parish priest to act as his delegate in the
marriage preliminaries required by the instruction Sacrosanctum.
209.
ORGAN AT MIXED MARRIAGES
Can you give the text of the law in England on this subject, and also say
whether it may be modified when the non-Catholic is under instruction at the
time of the wedding ?
1 De lure Parochorum, §325 B.
2 Ayrinhac, Marriage Legislation, p. 242; Acrtyns-lJamen> TheoL Moralts, II,
4
77k Parish and its Clergy, Eng. tr. by Van Vliet, p. 140.
Le Mariage, §253 ; L'Instruction Sacrosanctum, p. 14.
r
284
Priests' Problems
Q. 210
Propaganda, 25 March, 1868, Instructio ad episcopos Angliac, Cone.
Westm. IV, p. 316; . . . Quod si aliquando, in memorata Instruc
tione, mos adhibendi ritum pro matrimoniis contrahendis in
Dioecesano Rituali legitime praescriptum, exclusa tamen semper
Missae celebratione, in mixtis conjugiis contrahendis tolerari posse
perhibetur, id tamen nonnisi per modum exceptionis indulgetur,
ac sub conditione ut omnia rerum, locorum ac personarum adjuncta
diligentissime perpendantur, atque onerata episcoporum conscientia
super omnium circumstantiarum veritate ac gravitate. . . .
Leeds Synods, 1911, p. 91 : At the Annual Meeting, 1898, it was the
general feeling of the Bishops that at Mixed Marriages, instrumental
music might be allowed as the bridal party were leaving the church ;
that the cope should not be worn ; that there should be no special
adornment of the sanctuary ; that the altar candles should not be
lighted; and that the contracting parties should not enter the
sanctuary.
Westminister Diocesan Synod, 1898, p. 9: The question of the
celebration of mixed marriages was under discussion at the Bishops’
annual meeting. ... In order to steer between the two dangers
alluded to, the Bishops discussed the following points ; and they are
hereby promulgated as the law, in respect to the celebration of
Mixed Marriages, to be followed in future within this Diocese. ...
n. 8. When the marriage service has been concluded, the organ
may be played as the parties are leaving the Church.
From the above texts it is evident that the Holy See left the
arrangement of details to the Bishops, each for his own diocese, and
that at the meeting of the Bishops, Low Week, 1898, the matter
was discussed by their Lordships. No law was made for the whole
country’, since this annual meeting is not a Provincial Council ; the
Bishops may agree on a common policy, but before it can be regarded
as a law it must be promulgated by each Bishop in his own diocese,
and it has no force outside of that territory.
Accordingly the practice is different in various dioceses, and it is
for the clergy, having ascertained their own diocesan law, to observe
it or seek a dispensation from the Ordinary.
In our view, if the diocesan law forbids the organ, or any other
kind of music, it must be held to apply even to a mixed marriage
of which one party is under instruction. It is clearly an instance
when a dispensation could properly be sought.
210. PARISH PRIEST OF NON-CATHOLIC BRIDE
Does the rule of canon 1097, §2, apply when the bride is a non-Catholic
who is marrying a Catholic, the subject of another parish priest ?
Q. 210
Marriage—Form and Canonical Effects
285
Canon 1097, §2 : In quolibet casu pro regula habeatur ut matri
monium coram sponsae parocho celebretur, nisi iusta causa
excuset. . . .
i. This rule is not considered grave in the common law even when
the bride is a Catholic, though local law frequently determines the
rights of the bride’s parish priest very strictly.1 Since the rule has its
origin in social etiquette, it might apply equally to the case of a
non-Catholic bride, and Cappello assumes that it does in com
menting on canon 1097: “Nihil refert utrum quis tamquam
catholicus an tamquam acatholicus commoretur in loco.”2 There is
also a decision of the Congregation of the Sacraments, 28 January,
1916,3 which in giving a decision about the month’s residence of a
bride, received into the Church towards the end of the month,
seems to assert that it is immaterial, as regards the marriage rule,
whether she is a Catholic or not: “Liquido patet sufficere, ad
liceitatem, factum mere externum commorationis, praescindendo a
facto conversionis sponsae in fidem catholicam. ... In Decr. Λ?
Temere requiritur tantummodo menstrua commoratio alterutrius
contrahentis, quin ullus sermo habeatur de eorundem religione.”
Some writers rely on this decision4 for the view that the parish
priest of the non-Catholic bride enjoys the prior right of assisting at
her marriage, and possibly this is a correct solution. Others concede
the right only if the non-Catholic is baptised.5
ii. Whilst open to conviction that the above opinion is correct,
we favour the opposite view denying any canonical precedence to
the parish priest of a non-Catholic bride. We may conclude from
the decision in Fontes, n. 2113, only that a month’s residence im
mediately preceding the marriage (and a fortiori a domicile or a
quasi-domicile) suffices even though the bride is not a Catholic for
the whole period. For non-Catholics are not parishioners, i.e.
subjects of the parish priest of their residence, nor has the parish
priest any rights and obligations regarding their religious needs,
except only in the wide sense of canon 1350, §1 : “parochi acatholicos
in suis paroeciis degentes commendatos in Domino habeant”;
otherwise even an unbaptised non-Catholic must belong to a parish
priest even before he becomes a member of the Church, which is
somewhat absurd. The right to assist at the marriage of a non
Catholic bride would imply the correlative obligation of inves
tigating her freedom to marry' and of obtaining the necessary
1 The Clergy Review, 1940, XIX, p. 67.
8 De Matrimonio, §683.6.
4 E.g. Homiletic Review, September 1938, p. 1293.
6 Woywod, Practical Commentary, I, § 1118.
3 Fontest n. 2113.
i
286
Priests' Problems
Q. 211
dispensations from the Ordinary; but we find, firstly, that the
authors who advert to the point1 rightly affirm that in mixed
marriages the obligation of investigating is on the parish priest of
the Catholic party; and, secondly, it is fairly certain that an
Ordinary may not, or as some think cannot, use his quinquennial
faculties for directly dispensing a non-Catholic from a marriage
impediment.2 And, lastly, whatever may be the correct interpreta
tion of the rule of canon 1097, §2, in the common law, we think
that the local custom and practice at least in this country denies
the right to the parish priest of a non-Catholic, and that in any case
there always exists a just cause for disregarding it. He may, never
theless, be requested to assist in examining the non-Catholic’s
freedom to marry, in which case he acts as the delegate of the
parish priest of the Catholic party; the marriage also, of course,
may take place in his church, if the parties so desire, in which case
he assists lawfully by reason of the permission mentioned in canon
1097, §1, 3, and not by reason of his native right in §2 of the same
canon.
Q. 212
Marriage—Form and Canonical Effects
287
The case, it seems to us, is scarcely a practical possibility in this
country, except perhaps in cases of danger of death arising from
causes other than sickness. For the many official interpretations of
grave incommodum suppose that the civil law forbids even civil
marriage under penalties,1 so that the parties could not, in any case,
contract before a civil registrar.
In theory, however, if not also in practice, it is certain from
canon 1098 and the reply, 4 March, 1925, that a marriage may be
canonically valid when thus contracted, not because of the presence
of a civil registrar as such, but because of his presence as one of tire
two witnesses required by canon law; the witnesses need not be
Catholics.2
Though valid, it is unlawful because the contract being a sacra
ment should be made religiously and not merely as a civil contract.3
In some localities, moreover, civil marriage is punished by an
ecclesiastical censure.
212. MARRIAGE BEFORE WITNESSES ONLY
21 I. CIVIL MARRIAGE IN THE CIRCUMSTANCES
OF CANON IO98
Parlies subject to the canonical form of marriage may, in certain circum
stances, contract validly before witnesses alone. In this event, if all other
requirements are observed, would a marriage contracted before witnesses in a
registry office suffice ?
Canon 1098: Si haberi vel adiri nequeat sine gravi incommodo
parochus vel Ordinarius vel sacerdos delegatus qui matrimonio
assistat ad normam canonum 1095, 1096:
1. In mortis periculo validum ct licitum est matrimonium
contractum coram solis testibus; ct etiam extra mortis periculum,
dummodo prudenter praevideatur eam rerum conditionem esse per
mensem duraturam ;
2. In utroque casu, si praesto sit alius sacerdos qui adesse possit,
vocari et, una cum testibus, matrimonio assistere debet, salva
coniugii validitate coram solis testibus.
S.C. Sacram., 4 March, 1925 (private) ; Apollinaris, 1937, X, p. 277:
Si omnes conditiones extiterint, quae a can. 1098 requiruntur pro
validitate matrimoniorum coram solis testibus, circumstantia qua
huiusmodi matrimonia fuerunt benedicta in ecclesia acatholica,
non validitati sed liceitati obstat.
1 E.g. Fcuntun, l’instruction Sacrosanctum, p. 14.
2 Cf. The Jurist, 1945, V, p. 68.
A marriage attempted in a Protestant church in this country, even though
it is civilly valid, requires the presence of a registrar at its revalidalion with
the canonical form, under pain of serious civil penalties to which the priest is
liable. Is this not the “grave incommodum” of canon 1098 which
justifies the parties contracting marriage before witnesses alone? If so, why
have recourse to a “sanatio” as an alternative to the awkward and trouble
some procedure of re-marriage with the registrar's intervention ?
S.C. Sacram., 24 April, 1935 (private); Bouscaren, Digest, II,
p. 336: An, scilicet, ratione habita responsi dati a Pontificia Com
missione ad Codicis Canones authentice interpretandos dici 25 Iulii,
1931, relate ad can. 1098, ad hunc canoncm referendus sit casus,
quo Parochus vel Ordinarius celebrationi matrimonii religiosi
assistere nequit, quia lege civili prohibetur, etiam sub poena,
matrimonium coram Ecclesia celebrare, nisi praecesserit matri
monium sic dictum civile, ct hoc ab auctoritate civili omnino
recusatur, v.g. ob defectum instrumentorum quae lex civilis re
quirit ? Resp. Affirmative.
i. The rather curious state of our civil law is not due, we think,
to any particular bias against the Catholic Church or in favour of
the Protestant Church, but is a correct deduction from the wording
1 Cf. The Clergy Review, 1947, XXVIII, p. 47; 1950, XXXIII, p. 341.
2 The Clergy Review, 1938, XIV, p. 362.
2 Op. cit., 1949, XXXI, p. 56.
288
Priests' Problems
Q. 212
of the Statutes on the subject.1 The Code Commission reply, 25 July,
1931,2 decided that the law on marriage before witnesses alone
included “ctiam casus, quo parochus vel Ordinarius, licet material
iter praesens in loco, ob grave tamen incommodum celebrationi
matrimonii assistere nequeat”, a ruling which the private reply,
24 April, 1935, expressly applies to avoiding civil penalties. A
further elucidation, 3 May, 1945,3 declared that the grave incommodum
in canon 1098 is also that which threatens cither or both of the
parties.
ii. If it could be maintained that the tiresome business of civil
re-marriage is of itself a grave incommodum, within the meaning of
canon 1098, an affirmative answer to our correspondent’s first
question would automatically follow, and the practice in many
dioceses of revalidating these marriages by sanatio supports perhaps
the view that the alternative and more cumbersome process is a
grave incommodum. The question is merely one of positive law,
and it might well be that at some future time a further official
reply sanctioning this interpretation will be added to the inter
pretations already given; or a declaration of nullity alleged tx
defectu formae might be refused in a case where the parties, in
the circumstances we are discussing, failed to observe the canonical
form.
iii. A careful examination, however, of all the interpretations
officially given supports the opinion that this case, in the present
stage of the canon law, does not come within the grave incommodum
of canon 1098. For, apart from the case of physical absence of the
parish priest, the interpretations suppose that the civil law unjustly
forbids the marriage to take place and threatens either the priest or
the parties with penalties if the civil law is violated. In the case
under discussion the marriage is not forbidden and the priest is not
threatened provided the parties obey the law by obtaining the
presence of the registrar ; neither are the parties themselves under
any incommodum beyond that which, in this country, applies to
nearly every marriage contracted in a Catholic church.
iv. The sanatio procedure is an opportune method of avoiding a
lot of trouble and commotion, particularly as many district registrars
arc unaware of the interpretation of the civil law requiring their
presence at a marriage which is already civilly valid. But this
trouble and inconvenience is not, in our view, of the character
which excuses observance of the canonical form.
1 Cf. The Clergy Review, 1946, XXVI, p. q8o
2 Op. at., 1931, II, p. 447.
» Op. at., 1946, XXVI, p. 48.
QQ. 213, 214 Marriage—Form and Canonical Effects
289
213. MARRIAGE BEFORE WITNESSES ONLY —
RELIGIOUS RITE
In the unusual event of a marriage before witnesses only, without the
presence of a priest, what is the religious or liturgical formula to be used?
Propaganda, 23 June, 1830; Fontes, n. 4749. Secundo, si missionarius adiri nequeat, et ineundi matrimonii urgeat necessitas,
atque aliunde nullum omnino obstet impedimentum, tali casu,
parentes duos testes eligant, qui una cum sponso et sponsa, eorumque
propinquis ad ecclesiam loci se conferentes, flexis genibus, consuetos
fidei, spei, charitatis et contritionis actus in communi recitent,
sicque sponsus et sponsa ad contrahendum matrimonium rite se
disponant. Post haec surgentes sponsus et sponsa coram praedictis
testibus per verba de praesenti mutuum exprimant consensum,
ct post gratias Deo actas domum revertantur. Si autem ad ecclesiam
ire nequeant, in privatis domibus praedicta observentur.
There can be no question of a liturgical formula in such cases,
but merely of securing at the reception of the sacrament a due
measure ol religious observance, and the suggestions of Propaganda
offered to a Chinese Vicar-Apostolic, without being of strict obliga
tion, do give us some idea of what the Church expects from Christians
contracting marriage : preparation by making acts of the theological
virtues and thanksgiving afterwards.
In places where the Ordo Administrandi is used, the exhortation
which is printed in the editions previous to 1915 could be read by
the oldest man present before and after the contract, with the
exception of the last few lines of each which suppose a priest to be
reading the text.
The exchange of consent could be expressed as in nn. 2 and 3 of
the English rite, and even though the ring has not been blessed we
can sec no reason why the formula in n. 6 “With this ring I thee
wed” should not also be used.
The parties and the witnesses are bound “in solidum”, from
canon 1103, §2, to sec that a marriage thus contracted is inscribed
in the parochial register of the place ; and later, when the opportunity
offers, the full liturgical form exclusive of the words “Ego coniungo
vos”, etc., should be supplied, as directed on other occasions by
Propaganda.1
214. “BAPTISED IN THE CATHOLIC CHURCH”
Is there any official decision or definition of what constitutes baptism in the
Catholic Church, for determining subjection to the laws of canons 1070, §1
1 Vromant, Ius Missionariorum, V, §213.
290
Priests' Problems
Q. 214
(“disparitas cultus"}, and 1099 (“forma canonica"}, in cases where an
infant is baptised by a lay person, who may or may not be a Catholic?
Propaganda, 1 April, 1922 (private); Sabetti-Barrett, Theol.
Moralis, p. 1158: Quidam vir, nomine Thac, anno 1898 ex paren
tibus infidelibus natus, in infantili aetate a medico quodam catho
lico, periculo mortis imminente, insciis parentibus baptizatus,
postea in infidelitate omnino educatus, matrimonium more patrio
contraxit, circa finem anni 1918, cum puella pagana, nomine
Nam . . . Resp. . . . matrimonium hoc Thac-Nam a te declarandum
esse nullum, ob impedimentum disparitatis cultus.
i. The Code Commission, 29 April, 1940,1 decided that exemption
from the canonical form, as provided for in the latter part of canon
1099, §2, did not apply to exemption from the impediment of
difference of worship. The latter part of this canon 109g, §2, is
abrogated from 1 January, 1949,2 thus bringing the law into
harmony with that of canon 1070, §1.
A difficulty, however, remains about the interpretation in both
canons of the words “in Ecclesia Catholica baptizatus”. We exclude
from the inquiry the case of baptism or conversion to the Catholic
Church which has taken place after a child has attained the use of
reason, even when the conversion is merely implied,3 and confine
ourselves solely to the case of an infant privately baptised by a lay
person; the circumstance of being brought up from infancy in
heresy is now irrelevant, and the issue turns on whether the case
comes within the phrase “in Ecclesia Catholica baptizatus”.
ii. From canon 87 an infant validly baptised is necessarily a
member of the Catholic Church, and in a true dogmatic sense “in
Ecclesia Catholica baptizatus”. But it is clear that, for legal pur
poses, the phrase used in these canons 1070, §1, and 1099, §2, draws
a distinction between those who by valid baptism intend aggrega
tion to the Catholic Church and those who do not. For the baptism
of infants the intention to be examined is that of the parents or
guardians ; if there are no parents or guardians, or if they' have no
interest in the matter, the intention is that of the lay minister. Thus
Cappello: “Nisi contrarium constet, semper praesumitur ministrum
in baptismo conferendo habere intentionem aggregandi subicctum
religioni quam ipse profitetur. Quae praesumptio destrui debet
contraria voluntate baptizandi, aut parentum vel tutorum ipsius si
de infante agitur.”4 The words “Nisi contrarium constet” are
1 The Clergy Review, 1940, XIX, p. 270.
« Op. cit., 1948, XXX, p. 341.
4 De Matrimonio, §412.12.
s Op. cit., 1947, XXVII, p. 348.
Marriage—Form and Canonical Effects
291
meant to cover an exception to the foregoing rule, namely when in
danger of death an infant is baptised by a lay Catholic and the
intention of the parents is to aggregate it to their heretical sect.
Since, in danger of death, from canon 750, §1, any infant may
lawfully be baptised “etiam invitis parentibus”, the minister’s
intention prevails against that of the parents, as Cappello concludes
in n. 7 of the same section, a conclusion supported by Propaganda,
I April, 1922, which though not promulgated is in agreement with
the commentators on this point. By declaring that at the end of
1918, namely after the Code’s promulgation, Thac was held by the
impediment of difference of worship, it follows that he comes
within the phrase “in Ecclesia Catholica baptizatus”. Notwith
standing the rule regarding the intention of parents or minister,
there will always be some cases which are doubtfully within the
phrase “in Ecclesia Catholica baptizatus”, especially when an
infant is baptised by a lay minister outside the danger of death;
in such cases, pending the resolution of the doubt, we must apply
the axiom : impedimentum dubium, impedimentum nullum.
In addition to the usual commentators on this canon, cf. Periodica,
Ï931» P· 745 Perfice Munus, 1948, p. 9; Irish Ecclesiastical Record,
December, 1948, p. 1107; Doheny, Canonical Procedure in Matrimonial
Cases, p. 1042.
215.
CANONICAL FORM---- MEANING OF “CONVERT”
.4 child baptised validly in the Church of England attends a Catholic school,
and the circumstances of his baptism being unknown to the authorities he
makes his First Communion and is brought up religiously in all respects like
the other children. Is he subject to the canonical form for his valid marriage
later on in life ?
Canon 1099, §1 : Ad statutam superius formam servandam
tenentur: 1. 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 matrimonium ineunt.
§2: Firmo praescripto §1, n. 1, acatholici sive baptizati sive non
baptizati, si inter se contrahant, nullibi tenentur ad catholicam
matrimonii formam servandam.
This and other border-line cases, in which it is not clear whether
the person is to be regarded as a Catholic or a non-Catholic for the
purpose of marriage, have not been officially decided by the Holy
See, and we know of no published nullity causes which would assist
in reaching a decision. The difficulty existed under Ne Temere and
292
Priests' Problems
Q. 215
most of the Code commentators follow the teaching of Van Den
Acker, Decreti Ne Temere . . . Interpretatio (1915), pp. 100-105.
i. The parents, after the child’s baptism in the Church of
England, may have themselves been reconciled to the Church, in
which case the child not of the age of reason becomes a Catholic
also; the proper course would have been to supply at least the
ceremonies, if there was proof of valid baptism, and to make the
appropriate inscription in a Catholic baptismal register,1 thus
putting the “Catholic” status of the infant beyond all question. But
even though this proper course was not followed, it is clear that an
infant in such circumstances must be regarded as becoming a
Catholic together with the parents: “durum et inauditum videtur
huiusmodi parentum nunc catholicorum infantes, qui catholice
educantur, vocare acatholicos, praesertim si parentum ncoconversorum cura horum infantium nomina in libro baptizatorum
. . . descripta sunt. (Nota vocabulum praesertim, quia hanc inscrip
tionem non consideramus tamquam conditionem sine qua non.)
Neque mirum videtur, eosdem infantes absque propriae voluntatis
actu ab acatholicis fieri catholicos simul cum parentibus, quum
etiam in baptismo parvulorum voluntas infantium censeatur inclusa
in voluntate parentum.2
ii. If the parents remain non-Catholics, the Catholic status of
the child before the age of reason cannot be established unless at
least one parent guarantees its Catholic education, as in canon 750.
It is difficult to see how this could possibly be effected without
getting the child’s name inscribed in a Catholic baptismal register,
or by some such other express and formal declaration as might be
given, for example, if the parents surrendered the child for adoption.
The point need not detain us since the above question does not
raise the issue. For when the child comes to the age of reason,
whatever doubt there may be is removed by its profession of the
Catholic faith: “. . . conversio ad catholicam ecclesiam fieri non
videtur nisi per actum voluntarium; qui si postulatur, hi infantes
dicendi sunt acatholici, quoadusque ipsi postea, rationis compotes,
talem actum posuerint, quo appareat cos voluntarie ecclesiae
catholicae adhaerere ; quod manifestabunt per sacramentorum
susceptionem et praecipue per primam communionem.”3 The
proper course would have been for the child at the age of reason
to be received into the Church like any adult convert without
absolution from censure. But even though this was omitted, it
1 Cf. The Clergy Review, 1941, XX, p. 544; I942, ΧΧΠ, p. 373.
« Van Den Acker, op. cit., p. 102.
3 ]oc, cjt
Marriage—Form and Canonical Effects
Q. 216
293
appears that a person becomes subject to the canonical form of
marriage by professing and practising the Catholic faith, in the
circumstances of the above question, even without the ceremony of
a formal reception into the Church. This view is held by Gougnard,
De Matrimonio, p. 281; Oesterle, Apollinaris, 1939, XII, p. 103;
Chrétien, De Matrimonio, §221 ; Cf. also Periodica, 1941, p. 48. The
reason is that conversion or adherence to the Catholic faith is
implied in a person’s actions and manner of life.
iii. The conclusion about Catholic status given in (i) is certain
and is taught by all the commentators we have consulted. The con
clusion in (ii) is less certain : many do not advert to the point at all,
and there is some difference of opinion in defining the conduct or
actions which tacitly imply adherence to the Catholic faith, the
common view being that the reception of sacraments is necessary.
We think that this is correct, but in all such cases there are sufficient
reasons for submitting the validity of the marriage to the Ordinary.
216.
DISPENSING LAPSED CATHOLICS FROM THE FORM
Two parties, baptised Catholics, the offspring of mixed marriages and
educatedfrom infancy in heresy, are now bound to observe the canonical form.
They are in good faith but naturally decline either to make the contract
canonically or to give assurances that their offspring will be baptised and
educated as Catholics. What can a priest who knows of the situation do
to secure the validity of the marriage ?
Canon 1045, : Possunt Ordinarii locorum, sub clausulis in fine
can. 1043 statutis (praestitis consuetis cautionibus), dispensationem
concedere super omnibus impedimentis de quibus in cit. can. 1043
(urgente mortis periculo . . . tum super forma . . . tum super om
nibus et singulis impedimentis . . .), quoties impedimentum
detegatur, cum iam omnia sunt parata ad nuptias. . . .
Canon 81 : Λ generalibus Ecclesiae legibus Ordinarii infra
Romanum Pontificem dispensare nequeunt, ne in casu quidem
peculiari, nisi . . . difficilis sit recursus ad Sanctam Sedem et simul
in mora sit periculum gravis damni, et de dispensatione agatur
quae a Sede Apostolica concedi solet.
i. The Church, anxious to secure the validity of marriages between
baptised non-Catholics, exempts them from contracting with the
canonical form,1 and under the Code discipline in force up to
1 January, 1949,2 extended the exemption to baptised Catholics in
the condition of each of the two parties in the above question, an
1 Canon 1099, §2.
2 The Clergy Review, 1948, XXX, p. 341.
294
Priests* Problems
Q. 216
exemption now abrogated. Notwithstanding the abrogation the
Church is still anxious to secure the validity of such marriages,
which can be done by dispensing them from observing the canonical
form. If the Holy See cannot be reached, which in this context
includes the local Legate of the Holy Sec,1 the priest who knows of
the situation can properly, in our opinion, have recourse to the
Ordinary for a dispensation. The Ordinary’s powers in canons
1043-r 045 cover the form of marriage only in danger of death, but
his powers under canon 81 are wider, as the Code Commission,
27 July, 1942, decided.2 Although this decision mentions only
impediments, it cannot be doubted that the Ordinary servatis
servandis can dispense also from the canonical form, and a section
to this effect is added to the equivalent of canon 1045 in the canons
codifying Oriental marriage law.3 The lack of guarantees is a
difficulty which can be met : for the marriage is not, in the above
case “mixed”, nor even the kind of marriage dealt with in canon
1065 ; it is sui generis and the rules about guarantees cannot properly
apply.4
If the Ordinary cannot be reached, it is our opinion that the
priest’s powers under canon 1045, §3, even if the case is occult, do
not cover dispensing from the form of marriage, for except in danger
of death the law does not mention it.56
*The priest will do what is
possible by acquainting the Ordinary, who will either remedy the
situation by sanatio or decide that the parties had better be left in
good faith.
ii. In the question as submitted the parties decline to observe the
canonical form. Laws concern what is likely to happen in human
affairs, and it is rather unlikely that two lapsed persons brought up
from infancy as non-Catholics would ever consider observing the
canonical form. But it is not impossible, for example, when urged
thereto by a Catholic relative, that they might be prepared to do so
for the purpose of making their marriage valid in the eyes of the
Church. We can find no commentator dealing with this situation,
for the law in canon 1065 considers only the case where a Catholic
desires to marry' an apostate, not the case of both parties being
apostates. The direction of canon 1066, §2, that the Ordinary' must
be consulted seems to us to apply' also to the case where both parties
1 Op cit., 1948, XXIX, p. 62.
» Op. cit., 1943, XXIII, p. 89.
3 /I.4.S., 1949, XLI, p. 97, canon 35, §4.
4 CL what is, perhaps, an analogous situation, when a dispensation may be
granted without guarantees, lor the purpose of respecting the natural right to
marry: The Clergy Review, 1938, XV, p. 548.
6 Apollinaris, 1928, p. 254; Jus Pontificium, 1927, p. 87; Ocsterlc, Consultationes,
p. 136.
q 217
Marriage—Form and Canonical Effects
295
are apostates, and if they agree to the Catholic education of the
offspring there is no grave obstacle preventing the Ordinary’s
assent. If, as will usually happen, they refuse any guarantee or
promise about the offspring, the case nevertheless could still quite
properly be presented to the Ordinary for a decision, and the
priest might be instructed to assist at the marriage for the same
reasons as would incline the Ordinary to dispense from the canonical
form, as explained at the end of (i). An analogous instance existed
in France when both parties, members of ΓAction Française, refused
to retract yet desired marriage coram Ecclesia ; they both came within
canon 1065, §1, as members of a society forbidden by the Church.
The direction of the French episcopate was that the priest could
assist at the marriage though without Mass or any religious cere
mony,1 but presumably in these cases it was taken for granted that
the offspring would be given a Catholic education.
217.
EXEMPTION FROM THE FORM—“ AB
ACATHOLICIS NATI ”
A , a Catholic, is married to “B", a convert, and they have a son “C”
baptised immediately after birth in the Catholic Church. When “C” is two
years old, A ’ dies, and “ 2?”, relapsing completely into heresy, secures the
education of C as a non-Catholic. Is “ C” bound to observe the canonical
form of marriage ?
Canon 1099, §2: Firmo autem praescripto §1, η. i (ad formam
tenentur omnes in Catholica Ecclesia baptizati) acatholici sive
baptizati sive non baptizati, si inter se contrahant, nullibi tenentur
ad catholicam matrimonii formam servandam ; item ab acatholicis
nati, etsi in Ecclesia catholica baptizati, qui ab infantili aetate in
haeresi vel schismate aut infidelitate vel sine ulla religione adolev
erunt, quoties corn parte acatholica contraxerint.
A motu proprio dated 1 August, 1948, has expunged from this
canon the words “item ab acatholicis”, etc., the abrogation coming
into force from 1 January, 1949.2 If the marriage of “C” took
place after that date it is now quite certain that he is bound to
observe the canonical form. But the difficulty of interpreting this
clause of the canon will remain if it is a question of deciding the
validity of a marriage contracted by “C” on or before 31 December,
>948·
i. The meaning of “ab acatholicis nati”, and the official Roman
1 Documentation Catholique, 1928, XIX, col. 899.
2 Tht Clergy Review, 1948, XXX, p· 34T·
296
Priests' Problems
Q.217
replies thereto, were set out very fully in The Clergy Review, 1939.
XVI, p. 511. In order to keep the subject within just limits we will
assume that the reader is acquainted with the main outlines of the
question, and there is no doubt whatever about the complete lapse
of “B”, nor about the non-Catholic education of “C”. It is notin
dispute that if “B” was a non-Catholic at the time when “C” was
baptised, “C” would be exempt from observing the canonical
form; the doubt relates to the meaning of the term “ab acatholicis
nati” when one parent apostatises after the Catholic baptism of the
offspring. Cappello observes: “Si parentes catholici ante usum
rationis pueruli in hacresim vel schisma labuntur, et puer in secta
haeretica vel schismatica educetur, subestne formae ? Attentis verbis
can. 1099, §2, videtur affirmandum; attento fine et ex analogia,
videretur negandum. Res igitur dubia. Optanda authentica
responsio”.1
ii. That “C” is not bound to the canonical form of marriage is
held to be a probable opinion by Dr Schaaf writing in the Eccles
iastical Review, June, 1936, p. 631, who quotes Ocstcrle for the same
opinion ; Sipos, Enchiridion, p. 621, supports this view and doubtless
others could be cited, though the manualists do not usually advert
to the difficulty. These commentators rely on pre-Codc law as
formulated in the Benedictine declaration of 4 November, 1741;
they hold that the Code Commission decision, 17 February, 1930, ad
iv, favours this interpretation, since it brought apostates within the
definition of “acatholici” ; also, as must be admitted, since persons
in the position of “C” are usually guiltless, and the Church from
1918-1948 was anxious to extend exemptions, it would seem that
there is as much reason for exempting them from the canonical
form whether one parent apostatised before or after their baptism.
This view will obviously be held by those few commentators who
teach that a child baptised a Catholic, but brought up from infancy
in heresy, is exempt from the canonical form, even though both
parents are Catholics. Ocstcrle and Leitner are cited for this
opinion by Dr. Schaaf, loc. cit. and occasionally Gaspard, De
Matrimonio, §1029, is wrongly credited with teaching it, relying on
a declaration of the Holy Office, 6 April, 1859, printed in Fontes,
n. 950. We think that in the Code law there is no foundation for this
view.
iii. The weight of argument, as well as the extrinsic authority
of the writers, favours the opposite opinion, which we think correct,
and regards “C” as being bound to observe the canonical form of
marriage: Maroto in Apollinaris, 1930, III, p. 612; a writer in The
1 De Matrimonio (1947), §702.6.
Marriage—Form and Canonical Effects
Q. 218
297
Ecclesiastical Review, May, 1931, p. 522, summarised in Jus Pontificium,
1931, p. 238; Dr Gennaro in Perfice Munus, 1948, p. 10 ; VermeerschCrcusen, Epitome, II, §407. Our own opinion, after examining the
question again, is the same as that recorded in The Clergy Review,
1939, XVI, p. 516. The reason for this interpretation is the plain
statement of the law “ab acatholicis nati”: the exemption was in
favour of those born of at least one non-Catholic parent, and it
cannot be said that a child is born of a non-Catholic if the parent’s
lapse took place after the child was born. There would appear to
be, indeed, on grounds of equity, a just reason for exempting “C”,
but one must not confuse a legal decision as to the validity of an
act with moral questions concerning a person’s responsibility. “C”
is in good faith, and though invalidly married unless the form is
observed, is not guilty of any formal sin.
iv. The case will not become a practical issue unless “C”,
having married (invalidly?) later desires to marry a Catholic after
the civil divorce of his first wife. If it were presented to a diocesan
curia for a summary decision under canon 1990, a declaration 01
freedom to marry would not be obtained owing to the doubt existing
about the validity of the first marriage; and the case would be
remitted for a formal trial, as directed in Provida, art. 231, §2; the
defensor vinculi would have to appeal against a nullity verdict, and a
decision one way or the other would eventually be given. The best
thing, of course, would be to obtain from the Code Commission an
authentic solution of this dubium iuris, as Cappello suggests.
218.
CONVERTS AND THE NUPTIAL BLESSING
Is there an obligation on married converts to receive the nuptial blessing
after their reconciliation to the Church ?
Canon 1101, §1 : Parochus curet ut sponsi benedictionem sol
lemnem accipiant, quae dari cis potest etiam postquam diu vixerint
in matrimonio, sed solum in Missa, servata speciali rubrica et
excepto tempore feriato.
& Off., 26 June, i860 ; Fontes, n. 961. Quaeritur utrum coniugibus
qui, postquam in infidelitate nupserunt, ad fidem convertuntur,
supplendae sint caeremoniae matrimonii. Resp. Coniuges infideles,
si fideles facti sint, optime facere si Ecclesiae benedictiones
recipiant; adstringi tamen ad id non debere.
The question can only arise, of course, when both parties are
Catholics. Firstly, there is no obligation to receive the nuptial
blessing if they do not want it. This is clear from Fontes, n. 961, and
298
Priests' Problems
Q. 219
from the word curet in canon 1101, § 1, which must be given, in our
opinion, the meaning attached to it by the Code Commission, 12
November, 1922, interpreting canon 1451; namely it means
“suadendum”.
They should, however, be encouraged to receive it because the
Church has always attached great value to this blessing. The
practice is not common, but it cannot be said that the contrary
custom has obtained the force of law with us. It will be necessary
to make it quite clear to the parties and to others present in the
church that the ceremony is not the sacrament of marriage. Since
a nuptial Mass is always preferable, this is also to be recommended ;
the words “solum in missa” of the canon explain the common law
on the subject, without taking account of the induit, which we enjoy,
permitting the nuptial blessing to be given extra missam.
The other ceremonies, subsequent to the exchange of consent, are
equally advisable from the reply of die Holy Office, namely those
contained in the Ordo Administrandi: n. 5 “Benedictio annuli” and
n. 7. We think n. 6 “With this ring” etc. should be omitted since
it is a part, though not an essential part, of the consent.
219. MARRIAGE REGISTRATION IN CHURCH OF BAPTISM
In diocese “A” local law requires the parish priest of the place of baptism
not only to enter marriages in the baptismal register, but also to inform the
parish priest of the place where the wedding was contracted that this entry has
been made in the baptismal register. But in diocese “ Z” there is no such
regulation. How can the priests in “X” observe the law if those in “Γ”
decline to be bound by it, in cases where a party married in “Ύ” was baptised
in “ T” ?
Canon 470, §2 : In libro baptizatorum adnotetur quoque si
baptizatus . . . matrimonium contraxerit. . . . Cf. also canon 1103,
§2.
Sacrosanctum, 29 June, 1941 ; A.A.S., 1941, XXXIII, p. 305, n. 11,
b: Hi autem receptas notitias transcribant ad normam can. 470,
§2. . . . et nuntium scriptum de peracta transcriptione mittant ad
parochum, qui matrimonio adsistit. Is vero non acquiescat donec
hunc nuntium receperit; receptum autem alliget fasciculo docu
mentorum celebrati matrimonii.
i. In “X” and “Y”, and in every diocese throughout the world,
it is not the local law but the common law, at least since the publica
tion of the Code, which requires marriages to be entered in the
baptismal register of the place where each party was baptised. This
Q. 220
Marriage—Form and Canonical Effects
299
provision of the common law was confirmed in the instruction from
the Congregation of the Sacraments, 26 June, 1921, and again more
recently in Sacrosanctum. There can be no doubt that it is an obliga
tion, and to this extent parish priests in both “X” and “Y” are
bound to observe it.
ii. Hie further provision, however, that the parish priest of
the place of baptism must inform the priest of the wedding that the
registration has been made, and that the latter must insist on
receiving die notice, is one of the new safeguards in Sacrosanctum. In
our view, it is unmistakably one of the points which the Sacred
Congregation leaves to local Ordinaries to accept, following the
principle of n. 3 of the document which declares that the Sacred
Congregation has issued an instruction “qua adiutrieem praebendo
manum Revmis Ordinariis . . . eis suppeditaret idoneas nor
mas. .. .” Inevitably there will be some little disagreement when
two dioceses have not precisely the same regulations, for it is certain
that priests in “Y ” arc not bound by the regulations made by the
Ordinary of “X”.
iii. The remedy is for the priest of “X” to inform the priest of
of die law in “X”. The requisite notice will then, no doubt,
be forthcoming, especially if a stamped addressed postcard for the
purpose is sent. If it is not forthcoming, he may inform his own curia
of X , and the officials may take up the matter with the curia
of \ if they think it sufficiently important. But he is not bound,
we think, to refer to his curia : having sent the notice and requested
a confirmation he has fully observed the common law and, as far
as in him lies, the local law as well.
220. REGISTRATION OF “ SANATIO ”
Where is the entry {if any) to be made of a marriage revalidated by
“sanatio”? Is it in the curia register or in that belonging to the parish?
Must one also secure its registration in the baptismal register ? There seems
to be no uniform practice in this country.
Episcopal Quinquennial Faculties, Facultates Additionales S. Officii,
as given in Irish Ecclesiastical Record, April, 1948, p. 376, and SyHoge,
n. 213.18: Cum autem de matrimonii validitate ct prolis legitimatione in foro externo constarc dcbcat, Excihus P. D. Episcopus
mandet ut singulis vicibus documentum sanationis cum attestatione
peractae exeeutionis diligenter custodiatur in Curia locali, nccnon
curet, nisi pro sua prudentia aliter iudicaverit, ut in libro baptiz
atorum paroeciae, ubi pars catholica baptismum recepit, trans-
Priests' Problems
300
Q. 221
scribatur notitia sanationis matrimonii, de quo actum est, cum
adnotatione diei et anni.
Unless the revalidation is for the internal sacramental forum of
Penance alone it is certain that a marriage revalidated by sanatio
must be registered like any other, both in the marriage register and
also normally in the baptismal register of the place of baptism, as
required by canon 1103 for all marriages.
i. The practice is not uniform owing to the fact that Ordinaries,
within the limits of their own faculties, may favour different
procedures and issue different instructions to their clergy. Registra
tion in the curial register is required in all cases from the above
text of the quinquennial episcopal faculties ; in some dioceses the
Ordinary explicitly requires an entry to be made in the parish
matrimonial register as well, a procedure which many writers
direct as a matter of course,1 even though the text of the above
faculty does not mention it ; occasionally, also, an explicit direction
is given about inscribing or not inscribing the details in the baptismal
register.
ii. If no instructions about registration are given in the document
issued by the episcopal curia, and if there is no local law on the
subject, we think that priests should always enter the marriage in
their parish matrimonial register, and also that they should send the
details to the parish priest of the place of baptism for inscription in
the baptismal register. The entry will be made in these books
exactly as for any other marriage with the words added “obtenta
sanatione in radice”, and it is also advisable to note in the margin
the previous date of the attempted marriage. The date of the
marriage (“celebrato matrimonio”—canon 1103) will be that on
which the sanatio was executed : more usually it is executed by a
curial official, the date being given on the document, but in some
dioceses execution is left to the priest.
221. MARRIAGE OF CONSCIENCE TO SAVE PENSION
A widow forfeits her pension upon her second marriage. A case has arisen
where a second marriage is desirable on every ground, moral and canonical,
except that the man is an invalid. If the pension continued the parties could
manage to live. Would it be feasible, in these circumstances, for the parties Io
petition for a marriage of conscience, valid in the eyes of the Church but not
in civil law ?
Canon 1104: Nonnisi ex gravissima et urgentissima causa et ab
ipso Ordinario, excluso Vicario Generali sine speciali mandato,
1 E.g. Cappello, Dt Matrimonio, §856.6.
Q. 222
301
permitti potest ut matrimonium conscientiae ineatur, idest matrimonium
celebretur omissis denuntiationibus et secreto, ad normam canonum
qui sequuntur.
Canon 1105: Permissio celebrationis matrimonii conscientiae
sccumfert promissionem ct gravem obligationem secreti servandi
cx parte sacerdotis assistentis, testium, Ordinarii eiusque suc
cessorum, et etiam alterius coniugis, altero non consentiente
divulgationi.
Gaspard. De Matrimonio, §1295: Quoad ipsas viduas post bellum
eadem S. Congregatio (de Sacramentis), ab Ordinariis rogata,
respondit: “Non esse recedendum a praxi Congregationis, ideoque
amissionem pensionis non esse causam sufficientem permittendi
celebrationem matrimonii absque ritu civili.” The dates of this
reply, not given by Gaspard, are 20 June, 1919, 10 June, 1922,
25 January, 1927, according to Cimetier, Consultationes, I, p. 350.
The application of canons 1104 seq. on marriages of conscience
is extremely rare, and restricted to most grave causes, such as the
unjust refusal of the civil law to recognise a marriage which is
capable of ratification coram ecclesia when, at the same time, its
celebration is the only remedy in conscience for the two parties.
Owing to the secrecy surrounding it difficulties naturally arise if
the married parties are living together, because in the eyes of the
world they are not married. A further difficulty in England and
many other countries is that the officiating priest is guilty of a felony
in assisting at marriage without a registrar’s intervention, except
when the same marriage has already been contracted in a register
office of England or Wales. The Ordinary might be prepared to
accept this risk if the necessity of the marriage of conscience arose
from an unjust civil law. But, in the circumstances of die case as
outlined above, there is no injustice in the civil law: it permits this
widow’s marriage but with die effect of her pension ceasing. The
injustice would be on the part of the Church in conniving at an
illegal action whereby money is obtained from the State under false
pretences. This seems to us the chief reason why a petition to the
Ordinary, as suggested, is not feasible and should never be con
sidered.
222. LEGITIMACY FROM PUTATIVE MARRIAGE
May the view be defended that the reply of the Code Commission, 26
January, 1949, deciding that a civil marriage cannot be putative, does not
apply to a diocese where the Ordinary has, for grave reasons, ruled that it can
be regarded as putative?
11+
r
Marriage—Form and Canonical Effects
302
Priests' Problems
Q. 222
Code Commission, 26 January, 1949, II: An sub verbo celebratum
can. 1015, §4, intelligi debeat dumtaxat matrimonium coram Ec
clesia celebratum ? Resp. Affirmative.
Canon 5 : Vigentes in praesens contra horum statuta canonum
consuetudines sive universales sive particulares, si quidem ipsis
canonibus expresse reprobentur, tanquam iuris corruptelae cor
rigantur, licet sint immemorables, neve sinantur in posterum reviv
iscere; aliae, quae quidem centenariae sint et immemorabiles,
tolerari poterunt, si Ordinarii pro locorum ac personarum adiunctis
existiment eas prudenter submoveri non posse ; ceterae suppressae
habeantur, nisi expresse Codex aliud caveat.
Canon 30: Firmo praescripto can. 5, consuetudo contra legem
vel praeter legem per contrariam consuetudinem aut legem rev
ocatur; sed, nisi expressam de iisdem mentionem fecerit, lex non
revocat consuetudines centenarias aut immemorabiles, nec lex
generalis consuetudines particulares.
Canon 1015, §4: Matrimonium invalidum dicitur putativum, si in
bona fide ab una saltem parte celebratum fuerit, donec utraque
pars de eiusdem nullitate certa evadat.
Canon 1114: Legitimi sunt filii concepti aut nati ex matrimonio
valido vel putativo. . . .
i. A correct application of the legal principles on customs
contrary to the common law is always a difficult enterprise. The
Code Commission reply is an authentic interpretation of the common
law, but it does not reprobate or revoke a particular or local
“customary” interpretation. Indeed, we are not aware of any reply
emanating from the Code Commission which provides for contrary
customs ; this would be an application of the law which belongs to
the Sacred Congregations to deal with, and the Code Commission
remits such points to them.1 Thus the Code Commission decided,
16 June, 1931, that Confirmation before the age of seven years was
lawful only in the cases mentioned in canon 788; in the following
year, 30 June, 1932, the Congregation of the Sacraments allowed that,
in Spain, grave and just causes might sanction a contrary custom
of confirming infants before the age of reason.2
ii. Up to the recent reply some commentators, interpreting the
common law, held that servatis servandis a civil marriage could be
putative, a view of the common law that can no longer be defended ;
there can be no question of an Ordinary now giving a ruling contrary
to that of the Code Commission, but he can declare and sanction for
his diocese the existence ol a custom contrary to the higher law.
1 Van Hove, Prolegomena, §569.
» The Clergy Review, 1931, II, p. 446; Ι932> jy, p 42?
Ot 222
Marriage—P'orm and Canonical PijfecL·
303
A declaration of this kind, even though given before the reply
of the Code Commission, satisfies the first and chief condition for a
lawful custom required in canon 25.
It can be proved, secondly, without great difficulty, that the
customary interpretation is with us centenary and immemorial;
for in this country, up to the promulgation of Ne Temere in 1908,
a civil marriage, other things being equal, was a valid contract, to
which people were accustomed to concede all the canonical effects,
and the effect of canon 1114 continued to be conceded after Ne
Temere·, indeed, some Catholics are still to be found who think
erroneously that their civil marriage is in all respects equivalent to
a marriage with the canonical form.
The interpretation is “reasonable”, not only in the negative
sense of canon 27, §2, which declares a custom expressly reprobated
by the legislator to be unreasonable, but in the positive sense
required by some canonists,1 namely that it has a utility in furthering
the common good. The law, which now denies canonical legitimacy
to the offspring of a civil marriage, is undoubtedly a cause of
offence in this country to non-Catholics, and we should continue to
maintain a more friendly view, relying on a customary interpreta
tion, until it is positively rejected by the appropriate ecclesiastical
authority.
[Editorial Note.—The above solution was challenged by the
present editor {The Clergy Review, 1950, XXXIV, p. 431) arguing
that, since the Code Commission's reply was merely declarative, it has
never been correct, under the law of the Code, to apply the term
“putative” to a clandestine marriage of anyone subject to the
canonical form, and therefore that the maintenance of a custom
incompatible with this declaration must be judged by the rule
of canon 5, which does not allow an Ordinary to “declare and
sanction for his diocese” a pre-Code contrary custom, but at most
to tolerate it, in certain circumstances. It was further suggested that
we have no immemorial custom of regarding the offspring of
invalid clandestine marriages as legitimate, because, up to Ne Temere,
1908, clandestine marriages were valid in this country, and there
fore the custom of regarding their offspring as legitimate was not
contra ius. Canon Mahoney (op. cit., 1951, XXXV, p. 71) agreed
that “tolerate” was preferable to “declare and sanction”, but
maintained that the custom of conceding legitimacy was not limited
to valid clandestine marriages, but extended to invalid marriages,
at least when one party was in good faith, and that the maintenance
1 Guilfoylc, Custom, p. 101.
Priests' Problems
304
Q. 223
of this custom was necessary in order to avoid giving offence. The
present editor replied (ibid., p. 143) that needless offence could be
avoided by observing the distinction between canonical and civil
legitimacy and refraining from impugning the latter, about which
alone the non-Catholic can be presumed to be concerned. Canon
Mahoney admitted (ibid., p. 215) that this distinction exists in fact,
but observed that it had no juridical basis in the divine law of
Christian marriage and could only be affirmed with a mental
reservation. He concluded therefore that, though he would fall back
on this solution if his own position was shown to be untenable, he
preferred in the meanwhile to stand his ground.]
223.
LEGITIMACY BY SUBSEQUENT MARRIAGE
Is the offspring rendered legitimate by subsequent marriage in the two
following instances ? ( 1 ) The offspring was born of a marriage invalid owing
to difference of worship, but the impediment was removed by baptism and the
marriage revalidated after birth; (2) the offspring was born of a marriage
invalid owing to “ligamen”, but the previous marriage was declared null
and void by an ecclesiastical court after birth and the parties to the second
union became validly married.
Canon 1051 : Per dispensationem super impedimento dirimente
concessam sive ex potestate ordinaria, sive ex potestate delegata per
indultum generale, non vero per rescriptum in casibus particu
laribus, conceditur quoque eo ipso legitimatio prolis, si qua ex iis
cum quibus dispensatur iam nata vel concepta fuerit, excepta tamen
adulterina et sacrilega.
Canon 1116 : Per subsequeris parentum matrimonium sive verum
sive putativum, sive noviter contractum sive convalidatum, etiam
non consummatum, legitima efficitur proles, dummodo parentes
habiles exstiterint ad matrimonium intra se contrahendum tempore
conceptionis, vel praegnationis, vel nativitatis.
Code Commission, 6 December, 1930: Λη vi canonis 1116 per
subsequens parentum matrimonium legitima efficiatur proles, ab
eisdem genita detentis impedimento aetatis vel disparitatis cultus,
quod cessaverit tempore initi matrimonii ? Resp. Negative.
Canon 1069, §2: Quamvis prius matrimonium sit irritum aut
solutum qualibet ex causa, non ideo licet aliud contrahere, ante
quam de prioris nullitate aut solutione legitime et certo constiterit.
i. The reply of the Code Commission occasioned some surprise
and a more generous solution was expected in many quarters,1 on
analogy with the rule of canon 1051.
1 Periodica, 1930, p. 26, and 1931, p. 150.
Q. 224
Marriage—Form and Canonical Effects
305
ii. The above reply docs not necessarily affect die second query,
and it might be thought that, since the first marriage was subse
quently declared to be non-existent, the parties were actually free
to marry and die benefit of canon 1116 could be extended to their
progeny after obtaining a declaration of nullity. We cannot find the
point discussed, but in our view legitimation does not occur in this
case because persons who have contracted marriage, even though
it is certainly invalid owing to a defective consent, are not habiles
(canon 1116) for contracting a second until the first has been
disposed of lawfully and certainly (canon 1069). Legitimacy is a
matter for the external forum and must be decided on external
rules: in this case, before the first marriage may be disregarded
in the external forum, an ecclesiastical process of nullity is
required.
224.
LEGITIMACY BY SUBSEQUENT MARRIAGE :
REGISTRATION
Al the baptism of the child of an unmarried mother, the mother's name
alone was entered into the baptismal register. Subsequently she married the
father of the child who thereby, from canon 1116, becomes legitimate. Is there
any way of preventing the issue of a baptismal certificate containing the
mother's name alone ?
Canon 777, §2: Ubi vero de illegitimis filiis agatur, matris
nomen est inserendum, si publice eius maternitas constet, vel ipsa
sponte sua scripto vel coram duobus testibus id petat ; item nomen
patris, dummodo ipse sponte sua a parocho vel scripto vel coram
duobus testibus id requirat, vel ex publico authentico documento
sit notus. . . .
Canon 1116 : Per subsequens matrimonium parentum sive verum
sive putativum, sive noviter contractum sive convalidatum, etiam
non consummatum, legitima efficitur proles, dummodo parentes
habiles extiterint ad matrimonium inter se contrahendum. . . .
i. It is assumed that the parents would like some modification
of the entry. If the father informs the parish priest that he wishes
his name to be entered in the baptismal register, this necessary
addition must be made, and copies of the entry should always
contain it. If, also, the parish priest is assured by the priest who
assisted at the marriage that there was no impediment to the
union, there is agreement amongst the commentators on canon 1116
that a marginal note affirming this marriage, and the legitimacy of
the offspring, should, with the Ordinary’s sanction, be added to the
306
Priests' Problems
Q. 224
entry in the baptismal register,1 and frequently local law makes
this obligation quite clear.2
ii. But it is not permitted to obliterate or alter the entry itself,
except for the addition of the father’s name, since it was correctly
made at the time. Moreover, the legitimacy effected by subsequent
marriage is not quite the same, with respect to its canonical effects,
as legitimacy pure and simple: the child remains excluded, for
example, from the episcopate,3*and there should be some available
record of its actual origins.
iii. The problem is how to prevent this record becoming known
to the baptised party years later, when a copy of the extract is
requested, say, for the purpose of marriage. A reply of the Code
Commission, 14 July, 1922, though not directly bearing on this
question, states “Nomina parentum ita inserenda esse, ut omnis
infamiae vitetur occasio. . .
Whatever loss of good name attached
to the mother at the time of the child’s baptism has lapsed, we may
suppose, with the passing of time, and the child is ignorant of the
circumstances attending its birth. It is clearly necessary, on prin
ciples of the natural law, to safeguard the mother’s good name if
possible. This can be done by issuing a certificate of baptism which
is not a verbally exact copy of the original entry, though a true one
in accordance with the facts recorded in the marginal entry. If the
formula authorised in our Ordo Administrandi is being used, the
certificate will be in the same terms as one issued for a person bom
during marriage: “. . . baptizatus est Guliclmus Jones filius Jacobi
et Mariae Jones (olim Brown) coniugum”. This is a substantially
faithful copy of the inscription in the register, for the father’s name
is there by right, the parents are married, and the child’s surname,5
though originally inscribed, perhaps, as that of the mother, rightly
appears now as that of the father.0
iv. We can find no indication anywhere as to the phrase to be
inscribed in the margin recording the legitimacy of the infant subse
quent to the marriage of its parents. It will have to be as brief as
possible and, if there are no directions of the local Ordinary on the
point, we suggest the following: “Ex can. 1116 C.J.C. ct Regist.
Matrim. Paroeciae N.N. die . . ., extractum debet esse in forma
consueta pro filiis legitimis, nisi lex aliud exigat.”
1 Collationes Brugenscs, 1949, p. 150; Cappello, De Baptismo, §183.
2 E.g. Bruges Statuta, 1939, η. 94; Malines Statuta, «924, η. 253, and Gougnard,
Collationes, 1932, p. 54.
3 Canon 331, §1,1.
4 A.A.S., XIV, 528.
5 I his particular difficulty docs not arise if the formula in use is that of Rit. Rom.,
Appendix IV, cap. ii.
• Cf. Irish Ecclesiastical Record, 1945, LXV, p. 52.
XIX. MARRIAGE DlbbUEu 1ainu
CONVALIDATION
225. PAULINE PRIVILEGE : CATECHUMEN INTERROGATED
If the interrogated party refuses to cohabit peacefully but wishes to be
baptised, may the privilege be used?
Canon 1121 : Antequam coniux conversus et baptizatus novum
matrimonium valide contrahat, debet, salvo praescripto can. 1125,
partem non baptizatam interpellare: 1. An velit et ipsa converti
ac baptismum suscipere; 2. An saltem velit secum cohabitare
pacifice sine contumelia Creatoris.
£ Off., 8 July, 1891, Collectanea, ed. 1893, n. 1362: Vir fidelis
mulierem infidelem in ipsius viri infidelitate ductam habet, quae
quidem vult converti, sed nullo modo cum eo habitare consentit.
Qtiacr. I. An vir uti privilegio Paulino, et, facta interpellatione de
cohabitandi voluntate, ad alias nuptias transire possit? II. An talis
vir, si sit adhuc catechumenus, possit ad baptismum admitti et tunc
privilegio uti. Resp. Affirmative ad utramque partem dummodo uxor
in infidelitate permaneat. Another reply in the same sense is quoted
by De Smet dated 26 April, 1899.
Usually, if the reply to the first question mentioned in canon 1121
is affirmative, the reply to the second will also be affirmative. But
it need not necessarily be so, for the marriage contracted in infi
delity by A and B may have been wrecked by a civil divorce, sub
sequent to which A desires to use the privilege and B, now civilly
married to someone else, wishes also to be baptised, but refuses
to live again with A. The condition “dummodo in infidelitate
permaneat” is imperative, because if B receives baptism before A
uses the privilege, the marriage of A and B is ratuni by the baptism
of both parties, and it is no longer within the terms of the Pauline
privilege, though it can be dissolved by the Holy See if not con
summated after baptism.1 From this well-established doctrine and
practice is perceived the force of the condition dummodo, etc., and
also the necessity of asking the first question even when the second
is answered negatively; if both are answered affirmatively the
privilege cannot be used. Writers who state that the privilege
cannot be used if the interrogated party is willing to be baptised2
' Cf. The Clergy Review, 1946, XXVI, p. 154.
- E g. Dohcny, Canonical Procedure—Informal, p. 512.
307
308
Priests' Problems
Q. 226
must be understood to refer to cases where the answer to the second
question is affirmative. Similarly a reply 5. Off., 11 July, 1866:
“Ideoque non esse locum dissolutioni quoad vinculum matrimonii
legitime contracti in infidelitate, quando ambo coniuges baptismum
susceperunt, vel suscipere intendunt” is the solution of a case
where the answer to the second question was affirmative.1
226. PAULINE privilege: converts’ marriages
Converts on being reconciled are usually baptised conditionally because their
previous baptism is considered doubtful. Since they are doubtfully baptised,
and the law favours the use of the Pauline privilege in doubtful issues, it would
often help to unravel their marriage tangles if the Pauline privilege could be
used. Why is this not permitted?
Canon 1014: Matrimonium gaudet favore iuris; quare in dubio
standum est pro valore matrimonii, donec contrarium probetur,
salvo praescripto can. 1127.
Canon 1127: In re dubia privilegium fidei gaudet favore iuris.
5. Off., 10 June, 1937; A.A.S., 1937, xxix, p. 3°5- In plenario
conventu huius Supremae Sacrae Congregationis Sancti Officii,
habito Feria iv, die 5 maii 1937, propositis dubiis:
(1) Utrum in matrimonio contracto a duobus acatholicis dubie
baptizatis, in casu dubii insolubilis circa Baptismum, possit permitti
alterutri ad Fidem conversae usus Privilegii Paulini vi can. 1127
Codicis luris Canonici ? Resp. Negative.
(2) Utrum in matrimonio contracto inter partem non baptizatam
et partem acatholicam dubie baptizatam, in casu dubii insolubilis
de Baptismo, possint Ordinarii alterutri parti ad Fidem Catholicam
conversae permittere usum Privilegii Paulini vi can. 1127? Rtsp.
Recurrendum ad S. Officium in singulis casibus.
i. Before this reply of the Holy Office, there were a few canonists
who were prepared to apply canon 1127 to two married converts
whose previous baptism in some heretical sect was doubtful, either
because it was uncertain whether they had ever been baptised or
because the validity of its administration was uncertain.2 The
majority, however, were opposed to this view, relying on decisions
of the Holy Office quoted by Payen, 5 June, 1853, and 18 December,
1872, and their reasons arc easily understood. For if both baptisms
are actually valid, the marriage is ralum and, being consummated,
1 Fontes, n. 996.
- References to these authors arc in Vermecrsch-Greusen, Epitome (1934)1
§437» Payen, De Matrimonio, §2269; Apollinaris, 1937, p. 334.
Marriage Dissolution and Convalidalion
309
Q. 227
is absolutely indissoluble; the Church rightly declines to run the
risk even of appearing to dissolve a marriage which might be by
divine law indissoluble. If the marriage in question is between two
unbaptised parties, the Pauline privilege may be stretched to its
utmost limits, and doubts are solved in favour of the Christian,
e.g. concerning the interpellations or the willingness of the infidel
party to cohabit peacefully. Canon 1127 is a legal presumption
which, in solving doubts concerning the use of the Pauline privilege,
takes precedence over the presumption of canon 1014, but it may
not be used when there is danger of breaking the divine law.
ii. The force of the second reply is merely to deny to Ordinaries
the right to start a process for applying the Pauline privilege in cases
where the baptism of only one party is doubtful, a right which the
majority of canonists had formerly conceded.1 For it is now com
pletely certain that if one of the parties to a valid marriage is un
baptised the marriage is not ratum ; it can be dissolved by the Holy
See without any possible fear of infringing the divine law,2 and it is
a purely academic question whether the dissolution is effected by
an extension of the Pauline privilege or by the use of the Papal
power. In practice it means that the case being brought to the
Holy Office, as directed in this reply, the Papal power of dissolution
could be used ad cautelam.
iii. Converts are baptised conditionally because by divine law
this sacrament is necessary for salvation. The doctrine given above
does not conflict with this practice ; on the contrary’, it is in accor
dance with it, since a marriage which is ratified and consummated
is necessarily indissoluble by divine law; when baptism is doubtful
the Church baptises conditionally because of tire reverence due to
this law, and for the same reason decfines to sanction the use of the
Pauline privilege.
227. PAULINE PRIVILEGE INOPERATIVE (l)
In the event of the unbaptised party giving all the canonical assurances but
refusing Baptism, it is agreed that the Privilege may not be used; in this case
ΰ the baptised party bound to continue married life with the unbaptised party?
I Corinth, vii, 12 (Knox) : To those others, I give my own instruc
tions not the Lord’s. If any of the brethren has a wife, not a believer,
who is well content to live with him, there is no reason why he
1 Cf., in addition to the above references, The Ecclesiastical Review, October
Review, 1932, IV, p. 5°3; «94°. XVIII, p. 263.
II*
I
310
Priests' Problems
Q. 227
should put her away, nor is there any reason for a woman to part
with her husband, not a believer, if he is content to live with her.
Canon 1127: In re dubia privilegium fidei gaudet favore iuris.
S. Of., 29 November, 1882, ad 3; Fontes, n. 1075: Sed quoniam
tum periculum recens conversi cavendum est, ne si diu permanserit
in toro infidelis, fidem Christi fortassis amittat, dum vult servare
homini: tum vero libertati illius consulendum est, ne caelebs
vivere cogatur qui forsan uritur, idcirco decernimus ut, transacto
sex mensium spatio, res ad Episcopum deferatur, qui bene perspecta
causa, fideli declaret, copiam esse aliud matrimonium ineundi
propter fidei aut caritatis scandalum, quod patiatur. Quod si
nullum esse periculum in cohabitationc viderit, iubeat expectare
infidelem, vel etiam consulat cohabitare, si prodesse intelligit iuxta
Pauli Apostoli consilium. Neque enim potest omnibus conversis
eamdem regulam praefigi, cum occurrant profecto variae circum
stantiae neque sit omnium infidelium eadem ratio.
The solution of this question turns on deciding whether the words
of St Paul are a precept or a counsel. St Augustine regards the
passage as a counsel, St Jerome as a precept,1 and the majority of
Latin commentators incline to St Augustine’s view, though there
are not wanting modem exegetes who prefer St Jerome’s.2 The
canonists on the whole regard it as a counsel.
If the Christian desires to contract a fresh marriage, this can
generally be effected either by a wide interpretation of the Pauline
privilege which includes dispensation from the interpellations, or,
if the privilege is judged to be inapplicable, by petitioning for a
papal dissolution of the natural bond of the existing marriage.
The Christian may desire, on the other hand, neither to contract
a fresh marriage, nor to live in conjugal intercourse with the
partner of the existing marriage; he may desire to live a celibate
life, or even, with the appropriate dispensations, to enter the priest
hood or the religious life, which he is entitled in principle to do.3
Certainly, Fontes, n. 1075, strongly supports the view that the
Pauline words are a counsel, not a command, and all the eccles
iastical legislation on the subject favours the liberty of a convert to
Christianity to begin a new life.
Whilst agreeing with this solution, due attention should be given
to the warning of Gasparri4 that an obligation of charity might, in
some cases, turn this counsel into a precept. The issue in a given
case must, it seems to us, be decided by the Ordinary of the convert,
1 Joyce, Christian Marriage, p. 468.
2 Prat, Théologie de St Paul, I, p. iu
3 Cf. De Becker, De Matrimonio, p. 266.
3
4 Dt Matrimonio, §1152, b.
QQ. 228, 229 Marriage Dissolution and Convalidation
311
and this is the teaching of Payen, an author of great authority on
this question: “Similiter parti conversae ex infidelitate et baptizatae
per sc integrum est, citra privilegium Paulinum, declinare, manente
vinculo, ‘auctoritate Ordinarii loci’, a vitae consuetudine cum
infideli, qui vult quidem pacifice cohabitare, at converti constanter
renuit. Nec obstant verba S. Pauli : nam, in eo casu, satis probabiliter
consulit, quin eam imponat, vitae coniugalis communionem. Insuper
eam suadet propter spem, quae tunc temporis facilius suberat,
infidelem ad veram adducendi fidem.1
228. PAULINE PRIVILEGE INOPERATIVE (il)
“J” and “B”, both unbaptised, marry validly, and they are divorced.
"B” later becomes a Catholic but refuses to cohabit with “A ”, as in the case
discussed tn qu. 227, and elects to live a celibate life. “.4” is now anxious to
become a Catholic and wishes to continue with the partner to his second
marriage. Is this possible?
Canon 1126: Vinculum prioris coniugii, in infidelitate contracti,
tunc tantum solvitur, cum pars fidelis reapse novas nuptias iniverit.
Under the Pauline privilege, “A” whilst he remains unbaptised
is not free to marry again until his marriage contracted in infidelity
has been dissolved by the marriage of “B”. But we can see no radical
reason why this legitimate marriage, since it is not ratum, could not
be dissolved by the Holy See2 if the party to the second (attempted)
marriage is a Catholic and desires its revalidation.
Once “A” is baptised there can no longer be any question of
using the Pauline privilege, for the baptism of both parties makes
their marriage ratum.* But until this ratified marriage has been
consummated subsequent to its ratification, it is not absolutely
indissoluble and a petition could be properly directed to the Holy
See for its dissolution.4
229.
DISSOLUTION OF MARRIAGE “ IN FAVOREM FIDEI ”
/ have to prepare for a parishioner the evidence of a “prima facie” case
for a papal dissolution of a marriage validly contracted and consummated
between a baptised and a non-baptised person. Could I have an indication of
what is required and especially the requirements of the proof that one party is
not baptised?
1 De Matrimonio, §2218.
2 Cf. The Clergy Review, 1940, XVIII, p. 263.
1 The Clergy Review, 1946, XXVI, p. 154·
*Cf. Periodica, 1925, XIV, p. 72.
·.
312
Priests’ Problems
Q. 229
i. The Holy Sec possesses the power of dissolving a marriage
validly contracted between a baptised person and one not baptised,
provided the requisite conditions for the exercise of this power are
present; two are absolutely essential: (a) the non-baptism of one
party, during the period at least of conjugal life ; (ό) if the formerly
unbaptised party is baptised at the time of the petition, it will be
necessary to establish that marriage relations did not occur since
baptism—otherwise the union is ratum et consummatum and is indis
soluble except by death. In practice it is further required: (c) that
the marriage, whose dissolution is being sought, has become
wrecked beyond repair, which usually happens owing to a civil
divorce ; and (J) that the granting of the dissolution wall not give
rise to scandal.
ii. Often popularly confused with it, this method of dissolution is
wholly distinct from the Pauline Privilege, though the papal pre
rogative is the best explanation of the way the Pauline Privilege
has been widely interpreted in past centuries. The first express use
of the papal power in recent times as something wholly distinct
from the Pauline Privilege was a dissolution granted by Pius XI,
5 November, 1925,1 and it has often been used since. It was referred
to by the Pope in his Rotal address, 3 October, 1941 :
. . other
marriages, though intrinsically indissoluble, do not possess an
absolute extrinsic indissolubility, but given certain necessary pre
requisites can (in cases which are of course relatively rare), even
outside the case of the Pauline Privilege, be dissolved by the Roman
Pontiff in virtue of his ministerial power.”2 It was in some dispute
whether this power would ever be used to dissolve a marriage con
tracted with a dispensation from the impediment of difference of
worship. Cardinal Gasparri affirmed, in the first Latin edition of
his Catechism, that it could be used, and one instance of it, in the
American diocese of Monterey-Fresno, 18 July, 1947, though ad
mittedly in very unusual circumstances, is given by Bouscaren.3
iii. No instructions have been published on the details of the
preliminary process, and the writers arc not informative ; Doheny’s
extensive volumes contain only six pages and many commentators
have nothing at all on the subject. Some Normae for the use of the
diocesan curia have been prepared by the Holy Office.
iv. As regards the proof of non-baptism, corroboration of the
party’s sworn declaration that he has not been baptised may be
forthcoming: from the statements of relatives to that effect; from
the tenets of the religious sect to which the party belongs ; or from a
1 Cf. The Clergy Review, 1932, IV, p. 503.
2 Op. cit., 1942, XXII, p. 86.
3 Digest, III, p. 485.
Q,· 230
Marriage Dissolution and Convalidalion
313
search of the baptismal registers of his place of origin. There exists,
however, a presumption, in the case of one born of Catholic parents
or of non-Catholics who observe in principle and in practice the
law of infant baptism, that it was administered notwithstanding the
lack of any written record. Except in the case of a pagan, a Jew or a
Mohammedan, proof of non-baptism is difficult, and one must also
bear in mind the recent declaration of the Holy Office, 28 December,
1949, that doubtful baptisms in Protestant sects are to be presumed
valid in relation to all marriage causes which turn upon the fact of
baptism.1
230. ordinary’s permission for
civil divorce
A Catholic who appears entitled to a civil divorce in order to secure its civil
(ffects is told by the parish priest that the Ordinary's permission must first be
obtained. But on being askedfor the chapter and verse of the law he could not
produce it, and would like to be informed on this point.
i. In the common law there is no very firm and explicit statement
directing persons to secure the Ordinary’s permission before getting
a civil divorce, the reason no doubt being that, in the conservative
view at least, a civil divorce is intrinsically wrong and therefore can
never be permitted. The liberal view, however, denying that the act
is intrinsically wrong, is now generally held ; otherwise Catholic
judges and lawyers would be at a serious disadvantage in practising
their professions, and might even have to abandon them altogether.2
Nevertheless, we may not apply this liberal view to every case of a
Catholic petitioning for a civil divorce, even when it is assumed that
there is a just reason and no intention of remarrying. Unlike
judges and lawyers, whose office may oblige them to administer
the law, a petitioner is under no similar compulsion ; scandal which
can easily be removed in the one case is removed less easily in the
second ; and whereas in the one case the act is completed by working
the legal divorce machinery, in the second case the act is accom
panied by the proximate danger of attempting a second marriage.
ii. As regards explicit chapter and verse, lacking in the common
law, one may rely in many places on the local law. An example is
in decree 81 of the IVth Provincial Council of Malines, and in
numbers of American dioceses3 the act of seeking a civil divorce
without the Ordinary’s permission is a reserved sin. Where there
1 The Clergy Review, 1950, XXXIII» ρ· *9θ·
2 The Clergy Review, 1933» ν» P· a36· ,
» Luted in Theological Studies, September, 1947·
Sr W*
314
Priests' Problems
Q. 230
exists no local law the act may, without great difficulty, be brought
implicitly within the common law : firstly by reason of the canons
requiring the Ordinary’s intervention in judging the lawfulness of
separation ; or, if these canons arc held not to apply, by reason of
the law directing refusal of the sacraments to public sinners, a
refusal to which a delinquent is liable so long as grave scandal
attaches to his act of obtaining a civil divorce without permission.
iii. The Ordinary’s intervention is required for two reasons:
firstly, in order that a decision may be given on the necessity of
civil divorce for the purpose of obtaining the civil effects, a decision
which will depend on the circumstances of each case and on the
civil law ; secondly, for the purpose of removing the scandal caused
by a Catholic apparently flouting the divine law on the indis
solubility of Christian marriage, and manifestly affronting the
Church by bringing an important marriage cause to a civil tribunal
The Ordinary who gives permission will also direct the steps to be
taken to avoid scandal, for example, a signed and witnessed state
ment to the effect that the party seeking a civil divorce is doing so
for the civil effects only, and with no intention of re-marrying.
iv. Whilst admitting the necessity of the precautions outlined in
(iii) (a judgement on the necessity of a civil divorce and the removal
of scandal) it may be asked why it is absolutely necessary to seek
this judgement from the Ordinary. Is a parish priest not fully
competent to give a decision ? Some commentators teach that, after
the event, the parish priest may give a decision that repentance and
due reparation of scandal justify the granting of the sacraments in
such cases,1 and that recourse to the Ordinary is necessary only
when there is doubt on these points, on analogy with the law of
canon 1240, §2, or when the sin is locally reserved to the Ordinary.
But we can find no writer teaching that, before the event, a parish
priest may authorise divorce proceedings. On the contrary those
who have fully examined the matter hold that the case must always
go to the Ordinary for die reasons outlined in (ii). “It is obvious
that no Catholic may seek a civil divorce without first obtaining the
permission of the Holy See, or at least of the local Ordinary.”2
“Propter periculum cxceptionaliter momentosum in bonis for
tunae vel quoad educationem liberorum, quod sola separatione
corporum satis removeri non posse videatur, rem Episcopo exponere
eiusque mandatis stare debent.”3
Cf. I Λπιί du Clergé 1949, P· 20°· What we have written in The Clergy Reoieuj
*94*>
p. 182, needs modifying so as to allow for the view that recourse to
the Ordinary in these cases, though advisable, is not always necessary.
2 The Jurist, 1949, p. 198.
3 Collationes Brugenses, 1946, p. 434.
QQ. 231, 232
J’
Marriage Dissolution and Convalidation
315
231. REVALIDATION — PRESENCE OF REGISTRAR
Is it correct, as a registrar maintains, that it does not suffice for the parties
to produce their civil marriage certificate, but that the registrar must also be
present when a marriage of this kind is contracted before a priest in a Catholic
church ?
Marriage Act, 1856, 19 & 20 Viet., cap. 119, section 12: “If the
parties to any marriage contracted at the registry office of any
district conformably to the said recited Acts or any of them, or to
the provisions of this Act shall desire to add the religious ceremony
ordained or used by the church or persuasion of which such parties
shall be members to the marriage so contracted, it shall be com
petent for them to present themselves for that purpose to a clergyman
or minister of the church or persuasion of which such parties shall
be members, having given notice to such clergyman or minister of
their intention so to do ; and such clergyman or minister upon the
production of their certificate of marriage before the superintendent
registrar, and upon the payment of the customary fees (if any), may,
if he shall see fit, in the church or chapel whereof he is the regular
minister, by himself or by some minister nominated by him, read
or celebrate the marriage service of the persuasion to which such
minister shall belong . . . but nothing in the reading or celebration
of such service shall be held to supersede or invalidate any marriage
so previously contracted, nor shall such reading or celebration be
entered as a marriage in the parish register.”
It is clear from the above that the only case in which a priest
may, in accordance with the civil law, conduct a marriage without
the presence of the registrar, is the case in which the parties have
already contracted a marriage which is civilly valid in a registry
office in England or Wales.
In all other cases of marriage which is civilly valid, for example
that contracted before a minister of the Church of England in a
Protestant church, the priest may not, in accordance with the civil
law, conduct a religious ceremony of marriage, except with the
presence of the registrar, the usual notice having previously been
given at the registry office. This point was not clearly perceived till
about 1936, when we received instructions from the bishops on the
matter. Very likely this is what the registrar in the above question
had in mind, or he was referring, perhaps, to a civil marriage
contracted elsewhere than in a registry' office in England or Wales.
232. MARRIAGE PRELIMINARIES BEFORE “SANATIO”
Must we hold, in principle, that a marriage revalidated by “sanatio” is
subject to the regulations contained in “Sacrosanctum”, in the measure in
316
Priests' Problems
Q. 232
which this Instruction is being enforced by the local Ordinary, e.g. the “nihil
obstat”, the “questionnaire”, religious instruction and registration?
Canon 1138, §1: Matrimonii in radice sanatio est eiusdem
convalidatio, secumferens, praeter dispensationem vel cessationem
impedimenti, dispensationem a lege de renovando consensu, et
retrotractionem, per fictionem iuris, circa effectus canonicos, ad
praeteritum.
§2 : Convalidatio fit a momento concessionis gratiae ; retrotractio
vero intelligitur facta ad matrimonii initium, nisi aliud expresse
caveatur.
§3: Dispensatio a lege de renovando consensu concedi potest
vel una vel utraque pars inscia.
i. Since §3 declares that this procedure can be applied to re
validating a marriage even when both parties are ignorant of what
is being done, the answer to the question is that, in principle, a
marriage revalidated by sanatio is not subject to tire positive regula
tions of Sacrosanctum ; moreover (even if the parties are aware of
what is being done), seeing that the chief point about a sanatio is to
dispense with the renewal of marriage consent, the regulations of
Sacrosanctum which must precede the exchange of consent obviously
do not apply, e.g. the nihil obstat. The procedure of a sanatio is subject,
not to Sacrosanctum nor even to the common law of the Code on the
canonical form of marriages in general, but firstly to the natural
and divine law, and secondly to the positive law, whether general
or local, expressly made for these cases. The requirements of die
natural or divine law need no explanation. The positive law has
often been changed and tends to become more exacting, as may be
seen by comparing the additional faculties granted to certain
Ordinaries by the Holy Office during the last few years: cf. The
Clergy Review, 1937, XIII, p. 187; Sylloge, n. 213.18; Bouscarcn,
Digest, I, p. 63, and II, p. 32; Irish Ecclesiastical Record, 1948, LXX,
P· 375·
ii. Securing the validity of the procedure should offer no diffi
culties for priests, since they have merely to observe the terms of the
rescript received from the Ordinary, whether in forma gratiosa or in
forma commissoria.1 In accordance with the Ordinary’s faculty die
rescript may contain further directions affecting the lawfulness of
the procedure, e.g. absolution from the censure of canon 2319, §1, 1,
or the method of registration to be followed.
iii. In addition to the conditions imposed by the Holy Office,
the Ordinary may decide not to use the faculty unless further
1 Cf. The Clergy Review, 1942, XXII, p. 375.
Q. 233
Marriage Dissolution and Convalidation
317
precautions arc observed, e.g. instructions to the non-Catholic
party of a mixed marriage, or signed answers to a list of questions.
But, in our view, a priest has no obligation to carry out any of the
rules made for normal marriages, unless so directed by the
Ordinary.
233. CONFESSION BEFORE EXECUTING A “SANATIO”
Should it not be held that in one matter, at least, the priest executing a
“sanatio” must observe the rule applicable to marriages contracted with the
canonical form? Confession before the “sanatio” is executed should be
urged {canon 1033) on the parties or even imposed {canon 1066), in order
to ensure their being in a state of grace.
Canon 1033: . . . eosdemque vehementer adhortetur ut ante
matrimonii celebrationem sua peccata diligenter confiteantur, et
sanctissimam Eucharistiam pie recipiant.
Canon 1066: Si publicus peccator aut censura notorie innodatus
prius ad sacramentalem confessionem accedere aut cum Ecclesia
reconciliari recusavit, parochus cius matrimonio ne assistat, nisi
gravis urgeat causa, dc qua, si fieri possit, consulat Ordinarium.
i. Certainly, any priest exercising the care of souls will try to
ensure that the people in his care are in a state of grace, particularly
when they are about to receive a sacrament; the “sanatio” is, in
effect, the sacrament, since up to the moment of its execution the
parties are not validly married. Some writers expressly advert to
this point, e.g. Hcylen1 : “Cum coniuges sacramentum suscipiant,
dum ita matrimonium convalidatur, curandum est, in quantum
fieri potest, ut sint in statu gratiae.”
ii. But, if we regard the priest uniquely as an ecclesiastic ex
ecuting, or intervening in, the grant of a sanatio, he is bound to do
only those things directed by the rescript, since this procedure is
subject only to the positive laws expressly made for it and to the
natural or divine law. It is open to the Holy See or to Ordinaries
who issue the rescript to include the terms of canons 1033 and 1066
in the document, and the urging or imposing of confession will
then be necessary by virtue of this injunction. Similarly, as pointed
out at the end of our previous reply, the parties may be required
to submit to other regulations normally to be observed when con
tracting marriage. It is, indeed, the divine law that a sacrament of
the living should be received in a state of grace, but confession is not
a necessary means to this end except in voto. Moreover, the formula
1 De Matrimonio ,p. 719.
318
Priests' Problems
Q· 233
of quinquennial faculties relating to the sanatio directs the Ordinary
amongst other things, previously to absolve the Catholic party from
excommunication “si casus ferat” ; but this absolution from censure
can be granted outside and apart from sacramental confession,
unless the rescript imposes confession as a condition when absolution
is being obtained in the internal forum.1 Accordingly, we think it is
correct to state that confession before the execution of a sanatio
cannot be imposed unless the terms of the rescript so direct.
1 Cappello, De Matrimonio, §285.
XX. USE OF MARRIAGE
234. PAPAL TEACHING ON THE INFERTILE PERIOD
The papal teaching on the use of the infertile period, contained in the
address of His Holiness, 29 October, 1951, seems to be stricter than the
common teaching of moralists, for he requires serious reasons to justify the use
of marriage exclusively during this period. Is it not true to say that, in sub
stance al least, the writings of Catholics on this subject have not so far stressed
the necessity of serious reasons ?
Pius XII, Address, 29 October, 1951: The Clergy Review, 1951,
XXXVI, p. 389 :
. to enter upon the state of matrimony, to
make constant use of the faculty proper to it and only in matrimony
allowable, and on the other hand consistently and deliberately, and
without a serious reason, to shirk the primary duty it imposes,
would be to sin against the very meaning of married life.
“From the obligation of making this positive contribution it is
possible to be exempt, for a long time and even for the whole dura
tion of married life, if there are serious reasons, such as those often
provided in the so-called ‘indications’ of the medical, eugenical,
economic and social order. It therefore follows that the observance
of the infertile periods may be licit from the moral point of view ;
and under the conditions mentioned it is so in fact.”
i. It is true that the explanations given by some Catholic doctors
on the subject have not always stressed the necessity of a serious
reason, since these writers were chiefly concerned with the medical
aspect of the matter. The earlier editions, for example, of Dr
Sutherland’s Control of Life, which is the best book of its kind for
Catholics to consult, were wanting in this respect, a defect which
has been remedied in the later editions.
It is equally true that a certain number of Catholic moral
theologians became extreme propagandists of the sterile period,
when the new Ogino-Knaus reckoning was discovered about 192930, and their enthusiasm often led them to ignore the conditions for
its lawful use morally.1 It may be doubted, nevertheless, whether
any Catholic moralist expressly taught that Catholics could use this
period exclusively without any compensating reason. It is often
1 Cf. a correspondence on the subject in The Clergy Review, 1937, XIII, pp.
150, 273, 358, 412 ; Ι93θ> XIV, pp. 92, 184.
319
320
Priests' Problems
Q. 234
pointed out that the teaching of Pius XI in Casti Connubii does not
stress the necessity of serious reasons, but merely affirms: “Neque
contra naturae ordinem agere ii dicendi sunt, qui iure suo recta ct
naturali ratione utuntur, etsi ob naturales sive temporis sive
quorundam defectuum causas nova inde vita oriri non possit.” But
it is not certain that these words refer to the sterile period, neither
are they concerned with the use of marriage exclusively during that
time.
ii. The common teaching, however, of the generality of moral
theologians writing on the subject insists on serious justifying
reasons before permitting married people to use their rights exclu
sively during this period. Thus Fr Bonnar writes: “When, not for
mere selfishness but for other reasons, e.g. poverty, the period of
low fertility is used exclusively, husband and wife are voluntarily
renouncing a part of their rights. Such voluntary renunciation is
not morally reprehensible when there is a good and sufficient reason."1
Gougnard: “Continentia periodica certo concrete licita est, dato
motivo diurnitati praxis proportionato. Quae motiva sunt v.g.
periculum vitae . . . impossibilitas materialis numerosiorem prolem
educandi. . . .”2
If it be asked whether those married people sin gravely who
observe the agenetic period for no adequate reason, the answer
is that its gravity cannot be established on theological reasoning,
since objectively the action is in itself lawful, and it will be obsen’ed
that the Holy Father himself refrains from stating that its wrongness
may be gravely so.
iii. What the Holy Father has done in his address is expressly to
sanction certain lawful reasons justifying the exclusive use of the
sterile period. Hitherto the chief Roman directive on the subject, if
we exclude the ambiguous phrase in Casti Connubii, is the reply of
the Sacred Penitentiary, 16 June, 1880, found in all the manuals,
which sanctions only one justifying reason—the remedy to be sug
gested to penitents who will not otherwise refrain from onanism. A
later reply of the same tribunal, 20 July, 1932, is not so well known,
and our readers may like to have it.3
“Sacra Pocnitentiaria, die 20 julii 1932, ad novum Dubium
(magis adaptatum ad theoriam Ogino-Knaus, tunc temporis divul
gari coeptam) : An licita in se sit praxis coniugum qui, cum ob
iustas ct graves causas prolem honesto modo evitare malint, ex
mutuo consensu et motivo honesto a matrimonio utendo abstinent
1 The Catholic Doctor, cd. 1951, p. 77
2 De Matrimonio, p. 444.
3 The text is in Periodica, 1951. p. 418, in the course of an excellent commentary
on the papal address by Fr F. Hurth. S.J.
Q. 235
Use of Marriage
321
praeter quam diebus quibus secundum quorundam recentiorum
theoremata ob rationes naturales conceptio haberi non potest?
Risp. Provisum est per responsionem S. Poenitentiariae d.d. 16
iunii 1880 datam.”
This reply is not, perhaps, very helpful, since it might be taken
in the sense that the only justifying reason is its use as a remedy
against onanism, as taught previously in 1880. However, we now
happily have the teaching of the Holy Father, which goes far
beyond the reply of 1880, that there may be justifying reasons of the
medical, eugenical, economic and social order. (For subsequent
correspondence, cf. The Clergy Review, 1952, XXXVII, pp. 316, 383,
510,511, 638, 765.)
235· PUBLICISING KNOWLEDGE OF STERILE PERIOD
The altitude of most theologians and authorities in the past has been
against bringing the facts about the sterile period to all and sundry, even when
accompanied by the conditions which should be verified before using it. Seeing,
however, that the papal address, 29 October, 1951, has been circulated every
where and certain people have heard about this matter for the first time from
the lips of the Sovereign Pontiff, does it not follow that we need no longer be so
reticent about it ?
Pius XII to Unione Cattolica Italiana Ostetriche, 29 October, 1951;
The Clergy Review, December, 1951, p. 388: “It is not the priest’s
duty, it is yours, to instruct married people on the biological and
technical aspects of the theory, without letting yourselves indulge in
a propaganda which has neither justice nor decency to recommend
it j and such instruction may' be conveyed either in private consulta
tion or by means of serious books on the subject. But here too y'our
apostolate requires you, as women and as Christians, to know and
uphold the moral standards which govern the application of the
theory’. And here the Church is the competent guide.”
To II Fronte della Famiglia and La Federazione delle Associazioni delle
Famiglie Numerose, 26 November, 1951; ΓOsservatore Romano, 1951,
n. 277; Periodica, 1951, p. 400; Documentation Catholique, 1951, col.
1554: “In our last allocution on conjugal morality we affirmed the
lawfulness and at the same time tire limits—wide as they' arc—of
a method of regulating births which, unlike what is called ‘birth
control’, is compatible with the law of God. One may even hope
that medical science (and in a matter of this kind the Church
naturally relies on its judgement) will succeed in securing for this
method a sufficiently certain basis, a hope which seems confirmed
by the latest information.”
Priests' Problems
322
Q. 236
It cannot be denied that, in matter of fact, some people may have
first heard about the sterile period doctrine from the papal utterance.
It must also be admitted that in some places, and notably in
America, a practically unrestrained publicity about the matter was
defended by some theologians, as though the new discovery,
associated with the names Ogino-Knaus, were a kind of gospel, or
at least a remedy discovered providentially just at the time when it
was most needed, and therefore something to be thankfully received
and brought to the knowledge of all and sundry.
Had the papal reference to this subject been restricted to the
address given to the Union of Midwives, we think that the question
concerning the rights and wrongs of publicising the matter would
have remained unchanged ; for the words were intended for the
guidance of the medical profession, and the publicity which has
followed, though inevitable, could be taken as accidental. But in
the address given the following month to an audience composed of
family associations this interpretation is inapplicable, and it seems
to us that the Pope’s words must be taken to modify the conservative
view amongst the theologians which was, generally speaking, averse
to any publicity being given to the new reckoning of the sterile
period.1 An unrestricted propaganda “which has neither justice nor
decency to recommend it” must be avoided, but after this papal
lead no one may criticise adversely those priests or social workers
who bring the matter to the notice of married people, or to those
contemplating marriage, in sermons, addresses and pamphlets.
236.
noldin’s opinion on sterile period
May the opinions of Noldin in “De Sexto”, §75, c, be held after the
recept papal teaching on the subject ?
Noldin-Schniitt, De Sexto Praecepto, §75, c: Ut coniuges pro tola
vita coniugali hac methodo uti possint, ratio sufficiens non inven
ietur. Immo, si de ea conventio fieret, qua ius in corpus restrin
geretur ad tempora agenescos, etiam matrimonium invalide
contraheretur.
The opinions of theologians have, during the last few years, been
modified in accordance with papal directions, and it is no reproach
to any of them if they find that their own opinions, taught before
the papal directions appeared, are occasionally either too strict or
too liberal. The edition from which the two above extracts are
taken is that of 1936, but the same phrase is found in the later
edition of 1940.
1 Wc were of this opinion. Cf. The Clergy Review, 1937, XIII, p. 150.
q 2^7
Use of Marriage
323
i. The second paragraph of §75, c, is fully supported by the papal
teaching in the address to midwives, 29 October, 1951,1 and has
always been the common doctrine. From canon 1081, §2, a valid
consent to the marriage contract requires the grant and the accep
tance of the perpetual and exclusive right to actions fitted of their
nature for procreation.
ii. The first paragraph is too severe as it stands. By changing
“non” to “vix” it could be brought more in line with the papal
teaching, which is that married people may possibly be exempt
from making a positive contribution to the conservation of the
human race for the whole duration of married life, if there exist
serious reasons of the medical, eugenical, economic or social order.2
Indeed, to the best of our knowledge, Noldin’s teaching, even in
1936, was severer than the common view of theologians: they
argued and still argue about the gravity of using the period of low
fertility without an adequate reason, but granted an adequate
reason there can be no time limit to its application.
237.
AMPLEXUS RESERVATUS”---- HOLY OFFICE
ADMONITION
II hat is the official attitude of the Church to the practice known as
“amplexus reservatus"?
& Off., 30 June, 1952, Monitum (A.A.S., 1952, XLIV, p. 546):
Gravi cum sollicitudine Apostolica Sedes animadvertit non paucos
scriptores his ultimis temporibus, de vita coniugali agentes, passim
palam et minute ad singula cam spectantia inverecunde descendere :
praeterea nonnullos actum quemdam, amplexum reservatum nunc
upatam, describere, laudare et suadere.
Ne in re tanti momenti, quae matrimonii sanctitatem et ani
marum salutem respicit, munere suo deficiat, Suprema Sacra Con
gregatio S. Officii, de expresso mandato SSmi D. N. D., Pii, divina
Providentia Pp. XII, omnes praedictos scriptores graviter monet, ut
ab huiusmodi agendi ratione desistant. Sacros quoque Pastores
enixe hortatur ut in his rebus sedulo advigilent et quae opportuna
sint remedia sollicite apponant.
Sacerdotes autem, in cura animarum et in conscientiis dirigendis,
numquam, sive sponte sive interrogati, ita loqui praesumant quasi
ex parte legis christianae contra “amplexum reservatum” nihil
esset obiicendum.
1 The Clergy Review, 1951» XXXVI, p. 389, para. 1.
1 lb., p. 390, para. 1.
324
Priests' Problems
Q. 237
The practice is described in our manuals s.v. coitus reservatus, in
French etreinte réservée, an extreme and dangerous application of the
principle permitting incompleted actions to the married. Cf. M.
Paul Chanson, Art d'Aimer et Continence Conitigale, the imprimatur of
which was subsequently withdrawn according to l'Arni du Clergé,
195°> P· 9θί Hering, O.P., in Angelicum, 1951, p. 313; Janssen in
Ephemerides Theologicae Lovanienses, 1951, p. 120; Dalpiaz in Apol
linaris, 1933, p. 244.
XXI CHURCHES, ALTARS, SACRED
FURNISHINGS
238. FAST ON THE DAY PRECEDING CONSECRATION
OF CHURCH
Is the law requiring certain persons to fast on the day preceding the con
secration of a church strictly a precept or merely a counsel? Does it include all
the parishioners when a parish church is being consecrated? and does it bind
at the present time when, in the common law, the days offasting are reduced
to four?
Canon 1166, §2: Episcopus consecrator et qui petunt ecclesiam
sibi consecrari, per eum diem qui consecrationem praecedit
ieiunent.
Code Commission. 20 July, 1929, III: An ieiunium in consecra
tione ecclesiae, de quo in canone 1166, §2, moderandum sit secun
dum communem legem ieiunii ecclesiastici. Resp. Affirmative.
29 July, 1780, i : An ieiunium in Pontificali Romano
praescriptum ... sit strictae obligationis ; vel potius tantum de
consilio? Resp. . . . esse strictae obligationis pro Episcopo con
secrante, et pro iis tantum qui petunt sibi Ecclesiam consecrari. . . .
The dedication of a church being relatively speaking rare the law
relating to it is little known, commentators are not very informative,
and various views are possible in the solution of the above questions.
What follows is to the best of our knowledge correct.
i. I he fast on the preceding day is a law, and not merely a
counsel, binding at least sub levi those mentioned : the common and
the more probable opinion is that it binds sub gravi.1 The persons
who ask for their church to be consecrated might be, for example,
the Chapter of a collegiate church, die members of a religious
community to whom the church belongs, and the parish priest. No
doubt, in some instances, all the parishioners might come under the
description “qui petunt ecclesiam sibi consecrari”, but normally
they do not since it is a ceremony which chiefly concerns the clergy,
and the request is usually made by them.2
ii. The Code Commission's reply has clarified a number of points
relating to the fast. It used to be thought by many that the fast was,
1 Cappello, Periodica, 1929, p. 254.
2 Many, De Locis Sacris, §13.
Priests' Problems
326
Q. 239
so to speak, part of the consecration rite, and was therefore to be
interpreted more strictly than the law of the ordinary ecclesiastical
fast: the faculty of dispensing the latter, conceded in canon 124510
Ordinaries and parish priests, was held not to apply to the former.
It is now clear that the common law on fasting applies to this day
as to any other fasting day, for the reason of it is the same: it is to
prepare for a coming festal occasion, as during Lent in preparation
for Easter, or on a vigil in preparation for the feast day. There is not,
however, unanimity in drawing the practical conclusions which
should follow from this identification : we think there is sufficient
authority for the view that the rule of canon 1252, §4, is applicable;
the fast lapses if the day preceding the consecration rile is a Sunday
or a holy day of obligation.1 Meat is permitted at the chief meal
unless the day happens already to be one of abstinence. Whatever
excuses a person from the ordinary law of fasting excuses also on
this occasion, and the relative norm in determining the amount
permitted at subsidiary meals may be followed.
iii. The Congregation of the Council, 28 January, 1949, mod
ifying a previous direction of the Holy See, by which local Ordinaries
were permitted to dispense the law of fasting owing to war conditions,
decided that four days were for the time being to be days of fast
and abstinence: Ash Wednesday, Good Friday, and the vigils of
the Assumption and Christmas Day.2 We can find no one who
discusses whether the vigil of the consecration of a church is, for
the time being, excepted from the fasting laws. Bearing in mind the
Code Commission's reply, and the fact that this day is not amongst
those chosen by the Congregation of the Council, we think that the
local Ordinary’s general dispensation from the law of fasting
includes this day.
239.
BLESSING OF PROVISIONAL CHURCH
A substantial building which is eventually to be a parish hall is to be used
as a church for at least five years. Should it be blessed with the formula of the
Roman Ritual, IX, ix, 17, before Mass is said therein? If not, whal
blessing is appropriate ?
Canon 1165, §1 : Divina oflicia celebrari in nova ecclesia nequeunt,
antequam eadem vel sollemni consecratione vel saltem benedictione
divino cultui fuerit dedicata. §2. Si prudenter praevideatur ecclesiam
conversum iri ad usus profanos, Ordinarius consensum eius aedifica·
’ Brute, Introductin, p. 1166.
• 7Λ/ Cltrp Rtmtw, 1942, XXII, p. 234; XXXI, i949, p. 27g.
Jr
Q. 239
Churches, Altars, Sacred Furnishings
327
lioni ne praebeat, aut saltern, si forte aedificata fuerit, cam ne
consecret neve benedicat.
Canon 1170: Consecrationem vel benedictionem ecclesia non
amittit, nisi... in usus profanos ab Ordinario loci redacta sit, ad
normam can. 1187.
The problem arises when it is desired to have a building which is
juridically a church, wherein Mass may be offered habitually
without recourse per modum actus to the Ordinary, an exceptional
procedure provided for in canon 822, §4. It is certain that the
Ordinary may permit Mass habitually in a building which is being
used provisionally as a church during or pending the construction
of the permanent edifice,1 and the words “per modum actus” of
canon 822 arc generously interpreted by many writers.2 The only
point which is not clear concerns the blessing of this provisional
building.
i. 11 its character is provisional in the sense that the erection of a
church is certain in the near future, and that the provisional building
will then be a parish hall to be used for ‘‘profane” purposes,3 it is
clear that canon 1165, §2, forbids its blessing with the long formula
“Ritus benedicendi novam ecclesiam”.4 Thus Collins: “Certainly
an auditorium of a school, which is used as a temporary church, may
not be solemnly blessed. . . .”6 Bouscaren-Ellis: “. . . Ordinaries
can permit services to be held regularly in a ‘provisional’ church
not blessed, while the permanent church is awaiting construction.”8
I he building may be blessed with a short formula such as in IX,
iii, 10, 1952 edition.7
ii. In these days, however, owing to building difficulties and
shortage of material everywhere, the expectation of a church is often
little more than a pious hope, and no one can say what the condi
tions will be five years hence. In such circumstances we think that
canon 1165, §2, is not applicable, since it cannot be foreseen with
any assurance that the building will be converted to profane uses.
We all know of such buildings erected long before the war, with a
view to subsequent use as halls, which are still used as churches, and
likely to be for years to come. It seems to us that these buildings
may be blessed with the solemn blessing of the Ritual, a view which
is supported by Coronata: “Si praevideatur quidem ecclesiam
1 Gaaparri, De Eucharistia, §155; Many, De Locis Sacris, §19, 3.
* Cf. Buckley, The Celebration of Mass in “Extraordinary" Places, p. Go.
3 On the meaning of “profane” in this context, cl. The Clergy Review, 1942,
XXII, p. 131.
<ΛΊ. Roni., IX, ix, 17» >952 edition.
‘ Th, Church Edifia, [>. 26.
‘ Cu"on Lou,, p 587.
7 O’Connell, The Celebration of Mass, I, p. 37; The Clergy Review, 1944, XXIV,
p. 135
328
Priests' Problems
Q. 240
conversum iri post longum tempus ad usus profanos, at de praesenti
cautiones dentur et per ipsam instantibus necessitatibus fidelium
subveniri possit, ecclesia sin minus consecrari, benedici posse vide
tur.”! K is a conclusion not explicitly contained in any official
instructions but implied in some of them, and it seems a reasonable
solution of the difficulty. For it is most desirable that a building
which is going to be used for many years as a church should be
expressly set apart for sacred uses, as the solemn blessing supposes,
and that the faithful who use it should have the advantage of all
the blessings intended by the Church in the rite, as Many points
out: “. . . ecclesia benedicta aut consecrata se habet ad instar
alicuius sacramentalis in favorem fidelium qui in ea orant.”
iii. Two modern French canonists interpret canon 1165, §2, in
the sense that, if it is foreseen that a church will be converted to a
profane use, the Ordinary may bless it but not consecrate it.
Naz: “La consecration doit être refusée, et la benediction peut
seulement être donnée : aux églises qui risquent d’être converties à
des usages profanes”2; Bayart offers as a translation of this canon:
“On ne doit pas consacrer (on peut bénir) une église, si on
prévoit. . . .”3 Neither justifies this view by any argument and, the
directions of the canon being so explicit, we think it cannot be
followed except perhaps by relying on a lawful custom. In any case,
a decision is always with the Ordinary, whose delegation is required
for the solemn blessing, and a parish priest who desires it can do no
more than try to persuade the Ordinary of its legality.
240. CONSECRATION OF A COMMUNITY CHAPEL
If the building is otherwise capable of being consecrated, is there any
prohibition against it, having in mind the building's character as merely a
semi-public oratory?
Canon 1165, §3: Sollemni consecratione dedicentur ecclesiae
cathédrales et, quantum fieri potest, ecclesiae collegiatae, conventuales, paroeciales.
Canon 1191, §1: Oratoria publica oedem jure quo ecclesiae
reguntur.
Canon 1196, §1 : Oratoria domestica nec consecrari nec benedici
possunt more ecclesiarum.
S.R.C., 5 June, 1899, n. 4025.5. In oratoriis autem, quae existunt
in aedibus episcopalibus, Seminariis, Hospitalibus Domibusve reg1 Institutiones, II, §736.
3 Diet. Droit Canon., IV, 259.
2 Traité de Droit Canonique, III, p. 13.
Am
Churches, Altars, Sacred Furnishings
Q· 241
329
ularium, relativum Titularis festum non celebrabitur, nisi in casu
quo aliqua ex iis consecrata vel benedicta sollemniter fuerint.
There is no law expressly prohibiting the solemn consecration of
a semi-public oratory, and the chapels of all religious communities,
no matter what the size of the building may be, belong to this class
from canon 1188, §2.2: “si in commodum alicuius communitatis
vel coetus fidelium eo convenientium erectum sit, neque Uberum
cuique sit illud adire”. The buildings enumerated in S.R.C., η. 4Ο25»
are all semi-public oratories and the reply assumes that, in some
instances, they will be consecrated.
The consecration of such is, nevertheless, unusual, and the
writers for the most part take it for granted that these chapels will
lack the permanence required from canon 1165, §2. But it might
happen that, for one reason or another, a convent chapel is larger
and more permanently constructed than many parish churches. It is
for the Ordinary to use his discretion, either declining to consecrate
the chapel since this is not the usual practice, or deciding to con
secrate for appropriate reasons since there is no law against it. Thus
Many, De Locis Sacris, §102.3: “Attamen, praesertim si agatur de
cappella principali alicuius communitatis, quae sit definitive et in
perpetuum dedicata cultui divino, potest benedici, imo, licet
rarissime, consecrari; nec desunt exempla huiusmodi oratoriorum
consecratorum.”
24I.
CORNER-STONE OF NEW CHURCH
Are the size, shape, material and position of this stone fixed by liturgical
laws ?
The only directions we can discover about the stone and the rite
of laying it are in the Roman Pontifical, since the blessing is
reserved, and in the Roman Ritual, Tit. IX, cap. ix, 16, a slightly
abridged form for use when a priest is authorised to perform the
function. A good brief commentary is given by Nabuco1 and an
adequate description is found in the writings of liturgists on churches
and the materials of divine worship.2
i. The material should be real natural stone not an artificial
synthetic composition, even of a durable nature such as concrete ;
this rule must be observed in buildings of brick or of other material.
Its size is not determined and will naturally vary with the size of
the building. The shape is either square or oblong since it is
1 Pontificalis Romani Expositio, II, p. 21.
2 Collins, The Church Edifice, p. 11 ; Irish Ecclesiastical Record, October 1952,
p. 302 ; Cailcwaert, De Rebus Cultus Materialibus, §409.
33Ü
Priests' Problems
Q. 242
supposed to be situated on a corner. Martinucci’s suggestion that
the stone should be about eight inches square, to be inserted in the
course of the ceremony within a large stone already in position and
with a cavity prepared, is accepted by some modern commentators;
this method makes it easier to move the stone during the rite and to
mark crosses on each of its faces. Nabuco, rightly we think, objects
to this device, since the whole rite supposes the blessing of a stone
which is part of the foundations, and not merely a symbol of such:
the crosses can be carved previously by a mason on the stone, which
is usually suspended in position on a pulley, and the bishop observes
the rubric sufficiently by delineating crosses on those already carved.
The cavity device seems to have been responsible for the custom of
inserting current coinage or other suitable memoranda in the stone,
a fitting practice which is not, however, prescribed in the rubrics.
ii. All are agreed that the “corner” position of the foundation
stone should be near the site of the altar on the gospel side, and if
the church has an apse and transepts it should be where the walls
of apse and transept meet. The rubrics suppose, indeed, that the
stone is part of the foundations of the building “lapis primarius in
fundamento”, and this has been literally observed in many
buildings : hence the mystification which so often arises many years
later when someone tries to locate the foundation stone, especially
if the stone contained an inscription which contemporary accounts
have preserved and which can no longer be traced, as is the case
for example with the church of The Holy Trinity, Brook Green,
Hammersmith, and with the Chapel of St Edmund’s College. The
commentators, however, agree that it is not necessary for a “founda
tion” stone, lapis primarius, lapis angularis, to be actually a part of
the foundations, and still less necessary for it to be actually the first
stone laid ; modern custom prefers it to be placed just above ground,
and if it has an inscription this could be readable either from
within or from without the church.
•242. MEMORIAL TABLETS IN CHURCHES
reply given in “Questions and Answers”, II, qu. 722, was against
the lawfulness of memorial tablets erected in churches to the memory of
deceased persons not buried therein. The custom, nevertheless, continues, and a
fuller consideration of the matter would be useful.
/1
2 March, 1641, n. 733 : E.S. referente petitionem cuiusdam
familiae, quae a fundamentis extruxerat Cappellam in Ecclesia
parochiali, eamque sufficienter, ut asserebatur, dotavit: an in ea
S.R.C.,
331
liceret affigere inscriptiones virorum in dignitate ecclesiastica con
stitutorum ex eadem familia cum imaginibus et statuis ipsorum?
Resp. Negative.
20 October, 1922, n. 4376: Utrum in ecclesiis earumque cryptis
divino cultui destinatis apponere liceat tabulas cum inscriptionibus
et nominibus fidelium defunctorum quorum corpora inibi tumulata
non sunt nec tumulari possunt iuxta canonem 1205, §2. . . . Resp.
Non licere, iuxta alias resolutiones et ad tramitem Decreti n. 733 . ..
et canonis 1450, §2, 1.
i. We can find only one commentator disposed to argue, even
after the reply of 20 October, 1922, that memorial tablets of this
kind in churches are not always forbidden. A writer in l'Ami du
Clergé quoted with approval by Regatillo,1 relates the decision exclu
sively to monuments erected to the memory of patrons or donors :
for n. 733 is concerned with such, and the two canons referred to
deal, firstly, with persons who have the right of burial within
churches, and secondly with the rights of patrons amongst which
burial within the church is not included. If one may venture to
disagree with a journal the replies in which are always so carefully
weighed, we cannot see that this is a correct interpretation: the
terms of the question are not limited to memorials of patrons, and
if these are mentioned in the reply it is by way of illustration only.
Clearly, if anyone is entitled to a memorial mural tablet within a
church it is the donor or patron through whose generosity the
church has been erected : if the common law refuses them this
favour, a fortiori it must be refused to others.
ii. We agree that the law is not universally respected. There may
be unusual reasons calling for an exception—in France it was
desired to commemorate fallen soldiers in this way—in which case
an induit could be obtained. Moreover, as we pointed out when
dealing with this point in 1932, the law does not require memorial
tablets erected in good faith to be removed,2 an action which would
always be deeply resented by friends and relatives. There is also the
possibility in a given district of a lawful custom existing, a point
which is stressed in a later discussion of the subject in ΓΑτηι du
Clergé3 where the writer appears to view with some disfavour the
interpretation given in 1922.
On the whole it seems to us that the clergy should welcome the
law, since it provides an easy and inoffensive way of refusing
Q. 242
Churches, Altars, Sacred Furnishings
1 Ami du Clergé, 1922, p. 759; of. also 1920, pp. 640 and 656. Interpretatio el
lurisbrudentia, p. 402.
,
.
2 Periodica, 1922, p. 196, quoting I Ami du Clergé precisely on this point and not.
as Regatillo suggests, approving the interpretation of that journal.
3 >95°» P· 25°-
332
Priests' Problems
Q· 243
requests which, if yielded to, would greatly disfigure our churches,
though possibly never to the awful degree reached by the monu
ments in some ancient churches such as Westminister Abbey. The
law does not forbid mural tablets on the outside walls of churches
nor within the porch, though the priest is within his right in refusing
them.
It can be admitted, with a writer in The Clergy Review,1 that the
Sacred Congregation in its reply of 1922 had chiefly in mind abuses
on the part of founders, patrons and benefactors.
243.
ROYALTIES ON CHURCH MUSIC
Is it correct that rectors of churches are forbidden to pay composer and
publisher the usual royalties due on each performance of works which art
copyright? If this is correct how is the regulation harmonised with the
principles of natural justice ?
25 February, 1932; A.A.S., 1932, XXIV, p. 72: “For
some time past attempts have been made to subject sacred music,
composed for liturgical use in churches, to the laws on royalties
which protect the rights of composers and publishers. These claims
take no account of the special character of this kind of music nor
of the honour due to God’s house, and they have resulted in many
disputes and unseemly incidents.
The Sacred Congregation of the Council has accordingly thought
it opportune to give the following instruction to local Ordinaries in
order to remove the origins and causes of these misunderstandings
and doubts.
I. In places where composers and publishers require royalties
for the performance of sacred music in churches during liturgical
functions, local Ordinaries must take care that modem sacred
musical compositions shall not be performed in churches unless the
composers and publishers have stated in writing that such perform
ances are not subject to royalties.
The observance of this rule will not in matter of fact deprive
religious ceremonies of sacred music. For, in the first place, in
addition to plain chant and classical polyphony, there are many
famous pieces of sacred music of which the rights have expired,
and which can freely be performed, provided they are in line with
the requirements of the Motu Proprio of Pius X, 22 November, 1903.
And, in the second place, many excellent modern composers and
publishers have waived their rights and have declared that their
sacred works may be freely performed.
S.C. Cone.,
1 *94°> XIX, p. 442.
333
Q. 243
2. In choosing such compositions Ordinaries should be advised
by the diocesan commission on sacred music instituted in accordance
with the said Motu Proprio ; and they may also consult the Roman
Pontifical Institute of Sacred Music, for any necessary information
on the subject.
G. Card. Serafini, Prefect.”
i. We have given an English translation as the original is Italian.
It will be observed that the ban is limited to sacred music during
liturgical functions, such as Mass or Vespers, which leaves the matter
open during functions which are not liturgical. The preceptive part
of the instruction is addressed to local Ordinaries, and the word
used, “cureranno”, “take care”, has officially been interpreted in
rather similar circumstances affecting rights to mean “persuade”.1
Since the instruction directly concerns Ordinaries, rectors of churches
have only to ascertain the directions of the local Ordinary, who is
within his right in making an explicit local law on the subject.2 It
appears that in England the civil law exempts sacred music during
sacred functions from the payment of royalties which would, in
other circumstances, be due to the author and publisher.
ii. In natural justice the right to royalties, though evident in
principle, cannot be accurately determined, and it is for the positive
lawr, whether of Church or State, to determine them explicitly.
“Ecclesia, cum de musica sacra agitur, eadem ac Status potestate
pollere censenda est; ideo privatam proprietatem potest intuitu
boni publici coarctare, eo vel magis quod linis ad quem musica sacra
dirigitur est spiritualis, non oeconomicus.”3 The terms of the
instruction do not violate natural justice, for we do not find therein
that ecclesiastics are told that they may perform copyright works in
liturgical functions and refuse to pay royalties: they are merely
instructed to avoid raising the issue, which pertains both to the
civil and the ecclesiastical forum, by refraining from having these
works performed. Inasmuch as admission to churches during
liturgical functions is gratis it is not unfair to expect the right to
royalties to be waived; and if it be objected that, even in such
functions, organist and singers are often paid for their services as a
matter of course, and that the composer and publisher of what they
Churches, Altars, Sacred Furnishings
1 Code Commission, 12 November, 1922, vi: Verbum curent cit. canonis (1451, §1)
declarat ab Ordinariis locorum suadendum esse patronis ut loco iuris patronatus
quo fruuntur, aut saltem loco iuris praesentandi, spiritualia suffragia etiam per
petua pro se suisve acceptent; et hinc patronos, praesertim ecclesiasticos, optime
se gerere si hisce suasionibus obsequantur.
2Cf. Cardinal Dubois for the diocese of Paris, Documentation Catholique, 1928,
XIX, p. 1355.
.
. ...
3 Ferrctti, commenting on the instruction in Apollinaris, 1933» VI, P· 66.
12+
334
Priests" Problems
Q. 244
sing is also entitled to recognition, the answer is that the latter get
some profit, though doubtless less than they would like, through
the sale of copies of the music performed.
244.
PIETY STALLS WITHIN A CHURCH
How is the practice of selling small religious articles from a stall sit up
at the end of the church during missio ns justified? Is it not clearly forbidden,
especially if the stall is managed by some church furnishing firm ?
Canon 1178: Curent omnes ad quos pertinet, ut in ecclesiis illa
munditia servetur, quae domum Dei decet; ab iisdem arceantur
negotiationes et nundinae, quamquam ad finem pium habitae; et
generatim quidquid a sanctitate loci absonum sit.
i. A striet and logical application of canon 1178 requires such
piety stalls to be excluded from the church itself, though not from
the porch. Those who interpret the law in this way should also,
however, exclude racks for the sale of C.T.S. pamphlets and Catholic
papers or periodicals ; and they should also ban the sale of votive
candles at the various altars in the church. It was in fact the impres
sion that financial gain was the motive behind the sale of votive
candles in churches, as well as other reasons, that led the Cardinal
Vicar of Rome in 1932 to forbid the practice locally within the city1.
We imagine that few priests would care to ban the sale of votive
candles within the church, even though they might have strong
views about piety stalls managed by Catholic furnishing firms.
ii. How then is the practice justified, supposing that there is no
express prohibition of the local Ordinary against it? The well-known
Belgian canonist Brys gives the following solution, relying on the
teaching of most manualists: “Atvero, quamvis textus videatur
satis absolutus et severus, ab auctoribus tamen communiter admit
titur posse tolerari, et quidem ex universali consuetudine, ut paucae
res piae, cerei potissimum, vendantur. Merito tamen hanc toleran
tiam certis limitibus circumscribunt auctores: oportet fiat (1) prope
ianuam; (2) ob difficultatem reperiendi alium locum magis aptum;
(3) sine strepitu aut turbatione sacrarum functionum. Tunc enim
cadit ratio prohibitionis, quae est ut ab ecclesia arceantur quae
cunque divina officia turbare possint.”
We agree with this opinion, especially with regard to the second
condition. If the stall can be accommodated in the porch, or in some
place near the exit which is convenient to the faithful, custom does
not tolerate its presence in the church itself. If circumstances appear
1 The Clergy Review, 1951, XXXV, p. 187.
QQ. 245, 246
Churches, Altars, Sacred Furnishings
335
to justify a stall within the church, it is irrelevant whether it is being
run at a loss or at a profit, or whether it is being managed by the
parish priest’s delegate or by a commercial firm.
245. SITUATION OF DOMESTIC ORATORY
Dots the rule forbidding the room above an oratory to be used as a bedroom
apply even to a private or domestic oratory ?
Canon 1195, §1: In oratoriis domesticis ex induito Apostolicae
Sedis, nisi aliud in eodem induito expresse caveatur, celebrari potest,
postquam Ordinarius oratorium visitaverit et probaverit ad normam
can. 1192, §2, unica Missa. . . .
Canon 1196, §2: ... debent tamen esse divino tantum cultui
reservata et ab omnibus domesticis usibus libera.
i. The rule of the common law, as is well known, forbids a
bedroom to be situated above oratories,1 and some commentators
apply it even to the private or domestic oratory, since the same
reasons of reverence exist. On the other hand,X the domestic or
private oratory is usually, of its nature, situated in one of the rooms
of a house ; it is lacking the permanence of other oratories, and one
would not expect quite the same rigidity in interpreting the law
which most certainly applies even to a semi-public oratory. Seeing
therefore that neither the terms of canon 1196, §2, nor the terms in
which the induit is usually granted, exclude a room situated beneath
a bedroom, it may be held that this common law does not affect
the private oratory. This is the view of some of the best authorities
on the subject, such as Many2 and Buckley.3
ii. The induit granting the privilege normally requires, as a
condition for its use, the local Ordinary’s visitation and approval.
He is well within his right in refusing to sanction Mass in a private
oratory situated beneath a bedroom, even though the common law
may not apply, for it is agreed that it is undesirable and unbecoming
for the oratory to be so situated, and the law leaves the last word
with the Ordinary, who may insist on the rule for all private
oratories within his jurisdiction as a condition for episcopal
approval.4
246. FIXED PORTABLE ALTAR
What formula is to be used in consecrating an altar made of wood except
for the “mensa”, which is the length of the wooden structure and permanently
fixed thereto ?
1 E.g. S.R.C., n. 4213.3·
2 De Locis Sa<™, §87.5.
3 The Celebration of Mass in "Extraordinary" Places, p. 34.
« Thus Berutti, Jus Pontificium, 1939, p. 42, quoting Many, loc. cit.
336
Q, 247
S.R.C., 21 August, 1950; Monitor Ecclesiasticus, 1952, p. 451:
Utrum liceat formula breviore uti in consecratione altarium quae
fixo modo connectuntur cum stipitibus sed quorum consecratio
separatim fiat a stipitibus ? Resp. Nihil impedit altare portatile posse
componi quasi esset fixum. Altare consecratum in casu, licet
materialiter fixum, est liturgice portatile seu mobile, ideoque potest
quin amittat consecrationem transferri et separari a stipitibus.
The reply supports the accepted principles about fixed and
portable altars. The fixed altar is consecrated with a long rite in
the pontifical, and the supports of the mensa are consecrated with it,
the idea being that the altar forms one entity with the church. The
consecration of this kind of altar is lost if, for any reason, the mensa
is separated from the supports {stipes'). The portable altar, on the
other hand, is consecrated with a simpler rite, and by induit even
this is abbreviated, both forms being found in the modern editions
of the Pontifical. The usual type of portable altar consists of a small
stone about twelve inches square, or even less, which is placed on
any convenient support when carried about by priests, such as army
chaplains, who enjoy the faculty. In churches, however, one often
sees an imposing structure of stone or wood, having all the ap
pearance of a liturgical fixed altar, which on examination is found
to be liturgically portable, because the stone alone is consecrated.
This is evident when the small square stone is inserted into the
wooden structure and can easily be removed. But even though it is
permanently fixed and cannot easily be removed, an altar of this
type is liturgically portable, no matter what the size of the stone
or the permanence of its attachment to the rest of the structure.
Priests' Problems
247.
NUMBER OF ALTAR STEPS
Where is the official direction to be found which requires the steps ap
proaching the altar to be normally three, or if there are more than three that
the number must always be uneven ?
Some writers refer to Caerem. Epp., I, xii, 16, which merely assumes,
however, that the altar is approached by gradus inferiores', others
quote S.R.C., 2 June, 1883, n. 3576.1, which is equally indecisive
in replying that a bishop may require an altar to have a predella
foot-pace, suppedaneum—when it is approached by two or more steps.
1 he rule formulated in the above question is correct, but it is due
entirely to custom based on ancient precedents, and no certain
symbolical reasons can be adduced in its favour. Three steps, in
cluding the foot-pace, is most usual, and very likely the reason for
Q. 248
Churches, Altars, Sacred Furnishings
337
tliis number is to accommodate deacon and subdeacon at a solemn
Mass without obscuring the celebrant when the ministers are
standing one behind the other : the main altar of a church should
always have three steps. Other altars need have only one step, a
foot-pace, for the proper observance of the rubric in Ordo Missae
directing the celebrant to ascend, ascendens ad Altare. Where there
are more than three steps, the reason sometimes is the necessity of
accommodating the structure to a crypt or sepulchre beneath; or
it may be for artistic reasons and in order to make the altar more
visible to the congregation in a large church. St Peter’s has seven
steps, Westminster Cathedral five. Roulin gives examples of altars
with a whole flight of steps, fourteen or more, and he rightly
deprecates this fashion because it makes the ascent during a function
unnecessarily laborious. No certain written rule exists forbidding
two or more steps of even number, but the tradition is against it,
and the common custom should be preserved when constructing
a new altar : one suffices for side altars, but the main altar should
have three.
248.
FORM OF ALTAR CRUCIFIX
Is there any law, or at least preference, regarding the form of the altar
crucifix figure ? Is it, for example, more suitable for our Lord to be represented
as alive or as dead? Also what is the truth about the so-called Jansenist
crucifix ?
i. There are many directions about the position of the altar
crucifix but we can discover no decision or recommendation about
the first point raised. The history of the crucifix, and various forms
of it in Christian art, may be studied in the larger reference works
such as the French Dictionnaire d'Archéologie, III, 3045 seq., and its
more modern forms in Roulin, Nos Eglises, pp. 525-31. One may
use, accordingly, any kind of crucifix which is artistically in harmony
with the rest of the altar furniture.
ii. Revue Augustinienne, 15 August, 1910, summarised in l'Ami du
Clergé, 1910, p. 1021, contains a full account of the so-called Jansenist
crucifix. The notion is still widely spread that a crucifix which
represents our Lord with arms practically vertical, instead of ex
tended, symbolises the Jansenist error that Christ did not die for all
men. The writer shows that figures of this kind were in existence
long before the rise of Jansenism, and moreover that it is untrue to
say that the Jansenists favoured this existing type of figure for
reasons connected with their doctrines. Other small variations, such
338
Priests' Problems
Q. 249
as the transfixing of our Lord’s feet with one nail only, are due
entirely to artistic preferences, and one may say the same about
the vertical position of the arms. Also, no doubt, the material used
might have some influence on the shape of the figure : thus, a figure
to be carved on one tusk of ivory almost necessarily requires the
vertical position of the arms.
[H. B. wrote : In his reply Canon Mahoney says he can discover
no decision or recommendation on the point whether it is “more
suitable for our Lord to be represented as alive or dead”. Could it
not be said that Mediator Dei prohibits the old type of crucifix with
the figure of our Lord alive, clothed and crowned, which represents
Him as reigning rather than suffering? “Itaque ... is ex recto
aberret itinere . . . qui divini Redemptoris in crucem acti effigies
ita conformari iubeat, ut corpus eius acerrimos non referat, quos
passus est, cruciatus” (A.A.S., 1947, XXXIX, p. 546).
Canon Mahoney replied: The encyclical deprecates the antiquarianism which requires everything to be restored to its ancient
form; “. . . non laudabile est omnia ad antiquitatem quovis modo
reducere”. Among the examples of this attitude occurs the passage
quoted by H. B. Therefore, as it seems to me, the Holy Father
reproves those who would wish the figure of a suffering Christ to
disappear from all crucifixes, but he does not forbid the use of a
crucifix with a vested and crowned figure, provided this type is not
put forward as the only sort that is proper and fitting.]
249.
THE “SIXES” CANDLESTICKS
Is the rule requiring these to be of graduated height of obligation? May
they be made of wood?
I, xii, 11. Supra vero in planitie altaris adsint
candelabra sex argentea, si haberi possunt : sin minus ex aurichalco,
aut cupro aurato nobilius fabricata. . . . Ipsa candelabra non sint
omnino inter se aequalia, sed paulatim, quasi per gradus ab utroque
altaris latere surgentia, ita ut ex eis altiora sint immediate hinc
inde a lateribus crucis posita.
S.R.C., 21 July, 1855, n. 3035.7. . . . Verum in tota dioecesi
Briocensi sunt omnino inter se aequalia. Quaeritur utrum hoc
praescriptum Caeremonialis Episcoporum ea de re sit rigorose
tenendum? et si affirmative, petitur, ut iis Candelabris inter se
aequalibus in omnibus Ecclesiis seu Cappellis uti liceat, donec
admodum renovanda sunt. Resp. Adductam causam a prae
scriptione Caeremonialis observanda excusare.
Caerem. Epp.,
Q. 250
Churches, Altars, Sacred Furnishings
339
The text of the Caeremoniale Episcoporum supposes that the church
possesses more than one set of sixes, silver candlesticks being used on
greater feasts and metal gilt on other days; the silver ones are
forbidden in the same book, II, xxii, 4, on Good Friday. The perfect
observance of these directions is to be recommended, and likewise
the rule that the candlesticks should be of graduated height.
The reply, n. 3035.7, is sometimes cited by the writers as stating
that the rule of the Caeremoniale is not of obligation,1 whereas it
merely declares, very reasonably, that places which already have
candlesticks of equal size may continue to use them indefinitely.
Nevertheless, the writers universally teach that the graduated size
is not of strict obligation, the ultimate reason being, no doubt, that
custom has sanctioned a non-observance of the rule. In the Roman
basilicas, and in all the illustrations we have seen of altars, as in the
work of Dom Roulin, the candlesticks are equal in size. One occa
sionally sees the candles themselves graduated in size, or the gradines
themselves graduated, but neither of these methods is, we think, to
be recommended.
Similarly, the writers we have consulted allow candlesticks of
wood, which is the custom in Franciscan churches.2
250.
CREDENCE TABLE
Why is it called “credence” ? And is a small table more correct than a niche
in the wall, or vice versa?
XX. In cornu Epistolae . . . ampullae vitreae
vini et aquae cum pelvicula et manutergio mundo, in fenestella seu
in parva mensa ad haec praeparata.
i. It is called “credence” from the Latin “credere” which, in
addition to the meaning to which we are accustomed, can denote
entrusting, loaning or depositing something—hence the business
word “credit”. The table or niche is a credence because the articles
mentioned in the General Rubrics are deposited there.
ii. Some, with little justification, understand “fenestella” to mean
the small wicker basket in which the cruets and accessories are
carried, as is the custom in Rome and elsewhere.3 Its actual meaning
is a small window or opening in a wall, and “niche” seems about
the best word for it in current use. It has the advantage of being
unobtrusive, and of not disturbing the lines of the sanctuary; and
Rubricae Generales,
1 E.g. Collins, The Church Edifice and its Appointments, p. 119.
2 Collins, op. cit., p. 118 ; Nuntius Aulae, 1936, p. 48; Directions for Altar Societies,
p. 25·
3 Sadlowski, Sacred Furnishings of Churches, p. 116.
340
Priests' Problems
Q. 251
since the rubric gives it precedence it is, in our view, preferable
to a small table.
iii. If a small table is preferred Caeremoniale Episcoporum gives the
following description: “Restat, ut de mensa, seu abaco, quam
credendam vocant pauca subiiciamus. Ea vero in Missis tantum
solemnibus praeparari solet a latere Epistolae in plano Presbyterii,
si loci dispositio patiatur, atque a pariete parumper disiuncta; ita
ut inter illam et parietem stare possint familiares Episcopi . . . Eius
mensura regulariter erit palmorum octo in longitudine, in latitudine
quatuor vel circa, in altitudine quinque, vel modicum ultra;
lineoque mantili mundo super strato, usque ad terram circumcirca
pendenti, contegetur”.1 For pontifical and other solemn functions
the table is a necessity, and it should be in position only for the
functions. It is not correct to leave the small table permanently on
the sanctuary, and still less correct to place another one on the
gospel side solely for the sake of appearances. Some commentators,
however, think that custom justifies leaving a credence table per
manently on the sanctuary, even when only Low Mass is there
celebrated.2
251. “sedilia”
In a church served by one priest the sanctuary has an armchair of suitable
design, obtainedfrom a church furnisher, instead of the bench—“scamnum”
—which is usually of sufficient length to accommodate three sacred ministers,
Since a solemn Mass never takes place in this church, is the armchair per
mitted?
I, xii, 22 : . . . satis erit scamnum oblongum,
coopertum aliqua tapete, aut panno, aptari a latere Epistolae, in
quo sedeat Sacerdos celebrans cum Diacono et Subdiacono.
S.R.C., 17 September, 1822, n. 2621.6: An tolerandus sit abusus,
qui nimium invaluit, adhibendi in Missis solemnibus pro Cele
brante, loco scamni cooperti tapete, Sedem cameralem serico
damasceno ornatam, et pro ministris similia scabella; vel potius
reprobandus atque damnandus? Resp. Negative ad primam partem;
affirmative ad secundam.
Gardellini in D.A., IV, p. 243, commenting on η. 2621 : Caerem
oniale (I, ix, 1) nec formam praescribit, nec ornatum, quae duo
accidentalia sunt et varia esse possunt iuxta diversas Ecclesiarum
consuetudines. Scamni nomen genericum est, et aeque potest
Caerem. Epp.,
1 T, xii, ig. Ephemerides Liturgicae (Ius et Praxis), 1940, p. 110, has a good com
mentary’ on this text.
2 The Clergy Review, 1937, XIII, p. 147.
Q· 252
Churches, Altars, Sacred Furnishings
341
intelligi tam de scabello oblongo, quam de lignea pariter oblonga
sede cum suo postergali ; excludit vero sedes camerales. Qui tamen
sit Caeremonialis sensus, num velit scamnum cum vel sine postergali,
incertum est.
i. The many instructions on the shape of the ministers’ bench are
concerned primarily with that used by the sacred ministers, either
at episcopal functions or at a solemn Mass,1 and do not directly
deal with an article designed for the celebrant alone. The bishop’s
chair or cathedra is the only one of this kind provided for in the
rubrics, and restrictions on the shape, size and adornment of the
seats provided for lesser ministers are made, no doubt, with a view
to preventing anything resembling an episcopal throne. The seating
provided for three ministers must not be three chairs, but a simple
bench, without arm rests ; a low back rest is permissible, and there
is no reason why the article should not be built into the wall of the
epistle side of the sanctuary.
ii. Adapting these rules to the accommodation of one minister in
a small sanctuary, a simple stool suffices, resembling those used at
the episcopal throne for assisting ministers. It may have a back rest
but it seems to us that arm rests are not correct, pace the church
furnishers. Provided, however, it is of modest design and proportions,
and has no resemblance to a domestic armchair, one could regard
the provision of arm rests as only a slight and negligible deviation
from the rule.
252. TABERNACLE “CURTAIN”
It would further the observance of the law requiring a “conopaeum”
covering the whole tabernacle if one could assert the unlawfulness, or at least
the futility, of placing a curtain on the tabernacle door. Can this view be
supported?
The conopaeum is a tent-like veil covering the entire tabernacle,
sides, back and top, as well as the front : a curtain before the door
is not a lawful substitute. This point has been discussed so often
in The Clergy Review2· and elsewhere that it is scarcely possible for any
priest or responsible superior to be unaware of the law, which has
been maintained repeatedly by the Holy See in decidedly rejecting
all suggestions to the contrary.
Like any other positive law grave inconvenience excuses its
observance, for example the shape and structure of the tabernacle
may make it impossible z in which case, it is our view that the law
1 E.g. N.2135.3; 3104.4; 3θ°4·Ι1[·
2 E.g. i934> VIII, p. 407.
12*
342
Priests' Problems
Q, 253
must be observed to whatever extent is feasible, and in many
tabernacles this means that a curtain before the door takes the place
of the liturgical conopaeum. In these circumstances the curtain, it
seems, is obligatory: “When nothing else can be done, it would
seem to be in the spirit of the legislation to hang curtains before
the door of the tabernacle.”1 An added reason for requiring a
curtain may be found in customary law.
One or two observations, however, are applicable to the preceding
paragraph. In the first place, the curtain may be used only when
complete veiling is impossible, or when the tabernacle cannot even
be partially covered : thus a tabernacle which protrudes from the
altar reredos may generally be covered on three sides. Secondly,
the practice of certain church furnishers in selling tabernacles sur
mounted by an elaborate crown and adorned with pinnacles or
suchlike projections should cease. Lastly, if in doubt whether a
curtain is justified, it is for the Ordinary or his delegate to give a
decision : we must admit that the toleration extended to the illegal
curtain encourages, through ignorance maybe, the non-observance
of the law when new tabernacles are erected.
253.
TABERNACLE KEY
A colleague maintains that the rule forbidding the key to be left on the altar
between Masses is not obligatory, unless local law so directs, since it first
appeared in a Roman Instruction which is left to the local Ordinaries to apply.
Is this rule an obligation, even though the local Ordinary has not expressly
ordered its observance ?
Canon 1269, §4: Clavis tabernaculi, in quo sanctissimum Sacra
mentum asservatur, diligentissime custodiri debet, onerata graviter
conscientia sacerdotis qui ecclesiae vel oratorii curam habet.
S.C. Sacram., 26 May, 1938, n. 6, c. ; A.A.S., 1938, XXX, p. 203:
Ut huic diligentissime custodiae canone praescriptae ab ecclesiae
rectore satisfiat, ipsi districte praecipitur ut clavis tabernaculi nun
quam super mensa altaris aut in claustro ostioli relinquatur, ne
tempore quidem quo mane divina officia ad Sacramenti altare et
Sanctissimae Communionis distributio peraguntur, praesertim si
hoc altare haud in conspicuo sit.
10, d. Hae sunt canonicae normae potioresque cautelae, quas
huic S. Congregationi visum est locorum Ordinariis praecipere ut
vicissim paiochis ceterisque SSmi Sacramenti custodibus pressius
1 Long in Irish Ecclesiastical Record, November 1937, p. 546. See also Ephtmtfito
Ltturgtcae, 1928, p. 410.
r
Q. 253
Churches, Altars, Sacred Furnishings
343
commendent execution! tradendas ad quoslibet convellendos abusus,
si qui irrepserint, et, quamvis desint, ad eosdem praecavendos:
aliae, quae pro temporum et locorum adiunctis magis idoneae
videantur ad eundem finem aptius attingendum, eorundem Pas
torum zelo sollertique industriae relinquuntur.
i. The meaning and force of Roman Instructions were discussed
in The Clergy Review, 1941, XXI, p. 357, and a full description in
English of the Instruction given in 1938 on the tabernacle and key
may be seen in the issue of 1938, XV, p. 170. It is true that, in
principle, these instructions are, for the most part, left to local
Ordinaries to implement, and many bishops have done this, either
by ordering the instruction to be observed1 or by expressly directing
that the tabernacle key is not to be left on the altar.2 Occasionally,
however, the wording of an Instruction makes it plain that some
fresh rule is of obligation, even apart from episcopal directions. An
important instance of this is the marriage nihil obstat in the Instruc
tion Sacrosanctum, 29 June, 1941,3 which is enjoined with the word
“praecipit”.
ii. Whilst always loth to discover fresh obligations for the clergy,
it is our opinion that the rule against leaving the tabernacle key on
the altar between Masses or offices is of a similar character, and
must be observed even though the local Ordinary has not enjoined
it.
l or, in the first place, it is really contained within the word
“diligentissime’ in canon 126g. Would a cashier entrusted with the
key of a safe be keeping it with the greatest care if he left it lying
about for any unauthorised person to use ? All the legislation about
the strength and fixity of a tabernacle becomes nugatory unless the
key is most carefully kept, since it is easy for anyone to secure a wax
impression. Sacrilegious robberies are frequent, and are sometimes
due precisely to someone finding the key on the altar, as in the
Italian case at Murcia in 1941.4
Moreover, the Instruction itself introduces this rule with the
word “praecipitur”, and modern writers on the subject record
the obligation, taking for granted that it is now part of the common
law.5
A canonical process of inquiry must take place whenever a
sacrilegious robbery has occurred. Even the most careful precautions
will not infallibly prevent these things happening, but the neglect
1 Lancaster Statutes, 1945, n. 117.
2 Nottingham Statutes, 1946, n. 53; Northampton Statutes, 1947, n. 71.
3 Cf. The Clergy Review, 1941, XXI, p. 198.
* Il Monitore, 1942, p. 194: Ephemerides Liturgicae (his ct Praxis), 1943, p. 8.
6 E.g. Acrtnys-Damcn, Theologia Moralis (1947)1 Π, §172.
344
Priests' Problems
Q. 254
of precautions explicitly required by the law would no doubt
mean at least a severe reprimand for the person responsible. After
being informed of the incident at Murcia, when the Blessed Sacra
ment was stolen and an empty ciborium left, the reply of the Sacred
Congregation did not attach the guilt of formal negligence to anyone,
and was content with describing the practice of leaving the key on
the altar as most imprudent, whilst directing the local Ordinary to
warn the parish priest “gravissimis verbis” that he must carefully
observe the terms of the Instruction in future.
254.
CHALICE CONSECRATED BY USE
May it be held, at least as a probable opinion, that a chalice inadvertently
used at Mass before its consecration, becomes consecrated by contact with the
Precious Blood and therefore needs no further consecration?
S.R.C., 31 August, 1867, n. 3162.7: Reperitur apud Antonelli De
Regimine Ecclesiae Episcopalis, I, cap. 17 haec assertio: Si Sacerdos
bona fide celebraverit cum vestimentis nondum benedictis, poterunt
alii Sacerdotes cum iisdem rite celebrare ; quia per primam cele
brationem bona fide factam, consecrata seu benedicta remanserunt.
Quaeritur an hoc in praxi sequi tuto liceat ? Resp. Negative.
The view which solved affirmatively the above doubt was held
at one time by seventeenth-century casuists in sufficient number to
constitute a probable opinion.1 This view has long been abandoned
and no modern writer can be quoted in its defence. Its rejection is
implied, by analogy, in n. 3162.7, which denies that Mass vestments
may be regarded as blessed after once being used, and therefore
a fortiori neither may a chalice. And even without this direction it
seems evident from intrinsic reasons.2 The Church has provided a
form for the consecration of a chalice, words of blessing together
with an anointing with chrism, and in requiring a celebrant to use
a consecrated chalice the Church refers to the rite of this specific
consecration. If contact with the Body of Christ alone sufficed, we
should have to hold that any object which came into physical
contact with the Sacred Species, for example the pavement after
an accident, was thereby consecrated, or that a church needed no
consecration once Mass had been celebrated therein. There is some
thing, perhaps, in the old and now rejected view that an article
becomes in some sense holy by contact with the Body of Christ ; but
the purpose oi consecrating a chalice with blessing and chrism is to
1 St Alphonsus, Theol. Moralis, VI, §380.
- Ephemerides Lilurgicae, 1929, p. 454.
Churches, Altars, Sacred Furnishings,
Q· 255
345
depute it for use in the sacrifice of the Mass, a deputing which is
by no means discernible unless the formula designed for that
purpose is used.
255.
BLESSING OF VESTMENTS — DELEGATION
OF CURATE
May a parish priest, enjoying from canon 1304 the faculty, delegate one of
his curates to bless vestments for use within the parish, e.g. for the use of a
convent chapel served by the curate ?
Canon 199, §1 : Qui iurisdictionis potestatem habet ordinariam,
potest eam alteri ex toto vel ex parte delegare, nisi aliud expresse
iure caveatur.
§2 : Etiam potestas iurisdictionis ab Apostolica Sede delegata subdelegari potest sive ad actum, sive etiam habitualiter, nisi electa
fuerit industria personae aut subdelegatio prohibita.
Canon 210 : Potestas ordinis, a legitimo Superiore ecclesiastico sive
adnexa officio sive commissa personae, nequit aliis demandari, nisi
id expresse fuerit iure vel induito concessum.
Canon 1304: Benedictionem . . . impertire possunt: ... 3. Par
ochus pro ecclesiis et oratoriis in territorio suae paroeciae positis,
et rectores ecclesiarum pro suis ecclesiis. 4. Sacerdotes a loci Ord
inarii delegati. ... 5. Superiores religiosi, et sacerdotes eiusdem
religionis ab ipsis delegati. . . .
Canon 1147, §2: Benedictio reservata quae a presbytero detur
sine necessaria licentia, illicita est, sed valida, nisi in reservatione
Sedes Apostolica aliud expresserit.
The Roman Ritual places the formula for blessing vestments
amongst those reserved to bishops and others enjoying the faculty.
Before the Code priests holding faculties from English bishops usually
had this one for blessing vestments, but it was withdrawn in most
dioceses after the promulgation of the Code. The question is
restricted merely to the lawfulness of an unqualified priest blessing
vestments, since it is happily clear from canon 1147, §2, that the
act is valid.
i. Some commentators hold that the parish priest may not
delegate his faculties for blessing vestments.1 They think it is rather
the use of the power of orders than of jurisdiction, and that it is
ruled not by the principles of canon 199 but of canon 21 o, which
seems to exclude delegation in this instance. For the power of
delegating is expressly given in nn. 4 and 5 of canon 1304, but no
1 Vcrmcersch-Creuscn, Epitome, II, §633; Periodica, 1927, 29; Cicognani,
Apollinaris, 1928, p. 65, anci Consultationes, p. 165; Coronata, Institutiones, II, §885.
346
Priests' Problems
Q. 255
mention of it is found in n. 3. Some, moreover, will not even
concede the use of canon 209 in this context, since in the first place
it is not a question of jurisdiction, and in the second place the
necessity of using canon 209 is removed by the provision of canon
H47> §2,1
ii. lhere is sufficient authority, however, for holding a more
liberal view which recognises the parish priest’s power either to
delegate, as in canon 199, §1, or to subdelegate, as in §2 of the same
canon. For, notwithstanding canon 210, this power is ultimately
reduced to that of jurisdiction, as Cappello maintains.2
It will be remembered that the Code Commission, 29 October,
1919, denied to parish priests the power of delegating other priests
for confessions within their territory, even though the power in
question is undeniably jurisdiction and is ordinary. It was denied
for much the same reasons as those upon which the commentators
mentioned in (i) rely, and some would anticipate a similar reply
from the Code Commission if the doubt concerning canon 1304,3
ever came up for a decision. In the meantime, in our opinion, the
more liberal opinion may safely be followed.
1 Cf. Bestc, Introductio, p. 224.
2 De Sacramentis, 1945, §89.6. Cf. also in the same sense, l'Ami du Clergé, 1929,
p. 357, and 1947, p. 682; Fanfani, De lure Parochorum, §§41 and 338.1.
XXII. FUNERALS
256.
BURIAL AT SEA
A deceased person has directed his body to be buried at sea. May the
exequial rites be performed beforehand in a church, and may a priest ac
company the body to sea in order to perform the rites normally carried out in a
cemetery ?
Canon 1204: Sepultura ecclesiastica consistit in cadaveris trans
latione ad ecclesiam, exequiis super illud in eadem celebratis, illius
depositione in loco legitime deputato fidelibus defunctis condendis.
i. It is beyond dispute that it is unlawful, in the course of a funeral
rite, to take the body out to sea for burial. All the canons assume that
the lawful place for burial is a blessed or consecrated cemetery, or
in exceptional circumstances a church or crypt.
Up to the point of departure from the church, after the exequial
rite therein has been performed, everything is apparently in order,
and it might be thought that the priest’s assistance could always be
given up to this point at least. But it is clear from canon 1204,
which faithfully records the law and rubrics of the liturgy, that
ecclesiastical burial consists of three things: bringing the body to
the church, exequial rites therein, burial in a lawful place. In our
view, if the priest knows of the proposed unlawful burial at sea, as
he surely must, he may not assist at the earlier part of the rite, since
it is one ceremony and to be performed as the law directs or not
at all.
ii. It is a positive law which, like all such, does not bind in cases
of urgent necessity. “Extraordinariis in adiunctis excusatio ab
obligatione sepeliendi admittitur, velut tempore belli, luis pestiferi :
tunc enim, exigente bono communi, licita esse potest crematio. Item
cadavera eorum qui durante itinere maritimo moriuntur, quaeque
nonnisi cum gravi incommodo ad terram asportari possunt, in
fluctibus immergi licet. At praeter illos casus omnino singulares et
extraordinarios urget obligatio sepeliendi cadavera fidelium.”1
iii. Being a positive law, it can in principle be dispensed, and the
priest may have recourse to the Ordinary. We think, however, that
he would not succeed in getting permission to perform the funeral
rite at sea. He might, for very grave reasons, be allowed to perform
1 Coll. Mechlin., 1937, p. 5°4-
347
348
Priests" Problems
Q. 257
the usual rites up to departure from the church; a grave reason
would be, for example, the danger of the relatives having the
funeral with heretical rites. For the situation is not identical with
cremation which, for special reasons, is expressly prohibited ; burial
at sea is not expressly forbidden, but solely for the reasons given in
(i), and if possible scandal is removed the Ordinary might permit
the previous rites in order to avoid graver evils.
257.
DISSIDENT-ORTHODOX FUNERAL
Christians of dissident Orthodox Eastern rites living in this country often
have no priest of their own rite. May a Catholic priest, at the request of the
relatives, perforin the usual rites of our ritual, exclusive of Requiem Mass?
S. Off., 15 November, 1941 (private), Bouscaren, Digest Supplement,
1948, p. 102 : “It goes against the inclination of a Catholic priest to
leave an Orthodox brother in Christ without any ecclesiastical
burial. On the other hand, to turn a deceased Orthodox person over
to a Protestant minister for ecclesiastical funeral services is contrary
to Catholic sentiment. What should be done in such a case? Resp.
The Roman Ritual, Tit. VII, c. 2, concerning those who are to be
refused burial, is to be observed (c. 1240). But the priest may,
without any sacred vestments or sacred rites, recite prayers privately
at the house where the body is laid out, accompany the funeral for
the sake of civil courtesy, and also recite prayers privately at the
grave in the cemetery, avoiding all occasion of scandal.”
i. Answering a somewhat similar query some years ago in Tht
Clergy Review, we relied on the fact that the law forbidding eccles
iastical burial to non-Catholics is less strict than the law forbidding
them the sacraments, and quoted authorities who permitted the
priest’s assistance provided the Ordinary had given no ruling to the
contrary, and provided the deceased non-Catholic’s adherence to
his sect was not notorious.1 The solution is not applicable to the
above case since a dissident Orthodox Christian is usually
notoriously a non-Catholic.
ii. The reply of the Holy Office is a private one and is recorded by
Bouscaren from II Monitore Ecclesiastico, 1942, p. 114. It was given
to the Apostolic Visitor for the Ukrainians in Germany, and adapts
to the circumstances what some writers permit in other cases when
ecclesiastical burial is forbidden, even supposing the non-Catholic
status of the deceased person to be notorious, for example in the
case of an unbaptised infant.2 The important thing is to prevent
1 77i€ Clergy Review, 1940, XVIII, p. 546; 1941, XX, p. 85.
« The Clergy Review, 1943, XXIII, p. 278.
Q. 258
Funerals
349
scandal being given when performing this office of charity ; therefore
publicity must be avoided, which is easy enough in the house where
the body is lying, but less so at the graveside. We think the direction
of the Holy Office is not disobeyed by reciting suitable prayers aloud
at the graveside, otherwise there is no point in the priest’s attendance.
“Privately” in this context must be given the meaning ‘‘without
previous public announcement”, as in the law about saying Mass
“privately” for a deceased heretic.
258.
FUNERAL RITES BY A DEACON
Having a public cemetery to serve it would be a great relief if I could appoint
a deacon to perform the usual rites at the grave. If this is permitted what
modifications occur in the rite ?
14 August, 1858, n. 3075, 2: Si . . . diaconus ex pari
mandato (Vicarii Apostolici) precans pro Defuncto dicat Vesperas
aut Laudes vel preces cxequiarum in Rituali, debebitne eas can
tare? Debebitne legere Non intres, cantare Libera, et circumiens
feretrum poteritne corpus aspergere aqua benedicta et incensare, ac
benedicere sepulcrum et dicere alias preces, exceptis excipiendis,
iuxta Rituale ; praesertim si faciat has privatim in domibus privatis ?
Resp. Deficiente Presbytero et Vicarii Apostolici concurrente licentia,
Affirmative in omnibus.
Rituale Romanum, VII, iii, 19 : Ritus superius descriptus servandus
est pro defunctis adultis, tam Clericis quam laicis, etiam a Diacono
Exequias peragente de Ordinarii loci vel parochi licentia, gravi de
causa concedenda, quae in casu necessitatis legitime praesumitur.
i. The rubric of the current Ritual itself provides a reply to the
above query, and it is more liberal than that given by the Holy See
in 1858, since the permission of the parish priest now suffices whereas
formerly that of the Ordinary wTas required. The rubric is repeated
in VII, vii, 5, for the funeral of infants. No reference to the permis
sion 011858 can be traced in the Ritual in use before the 1925 edition ;
neither is it contained in the rubrics of our Ordo Administrandi. Com
mentators writing since 1925 who continue to teach that the
Ordinary’s permission is necessary have overlooked the rubric of
the current Ritual with its reference to the parish priest ; WernzVidal, wrongly it seems, restricts the employment of a deacon to the
funerals of infants.1
ii. The rite is exactly as in the Ritual, with all the usual blessings,
the rule of this rubric being thus in line with the one to be followed,
S.R.C.,
1 De Rebus, §584.
350
Priests' Problems
Q.«59
V, ii, io, when a deacon is administering Holy Communion. The
reservation in n. 3075, exceptis excipiendis, must refer to the blessing
of the grave, which is omitted if it is already blessed.
iii. It is for the parish priest to decide on the gravity of the cause,
and in estimating it recourse may be had to the commentators on
canon 845, §2, which in permitting a deacon to distribute Holy
Communion uses the same phrase as the Roman Ritual uses in
permitting a deacon to function at funerals.1 A grave cause seems
to exist in the circumstances of the above question; in doubt,
recourse to the Ordinary is recommended, especially if the em
ployment of a deacon is likely to be habitual.
H
259.
USE OF HOLY WATER IN FUNERAL RITES
What is the significance of the practice, observed repeatedly in the funeral
rite, and continued afterwards by the laity, of sprinkling the body with holy
water ?
Canon 1144: Sacramentalia sunt res aut actiones quibus Ecclesia,
in aliquam Sacramentorum imitationem, uti solet ad obtinendos ex
sua impetratione effectus praesertim spirituales.
i. The significance of lustral sprinkling turns on discovering what
the Church intends by this action, adopted like certain other
popular uses, it would appear, from existing customs in the pagan
world. The intention of the Church, plainly expressed in the formula
of the Roman Ritual, IX, ii, is to cleanse the person or article
sprinkled, and especially to invoke the divine protection against evil
unclean spirits. There is some scriptural authority in the rather
obscure reference, Jude, verse 9 (where St Michael is said to have
contended with the devil about the body of Moses), for applying
the words of the Ritual to the bodies of the deceased. It is
not, however, completely satisfactory, since the lustral action is
often performed over an empty catafalque. Nor does the fact
that indulgences applicable to the dead may be obtained by
the use of holy water in crossing one’s self2 offer an adequate
explanation, since the rite we are discussing is essentially some
thing distinct from crossing one’s self, and on this title it would
be more effective to sprinkle the people attending rather than the
body itself.
ii. We are on firmer ground by associating the sprinkling, even
when performed by lay persons, as a pious action distinct from the
1 Cf. The Clergy Review, 1934, VII, p. 69.
2 Enchiridion Indulgentiarum, n. 678.
Q 259
Funerals
351
rite of interment, with the Absolution1 which usually, though not
necessarily, follows a Requiem Mass together with incensation, even
when the body is not present. The notion of paying honour to the
dead is certainly expressed by incensation and some writers regard
the aspersion equally as a mark of honour. It seems more accurate,
adhering to the words of the Ritual formula of blessing the water,
to keep these two things distinct. We then find that those modem
writers who have examined this point favour, amongst other
reasons, the explanation, found in Durandus, Gavanti and other
ancient commentators, that the sprinkling with water blessed by the
Church signifies that the deceased person has died in communion
with the Church, with all that follows thereby from the doctrine of
the Communion of Saints.2 For the sprinkling accompanies suffrages
for the dead in the rites of interment, which must be refused in
principle to those who die excommunicated ; the act of sprinkling,
without suffrages of any kind except mental prayer, may be separated
from the rest of the rite, and is a simple and expressive way of
associating ourselves with the prayers of the Church for the departed.
In the rite of Absolution itself, the sprinkling of the body present
has also, perhaps predominantly, the notion of resisting the powers
of evil, but it is evident from the accompanying prayers that the
Church regards the body, by a kind of dramatic fiction, as repres
enting the living person at the moment of death. In tliis connexion
the formula in the Ritual, IV, iv, “Ratus absolvendi excommunicatum iam mortuum”, for use when an excommunicated person
has died without absolution from the censure but writh signs of
repentance, is of interest, for it contains no rubric directing a lustral
sprinkling.
iii. As with so many other ancient practices with which we are
all familiar, the sprinkling of the dead, the tomb, and even the empty
catafalque writh holy water, offers no difficulty until we begin to
analyse its precise reason. The editor would welcome any further
light which readers may be able to throw on the subject, explaining
how this action, apart from the Pater Noster or other prayers recited
at the time as suffrages, benefits the departed. Some have hazarded
the view that the prayers recited when holy wrater is blessed with
the formula in the Ritual benefit the departed who are subsequently
sprinkled with this hallowed water, a \riew which is difficult to prove
and which is liable to encourage, if not superstition, die neglect at
least of actual prayers for the dead.
1 Diet. Archéol., I, col. 205. The use of lustral water is more ancient than the
absolution.
. _ . ___ _
._ u . r n t
,
2 Thus De Hordt, Sacrae Liturgiae Praxis, III, §254; Hebert, Le Bréviaire el le
Rituel, §202 ; l’Ami du Clergé, 1933, ΡΡ· 43θ and 749 i *953. Ρ· 4»3·
352
Priests' Problems
Q. 26o
260. FUNERAL PALL
Should, the pall be removedfor the absolution at the conclusion of a Requitm
Mass?
There is no law, so far as we can discover, requiring the use of a
pall to cover the coffin during a Requiem Mass, though many
directions exist about its colour.1 If it is used it should remain, in
our view, during the whole rite, of which the absolution is an
integral part. None of the writers we have consulted directs its
removal, which in some cases would mean an unseemly commotion
and disturbance.
1 The Clergy Review, 1936, XI, p. 5O2,
XXIII. SUNDAYS, FEASTS AND FASTS
261.
OBLIGATION OF ATTENDING EVENING MASS
When permission is obtained for an evening Mass on holy days of obliga
tion are the faithful, who formerly were excused attendance in the morning
owing to their work, bound to attend in the evening, assuming this can be
done without grave inconvenience ?
Canon 69 : Nemo, cogitur uti privilegio in sui dumtaxat favorem
concesso, nisi alio ex capite exsurgat obligatio.
This query raises one of the many doubts which have emerged
since the promulgation of the Constitution Christus Dominus, and
we may expect an official solution in due course. Subject to this,
and to any directions given by local Ordinaries, the following
points offer a solution which is as nearly correct as we can ascertain.
i. The faithful attending the evening Mass satisfy the obligation
even though they could easily attend in the morning. The modem
practice of celebrating in the evening, which began about twenty-five
years ago with induits rarely granted and in exceptional circum
stances, spread considerably during the war, and was continued
after the armistice. Almost imperceptibly what began as an excep
tional concession for certain classes has now become, with the
Ordinary’s consent, indistinguishable from the common law. In the
early days of particular induits the question whether the obligation
was fulfilled by attending an evening Mass was usually answered
affirmatively, as in the directive given by the American military
ordinariate, 30 June, 1942.1 With all the more reason, therefore,
may the same answer be given now when the practice is no longer
dependent on an induit granted to particular groups. Thus a
Catholic in diocese X, whose Ordinary has not sanctioned evening
Mass, may elect to hear evening Mass in the neighbouring diocese
Y, where it is permitted : his obligation is fulfilled even though he
could without any inconvenience attend a morning celebration. The
wide terms of canon 1249 justify this interpretation.2
ii. Granted that the obligation is fulfilled, a further question is
whether the faithful are bound to attend this evening Mass : whether,
for example, the Catholic just mentioned who, let us suppose, cannot
1 Bouscarcn, Digest, II, p. 625.
2 Cf. The Clergy Review, 1941, XXL P· 241.
353
354
Priests' Problems
Q. 261
go in the morning but can without inconvenience hear Mass in the
evening, is bound to do so in order to obey the precept of Mass on
holy days. An answer cannot be given with the same assurance as
the reply to the question in (i), but our view is that there is an
obligation, at least since 16 January, 1953, when the new rules
came into force. They introduce modifications in the common law
of canon 821 on the time of day when Mass may be celebrated, and
in this respect the documents are of a similar character to Spiritus
Sancti, i January, 1947, which authorised parish priests to confirm:
what used to be an exceptional privilege granted to few has become
the common law for all. There can be no doubt whatever that a
Catholic who on a holy day of obligation could hear Mass conven
iently in the morning, and thereby satisfy his obligation, was bound
to do so no matter what the hour and place might be. The same
must be said nowadays when the law has modified the hour, subject
to the Ordinary’s sanction, precisely in order to make it possible
for the faithful to attend.
iii. The same conclusion can be drawn even though we regard
Norma VI of Christus Dominus as a privilege, wider indeed than any
previous induit granted to individual groups, but still something
short of a common law right, since it is for local Ordinaries to
permit or not permit the practice. The commentators differ in
explaining the incidence of obligation in using a privilege, but there
is considerable agreement amongst them that if a privilege is of the
character which removes an obstacle to the observance of a certain
law one is bound to use it.1
iv. There is room, nevertheless, at the time of writing, for the
view which, whilst admitting that the obligation is satisfied as ex
plained in (i), declines to accept the solution given in (ii) because
the practice is held to be a privilege, and declines also to accept the
more probable interpretation given in (iii) because, granted it is a
privilege, it is unreasonable to impose on privileged persons an
obligation from which the unprivileged are immune.2 A respectable
case can be made out for the Catholic who declares himself un
willing to use the privilege of hearing Mass in the evening, unless
and until the legislator unequivocally makes this an obligation.
Indeed, the terms of the earlier induits required persons other than
those mentioned to refrain from assisting at evening Mass.3
1 Van Hove, De Privilegiis, §212; Bouquillon, Theologia Moralis Fundamentalis,
§«43; Rodrigo, De Legibus, §897.3.
···■.-.=■■· ~
2 Regula 61 in Vio; Génicot-Salsmans-Gortebecke, Theol. Moralis, I, §§109,
344, and commentators on canon 69.
3 American Ecclesiastical Review, May 1950, pp. 337, 342; Collationes Brugensu
«947. P· «43-
Q, 262
Sundays, Feasts and Fasts
355
v. Our conclusion must be, pending an official solution, that the
faithful should be urged as strongly as possible to observe the precept
by attending evening Mass, but that the clergy should not pronounce
this to be a strict obligation except only in individual cases where,
as provided in the latter part of the canon, attendance is required
for the avoidance of scandal.
[Editorial Note.—At the time of writing, there has been no
official answer to the question, but opinion among commentators
has hardened to practical unanimity in favour of the opinion that
the obligation remains and must be fulfilled at a reasonably avail
able evening Mass, if it has not been fulfilled earlier. We know of
only one writer (Fr Reed, S.J.) who admits the appeal to privilege,
and he limits it to the case in which the evening Mass has been
authorised, not precisely to enable fulfilment of the precept, but
expressly to solemnise an extraordinary event.1]
262.
MASS PRECEPT AND SEMI-PUBLIC ORATORY
What is the remedyfor a parish priest who finds that prominent parishioners
art hearing Mass on Sundays and holy days in a semi-public oratory of
religions ? Scandal is caused by this practice since the other parishioners
imagine that the prominent ones are absent from Mass,
Canon 1249 : Legi de audiendo Sacro satisfacit qui Missae adest
quocunque catholico ritu celebretur, sub dio aut in quacunque
ecclesia vel oratorio publico aut semi-publico et in privatis coemet
eriorum aediculis de quibus in can. 1190, non vero in aliis oratoriis
privatis, nisi hoc privilegium a Sede Apostolica concessum fuerit.
Canon 467, §2 : Monendi sunt fideles ut frequenter, ubi commode
id fieri possit, ad suas paroeciales ecclesias accedant ibique divinis
officiis intersint et verbum Dei audiant.
i. The law which required attendance at a parish church for the
observance of the precept disappeared long ago, and the modern
tendency is to reduce to a minimum the “place” qualification.
Some degree of publicity is still required, precisely for the purpose
of avoiding scandal, but attendance at a place other than the parish
church, if we except a private oratory, always satisfies the precept
of hearing Mass, though possibly it may be unlawful for more than
one reason.
ii. If scandal cannot be removed by informing the faithful that
prominent parishioners hear Mass elsewhere, and that it is very
wrong to suspect them of missing Mass on Sundays and holy days
1 The Clergy Review, 1955, XL, p. 614.
356
Priests' Problems
Q,· 263
solely because of their absence from the parish church, the absentees
should be urged to obey the law of canon 467, §2. Or the owners of
the semi-public oratory may be urged by the parish priest not to
admit parishioners on Sundays and holy days ; but the words of the
canon “ ubi commode id fieri possit” justify absence from the parish
church, and if the semi-public oratory is closed to them the faithful
who find the parish church inconvenient cannot be forbidden to go
elsewhere.1
iii. As in any other disputed questions, the parish priest may
seek a remedy for his grievance from the local Ordinary. It is certain
from the canon 1249 ^at the Ordinary cannot declare that the
faithful attending Mass in a semi-public oratory do not fulfil the
precept. He can, however, be asked to direct the religious to close
their oratory to visitors on Sundays and holy days. “Liquet non
posse Ordinarium impedire quominus fideles in sacellis semi-publicis
satisfaciant praecepto ecclesiastico : quamquam interdum iusta de
causa prohibere potest ne diebus dominicis vel festis in eadem
admittantur . . .2
II
263.
SUNDAY MASS IN DOMESTIC CHAPEL
The owners of a large house, with a private oratory, are willing to allow
Catholics from the village to attend for Sunday Mass. It appears, however,
that they would not fulfil their obligation. Apart from an induit, is then any
remedy ?
Canon 1188, §2: (Oratorium est) Semi-publicum, si in commodum
alicuius communitatis vel coetus fideliu: II eo convenientium erectum
sit, neque liberum cuique sit illud adire.
Canon 1192, §1: Oratoria semi-publica erigi nequeunt sine
Ordinarii licentia.
S.R.C., 23 January, 1899, n. 4007. . . . Oratoria semi-publica ea
esse, quae etsi in loco quodammodo privato, vel non absolute
publico, auctoritate Ordinarii erecta sunt; commodo tamen non
fidelium omnium nec privatae tantum personae aut familiae, sed
alicuius communitatis vel personarum coetus inserviunt. . . . Huius
generis oratoria sunt . . . oratoria, in quibus ex instituto aliquis
Christifidelium coetus convenire solet ad audiendam Missam.
3 August, 1901; A.S.S., XXIV, p. 427; Many, De Locis Sacris,
p. 185. Particulam decreti . . . n. 4007 . . . similia oratoria in quibus
ex instituto aliquis Christifidelium coetus convenire solet ad audiendam missam,
1 The Clergy Review, 1945, XXV, p. 88.
a Gènicot, Theol. Moralis, II, §342.
357
intelligi posse de quibuscunque fidelibus qui, assentiente domino
loci et Ordinarii auctoritate interveniente, accedant ad praedicta
oratoria pro audienda missa etiam in adimplementum praecepti
festivi.
The remedy is to approach the local Ordinary requesting the
private chapel, with the consent of the occupier, to be erected into a
semi-public oratory for the benefit of the Catholics of the village.
The people of the household, being included, will continue to
satisfy their obligation by virtue of the Ordinary’s act, instead of by
virtue of their induit. The only serious disadvantage for the owner
is, perhaps, the rule of canon 1192, §3, which assures a certain
permanence to an oratory thus erected which a private oratory does
not possess. There may be various reasons why the Ordinary will
not concede the request, or why the owners will not agree to the
change. The Ordinary may then be requested to permit Mass in the
private oratory, beyond the terms of its induit, as provided for in
canon 1194, “per modum actus”; it is the opinion of Bouscaren,1
notwithstanding some arguments to the contrary, that the Mass
precept is fulfilled by all of those present.
The best remedy is obviously to try to secure the erection of the
oratory into a semi-public one, whereupon all present will satisfy
the obligation automatically from canon 1249. The “coetus
fidelium” of canon 1188, §2, is the Catholic population of the village,
and though any person may fulfil the obligation by being present,
the owners have the right to exclude any persons not coming within
the “coetus fidelium” for whom the oratory has been erected by
the Ordinary.
This interpretation, it will be found, is given by many of the
commentators on canon 1188, and especially by those who advert
to the decision of S.R.C., 3 August, 1901. This is neither in Decreta
Authentica nor in Fontes, and is given occasionally under the date
18 October, 1901.2 It is certainly authentic and can be used for
the interpretation of canon 1188. Thus Beste: “Hinc coloni et
agricolae, qui ob defectum vel distantiam ecclesiae paroecialis, ap
probante ordinario loci, in privatum domum vel locum ad audien
dam missam conveniunt, constituunt coetum fidelium.”3
[Editorial Note.—Further to the general question involved
above, attention should be paid to the following reply of the Code
Commission, 26 March, 1952: “An, non obstante praescripto can.
Q· 2θ3
Sundays, Feasts and Fasts
1 Periodica, 1939, p. 5θ· .
TT c Q
2 Vcrmeersch-Creusen, Epitome, II, S49y> 2·
3 Introductio, p. 585. Cf. also Buckley, The Celebration of Mass in “Extraordinary”
Places, p. 12 ; Jus Pontificium, 1939» Ρ· 33 i Coronata, Institutiones, II, §762.
358
Priests' Problems
Q. 264
1249, legi de audiendo sacro satisfaciat qui Missae adstiterit in loco
de quo in can. 822, §4? Resp. Affirmative” (A.S.S., 1952, XLIV,
P· 497)·]
264.
SERVILE WORK ON HOLY DAYS
i. Can we hold that there is an established custom allowing servile work in
England on holy days of obligation ?
ii. If not, must a priest, employing a Catholic firm to do church work
{repairs and decoration), make the men take a holiday on these days and pay
the salaries? If a non-Catholic firm is engaged, may a priest let the men cany
on as not being subject to the law ?
Hi. If more than two hours' work is a mortal sin, may we tell people that
this is not so in cases where they would lose their employment ?
Canon 5: Vigentes in praesens contra horum statuta canonum
consuetudines sive universales sive particulares, si quidem ipsis
canonibus expresse reprobentur, tanquam iuris corruptelae corrigan
tur, licet sint immemorabiles, neve sinantur in posterum reviviscere;
aliae, quae quidem centenariae sint et immemorabiles, tolerari
poterunt, si Ordinarii pro locorum ac personarum adiunctis exist
iment eas prudenter submoveri non posse; ceterae suppressae
habeantur, nisi expresse Codex aliud caveat.
Canon 1248: Festis de praecepto diebus Missa audienda est; et
abstinendum ab operibus servilibus, actibus forensibus, itemque,
nisi aliud ferant legitimae consuetudines aut peculiaria indulta,
publico mercatu, nundinis, aliisque publicis emptionibus et vendi
tionibus.
Of these three queries the third is the simplest to answer. It is
certain that the fear of serious loss entitles a worker to disregard the
positive law, which is the reason why every Catholic worker so
placed (and few are not) automatically and almost unthinkingly
works as usual on a holiday of obligation.
i. The first question, upon which the second depends, is not so
easy. Assuming that Catholics engaged in servile work in this
country must either disregard the law or suffer serious loss, the
simplest reply would be that this disregard is necessary and universal
and that a lawful custom contra legem has existed from time im
memorial. It is open to anyone to accept this view, which has at
least the merit of simplicity.
We think, however, that the assumption is not always verified,
and would much prefer to explain the practically universal dis
regard of the law on the ground that in practically every instance a
Q. 264
Sundays, Feasts and Fasts
359
serious loss is involved ; a view which leaves the law in existence,
instead of extinguishing it altogether. The assumption is not
verified in numbers of instances where employer and all the em
ployed are Catholics, and where the law can be observed without
any injury at all, for example in a Catholic institution employing
Catholic gardeners. We think that if no serious loss is feared the law
must be observed, though there is ample room for leaving people,
whether employers or employed, in good faith about their obliga
tions.
ii. In the case of a firm, whether Catholic or non-Catholic, under
a contract with the priest to repair his church, there is no great
difficulty: it is scarcely feasible, we suppose, for the contract to
include a clause providing for no work to be done on certain days ;
it is the contracting firm which is the employer of the workmen, and
the priest cannot be held responsible for any breach of the law.
The only remaining problem is that of the Catholic directors of a
firm employing servile workers. They should observe the law if it
can be done without grave loss resulting; but they will probably
maintain that this is never possible, either owing to the conditions
of labour, or because not all their workmen are Catholics, or
because otherwise non-Catholic firms will secure an advantage at
the expense of Catholic firms. Many may think that the net result
of all this casuistry is equivalent to maintaining the existence of a
lawful custom contra legem, a view which may be held until lawful
authority abolishes the custom.
iii. Our questioner observes that the manuals of moral theologians
he has consulted do not give him much help. This is true of his first
and second queries. There is a considerable periodical literature
exploring the nature of servile work and attempting a new definition,
but we cannot find among the writers any discussion of the respec
tive merits of the casuistical solution as compared with the simpler
outlook that, in England at least, a lawful custom contra legem exists
permitting everyone to do servile work on holidays of obligation. It
is for the episcopate of a country, in our view, to give a recognition
of this kind if they think it opportune and desirable, in rather the
same way as the Belgian episcopate in 1937 declared in favour of
the relative estimate of the amount permitted at the subsidiary
repasts on fasting days. There are arguments for and against solving
the problem of servile work on holidays in this way : on the one hand,
it would simplify the situation, but on the other hand it would
absolve people from even attempting to keep the law : those who
did so would be imposing restrictions on themselves which are not
of obligation, exactly as during the war many Catholics continued
360
Priests' Problems
Q· 265
to abstain from meat on Fridays. The casuistical solution is that of
the moral theologian, the recognition of an immemorial custom that
of the canonist interpreting canon 5.
265.
REPEATED VIOLATIONS OF FAST AND ABSTINENCE
What is the reason for the common teaching that a person breaks the law of
abstinence as often as he eats meat on one day, whereas if one has broken the
fasting law on one day subsequent meals are not additional sins ?
Canon 1250: Abstinentiae lex vetat carne iureque ex carne
vesci. . . .
Canon 1251 : Lex ieiunii praescribit ut nonnisi unica per diem
comestio fiat. . . .
The explanation is sometimes given in terms of the ancient
axiom “lex affirmativa obligat semper sed non pro semper; lex
negativa vero semper et pro semper”: the law of abstinence is
negative whereas the law of fasting is positive, and the manner in
which the law is expressed in the canons (vetat, praescribit) gives
some support, perhaps, to this view. The explanation does not quite
meet the difficulty, since the fasting law could also be expressed as
a negative precept forbidding one to eat more than one full meal. A
better solution is that the abstinence law is divisible in the sense that
on an abstinence day it is possible to eat meat several times on
distinct and separate occasions ; but once having violated the law
which permits only one full meal by taking two full meals, it is
impossible to observe the law of fasting on that day. This is the usual
explanation given by the modern manualists,1 for the essence of
fasting consists in taking only one full meal.
Even so, one might argue, on analogy with some other laws or
possible laws, that the fasting law forbids a third or more full meals:
one may celebrate Mass only once a day, and having broken the
law by celebrating twice, a third celebration is nevertheless for
bidden; a parent forbids a child to break her doll, and having
broken it she is evidently forbidden to smash it up still more. These
and similar arguments are discussed by Waffelaert,2 the only
modem author known to us who enters fully into the whole question.
The answer to them all is that the Church could, indeed, have
forbidden on fasting days meals subsequent to the one which breaks
the law, but on the one hand no one has yet demonstrated with
certainty that this is what the Church forbids, and on the other
1 Noldin, Theol. Moralis, II, §§676, 680; Iorio, II, §292.3, 299.6.
8 De Tempaantia, §63.
Q. 266
Sundays, Feasts and Fasts
361
hand the common interpretation favours the milder view given in
the previous paragraph.
All the arguments for the stricter view are recorded by Billuart,1
who thinks it has greater probability, but he is not followed by the
modern Dominican theologians such as Priimmer2 or Merkelbach.3
The notion of one full meal being the essence of fasting is im
portant in some other interpretations of this law favoured in
creasingly by the modern writers.4 In our present discussion this
notion is vital, and if one desires the inner reason for the milder view
which now prevails, probably Cajetan is its best exponent: “Quia
non cadit sub praecepto Ecclesiae non multiplicare comestionem
absolute, sed ut requiritur ad ieiunium. Ex quo autem negatio
comestionis non potest amplius pro illo die esse conditio ieiunii,
quia iam ieiunium solutum est, sequitur quod non cadit sub prae
cepto ieiunii. Non fit ergo exceptio in materia hac a regula praecepti
negativi, sed declaratur sub qua ratione huiusmodi negatio cadit
sub praecepto, scilicet ut est conditio ieiunii. Et quia prima solutio
ieiunii facit hanc conditionem non posse pro illo die induere condi
tionem ieiunii, ideo non cadit amplius sub praecepto ieiunii. Non
sic autem esse patet de negatione esus carnium, et prohibitorum,
quia absolute, et non solum ut conditio ieiunii cadit sub praecepto
illius temporis.”5
266. CHRISTMAS EVE FAST
Does not the resolution S.C. Cone., 18 November, 1937,
appear to reject
the contention that a greater quantity of nourishment may be taken at the
subsidiary repasts on Christmas Eve?
13-18 November, 1937; A.S.S., 1938, XXX, p. 160:
... Ordinarii huic S.C. exposuerunt haud parvas adesse difficultates
in observanda lege abstinentiae et ieiunii in pervigilio Nativitatis
Domini, sive ob inductam praxim celebrandi proximam festivitatem
inde a pervigilio etiam epulis, qualitate ct quantitate, vetitis a lege,
sive ob curas et labores. . . . Quapropter iidem Ordinarii petierunt
ut obligatio haec cessaret a meridie pervigilii, ut statutum est pro
Sabbato Sancto in canone 1252, §2. . . .
ANIMADVERSIONES : . . . Rationes vero, quae pro dispensa
tione afferuntur, non videntur solido niti fundamento. Et praxis in
contrarium inducta potius abusus dicenda. . . .
S.C. Cone.,
x De Temperantia, II, v. 2; Lctouzcy, ed. V, p. 166.
2 Theol. Moralis, II, §660.2.
3 Theol. Moralis, II, §97^.
4 The Clergy Review, 1933, V, p. 129.
6 Comment, in II—II, 147, 8; Editio Leonina, X, p. 166.
362
Priests' Problems
Q. 267
RESOLU 1 ΙΟ: Λ11 ct quomodo expediat concedere dispensa
tionem a lege abstinentiae et ieiunii in pervigilio Nativitatis Domini?
Resp. Negative, seu non expedire, et ad mentem. Mens autem est
ut Ordinarii satagant opportunis instructionibus fideles inducere ad
ius commune servandum.
The resolution of 13-18 November, 1937 could be taken, perhaps,
as levelled against the notion of ieiunium gaudiosum, since the anim
adversions are patient of this meaning. But we can trace no com
mentator who draws this conclusion ; the petition was not about this
practice but about dispensing or abolishing the fast altogether from
midday on Christmas Eve, thus permitting not merely 16 oz. at the
evening collation but as much as one pleased ; the resolution itself
is not concerned with it either, but simply affirms that the dispensa
tion requested is not granted ; and, finally, the writers we are ac
customed to use continue, after the date of this resolution, to permit
a double quantity at the evening collation on Christmas Eve, at
least in those places where it is customary, e.g. : Davis, Moral and
Pastoral Theology (ed. 1949), II, p. 431; Ferreres, Theologia Moralis
(ed. 1950), I, §603.
267.
WOMEN AGED FIFTY AND FASTING LAW
May one still follow the teaching which was common before the Code that
women, from the beginning of their fiftieth year, are not bound to observe the
fasting law?
Canon 1254, §2: Lege ieiunii adstringuntur omnes ab expleto
vicesimo primo aetatis anno ad inceptum sexagesimum.
Code Commission, private reply of Cardinal Gasparri, 13 January,
1918; Il Monitore, 1929, p. 158: An verbum “omnes” can. 1254, §2,
quoad legem ecclesiasticam ieiunii, applicetur eodem modo etiam
mulieribus, prout applicatur viris. Resp. Affirmative.
i. Canon 1254, §2, is one example of very many in which the
legislator expresses as a law what used to be the teaching of moralists
and casuists. Wom-cn of fifty were excused because it was thought,
generously and ga llantly, that their physical strength at that age
was in the generality of cases less vigorous than that of men. Since
the Code, at any rate, a man of sixty, who may perhaps be at the
peak of his healt-h and strength, is not bound by the law of fasting. If
women of fifty are to be excepted it will be for the same reason that
manual labourers, travellers, and other classes are reckoned to be
excused from its observance, and not because the written law does
not include t’hem. It could happen that a woman of thirty is excused
363
because of weak health; the question proposed is whether all
women of fifty are, for the reason of age alone, to be excused.
ii. Moral theologians are still to be found, sufficiently numerous
to constitute externally a probable opinion, who answer affirma
tively,1 and some go fully into all the physiological reasons justifying
their view.2 They disregard the reply of 13 January, 1918 because
it was never properly promulgated, and because about ten years
elapsed before its existence, even as a private reply, became known.
Previous schemata of this canon expressly put fifty as the age for
women,3 but it was finally decided to leave the question open. The
legislator was aware of the opinion which exempted women of fifty :
if it was his will that they should be exempted no longer, the canon
would have read “adstringuntur omnes, etiam feminae”, in rather
the same way as canon 2350, §1, reads “matre non excepta”.
iii. Others think that women are bound by the law until sixty,
and if excused it will not be because of their age alone but for
reasons of physical debility which may apply equally to persons of
both sexes at any age between twenty-one and sixty.4 It may be
doubted, in these days of sex equality, whether women themselves
would desire or welcome concessions based on their presumed
fragility as compared with men of the same age, and Prümmer
neatly turns the argument against them: “Experientia constat
mulieres facilius posse sustinere ieiunium quam viros.”5
iv. Our own view is that the method of exempting whole classes
of the population from the fasting laws is the wrong approach to
the question, and is born of the extreme rigidity of theologians in
deciding the amount of the subsidiary repasts on fasting days in
terms of so many ounces as a flat rule for all. The more reasonable
approach estimates the amount on a basis relative to the needs of
individuals, a solution which is finding favour with the writers and
which has been sanctioned by local legislation in some places.® If
this view is correct, women are bound by the law up to the age of
sixty; and at the age of fifty, as at all times between ages of twentyone and sixty, each one will decide, on a basis relative to personal
needs, the amount to be taken at the subsidiary repasts in order that
the law may be observed wdthout grave inconvenience.
Q. 267
Sundaysy Feasts and Fasts
1 E.g. Ferreres, Theol. Moralis, I, §609, and Casus, I, §99.
2 Rcgatillo, Institutiones, II, §90.
3 Rcgatillo, loc. cit.
< Collationes Brugenses, 1931, p. 54; Davis, Pastoral and Moral Theology, II, p. 432.
6 Theol. Moralis, II, §665.
.
8 Theological Studies, 1946, p. 464; The Jurist, 1952, p. 44.
XXIV. DIVINE WORSHIP
268. PUBLIC PRAYERS AND DEVOTIONS
Is the express authorisation of the local Ordinary required for prayers and
devotions publicly recited in churches, even though they may have been
authorised for public use by some Ordinary elsewhere ?
Canon 1259, §1 : Orationes et pietatis exercitia ne permittantur
in ecclesiis vel oratoriis sine revisione et expressa Ordinarii loci
licentia, qui in casibus difficilioribus rem totam Sedi Apostolicae
subiiciat.
Canon 1399.5. Ipso ^ure prohibentur . . . libri . . . qui novas
inducunt devotiones, etiam sub praetextu quod sint privatae, si
editi fuerint non servatis canonum praescriptionibus.
i. A comparison between these two canons shows that the ordinary'
censorship which suffices for private devotional exercises1 is not
enough to justify their use in public churches and oratories; express
permission for their public use must first be obtained. This rule is
fully observed in the case of collections of prayers authorised by the
united hierarchy of a country, such as our Manual of Prayers or the
Manual of the Confraternity of Christian Doctrine. An Ordinary, more
over, is within his right in requiring the express and personal per
mission of the local Ordinary, that is of himself, for all forms of
prayer publicly recited within his diocesan jurisdiction, even though
they have been approved for public recitation elsewhere by other
local Ordinaries. This is a strict interpretation of canon 1259, §1.
ii. A more liberal interpretation is usually given by the com
mentators, excluding firstly from the rule those forms which have
been in use for a long time, and it will be found that the sources
of the canon itself refer to new devotions and exercises.2 Secondly,
some writers hold that the approbation of any local Ordinary'
suffices.3 Neither of these liberal interpretations is completely
certain, and it is open to any Ordinary in our view to reject them
as stated at the conclusion of (i). The most recent commentator we
have consulted agrees that forms permitted publicly in other
1 This censorship is nevertheless to be strictly employed against new forms of
devotion. 5. Off., 17 April, 1942; The Clergy Review, 1942, XXII, p. 475.
2 Coronata, Institutiones, II, §834, c. ; Brys, Compendium, II, §782, II ; VermecrschCrcuscn, Epitome, II, §579.
3 Beste, Introductio, p. 628.
364
Divine Worship
Q. 269
365
dioceses may be used elsewhere so long as the local Ordinary does
not prohibit them,1 and we think this a useful and reasonable
practice for the clergy to follow. But it must be noted that it is
never permitted to use publicly any new form of prayer or devotion
unless it has been authorised by an Ordinary expressly for public use.
269.
PARTIALLY APPROVED LITANIES
Notwithstanding the law which permits only certain Litanies to be recited
in public, it is a common practice publicly to recite those approved for con
fraternities or for religious Institutes. Is this in order?
Canon 1259, §2 : Loci Ordinarius nequit novas litanias approbare
publice recitandas. Cf. S. Off., 18 April, i860; Fontes, n. 958.
S.R.C., 29 August, 1882, n. 3555.2: Monitum de quo agitur
(16 June, 1880—not in D.A.) respicere Litanias in liturgicis et
publicis functionibus recitandas; posse vero, immo teneri Ordin
arios alias seu novas Litanias examinare, et quatenus expedire
iudicaverint, approbare ; at nonnisi pro privata atque non liturgica
recitatione.
6 March, 1894, n. 3820.2: Num invocationes ad normam
Litaniarum, in honorem Sacrae Familiae, Mariae Perdolentis, S
loseph aliorumque Sanctorum, in Ecclesiis vel Oratoriis publicis
recitari possint ? Resp. Negative.
20 June, 1896, n. 3916: Num prohibitio recitandi aut cantandi
in Ecclesiis . . . complectatur etiam quamlibet earum recitationem,
a pluribus coniunctim in Ecclesiis vel Oratoriis publicis, absque
ministri Ecclesiae qua talis interventu factam? Resp. Affirmative.
n Februarii, 1898, n. 3981.1 : Num eiusmodi peculiares Litaniae
ita strictim prohibeantur, ut Monialibus . . . non liceat illas privatim canere vel recitare ad instar precum oralium ? Resp. Negative ;
h.e. ita strictim non sunt prohibitae, ut singulis privatim eas non
liceat cantare vel recitare.
i. The restriction on Litanies in canon 1259, §2, limits the power
of local Ordinaries in authorising public devotions, a point discussed
in the previous answer. The Litanies approved by the Holy See
unreservedly are those in the Breviary, Missal and Ritual: the
Litany of the Saints in various forms, the one in Ordo Commendationis
Animae, and the four given in lit. XI of the Ritual. All other
Litanies, approved either by the Holy See or by local Ordinaries,
are not for public recitation.
The distinction between public and private, which is a well-known
1 Did. Droit Canon., IV, col. 864.
»3+
366
Priests' Problems
Q 2gg
obscurity both in liturgy (c.g. missa privata) and in canon law (e.g,
impedimentum publicum), gave rise to many replies from the
Sacred Congregation, of which a selection is given above ; they arc
all strict except the answer to the first query of n. 3981, in which the
word “privatim” cannot mean “alone and secretly”, for no one
would sing a litany alone, and it is of the nature of a litany to have
responses such as “pray for us”. “Public” in this connexion, there
fore, means liturgical worship wherever carried out, and also nonliturgical worship or devotions held in a church or public oratory.
ii. There are confraternity manuals, authorised by local Ordin
aries, containing Litanies which may not be recited publicly in the
sense determined above; the rules sometimes direct the recitation
of a litany of this kind at the weekly meeting, and the meeting is
normally in a public oratory or church : hence the difficulty put by
our correspondent, which would not exist, in our view, if the
meeting took place in a house or in an oratory to which the public
have no right of access.1
We cannot find this point fully discussed by the commentators,
many of whom appear to give, as a matter of course, a strict solution
which disallows a common recital of these litanies at any time and
in any circumstances in a public church or oratory.2 This is the
safest course to follow: rectors of churches may adopt it and
substitute a fully authorised Litany in place of the one directed in
the manual.
A more liberal solution might be offered, perhaps, by arguing
that the meeting, though held in a church, is technically for the
members of the confraternity alone and not for the general public;
that the confraternity has to use the church in default of an oratory'
of its own ; or that there is a custom contra legem in these circum
stances. One must also allow, in instances where a confraternity
manual is authorised by local Ordinaries, that an induit may have
been obtained.
iii. It may reasonably be asked why Ordinaries may in the com
mon law authorise any kind of public prayers and devotions3
except litanies. The reason is, no doubt, that the litany form of
public worship is something specifically liturgical in origin, and
devotional imitations of this liturgical form are liable, in the public
estimation, to be regarded as liturgical worship, which it has long
been the exclusive province of the Holy See to regulate.4
1 Cf. Vcrmcersch-Creusen, Epitome, II, §660.
2 Gougnard, De Indulgentiis, p. 307, n. 3 ; Bn’s. Juris Canonici Compendium, II,
p. iî6.
3 Canon 1259, §!.
< Canon 1257.
Divine Worship
QQ. 270,271
367
27Ο. CHAIN PRAYERS
Prayers sent with a request that copies should be forwarded to a specified
number of other persons, with the same request, are objectionable from many
points of view. But is there any express prohibition of the practice ?
We cannot trace any express prohibition cither in the common or
local law. In principle the practice is forbidden if it can be brought
within the term “vana observantia”, since it would then be a form
of superstition, which is certainly verified when the communication
contains a promise of some benefit if the request is complied with,
or the threat of some evil if the request is refused : the practice is
then superstitious because the means suggested for obtaining benefits
or avoiding evils have no reasonable justification.1 But a simple
request, without promises or threats, is not patently a superstition.
It is usually something new in devotional practices and because of
its novelty could properly be brought within the prohibition of the
Holy Office, 26 May, 1937, and 17 April, 1942.2 There is, moreover,
always some danger that the uninstructed faithful may be moved to
comply by superstitious motives, even though the request is un
accompanied by promises or threats, and the clergy will rightly
protect them from the danger by discountenancing these chain
prayers.
Unless some devotional practice can be brought within the above
criteria of novelty, vain observance, or the danger thereof, one has
to be rather careful before condemning it outright, since the Church
is accustomed to permit a wide liberty to the pious faithful in
following their bent. Thus, as recently as 3 August, 1903, the Holy
Office gave the following reply : “. . . num pro licito habendum esset
parvas imagines chartaceas B.M.V. in aqua liquefactas vel ad
modum pillulac involutas, ad sanitatem impetrandam, deglutire?
Re ad examen vocata. . . . Sacra haec Suprema Congregatio S.
Officii . . . respondendum decrevit : Dummodo vana omnis ob
servantia, et periculum in ipsam incidendi removeatur, licere.”8
271.
“five wounds’’ rosary
Many of the faithful have in their possession leaflets containing a rosary
devotion prohibited by the Holy Oflice in 1939· Must they be told to destroy
them? If so, could we have the reason for the prohibition, since the prayers
1 Cf. moral theologians s.v. vana observantia, c.g. Iorio, II, §15.
2 The Clergy Review, 1937, XIII> P· 3 <5 J r942> XXII> P· 475·
3 Fontes, n. 1269.
368
Priests' Problems
Q. 271
contained therein seem quite orthodox and resemble others which art en
couraged?
S. Off., 12 December, 1939: An devotionis forma vulgo.,.,
Rosario delle Santissime Piaghe di Nostro Signor Gesù Cristo inter fideles
fovere liceat? Resp. Emi et Revmi Patres DD. Cardinales . . . etiam
prae oculis habito Decreto diei 26 Maii, 1937, “De novis cultus
seu devotionis formis non introducendis deque inolitis in re abusibus
tollendis” respondendum decrevit: non licere.
Idem n.d. Apollinaris, 1940, p. 94, private: Vi decreti 1939 nihil
damnatur quod in usu antiquo erat de cultu Sacris Vulneribus:
sed ea tantum huius devotionis forma directe impetitur quae auspiciis
M. Marthae Chambon vulgata est: . . . Quod vero attinet ad
devotionem sub nomine Sororis Chambon vulgatam, ea non
damnatur ut in se illicita, sed ex adiunctis iudicata est, praesertim
quoad formam, non expedire ideoque non est fovenda.
i. That devotion to the Five Wounds as such is not touched by
the above decree is quite certain. It is a mediaeval devotion much
beloved by our forefathers in this country, as may be observed in
the device used by the Pilgrimage of Grace and by Blessed Margaret
Pole. There is a Mass and Feast under this title for the Friday of the
third week in Lent “pro aliquibus locis”; also, popular devotions
in Enchiridion Indulgentiarum, nn. 198-203, indulgenced for all the
faithful; and the Passionist Rosary of the Five Wounds is explained
in Beringer, Les Indulgences, n. 879. The devotion is contained within
prayers in constant use such as the Anima Christi and En Ego.
ii. The form of this devotion affected by the decree is the one
connected with the revelations and visions of M. Martha Chambon,
a religious of the Visitation Order who died in 1907. It is also
known as “The Chaplet of Mercy”. The prayers are devotionally
orthodox and do not come within the prohibition of canon 1399, §5;
they were approved and indulgenced by many local Ordinaries.
The new devotions forbidden by the decree of 26 May, 1937,1 were
described as either “ridiculous” or “useless repetitions” of those
already existing. The prayers at least of the “ Chaplet of Mercy”
are not ridiculous, but they do offend against the familiar eccles
iastical rule operating in many directions “ne bis de eodem”. This
alone, however, would hardly seem to be an adequate reason for
the decree, and we should see, indeed, innumerable devotions and
indulgenced prayers lying in ruins if the rule were rigidly applied.
What the decree directly and expressly forbids is fostering (fovere)
this devotion, namely by practising it in public or by printing and
1 The Clergy Review, 1937, XIII, p, 315.
Divine Worship
Q.272
369
circulating leaflets which contain it. It might be advisable for the
existing leaflets to be destroyed, and for persons to cease repeating
the prayers even in private : but the decree does not expressly enjoin
this to be done. The two short prayers constituting the devotion are :
“MyJesus, pardon and mercy by the merits of Thy holy wounds”
and “Eternal Father, I offer Thee the wounds of Our Lord Jesus
Christ for the healing of our souls’ wounds”.
iii. The devotion is prohibited, not because of these two prayers,
but because of the adjuncts thereto, namely inconsistencies in the
alleged revelation,1 exaggerations in the attached promises, e.g. the
liberation of five souls from Purgatory each time one looks at a
crucifix with a pure heart ; and, generally speaking, the incongruous
character of all the circumstances which do, it seems, merit the
description “ridiculous” and argue against the truth of the revela
tions, whilst nevertheless leaving intact the character of the excellent
religious who is said to have received them.2 Not all of these sus
pected elements are printed in all the popular leaflets ; the prayers
and some of the objectionable features are occasionally found in
private devotions for the Stations of the Cross, and they should be
removed from future editions.
272.
HATLESS WOMEN IN CHURCHES
In this large, popular resort many holiday-makers laudably pay a visit to
the centrally placed church during the course of their day's pleasure. On
Sundays a large proportion of the congregation hears Mass before going down
to the beach. As a result, the practice is growing of women being seen in
church with their heads uncovered. Should the parish priest insist on what
many look upon as an old-fashioned and unnecessary custom of having some
form of head-covering {often a ludicrous and distracting wisp of handkerchief} ?
Canon 1262: Viri in ecclesia vel extra ecclesiam, dum sacris
ritibus assistunt, nudo capite sint, nisi aliud ferant probati popu
lorum mores aut peculiaria rerum adiuncta ; mulieres autem, capite
cooperto et modeste vestitae, maxime cum ad mensam Dominicam
accedunt.
Answering a similar question a few years ago8 we agreed with
the opinion of Gasparri and Cappello that the law of canon 1262
about head dress was binding only sub levi even when women
received Holy Communion. With all the more reason is it to be
1 Cf. Fr Crchan, S.J., in The Clergy Review, 1940, XIX, p. 418.
2 Cf. Apollinaris, 1941, Ρ· 92·
3 Questions and Answers, I, Qu· J34·
370
Priests* Problems
Q. 273
considered of light obligation when women are assisting at Mass
without communicating, or making a visit to the church. Some may
think that, in the case of a short visit, the obligation is so slight as to
be non-existent: de minimis non curat lex. Having regard, however, to
the plain directions of the canon, which is itself a reflection of the
Apostolic injunction in 1 Cor. xi, 13, we are loth to say that the rule
as such is not binding on the occasion of short visits. It is a question
of a custom and convention, if not a law, regulating one’s appearance
in the house of God, and for this reason should be respected.
This does not mean that the rector of the church must enforce
its observance in season and out of season. It is a positive law which
ceases like any other for a proportionate reason : far better for women
to make a visit hatless than to make no visit at all. It is a positive
law which binds only sub levi : for the rector of the church to make a
special point of enforcing it, whilst perhaps leaving far graver
matters unreproved, would be pharisaical and against the spirit
of the gospel. It is a positive law which, like any other, is subject
to a customary interpretation, as the canon notes regarding male
head dress : it seems to us that custom is tolerating its non-observance
in given circumstances, as for example in those mentioned by our
correspondent, and that the custom will eventually have the effect
of abolishing the law in these circumstances. The part of the canon
dealing with immodest dress has been enforced by the legislator,1
but we do not know of anything similar about women’s head dress.
We think therefore, failing stricter directions from the local Ordinary·,
that the rector of the church should never reprove an individual
for appearing hatless in church, but that he should tell the faithful
in general now and then what the law is.
273.
GENUFLEXIONS
Should the faithful, when taking no part in some function at the altar,
genuflect to the cross at the High Altar if the Blessed Sacrament is not there
reserved? Also is it necessary for the sacristan, attending to the candles during
Exposition, to genuflect on both knees whenever he crosses the middle of the
altar?
30 August, 1892, n. 3792.11: Quum a Caeremoniali
Episcoporum praescribatur ut omnes, exceptis Canonicis Ecclesiae
Cathcdralis, unicum genu flectant Cruci Altaris maioris, quaestio
exorta est num haec genuflexio facienda sit etiam in aliis ecclesiis
seu cappcllis publicis, ubi in Altari maiori haud asservatur SS.
S.R.C.,
1 12 January 1930; The Clergy Review, 1938, XV, p. 545.
371
Eucharistiae Sacramentum ? Resp. Affirmative ; sed in actu functionis
tantum.
The act of bending the knee occurs as an expression of penance,
or of supplication, or as a mark of honour to superiors, but most of
all as an act of adoration, and it is under this aspect that the two
questions arise. In no case can anything easily be discerned in the
action as of its nature penitential or supplicating or worshipful ;
hence one meets the extremes of St Patrick, for example, who is said
to have repeated genuflexions a hundred times daily, and the sect
of Agoniclites, who arc said to have been opposed to genuflexions
at all times.1
The correct practice is fixed by rubrical law during ceremonies.
For private visits to altars or churches genuflexion on one knee is
the rule when the Blessed Sacrament is reserved but not exposed ;
otherwise, to the Crucifix of the High Altar one should incline the
head when passing, except during the time between its uncovering
on Good Friday and None of Holy Saturday, when genuflexion is
directed by S.R.C., n. 3049.5.
If the Blessed Sacrament is exposed, everyone should genuflect on
both knees when arriving and departing. Relying on the rule o
n. 2682.49, which directs a genuflexion on both knees when arriving
or departing from the altar of exposition on occasions when Mass is
there celebrated, but on one knee only throughout the Mass, many
rightly deduce that the sacristan must similarly genuflect on both
knees when arriving and departing, but a genuflexion on one knee
suffices when passing before the Blessed Sacrament in the course of
his work at the altar.2
Divine Worship
Q.274
274.
EXPOSITION---- NUMBER OF WATCHERS
Is there any explicit law about the minimum number of worshippers during
exposition of the Blessed Sacrament, whether during the Forty Hours or for
lesser periods?
The chief official document regulating everything about exposi
tion of the Blessed Sacrament is the Clementine Instruction. It
supposes that there will be a number of people present throughout,
and is concerned in η. IX with specifying the persons who should
be amongst them: one or two priests, or others in sacred orders,
vested in cassock and surplice, and outside the altar rails two
members of the confraternity attached to the church kneeling at a
1 Ephemerides Liturgicae, 1925» P· 3θ4ί Djct. Arçhéol., VI, col. 1020.
2 D. G. Murphy, The Sacristan's Manual, p. 96.
372
Priests' Problems
Q· 275
specially provided bench. The doubt put by our correspondent is
not solved in this section, which simply takes for granted that there
will be a number of the faithful adoring the Blessed Sacrament. We
cannot trace, in explicit official directions, any decision about the
minimum number to be present continuously. But, relying on what
is certainly the accepted custom, we think that there must be at
least two inclusive of the cleric or confraternity members required
by the Clementine Instruction. If in religious orders of women
devoted to perpetual adoration the presence of only one is tolerated,
it must be assumed that this is permitted by their constitutions, and
it may not be taken as a normal rule in all circumstances. What the
common law leaves undetermined, local law may make explicit;
any directions of local authority about the minimum number of
persons present are binding, and local Ordinaries may make it a
condition before granting permission.
275.
PERPETUAL ADORATION
Is there any law, or at least a strong recommendation of the Church, that
Exposition of the Blessed Sacrament shall be so arranged, e.g. the XL Hours,
that it shall be in some church or other throughout the diocese at every moment
of the year?
Canon 1275: Supplicatio Quadraginta Horarum in omnibus
ecclesiis paroecialibus aliisque, in quibus sanctissimum Sacramentum
habitualiter asservatur, statutis de consensu Ordinarii loci diebus,
maiore qua fieri potest sollemnitate quotannis habeatur ; et sicubi
ob peculiaria rerum adiuncta nequeat sine gravi incommodo et cum
reverentia tanto sacromento debita fieri, curet loci Ordinarius ut
saltem per aliquot continuas horas, statis diebus, sanctissimum
Sacramentum sollemniore ritu exponatur.
I Westm., XVIII, 10. Utque pietas fidelis populi augeatur,
videtur summopere expedire ut oratio Quadraginta horarum per
totam Angliam statuatur, ita ut nullum sit temporis punctum, in
quo Domino Nostro, in hoc Sacramento graviter offenso, expiatio
aliqua non offeratur, precesque pro Ecclesiae pace ac animarum
salute fundantur.
Information about the origins of perpetual adoration, necessary
for replying to the question, may be read in an article in The Clergy
Review by Rev. J. McKenna, 1933, VI, p. 186; in Diet. Théol., I,
col. 422 ; or in commentaries on the Clementine Instruction.
Its origin under Capuchin influences at Milan in 1534, and every
later development in its various forms, had principally in view the
Divine Worship
373
Q· 275
idea of reparation to the divine majesty for the sins of men : hence
the three days preceding Lent (the carnival period) was the time
first chosen for continuous adoration, a custom which still exists in
many places. Introduced into Rome by St Philip Neri, it became
highly favoured by the Holy See, and a Bull of Clement VIII in
1592 established it for the Holy City throughout the year, in one
church or another. In 1731 Clement XII issued the Instruction,
with which everyone is familiar, formulating the liturgical rules to
be observed, and from the beginning many indulgences were at
tached to the devotion.
Outside Rome, perpetual adoration, whether throughout the year,
or throughout some period such as Lent, is obligatory only so far
as the local Ordinary has determined in his regulations for the
observance of canon 1275. The law requiring at least a modified
form of XL Hours falls directly on parish churches : the consent
of the Ordinary is required in order that, in the measure desired by
him, exposition of the Blessed Sacrament may be held successively
in all churches of the diocese throughout a given period. The period
might be Lent, or Advent, or even the whole year. There is no
common law on the point, since obviously local conditions vary
considerably, and even a limited form of “ perpetual ” Exposition is
impossible in some places. When the devotion first began to spread
outside Rome permission was not obtained except for localities
where it could be maintained in various churches throughout the
year, but this rule was very soon relaxed. In the middle of last
century the devotion received a new impetus, and the foundation
of religious Institutes of women devoted expressly to perpetual
adoration has secured that, in the dioceses in which their houses
exist, there is always Exposition of the Blessed Sacrament day and
night throughout the year.
In addition to implementing canon 1275, ^1C Holy See occa
sionally, and local Ordinaries quite often, enjoin Exposition at
times of unusual crisis, and it may take the form of a chain of
observances in different churches for a given period.
S.C. Cone., 14 July, 1941,1 issued an Instruction urging that the
devotion of the people should be centred on the Mass, at times of
national crisis, rather than on other acts of divine worship, and
there is an echo of this in the Trinity Joint Pastoral, 1948, issued
by the Hierarchy of England and Wales, in which the faithful
were urged to be present at Mass on the Feast of the Sacred Heart ;
Exposition on that day is also desired by the bishops.
In these days of popular liturgical worship, when induits are
1 The Clergy Review, 1941, XXI, p. 365.
<3*
374
Priests' Problems
Q. 276
given right and left for the celebration of Mass at any hour of the
day, one can hazard the view that a movement may be started,
not supplanting but co-existing with perpetual Exposition, for having
Mass “perpetually” at every hour of the day, from the rising of the
sun to its setting, in each diocese or large city.
276.
FUNCTIONS AT THE ALTAR OF EXPOSITION
What is the force of the prohibition of saying the Mass for Peace during
the Forty Hours Devotion at the altar of Exposition, and of giving Holy
Communion from the same altar during that Mass and before Mass on the
following day? Does long custom justify this? Or does the fact that the use
of another altar entails some inconvenience? Or would these two reasons
combined be sufficient to justify continuance?
27 July, 1927; A.A.S., 1927, XIX, p. 289: An liceat
Missam cum cantu vel lectam coram Ssmo Sacramento velato vel
in pyxide exposito, intra vel extra tabernaculum? Et quatenus
negative, utrum huiusmodi usus saltem tolerari possit? Resp. Sacra
eadem Congregatio, audito specialis Commissionis suffragio, respon
dendum censuit “negative ad utrumque”. Hanc nacta occasionem
ipsa S.R.C. decreta n. 3448, 11 Martii, 1878, et n. 4353, 17 Aprilis,
1919, circa Missam ct sacram Communionem in Altari expositionis
SSmi Sacramenti, adhuc in suo robore manere declarat ; eorumque
observantia a Revmis locorum Ordinariis peculiari studio curanda
est.
N. 4353 referred to in the above reply forbade both practices
“sine necessitate vel gravi causa, vel de speciali induito”. Since the
terms of the prohibition are unusually explicit, and Ordinaries are
specially instructed to secure their observance, our opinion is that
merely the inconvenience of using another altar does not justify a
violation of the law. If the church has only one altar this seems to us
a grave reason ; otherwise an induit should be obtained.
A well-informed writer, after stating that there is in Rome a
custom of celebrating Mass at the altar of exposition, and that the
Holy See has granted induits for the purpose to many confraternities
and institutes, expresses the wish that parish churches should have
the induit, in order that the faithful hearing Mass should not be
encouraged, as it were, to neglect the altar of exposition.1 Whether
the law of custom is verified in the above query we have no means
of saying, and it is always a difficult enterprise to establish the fact,
especially with regard to liturgical laws.
S.R.C.,
1 Ephemeridis Liturgical—lus et Praxis, 1942, p. 85.
Q. 277
Divine Worship
375
277. EXPOSITION : VERNACULAR PRAYERS AND HYMNS
There is much uncertainly about the vernacular prayers and hymns permitted
during a period of exposition of the Blessed Sacrament, that is to say not
during the rite ive call Benediction but during the Forty Hours, the Holy Hour,
or any exposition ordered by the local Ordinary. Could the rules be formulated?
It is true that there is uncertainty in some particulars, and in
places where the local Ordinary has solved these doubts one has only
to follow his directions. Subject to this obvious reservation the rules
of the common law and of the local law of our Ritus Servandus may
be formulated, easily as regards recited prayers, less easily in the
case of vernacular hymns.
i. Any prayers approved by the Holy See or by local Ordinaries1
for public use may be recited, unless certain of them are forbidden
during exposition ol the Blessed Sacrament. Thus the prayers in
Enchiridion Indulgentiarum or in the English Manual of Prayers come
within this description, but others may also come within it though
not included in either of these books. All are lawful but not always
expedient, and a choice should be made suited to the occasion:
some useful guidance on the subject may be read in an article
entitled “Prayers Before the Blessed Sacrament Exposed” by
Abbot Vonier.2
Prayers for the dead are in principle forbidden,3 on analogy, no
doubt, with the well-known rule forbidding funeral exequies during
exposition, but there are established exceptions. The prayers after
the Litany of the Saints, obligatory for the Forty Hours exposition,
include one for the departed united in a formula with prayer for
the living ; moreover a custom of reciting prayers for the dead may
be continued “quatenus revera existât”.4
ii. By the common law those vernacular hymns may not be sung
which are translations of liturgical hymns.5
The English bishops pennit six English hymns : fesus My Lord, My
God, My All', Sweet Sacrament Divine', Soul of My Saviour', 0 Bread of
Heaven', Jesus the Only Thought of Thee', 0 Godhead Hid.^ By implica
tion, therefore, it appears that other English hymns are forbidden,
a conclusion which is quite certain for the rite known as Benediction,
that is to say whilst the ministers are before the altar from 0 Salutaris
1 Canon 1259.
2 The clerS>' Review, 1937, XIII, p. 1.
3 S.R.C., 12 August, 1884, n. 3616.
, . .
4 18 February, 1843, n. 2855; cf. Irish Ecclesiastical Record, 1945, LXVI, p. 302.
6 27 February, 1882, n. 3537. One may hold, with Irish Ecclesiastical Record, loc.
cit., that chanting is forbidden but not the recitation of translated liturgical texts
in the vernacular.
vv,7Tr
« The Clergy Review, i947> -XXVII, p. 127.
376
Priests' Problems
Q. 278
to Tantum Ergo. But it is not certain that this prohibition extends to
other periods of exposition : in our view it does, from the wording
of the episcopal communication, and notwithstanding the common
law rule which forbids only those vernacular hymns which are
translations of liturgical texts. An authentic interpretation of the
rule would be welcome, for it is not self-evident why hymns to the
Sacred Heart, for example, should be excluded.
278.
PREACHING DURING EXPOSITION
Am I right in maintaining that the normal rule forbids preaching during
Exposition of the Blessed Sacrament, though it is tolerated for grave reasons
provided the Monstrance is covered with a veil and the sermon is about the
Holy Eucharist?
10 May, 1890, n. 3728.2 : Num tolerari possit consuetudo
exponendi SSmum Sacramentum, et coram eo Missam celebrandi
(occasione Novemdialis) in qua fit post Evangelium praedicatio
Verbi Dei et plerumque de Sanctis; et in qua populus frequens
accedit ad Sacram Synaxim? Resp. Affirmative; apposito tamen
velamine ante Sanctissimam Eucharistiam, dum habetur concio.
The directions are all aimed at preventing the attention of wor
shippers from being deflected from the Blessed Sacrament, and as
regards Mass and Holy Communion at the altar of Exposition
some later directions, which are stricter than n. 3728, must be
followed.1
The Clementine Instruction, §32, strictly forbids preaching during
the Forty Hours’ Exposition, but departure from the rule is tolerated
outside Rome, in fact so widely tolerated that many commentators
rightly infer that, outside Rome, there is no law against it either
during the Forty Hours or at other times.2
During the sermon a veil must be placed before the Blessed
Sacrament, the common practice being to use one in the form of
a small banner on a stand ; but we know of no law forbidding the
use of a veil of white silk covering the Monstrance. Even though the
Monstrance is veiled the listeners should not turn their backs to the
altar of Exposition,3 and if this is unavoidable owing to the position
of the pulpit the sermon should be delivered from near the Sanctuary'
rails.4 The preacher wears a cotta but no biretta, and, as is customaryoutside Rome, a white stole.
S.R.C.,
1 Nn. 4353 and 27 July, 1927 ; Collationes Brugenses, 1922, p. 325, and 1927, p. 380.
2 Wapclhorst, Compendium, §200; O’Connell, The Clementine Instruction, p. 50.
3 Clementine Instruction, ibid.
■* Gasparri, De Eucharistia, §10, 45.
Divine Worship
Q.279
3ΊΊ
Both the commentators already quoted, and other besides, state
that the sermon must be about the Holy Eucharist. This is a reason
able direction, and during the Forty Hours’ Exposition at least it
seems required from the nature of things. It must be observed,
however, that n. 3728, on which they all rely, tolerates sermons on
the Saints, and we know of no later direction revoking it. Since
occasions may arise when a sermon on a subject other than the
Holy Eucharist is called for, we think it is not forbidden by the
common law.
279.
BENEDICTION DURING EXPOSITION
A religious Institute has perpetual exposition of the Blessed Sacrament
daily, and occasionally throughout the night; for the Forty Hours “ ad instar”
there is also exposition during one night. On the occasions when exposition
thus continues throughout the night, is one permitted to interrupt it in order to
give the Benediction which normally takes place on days when exposition does
not continue throughout the night?
12 January, 1878, n. 3438.4: An in Expositione in forma
Quadraginta Horarum permittatur singulis diebus sero, antequam
Sanctissimum Sacramentum reponatur, benedictionem populo cum
eodem impetiri ? Resp. Affirmative.
ii May, 1878, n. 3448.3 : An liceat pluries in eadem Ecclesia et
die impertiri benedictionem cum SSmo Sacramento, occasione
piarum Congregationum vel ad devotionem; item an liceat inter
rumpere expositionem SSrhi Sacramenti pro danda benedictione ob
causas indicatas? Resp. Ad primam et secundam partem: iuxta
prudens Ordinarii arbitrium; evitata tamen nimia frequentia, et
dummodo non agatur de expositione Quadraginta Horarum.
Benediction is permitted each evening before replacing the Blessed
Sacrament in the tabernacle, as explained in n. 3438, and as many
Ordinaries direct in the instructions they issue for the Forty Hours
ad instar. Cf. nn. 3513, 3713. If, however, the Forty Hours is in forma
propria, i.e. a continuous exposition with watching throughout the
night, n. 3448 directs that it is not to be interrupted for the purpose
of giving Benediction.
From the above two replies the conclusion seems to us unmistak
able that, in principle, Exposition of the Blessed Sacrament should
not be interrupted solely for the purpose of giving Benediction. We
think that this principle should be applied not only to the Forty
Hours but to every occasion of exposition, including both the
instances mentioned in the question ; Benediction is in the nature of
S.R.C.,
378
Priests' Problems
Q. 280
a concluding function, given for example after returning from com
municating the sick, or at the end of some popular devotions, though
replies of S.R.C. may be cited permitting, as an exception and for
some special reason, a departure from this rule. However, if this
opinion is not accepted, it is for the Ordinary to make a decision
for both the instances in question ; from n. 3448 he may use his
discretion except only in the case of Forty Hours in forma propria,
when the interruption is expressly forbidden.
280. PYX BENEDICTION AFTER MASS
When simple Benediction with the Pyx follows in October immediately
after Mass, is it necessary to have more than the two lighted Mass candles,
and may the celebrant retain the Mass chasuble?
IV, p. 24; comment, in Instr. Clem., VI,
9 : Quod si ex causa privata fiat Expositio, aperto scilicet Taberna
culi Ostiolo . . . non aliter fieri debet quam sex saltem ardentibus
cereis. . . .
S.R.C., 20 July, 1894, n. 3833.3: Usus invaluit in pluribus huius
civitatis ecclesiis, in functionibus Marialibus aliisque, quae cum
Missa persolvuntur, dimittere populum cum benedictione Sanctis
simi Sacramenti in Pyxide adservati, adhibito velo humerali super
planeta. Quaeritur an hic usus tolerari possit? Rcsp. Affirmative;
et ita observandum.
The writers’ interpretation of the ceremonial directions on the
occasion of what canon 1274 describes as “private” expositionis
not uniform in some particulars. A careful and documented descrip
tion of the rite in Ephemerides Liturgicae, 1942, notes on page 143
that some permit only four candles ; we think that it is preferable
to have six. The same commentator, on page 134, rightly observes
that the maniple should be removed and that a black chasuble is
not permitted : after a Requiem Mass the simplest procedure is to
vest at the bench in white stole, and a cope may also be used, though
it is not prescribed except for public (monstrance) Benediction.
For further details cf. The Clergy Review, 1933, VI, p. 243;
Fortescue-O’Connell, Ceremonies of the Roman Rite Described, p. 238;
Dictionnaire de Droit Canonique, II, col. 387.
October devotions are not permitted during exposition except
after midday, unless the Ordinary’s sanction is obtained ; if they are
performed before midday the directions of the Holy Sec require
them to be during Mass, as explained in The Clergy Review, 1941.
XXI, p. 240.
Decreta Authentica S.R.C.,
q
20 !
Divine Worship
281.
379
benediction: candles on side altars
Is there any law which directs or implies that, during exposition of the
Blessed Sacrament, candles at a side altar must be extinguished?
i. The custom of extinguishing them, for example when May
devotions at the Lady Altar are followed by Benediction, is widely
spread, and it was our impression that there was a law to that effect.
But on examining all the sources at our disposal, we can discover
no rule of the common law which expressly requires these candles
to be extinguished.1
ii. It could be maintained, with plausibility, that the rule of
extinguishing them is implied, at least, in the general terms of the
Clementine Instruction which, in many sections, safeguards the atten
tion of the worshippers from being distracted from the central
object of their worship. It is true, indeed, that this Instruction for
the forty Hours provides a norm for shorter expositions in many
points, but section 3, which directs images near the altar of exposi
tion to be veiled, certainly does not apply to functions other than
the forty Hours, and the official commentator has much to say
against the rigid observance of this rule,2 even during the Forty
Hours. Devotion to Our Lord in the Holy Eucharist does not exclude
Our Lady and the Saints, and we are not only' accustomed, but
ordered on occasion to say prayers to them before the Blessed
Sacrament exposed. It is the view of many that the origins of
Benediction are closely allied to Marial devotions.3
iii. What the common law leaves undetermined, local law may
make more precise. But we can find no express rule requiring the
extinguishing of candles at other altars in the collections of local
laws at our disposal ; if any direction of this kind exists it must be
obeyed in the locality to which it applies. The directions issued for
Cardiff and Menevia in 1943 include the following, n. 100:
“. . . any great quantity of candles blazing at a shrine so situated
as to cause distraction, whether such a shrine is within the sanctuary
rails or not, is to be extinguished”. This seems to us an excellent
interpretation of the common law.
Until better instructed, accordingly, it is our opinion that,
provided the number of candles is not so excessive as to distract
attention from the altar of exposition, there is no obligation to
extinguish them during Benediction, unless local law so directs.
1 Cf. I*Ami du Clergé, 1909, p. 96; 1914, p. 816.
2 Cf. Decreta Authentica, IV, pp. 10, 11, 139.
3 Cf. The Clergy Review, 1941, XX, p. 361.
380
Priests' Problems
Q. 282
282. EUCHARISTIC BENEDICTION A PRIESTLY BLESSING?
One often hears from the pulpit an exhortation to attend Benediction, which
is explained to be far superior to any other blessing since it is Our Lord rather
than the priest who is blessing the people. Is this a correct way of speaking?
20 November, 1947; Eng. tr. C.T.S. (Canon Smith)
n. 143: “What an excellent and salutary devotion! As the faithful
bow their heads in veneration the priest raises up the Bread of
angels towards heaven and, making the sign of the Cross with It
over them, entreats the heavenly Father graciously to look upon
His Son crucified for love of us, and for His sake and through Him
who willed to become our Redeemer and our brother, to pour out
His supernatural gifts upon those whom the Blood of the spotless
Lamb has redeemed.”
i. Since the rite itself had its origin in popular devotion,1 the
popular understanding of its meaning is by no means to be neglected,
and it does seem that the generality of the faithful take this to be as
explained in the question, a meaning which is supported by works
such as The Catholic Dictionary'. “The Congregation of Rites orders
this Benediction to be given in silence ; probably to show that it is
not the earthly but the Eternal Priest who in this rite blesses and
sanctifies His People.”2
The usual commentators De Benedictionibus3 do not explain the
difference between this and other benedictions, but by not including
it under priestly blessings in general, and by dealing with it under
a distinct heading, it seems that they regard it as something sui
Mediator Dei,
generis.
A few official texts support, perhaps, this meaning, by describing
the blessing in terms such as “benedictionem impertitur” “in im
pertienda benedictione”,4 or “cum Sacramento in pyxide . . . facit
signum crucis super populum nihil dicens”.5
ii. Whilst agreeing that this blessing may be suigeneris, and without
by any means holding the view given under (i) to be necessarily
incorrect, it seems to us that it belongs essentially to the category
of blessings of which the priest is the minister, as canon 1274, §2,
states: “. . . minister vero benedictionis Eucharisticae est solus
sacerdos, nec eam impertire diaconus potest. . . .” The commen
tators, without expressly adverting to the point under discussion,
usually write of the priest blessing the people with the sacred Host,
1 The Clergy Review, 1941, XX, p. 361.
2 Addis & Scanned, 1909, p. 84.
3 E.g. Diet. Droit Canon., II, col. 349.
4 Ritus Servandus, p. 15; Decreta Authentica, IV, p. 114.
6 Rituale Romanum, V, iv, 23 and 26.
Q. 283
Divine Worship
381
exactly as they do of the priest blessing the people with a relic or
with his hand, e.g. “. . . populum benedicere potest, sive manu, si
intra ecclesiam communiones dandae fuerunt, sive cum pyxide, cum
ab infirmo refecto in ecclesiam redux est.”1 The Clementine instruc
tion, §31, reads: “Il celebrante . . . prendera . . . l’Ostensorio et
darà con esso la benedizione al populo,” and it would seem that the
words of the Ritual “facit signum crucis super populum” mean
actually no more than “benedicit populo”.
Explaining a benediction or a blessing in general, and with no
explicit reference to Benediction of the Blessed Sacrament, the
official commentator in Decreta Authentica, IV, p. 360, defines it as
‘‘precatio quaedam qua aliqua sanctitas confertur, et illa proprie
dicitur quae fit nomine Ecclesiae, et ex auctoritate a Deo ei concessa,
quando nempe quis ratione sui muneris, quo fungitur, petit a Deo
ut vel personis vel rebus bona convenientia tribuat. . . . Deo itaque
operante in ministerio sacerdotali benedictio Ecclesiastica suum
sortitur effectum; non quidem ex opere operato ad instar Sacra
mentorum, sed ex vi precum Ecclesias. ...” Though no words are
prescribed to be used when giving this Benediction, it is notable
how the description of the rite in Mediator Dei, which stresses the
priest’s entreaty, is in perfect accord with the general notion of a
blessing. Fr Hanssens, S.J., commenting on this text of the en
cyclical, writes: “. . . immo etiam in benedictione eucharistica,
sicut in ceteris benedictionibus, in quibus manu, vel sacratissimae
crucis reliquia, vel alia re sancta fideles benedicit, ipse sacerdos
benedictionis minister est, etsi in ea danda rem sacratissimam
adhibet, ipsum corpus Christi Domini.”2
283.
OCTOBER DEVOTIONS
A layman who makes it his invariable custom to follow Mass with a missal,
finds himself during October in a church where during that month the rosary
is recited publicly during Mass. Is he justified in ignoring the public recitation
of the rosary during Mass so that he may continue with his custom offollowing
the Mass with his missal? If reproached, could he justify his action by ap
pealing to “Rub. Gen. Missalis”, XVI, which he understands to imply
that listening to the audible parts of Mass {rather than listening to the
rosary) is the ideal way of attending Mass—“ut quae leguntur intel-
ligant”?
i. In communities such as schools, where the congregation is
bound to observe the arrangements made for public worship by the
1 Periodica, 1929. P· >7>-
2
>948, p. 83.
382
Priests' Problems
Q, 284
superior, those present at Mass during which the October devotions
take place must obey the superior and take part in the devotions
by reciting the rosary and other prayers.
ii. Elsewhere, say in a parish church, any person assisting at Mass
may follow his bent and use a missal instead of joining in the
rosary. The individual right may also be used if, let us suppose,
the parish priest wants the congregation to answer Mass with the
server, following the method known as Dialogue Mass : any of the
congregation may elect not to fall in with the parish priest’s wishes,
and to recite privately the rosary instead.
iii. In our view the October devotions are still of obligation,
particularly in places where the local Ordo contains a reference to
them. The practice, however, is falling into disuse, and will event
ually cease altogether unless the appropriate ecclesiastical authority
intervenes. One of the objections felt by many, including perhaps
our correspondent, was that the practice may result in a duel, as it
were, between the celebrant following the rubrics in reciting Mass
clara voce, and the congregation reciting the rosary in a possibly
still louder voice : this unhappy conflict should be avoided by the
celebrant using a low voice, as he is authorised to do rather than
disturb other celebrants in the church, or when some other function
such as a sermon is in progress.
Some of our readers may be able to produce arguments showing
that, even apart from custom, we are no longer bound to have these
devotions during October.
284.
LITURGICAL CORONATION OF LADY STATUE
A devout person wishes to present a crown for Our Lady's statue, a custom
fairly common abroad. Does the parish priest require a faculty for this
addition and is there an authorised ceremony of crowning?
Canon 1279, §4: Si imagines, publicae venerationi expositae,
solemniter benedicantur, haec benedictio Ordinario reservatur, qui
tamen potest eam cuilibet sacerdoti committere.
i. The custom of crowning statues of Our Lady, if not then
originated, seems to have become stabilised in 1636 owing to a
considerable legacy left for this purpose to the Chapter of St
Peter’s by Count Sforza Pallavicini. Hence arose some kind of
understanding that permission for this distinction had to be obtained
from the Chapter,1 and a modern writer who is well-informed about
such things states that for a crown of gold the petition must be
1 Nabuco, Pontificalis Romani Expositio, II, p. 295.
Divine Worship
Q. 285
383
addressed to this Chapter.! Examples also may be cited of corona
tions of famous statues being authorised by the Sovereign Pontiff?
But we cannot find any certain indication that the rite is reserved
either to the Holy Sec or to the Chapter of St Peter’s, and our im
pression is that the Roman faculty is obtained as an added solemnity
or honour.
We think, however, from canon 1279, §4, that permission for a
public and solemn crowning must be obtained from the local
Ordinary, for the rite includes a solemn blessing of the crown which,
though not a statue, is a notable addition thereto.
ii. The text of the rite to be followed when crowning the statue
used to be given by the Chapter of St Peter’s together with the
faculty, and very likely it still is, but modern editions of the Pontifical
contain a “Ritus servandus in Coronatione Imaginis
which was given, according to Nabuco, by the Congregation of
Rites, 29 March, 1897, and the larger commentaries explain all the
details.3 The fact that it is in the Pontifical and not in the Ritual
supports the opinion given above that the rite is reserved to the
Ordinary, who may of course delegate any priest for the purpose, and
Moretti4 gives details of the rite then to be followed.
285.
CORONATION OF LADY STATUE IN MAY
Is there any official ruling as to the lawfulness or otherwise of including in
May devotions a ceremony of crowning the statue of our Lady, usually
performed by a girl and her attendants?
i. The only official rules known to us concern the liturgical
crowning, a rite reserved to the Ordinary, as explained in the
previous answer. Not only is this rite reserved, but any ceremony
whatever, if publicly performed in a church by an officiating priest,
obviously excludes, in our view, the crowning of the statue by a
girl.
ii. In other circumstances we can see no objection to the practice,
which is only one of the many forms of popular devotion and
amounts to nothing more than the adornment of the statue. Take,
for example, a procession in a convent school through the garden
in May in which a statue is carried by the girls : one stage of this
might consist of a crowning of the statue by a girl. It seems to be
perfectly in order, and far from meriting any prohibition, is rather
to be encouraged.
1 Sartori, Jurisprudentiae Ecclesiasticae Elementa, p. 90.
2 E.g. A.A.S., 1934, XXVI, p. 223.
3 E.g. Moretti, Caeremoniale, IV, p. §3133, or Nabuco, op. cit., p. 287.
< Op. cit., §3207.
384
Priests' Problems
286.
Q. 286
ENTHRONEMENT OF THE SACRED HEART
What is the formula, if any, which must be usedfor the purpose of gaining
the indulgences attached to this pious practice?
1 March, 1918; A.A.S., 1918, X, p. 154: I. Utrum
ad lucrandas indulgentias piae praxi annexas, necessario in singulis
domis, familiae SS. Cordis lesu per sacerdotem consecrari debeant,
an liceat, adunatis familiis, caeremoniam in ecclesia instituere, ubi
cum maiore sollemnitate et devotione res agitur? Resp. Affirmative
ad primam partem, negative ad secondam.
2. Quando iudicandum sit sacerdotem adesse non posse, ita ut
imago SS. Cordis lesu, prius benedicta, ab aliqua persona saeculari
collocari et formula consecrationis recitari possit? Resp. ludicium
de hac re prudenti iudicio Ordinarii loci remittitur.
3. Utrum ad lucrandas indulgentias piae praxi annexas requiratur
ut consecrationis formula, Rescripto diei 19 maii 1908 stabilita,
adhibeatur. Resp. Affirmative.
This popular pious practice was started in Peru in 1907 by Fr
Matteo Crawley Boevey, a religious of the (Piepus) Congregation
of the Sacred Hearts of Jesus and Mary. It quickly spread through
South America to Europe and to the whole world, and was indulgenced by Pius X and later Pontiffs.1
Though it appears that, before 1918, no special formula of prayer
was imposed for use at this ceremony of enthronement, it is now clear
from 5. Poenit., 1 March, 1918, that for gaining the indulgences the
formula there indicated must be used. It is the prayer printed in
Enchiridion Indulgentiarum, n. 705 ; in the local appendix to rituals,
such as the Roman Ritual, Tournai, 1935, or The Pocket Ritual, Bums
Oates, 1930; and in The Clergy Review, 1943, XXIII, p. 285. The
prayer begins “Most Sacred Heart of Jesus” and ends “Hail,
Sacred Heart of Jesus, our King and Father”.
The additional prayers, found in many of the books, arc
fittingly recited after the representation of the Sacred Heart
has been installed, but they are not necessary for gaining the
indulgences.
The rite presupposes that the picture or image is first blessed,
and the form given is taken from the Roman Ritual, Tit. IX, cap.
ix, 15. There is no indulgence attached to this liturgical formula
as such, but it seems to us that either this or some other formula
of priestly blessing must, for gaining the indulgences, precede the
8. Poenit.,
1 Cf. La Documentalion Catholique, 1923, p. 911.
Divine Worship
Q. 287
385
recitation of the prayer “Most Sacred Heart of Jesus”. Enchiridion
Indulgentiarum docs not, indeed, name a previous explicit ritual
blessing, and speaks simply of the prayer being recited on the day
of the family’s consecration to the Sacred Heart; but since this
consecration is identical with the enthronement, the prayer as an
indulgenced formula seems to require the previous priestly blessing
of the representation of the Sacred Heart.
Accordingly, in the useful collection of pious practices edited by
Schrevel and Legrand1 the conditions for the enthronement of the
Sacred Heart are summarised as follows: i. Ut inthronizatio fit
domi. 2. Ut imago SS. Cordis benedicatur a sacerdote et ab eodem,
quantum fieri potest, collocetur in loco honorifico domus. 3. Ut
sacerdos recitet formulam consecrationis domus, approbatam et
indulgentiis ditatam rescripto 19 Maii, 1908.
287.
PAROCHIAL VESPERS
Except in large parish churches the singing of vespers correctly according
to the “ Ordo” is too difficult. Would it be considered gravely unliturgical to
sing Vespers of Our Lady every Sunday, with all the ceremonies normally
accompanying solemn vespers?
20 November, 1947: Prisca aetate frequentiores
christifideles horariis hisce precibus aderant ; sed hoc pedetemptim
exolevit, atque ut modo diximus, in praesens earum recitatio clero
solummodo ac religiosis sodalibus officium est. Nihil igitur districto
iure laicorum ordini hac in re praecipitur ; verumtamen summopere
optandum est, ut horarias illas preces recitando vel canendo, actu
participent, quae diebus festis sub vesperum in sua cuiusque curia
habeantur. Enixe vos vestrosque adhortamur, Venerabiles Fratres,
ut pia haec consuetudo in usu esse ne desinat, utque, ubicumque
obsolevit, iterum pro facultate effecta detur. Quod tum procul
dubio salutaribus cum fructibus fiet, cum vespertinae laudes non
solum digne ac decore persolventur, sed ita quoque ut variis modis
christifidelium pietatem suaviter alliciant.
S.R.C., 29 December, 1884, n. 3624.12: Quaeritur utrum in
ecclesiis mere parochialibus, ubi non adest obligatio Chori, Ves
perae, quae ad devotionem populi diebus Dominicis et Festivis
cantantur, conformes esse debeant Officio diei ut in Breviario ; an
desumi possint ex alio quolibet Officio ex. gr. De SS1Ï10 Sacramento,
vel de Beata Maria Virgine? Resp. Licitum est in casu Vesperas de
Mediator Dei,
1 Florilegium, Bruges, 1933·
386
Priests' Problems
Q. 287
alio Officio cantare ; dummodo ii qui ad Horas Canonicas tenentur,
privatim recitent illas de Officio currente.
i. An earlier reply to the Sacred Congregation, 26 September,
1868, n. 3180, refused to tolerate sung votive vespers of Our
Lady on Sundays and feasts in the chapel of nuns whose rule
required them to recite Our Lady’s office, though possibly the
refusal had chiefly in mind the petitioner’s proposal that the cele
brant should be vested in a cope. The reply n. 3624 settles the
matter in substance and most of the modern writers quote it and
are either silent about the earlier one, or else deduce from it that
the use of a cope and the incensation of the altar1 are not permitted
at a sung votive vespers.2 It is clear from the rubric of the breviary
at the beginning of the Little Office of Our Lady that the antiphons
are not to be doubled. Sung votive vespers of Our Lady carried out
with these modifications are perfectly in order.
ii. The most impressive thing, however, in sung Vespers is the
incensing of the altar by the celebrant vested in cope, especially if
he is accompanied by assistants in copes. It seems to us that these
added solemnities are not a serious departure from the rubrics of
votive vespers and could be tolerated on Sundays in parish churches.
The Holy Father urges this liturgical office to be performed in such
manner as to arouse the devotion of the people, and a recent
private reply to the Sacred Congregation to an Italian Cecilian
Association3 not only tolerates but very warmly approves a sugges
tion for vespers in a simplified form, foi' example the Common
instead of the Proper for all Offices of Saints, since this would en
courage the active participation of the laity. The idea is that one
can only gradually reach perfection in such matters, and by permit
ting a simplification the way will be smoothed towards a correct
and perfect performance of the rite according to the calendar and
rubrics. It is quite clear that the Cecilian Association had in mind
solemn vespers with incensation of the altar, for bearing in mind
n. 3624.12 there was no need to seek a directive about singing votive
vespers with the modifications indicated above in (i). The rite of
Sunday vespers, with the lengthy concluding psalm and several
commemorations perhaps, is a rather formidable proposition, and
is unlikely to attract the people towards liturgical offices. However,
if a parish priest is dubious about encouraging the liturgy in an unliturgical manner, he may either have sung vespers of Our Lady as
in (i) or obtain the Ordinary s sanction for performing the rite with
all the usual solemnity.
1™"·^·, ·
„
4 Ephemerida Liturgicae, 1949, p. 326.
2 L'Ami du Clergé, 1925, p. 735·
Divine Worship
Q. 288
288.
387
STRUCTURE OF PRIME
Compared to the other Hours the structure of Prime appears to be somewhat
formless. Why is this so, and in particular why in this Hour alone is there a
threefold invocation “Deus in adiutorium”?
i. Up to 1946 there was general agreement in assigning the origin
of Prime to a monastery in Bethlehem towards the end of the fourth
century.1 The writers relied on a statement of Cassian, an eye
witness in this monastery, that the monks after concluding the night
office used to remain in repose till the hour of Terce, and to counter
act this habit they were at sunrise summoned to choir where the
office he calls “novella solemnitas” took place.2 This office, it was
assumed, is what was later styled Prime.
In 1946, Dom J. Froger, a monk of Solesmes, in an important
and original study of the subject, maintained that Cassian’s “novella
solemnitas'5 was what came to be called Lauds, and that Prime did
not appear till the sixth century in Provence.3 This theory, if correct,
will modify the accepted view not only about Prime but about the
origins of the canonical hours in general.
ii. Whatever may be the truth about the time and place of its
origin, Prime has a special character as an office for opening a
working day, whether in monasteries or elsewhere, but its structure
is predominantly monastic. There are two clear divisions : (a) the
Choir office ending with Deo Gratias which follows the usual pattern
of psalms, little chapter, responses (preces) and prayer; (b) the
Chapter office from the martyrology onwards. It is this second or
Chapter office which might appear to be formless, but two divisions
are easily discernible : (i) the reading of the martyrology to which
is attached the versicle Pretiosa and the prayer asking for the
intercession of Our Lady and all the saints; (ii) the prayers
beginning with the triple Deus in adiutorium invoking the divine
guidance for the tasks of the day, and ending with the blessing
given by the abbot or by whoever is presiding. The second
portion of the Chapter office included, in monasteries, a reading
from the rule of St Benedict, for which was substituted in
secular churches a “lectio brevis” from the Scriptures: this
reading, now taken from the little chapter appropriate to None, is
the only part of Prime which has a connexion with the Office of
1 Callewaert, De Breviarii Romani Liturgia, §311 ; Diet. Archdol., XIV, col. 1776;
Ephemerides Liturgicae, 1938, p. 115.
2 Institutiones, III, cc. 4 and 6.
3 Les Origines de Prime, Koine, Edizioni Lilurgichc. I rely on extensive reviews
of this work, not having access to the book itself.—E. J. M.
388
Priests' Problems
Q. 289
the day. The meaning of the plural form “Benedicite” in the
blessing formula is obscure.1
iii. Ί he Deus in adiutorium invocation is recommended by Cassian
as an ejaculation to be used throughout the day, and especially
before any work or prayer; Cassiodorus records “quidquid monachi
assumpserint, sine huius versiculi trina iteratione non inchoent”,2
the threefold use being doubtless in honour of the Blessed Trinity.
St Benedict3 prescribes the invocation, though not threefold, at the
beginning of the canonical hours, and some think that the whole
Psalm Ixix which opens with these words was here recited in primitive
times. It would appear, therefore, that the triple invocation is of
older use than the single one to which we are accustomed before
the canonical hours, and that Prime preserves the more ancient use
in that section which need not necessarily take place in choir.
289. “benedicite”
in the blessing formula
Why is this word in the plural when it occurs at Prime, at the blessing of
incense, and at the beginning of the Grace before meals?
i. The choral office in Prime originally concluded with the
Benedicamus Domino after the prayer Domine Deus omnipotens, the
remainder from the martyrology onwards being a chapter office
in monastic usage concluding with Benedicite and its response Deus.
Though the meaning of these two words is somewhat obscure, the
usual explanation is that the presiding prelate is begging with
humility a blessing from the brethren who reply Deus ; that is to say
their answer to his request is that God may give a blessing. The
added formula Dominus nos benedicat etc. does not appear till the
thirteenth century: it is actually redundant since everything it
contains is implied in the response Deus. However, there is no
difficulty in the use of the plural form in this text of Prime since it is
used by the hebdomadarius addressing the choir.4
ii. The meaning of Benedicite at the beginning of the “Benedictio
Mensae” is also obscure, and its origin is usually considered to be
connected with the monastic salutation expressed by this word, of
which there are several indications in the Regula of St Benedict, as
in chapter xxv which assigns as a punishment “nec a quoquam
benedicatur transeunte, nec cibus qui ei datur”. There is no ver}’
satisfactory' explanation why the plural form should always be used
1
2
3
4
Cf. The Clergy Review, 1948, XXX, p. 331.
In Ps. 69. Cf. Callewacrt, op. cit., nn. 289.3, an<^ 3’5-2.
Regula, c. xviii.
Callewacrt, De Breviarii Romani Liturgia, §316.
389
Divine Worship
Q. 290
in this salutation, and it originally appears to have been also in
the singular. At the “Benedictio mensae” its use by the presiding
priest offers no difficulty since he is addressing the assembled
company; its use in their response may be accounted for by sup
posing that each member of the company is saluting the rest.1
iii. One is tempted, for the sake of uniformity, to give a similar
interpretation of the word Benedicite at the blessing of incense, and
to suppose that it was originally a request for a blessing from all
assembled, the response thereto being Pater Reverende instead of
Dais, the deacon in course of time making the response himself
by attaching it to the request. But there is no authority whatever
for an explanation of this kind : the prayers Incensum istud and Ab
illo benedicaris appear in mediaeval missals without the preceding
Benedicite, and frequently the more correct Jube domne benedicere is
found instead.
The only remaining explanation is that Benedicite, though plural
in form, is really an imperative singular. Le Brun, an old writer
who deals faithfully with every word of the Mass in defending it
against heretics, adopts this view: “Dicitur Benedicite, multitudinis
numero, tametsi ad unum tantum referatur oratio, quippe quod rude
vulgus hac loquendi ratione maiorem observantiam exhiberi putet.”
He gives a justification for this use of the plural in such terms as
Eminentia vestra, and suggests that since people of some consequence
are accustomed to refer to themselves as “We” it was natural for
others to use the plural in addressing them.2
290.
ORIGINS OF
“dies
IRAE ”
Popular liturgical works allege that “Dies Irae” was originally an
Advent sequence, which has now become attached to Masses for the Dead. Is
this a likely and a provable proposition?
i. The “Dies Irae” was universally attributed to the Franciscan
Thomas of Celano (c. 1250) up to about 1931, and though various
earlier versions of certain stanzas were discovered, it was still
thought that this Franciscan was at least the author in the sense
that he assembled and re-wrote the stanzas. This view is now
generally abandoned since the finding at Naples by Dom M.
Inguanez, the librarian of Monte Cassino, of a text differing but
slightly from the one in our missals, and dating from about the end
1A different explanation is given in Ephemerides Liturgicae, 1936, p. Ï59, namely
that the response is a request from the assembled company asking the presiding
priest to bless the food.
2 Explicatio . . . Missae (i759)> L P·
390
Priests' Problems
Q. 290
of the twelfth century. 1 But writers, unaware perhaps of this dis
covery, are still found who attribute the authorship to Thomas of
Celano.1
2 The actual authorship of the hymn is, at the moment,
unknown.
ii. The notable thing about the “Dies Irae” is that it contains
no reference to the dead until the last six lines, and these are lacking
in the Neapolitan text which ends “Gere curam mei finis”. Of these
six lines “Huie ergo parce Deus” belonged originally to the previous
stanza beginning “Lacrimosa dies ilia”, the four lines being a com
pendium of the whole of the preceding verses: they were added,
it appears, in the first half of the thirteenth century, when the
sequence became attached to the liturgy of the dead, and their
adventitious character is apparent even from the chant. The last
two lines, even more strikingly diverse from what precedes, were
added later.
iii. As part of the liturgy for the dead the hymn was first attached
to the absolution Libera me, which contains the same ideas as the
hymn, and the chant itself of the words “Dies ilia, dies irae” in
Libera me is practically the same as the opening notes of the hymn.
The Libera me is thought to date from the end of the tenth century,3
perhaps earlier.4 The hymn became inserted in the Requiem Mass
in many missals, and was finally adopted definitely in the missal
of Pius V.
iv. We arc accustomed to explain these exequial texts which are
prayers for a favourable issue at the judgement, as being a dramatic
representation, in which words arc put on the lips of a person
already dead and judged, as though this had not yet happened.
This may well be the historical truth accounting for the sentiments
finding a place in the liturgy of the dead. Another explanation is the
one suggested in the question, that the “Dies Irae” and presumably
the Libera me also were originally designed for Advent, a period not
only of preparing for the commemoration of Christ’s first coming,
but of getting ready for His second coming at the day ofjudgement,
and both ideas enter into the collect of the Christmas vigil. Popular
modern liturgists often state that the hymn was a sequence for the
1st Sunday of Advent, before being transferred to the liturgy’ of the
1 Jungmann, Missarum Sollemnia, I, p. 541 ; Crogaert, Les Riles . . . de la Mtsst,
I» P· 537» Q.-L.P., 1931, p. 260, where the Neapolitan text is printed.
- S.A. in Ephemerides Liturgicae, 1950, p. 131, where numerous other variations
of the Missal text are printed.
'
3 L Ami du Clergé, 1909, p. 567, summarises a writer whose conclusions were
later substantiated by the Neapolitan text.
4 Ct. Liturgy, January 1946, for an excellent study by Mary Rvan of the text
and variations of Libera me.
Divine Worship
Q. 291
391
dead.1 This is likely to be the truth, but we have not succeeded in
discovering any substantiation of it : what is wanted is a reference
to some contemporary text which explicitly supports this assignation.
The references to the last judgement in our present breviary Advent
hymns need only a mention ; they are in Vespers and Lauds.
Te deprecamur ultimae
Magnum diei ludicem,
Armis supernae gratiae
Defende nos ab hostibus.
Ut, cum secundo fulserit,
Metuque mundum cinxerit,
Non pro reatu puniat,
Sed nos pius tunc protegat.
291. “ut queant laxis”
hymns for 24 June are unusually difficult
The Breviary
to construe. Are
they by one author, and were the designations of the scale in possession before
the hymn or “vice versa ” ?
i. The hymn, divided between Vespers, Matins and Lauds, was
composed by Paul the Deacon, a monk of Monte Cassino, also
known as Warnefrid (ob. circ. 799), for use on the feast of the titular
of the monastery church. In The Clergy Review, 1944, XXIV, p. 266,
Dorn Romanus Rios, whilst observing that some of the stanzas are
involved, considers it to be probably the best specimen of metrical
composition of the Carolingian renaissance. The English versions
consulted are useless as an aid to construing, e.g. that given in
Bute’s breviary, but Dr Fortescue in his Latin Hymns (University
Press, Cambridge, 1924) provides a fairly literal version of the five
stanzas assigned to Vespers.
ii. Two centuries later (circ. 995-1050) another monk, Guido
d’Arezzo, a musical theorist, introduced or perfected the Hexachord,
a group of six consecutive notes, as a unit for sight singing. Noticing
that these six ascending notes were, as a matter of fact, those em
ployed in the ascending melody of the Vesper hymn for St John,
he assigned to the degrees of the Hexachord the syllables Ut, Re,
Mi, Fa, Sol, La, of the hymn.
iii. “Ut” was changed to “Doh” by Bononcini in 1673, and
“Si”, from the first two letters of the final words of the first stanza
“ôancte /oannes”, was added later. In most systems of tonic-sol-fa
“Doh” and “Ti” (for “Si”) are used, but the earlier “Ut” and
“Si” remain in some foreign methods of teaching. Cf. Scholes, The
Oxford Companion to Music, p. 422 ; Text Book of Gregorian Chant by
1 Dictionnaire Pratique de Liturgie Romaine (1952), P· 342 ; Schuster, Liber Sacra
mentorum, II, French edition, p. ’34-
392
Priests' Problems
Q. 292
Sunol and Durnford, p. 2. Alec Robertson, Sacred Music, p. 29,
reprints a South German twelfth-century MS. portrait of Guido
d’Arezzo.
iv. The following extract from Ephemerides Liturgicae, 1951, p. 155,
may be of interest, as completing the history of this subject: Guido
monachus, ut pueri cantores a se instructi voces suas notis latinis,
quas invenerat, canendo facilius concordare possent, syllabas initiales
adhibuit prioris emistichii hymni Ut queant laxis. Henricus autem
Boito, illustris musicus, eiusdem emistichii singularem composuit
italicam paraphrasim acrosticam, Guidonis laudes resonantem
(Cfr. Ambrosius, 25 (1950) 120-124). Utrumque, doctae curiositatis
ergo, referre liceat :
di Guido
2?£gola superna
AZZsuratrice
Fzlcile de’ suoni
iSOZenne or tu
ZMude a te intuoni
SZllaba eterna.
UT queant
laxis
RZssonare fibris
Af/ra gestorum
FJmuli tuorum
SOLve polluti
/Mbit reatum
Sancte Zoannes.
UTi\
292.
SEPTUAGESIMA
Popular accounts of the liturgical year explain that the name given to this
and the following two Sundays represents roughly speaking, or in round
numbers, seventy, sixty or fifty days before Easter. Is there no more satisfactory
meaning for these names?
i. The question is connected with the enumeration of forty days
of the Lenten period, which is usually explained, not merely in
popular accounts but by many liturgical scholars, as forty days of
fasting in preparation for Easter, a number which is verified by
starting from Ash Wednesday and excluding the Sundays, since
these are not fasting days. The fact that the primitive duration of
Lent differed in various places is not relevant to the question.
Gregory the Great teaches1 quite explicitly that there are thirty-six
days of “abstinence”, in preparation for Easter, beginning that is
to say from the First Sunday of Lent. The addition of four extra
days, beginning with Ash Wednesday, was a later and a very
convenient addition to the thirty-six already in possession, and it
seemed to explain quite satisfactorily the number forty which was
the ancient denomination for the Lenten period. This was a mistake
1 Cf. Ephemerides Lilurgicac, 1925, p. 20.
Q. 292
Divine Worship
393
in numeration which arose as early as the eighth century, and was
due to giving an undue emphasis to the fasting discipline and to
taking the Pasch as Easter Day.1
ii. Bishop Myers in his brief but extremely valuable study on
Lent and the Liturgy2· explains the origin of this error and shows that
the primitive period of Lent began on the first Sunday,3 Caput
Quadragesimae, and that in perfect imitation of Our Lord’s sojourn
in the desert, and of other Scriptural examples, it was not merely
approximately but actually forty days, concluding with Holy
Thursday. For the Pasch, in the understanding of primitive writers,
was the day of Our Lord’s death, and from the earliest times
Christians naturally prepared for the commemoration of this great
event in the history of mankind ; it was a period which indeed
included fasting, but was predominantly one of intense spiritual
activity of every kind. This primitive and correct idea of Lent is
still preserved in the exhortation of Leo the Great (440-461) which
occurs in the breviary lessons in the second nocturn of the First
Sunday of Lent:
. ad universa pietatis officia illius nos diei, in
quo redempti sumus, recursus invitat: ut excellens super omnia
passionis Dominicae sacramentum, purificatis et corporibus et
animis celebremus.”
iii. The mathematical problem, though of less importance, is
also unravelled by Bishop Myers, once the starting point of the
enumeration is correctly fixed. The counting was, so to speak, on
the decimal system, and the earliest list of Sunday gospels we have
illustrates the corresponding names given to the Sundays occurring
within groups of ten. Counting backwards from this point (the
Roman custom we all remember from our wrestling with Calends,
Nones and Ides), what we now call the Fourth Sunday in Lent is
styled Dominica ante XXma, the Third Sunday of Lent In Tricesima,
and the First Sunday in Lent Quadragesima. We have retained this
Roman system for naming the Sundays from Septuagesima to
Quadragesima, but for the succeeding Sundays the more modern
way of counting forwards is used. The reasons for the introduction
of a pre-Lent period, though not quite certain, were probably the
threats of Lombard invasions, as Bishop Myers explains. Granted
the necessity of extending the period of prayer and penance beyond
Quadragesima, the names given to the Sundays within groups of
ten continued the method of enumeration already in possession ;
Septuagesima just comes within the seventh decade.
1 Callewacrt, Liturgicae Institutiones, I, §81.
2 Reviewed in The Clergy Review, 194°’
P*
3 Cf. The Secret prayer of that day “Sacrificium quadragesimalis initii . . .”
394
Priests' Problems
Q· 293
293. AUTHENTIC TEXT OF PIUS X ON CHURCH MUSIC
The words of Puls X to the effect that “active participation in the Holy
Mysteries and in the public prayer of the Church is the primary and indis
pensable source of a true Christian spirit" are more quoted by popular writers
than almost any others from an official source. The words “active” and
“indispensable” are, however, lacking in the official Latin version. Which
text is authentic?
Pius X, Motu Proprio, 22 November, 1903
Italian (A.S.S., XXXVI, p. 331)
. . . per attingere tale spirito dalla
sua prima ed indispensabile fonte,
che è partecipazione attiva ai sacrosanti misteri. . . .
Latin (ib. p. 388)
. . . ut hoc virtutis spiritu ex priore
fonte fruantur, quae est participatio
divinorum mysteriorum. ...
Latin {Decreta Authentica S.R.C. (1912),
n. 4121)
... ad eundem spiritum ex primo coque necessario
fonte hauriendum, hoc est ex actuosa cum sacrosanctis
Mysteriis . . . communicatione.
The document appeared first in Italian, presumably as writtenor
passed by the Pope. Later, in the same volume of the Acta a Latin
version was printed and it was described as “versio fidelis”. Nine
years later a new Latin version was given amongst the Authentic
Decrees of the Congregation of Rites and the same text appeared
in the post-Code official collection, Fontes, n. 654, in Volume III,
published 1925. The English version to which we are accustomed,
printed in the Leeds Synods, 1911, p. 192, corresponds with the
original Italian: “. . . of acquiring this spirit from its foremost and
indispensable fount, which is the active participation in the most
holy mysteries. .
Owing to its inclusion in Decreta Authentica and Fontes, there can
be no possible doubt that the Latin version given in these two sources
is the only faithful version of the original Italian ; the Latin version
which appeared in the same volume of the Acta is imperfect ; the
authentic text is the Italian in which the document first appeared
amongst the official acts of the Holy See. We have not seen any
explanation or withdrawal of the faulty Latin version which, because
it is in Latin and contemporary with the Italian, occasionally
deceives even the most wary and experienced liturgists.1
1 Cf. Oom B. Capello in Questions Liturgiques and Paroissiales, 1951, p. 146;
»952, p. 161.
XXV. JOINT WORSHIP OR ACTION
WITH NON-CATHOLICS
294.
PRAYER WITH NON-CATHOLICS
The recent papal instruction on the Oecumenical Movement permits a
“Pater Noster” to be recited together by Catholics and non-Calholics before
and after a joint conference, whereas in this country at least the view has been
widely held, up to the time of the papal pronouncement, that common prayer
of this kind is not permitted. What is the explanation?
20 December, 1949, Instructio ad locorum Ordinarios, “De
Motione Oecumcnica”, ad. V : Quamquam in omnibus hisce con
ventibus et collationibus quaelibet in sacris communicatio est
devitanda, tamen non reprobatur communis recitatio Orationis
Dominicae vel precationis ab Ecclesia Catholica approbatae,
qua iidem conventus aperiantur et concludantur.
I he fringes of the law codified in canon 1258 have always been
subject to a varied casuistical interpretation, both in the replies of
the Roman Congregations and in the solutions given by theologians.
Assuming that there is no scandal, no danger of perversion, and that
an orthodox prayer formula is being recited in common, and putting
aside all irrelevant circumstances, it will be found that conflicting
opinions ultimately turn on whether communicatio in sacris is to be
considered wrong in itself or merely prohibited by positive law.
i. Cardinal d’Annibale, a moral theologian and canonist still in
great repute and often quoted in documents issued from the Roman
Curia, is the best representative of the view that, with the above
limitations, the practice is not wrong in itself.1 “An liceat cum eis
communicare ... in divinis, nempe quae obeunt more et ritu plane
catholico; nam in his quae redolent haeresim non licet omnino;
plerique affirmant, quippe, aiunt, ab eis quasi ab excommunicatis
prohibemur; alii negant, quia arcemur ab eis tanquam ab haer
eticis. . . . (What follows is in a footnote.) Dicam plane, in re tam
salebrosa, quod sentio. Communicatio in divinis non suapte natura
illicita est (alias nefas esset mixta, quae vocant, matrimonia permit
tere), sed quia aut adhaesionis damnatae sectae speciem praesefert;
aut fovet indifferentismum, quae aetatis nostrae contagiosa lues est;
uno verbo, propter ipsius catholicae religionis periculum. Ubi igitur
S. Off.,
1 Thcoloçia Moralis, 1908, L §I,O> n· 11 ·
395
396
Priests' Problems
Q. 294
huiusmodi periculum cessat, recidimus in legem ecclesiasticam, cui
derogare fas est, cum longe plus incommodi quam commodi
habet.” This view amply and clearly explains the recently granted
permission for united prayer.
ii. The more common view, in this country at least, has regarded
communicatio in sacris, even with the above limitations and safeguards,
as wrong in itself, because there is always implied in the action,
it would seem, at least an external approval of heretical worship;1
or because prayer presupposes or expresses belief, and cannot
rightly be recited in common except by those professing the same
faith.2 If prayer with heretics is ever permitted, it will be on a
principle of toleration, or by arguing that heretics are praying with
us, not we with them, or even by relying on the axiom de minimis
non curat lex, if the prayer is so short as to be negligible. The instruc
tions of the Holy Office and Propaganda on the subject, some of them
extremely difficult to explain on any other principle,3 have led one
to believe that, for all practical purposes, this outlook has so far
been favoured by the Holy See.4 Moreover, notwithstanding certain
casuistical evasions, it is a view of the matter which vastly strengthens
the law of canon 1258, and makes it easier to prevent abuses; for,
as we all know, a positive ecclesiastical law is subject to a customary
interpretation, to dispensations, to epikeia, to non-observance when
there is a grave incommodum and so on and so forth. Accordingly in
The Clergy Review the solutions offered so far have been based on the
view that a united prayer is wrong of its nature.5
iii. The recent instruction of the Holy Office could be explained,
indeed, by one of the considerations mentioned in (ii), but we think
any of these casuistical devices unworthy of the gravity of the whole
document, and that its explanation is to be sought in the view
given under (i). It must follow that those amongst us who have held
that a united prayer with heretics, even with the limitations and
safeguards assumed throughout this note, is always of its nature
wrong, have been defending a too rigorous interpretation of the law
in canon 1258, an outlook due to our conditions in this country, to
the traditions received from our forefathers, and to the necessity, as
we conceived it, of discouraging the faithful from any religious
contact whatever with non-Catholics.
iv. There remains a verbal difficulty in the reply of the Holy
1 Prümmer, Theol. Moralis, I, §526; Wouters, I, §500.
2 Cardinal Bourne, Lent Pastoral, 1924; Bishop Beck, The Times, 15 November,
»949 > Bonnar, The Tablet, 1949, 104, p. qq6.
3 Cf. e.g. The Clergy Review, 1948, XXX, p. 200.
♦ D’Annibalc loc. cit. footnote 9 ; Benedict XIV, De Synodo, VI, v. 2.
ύ E.g. 1944, XXIV, p. 185.
ft· 295
Joint Worship or Action with non-Catholics
397
Office, which by asserting, firstly, that any kind of communicatio in
sacris must be avoided at these meetings, and, secondly, that a
Pater Noster or a prayer approved by the Church is not forbidden,
appears to teach that reciting the latter is not communicatio in sacris.
Prayer, however, is obviously a sacred thing, and the Pater Noster
the most sacred of all prayers, and therefore it would seem that a
joint Pater Nosier, if words have any meaning, must be communicatio
in sacris. We cannot, at the moment, find any perfectly satisfactory
solution of this verbal difficulty. The meaning may be that, the
law of canon 1258 being (with the limits explained above) a positive
law, the Holy Office in given circumstances permits one derogation
from it whilst insisting that the law must otherwise be observed.
Moreover, the prayer permitted is something incidental and ac
cessory to the purpose of the gathering, which is not a prayer meeting
but a discussion or exposition. Whatever the true explanation may
be, we all welcome a decision which makes our contacts with nonCatholics much more agreeable, and settles a little difference of
opinion which has existed for the last few years amongst Catholics
in this country.
295.
RECEPTION OF SACRAMENTS FROM
NON-CATHOLIC MINISTER
Can there be a good cause, apart from danger of death, justifying reception
of the sacraments from the minister of a non-Catholic sect who is known to be
validly ordained and capable of ministering certain sacraments validly?
Canon 1258, §1 : Haud licitum est fidelibus quovis modo active
assistere seu partem habere in sacris acatholicorum.
Canon 2261, §2 : Fideles, salvo praescripto §3, possunt ex qualibet
iusta causa ab excommunicato Sacramenta et Sacramentalia petere,
maxime si alii ministri desint, et tunc excommunicatus requisitus
potest eadem ministrare neque ulla tenetur obligatione causam a
requirente percontandi.
§3 : Sed ab excommunicatis vitandis necnon ab aliis excom
municatis, postquam intercessit sententia condemnatioria aut declaratoria, fideles in solo mortis periculo possunt petere tum
absolutionem sacramentalem ad normam can. 882, 2252, tum
etiam, si alii desint ministri, cetera Sacramenta et Sacramentalia.
£ Off., 30 June-7 July, 1864; Fontes, n. 978.6.: In pericolo di
morte, mancando un sacerdote cattolico, si puo cercare 1 assoluzionc
da un sacerdote scismatico? Resp. Licere, dummodo tamen et aliis
fidelibus non praebeatur scandalum, ncc sit alius sacerdos catholicus.
398
Priests' Problems
Q. 295
ncc sit periculum ut fidelis ab haeretico pervertatur, et tandem
probabiliter credatur sacerdotem haereticum administraturum hoc
sacramentum secundum ritus ecclesiae.
i. Relying on canon 2261 alone, one might unthinkingly give an
affirmative reply to the question submitted ; for the non-Catholic
minister is not normally in the condition of an excommunicated
person in §3 of the canon, and it would therefore seem that any
grave cause justifies receiving sacraments from his ministration.
When, however, it is remembered that an excommunicated person
as such does not normally cease to be a Catholic,1 it is evident that
the content of canon 2261 relates chiefly to Catholics who may be
excommunicated for a variety of reasons. The question of receiving
sacraments from non-Catholics, whether excommunicated or not, is
ruled by canon 1258.
ii. Communicatio in sacris, an extremely difficult matter on the
fringes of the law, offers no problem whatever when the non
Catholic rites or ceremonies or prayers are in themselves heretical
in character or expression. To share in them is forbidden by natural
or divine law at all times, including the hour of death, and no
reason whatever can justify the action. Moreover, even though the
rites are in themselves orthodox, the same natural or divine law
forbids our participation if there is scandal or danger of perversion.
It used to be widely held that active participation in the orthodox
rites of non-Catholics, provided no scandal or danger of perversion
existed, is intrinsically wrong, but the view which best harmonises
theory and practice now regards the practice as forbidden merely
by the positive law, though it is a law which is based indeed on the
presumption of scandal and danger of perversion.2
iii. The reply of the Holy Office in Fontes, n. 978, takes into
account all the elements discussed above and decides for the lawful
ness of seeking absolution in the hour of death from a schismatic,
and the same applies to a heretic in principle (as stated in the reply)
if we assume all the conditions verified ; indeed, since the Vatican
Council at least, the line between a heretic and a schismatic is
extremely thin. We are discussing the matter, be it remembered,
from the angle of positive law,3 and bearing in mind the gravity of
the prohibition against communicatio in sacris, as well as the rigidity
of its interpretation in the instructions of the Holy See, it is our
opinion that we may not extend the permission in Fontes, n. 978,
1 The Clergy Review, 1939, XVII, p. 268.
2 Cf. above, qu. 294.
3 An earlier reply of Propaganda, 17 February 1761, Fontes, n. 4538, was in
exactly the opposite sense: “Nullo casu, neque necessitatis, licere catholico con
fiteri precata sua et absolutionem obtinere a sacerdote schismatico.”
Joint Worship or Action with non-Catholics
399
Q. 296
beyond what is absolutely necessary for salvation; absolution
clearly is and also extreme unction if the person in danger of death
is unconscious. Holy Eucharist may be received if consecrated by a
Catholic priest, for a person who brings Holy Communion to the
dying is not a “minister” except in the widest sense of the word.
We think it certain, however, that the services of an heretical
minister of the sacraments may never be sought to relieve a necessity
short of extreme spiritual danger, for example the necessity of
observing the law of annual confession.1
iv. It will be found, we think, on the above principles, that all
the incidental problems can be solved. The German bishops forbade
access in danger of death to so-called “Old Catholic” priests at tine
time of the Vatican Council because it was judged that danger of
perversion existed’.2 Some manualists hold that there is always
danger of perversion and recommend, even in the hour of death,
reliance on the divine mercy and grace to make an act of perfect
contrition.3 In conclusion, a careful pondering of each sacrament
will reveal whether it is necessary for salvation, and whether the
law makes provision (as for baptism or marriage) without the
necessity of approaching a non-Catholic.
296. PROBLEMS IN NON-CATHOLIC SCHOOLS
1. May Catholic girl students of a non-Catholic training college attend
lectures on Scripture given by a non-Catholic professor, when these lectures take
the form of a discussion where everybody may put forward her views? Some
Catholic students see here an excellent opportunity of expounding Catholic
doctrine.
2. May Catholic teachers in non-Catholic schools give the official Scripture
Course for non-Catholics, if they are allowed to expound but not impose the
true Catholic doctrine? If so, are they obliged to explain the integral Catholic
mew?
Ad i. The question is one for the Ordinary to decide, since many
points of public policy converge, e.g. the presence of Catholic
students in a non-Catholic training college; or the competence of
these students to intervene publicly in a religious disputation ; and,
if they are competent, the question arises whether their intervention
is necessary and likely to forward the cause of Catholic truth.
Accordingly, we cannot do more than give an opinion whether a
1 Cf. De Smet’s full treatment of the whole subject in De Sacramentis, §191.
2 Lehmkuhl, Theol. Moralis, II, §53· .
3 Noldin, Theol. Moralis, III, §43» a v,cw wh,ch wc Personally much prefer.
400
Priests' Problems
Q. 296
request for permissions of this kind is likely to be successful. We
think it is unlikely since the practice is forbidden by canon 1325,
§3: “Caveant Catholici ne disputationes vel collationes, publicas
praesertim, cum acatholicis habeant, sine venia Sanctae Sedis aut,
si casus urgeat, loci Ordinarii.” The Ordinary may permit the
practice if there is some urgent necessity, but normally a decision
rests with the Holy See. In addition, as it seems to us, Catholics
still in statu pupillari would be no match for a non-Catholic Scripture
professor, even if in principle disputation is considered lawful.
Ad 2. Recourse to the Ordinary is advisable, since the presence
of non-Catholic teachers might encourage some Catholics to send
their children to the school against the law of canon 1374. But the
necessity of this recourse is not so clear as in the previous question,
for in many countries, as in the United States, Catholic teachers, in
order to earn a living, have to take posts in non-Catholic schools,
and teach the subjects set, amongst which may be Holy Scripture.
The Ecclesiastical Review, July 1945, contains a good exposition of
the various problems then likely to arise. The use of a non-Catholic
Bible is permitted by some /Xmerican authorities, but the writer is
of the opinion, which we think correct, that the teacher should
bring a Catholic version if the work of teaching involves reading
the Bible to the children ; alternatively permission might be obtained
from the Ordinary for the use of a non-Catholic version.
It suffices for the teacher to expound the true doctrine, which
would normally mean imposing it, since in a school the children
normally accept what the teacher says. In the unlikely event of
some child observing that the teacher has got the thing all wrong,
it would suffice to answer that the wrong doctrine is held by Protes
tants and their errors have to be tolerated.
The teacher is not bound to teach the integral Catholic view,
provided that what is taught is true, unless a child expressly asks;
and in this case, it would often be prudent, for avoiding a charge
of proselytising, to tell the child to consult a Catholic outside school
hours.
As is evident, the situation is difficult and requires quite a high
standard of casuistical skill in steering a safe course. One thing is
absolutely certain : the teacher may never, for any reason whatever,
teach error and heresy.
(Editorial Note.—The Hierarchy of England and Wales fol
lowing their Low Week Meeting, 1951, issued an Ad Clerum covering
both these points. In regard to attendance at non-Catholic religious
instruction, it took the line indicated above. On the second point,
it declared: “Under Section 30 of the Education Act of 1944 no
QQ· 297> 298 Joint Worship or Action with non-Catholics
401
teacher can be required to give religious instruction in a county
school or voluntary school. A Catholic teacher in a county school or
anon-Catholic voluntary school should not undertake this work. If
the circumstances are altogether unusual, the teacher should consult
the Bishop of the Diocese.”)
297. ASSISTANCE OF NON-CATHOLICS AT OUR FUNCTIONS
Is there a positive prohibition against non-Catholics taking an active part
in the Corpus Christi procession?
20 November, 1850; Propaganda Collectanea n. 1840
(altera ed. n. 1053) : Se sia lecito porgere torce o lumi accesi a
qualsivoglia persona eterodossa che ami assistere aile nostre funzioni? Resp. Negative et ad mentem. La mente è che se, attese le
particolari circostanze, non possono escludersi da tai cerimonia le
sole persone eterodosse, se n’escludano eziandio i laici cattolici.
The laws against non-Catholics attending our rites are far less
strict than those which forbid Catholics to assist at non-Catholic
religious worship, and they are not always logically coherent : thus
one may, for proper reasons, employ a non-Cadiolic organist who
is certainly having an active part in the function, yet in principle,
as in the above reply, active participation is not permitted. The
justifying reason, apart from those actions which are of their nature
forbidden, such as a non-Catholic acting as sponsor at baptism, is
the necessity of avoiding the danger of scandal : this would be,
particularly in these days, the danger of religious indifferentism,
which might affect both Catholics and non-Catholics. Walking in
the procession, without performing any office therein, such as
server or canopy bearer, should in our view be regarded in the same
light as rising and kneeling with the congregation. It is not, properly
speaking, an active part in the rite, and is not forbidden, so far as
we can discover, by any Roman decision.
S. Off.,
298. SENDING FOR NON-CATHOLIC MINISTER
A decision of the Holy See forbidding nurses to send for a non-Catholic
minister to assist a non-Catholic patient in danger of death is mentioned by
the manualists, who all explain it away. Could we have the text of the
decision?
15 March, 1848. D.N. Sanctitati Vestrae humiliter
exponit, quod in civitate M. existât hospitium cuius ipse rector ct
S. Off.,
402
Priests' Problems
Q. 298
cappelanus est, ac in quo infirmorum curam gerunt moniales
dictae M.N. Cum autem in hoc hospitio subinde recipiantur
acatholicae religionis sectatores, ac iidem ministrum hereticum, a
quo religionis auxilia et solatia recipiant, identidem petant, quae
ritur utrum praefatis monialibus falsae religionis ministrum advocare
licitum sit. Quaeritur insuper utrum eadem danda sit solutio ubi
haereticus infirmus in domo privata cuiusdam catholici degit;
utrum scilicet tunc catholicus ministrum haereticum advocare
licite possit?
Feria IV, die 15 Martii, 1848. In congregatione generali S. Rom,
et universalis Inquisitionis habita in conventu S. Mariae supra
Minervam coram Emin. et Rever. S. R. E. Cardinalibus in tota
rcpublica Christiana contra haereticam pravitatem generalibus
Inquisitoribus a S. Sede Apostolica specialiter deputatis, audita
relatione suprascripti supplicis libelli, una cum vota DD. Consul
torum : iidem Emin, et Reverend. Domini dixerunt : Iuxta exposita
non licere ; et addiderunt : Passive se habeant. Angelus Argenti, S.
Rom. et univers. Inquisit. Secretarius.
(This is the text printed in Mélanges théologiques, Liège, 1848, II,
p. 86, as given by Ferreres, Casus, I (1934), p. 102. Other versions
have slight differences, as for example the date, which is given as
14 March, but all substantially agree with the above.)
Idem, 14 December, 1898. Feria IV, die 31 Jan. 1872, proposita
fuit Emis Inq. gener, petitio Revmi Vicarii et Delegati Apost.
Aegypti ad hoc tradita, ut instrueretur, quomodo agendum esset
in hospitalibus mixtis, in quibus catholicae moniales servitium
praestant, quoties aliquis schismaticus vel protestans infirmus inibi
decumbens postulat assistentiam proprii ministri.
S. Ordo petitionem cum suis adiunctis matura consideratione
ventilavit et opportunum duxit mittere sequens decretum : R. P. D.
Vicar. Ap. se conformet decreto fer. IV, 14 Martii 1848, et op
portune eidem explicetur sensus verborum passive se habeant. Ipse
enim in epistulis datis sese difficultatibus premi dixit in inter
pretandis illis verbis et in iis applicandis in praxi. Et ideo praedictis
Emis Patribus mens est, ut notificetur Praelato Oratori, monialibus
vel aliis personis catholicis, addictis directioni vel servitio hospitalis,
non licere directe obsecundare, postulationibus infirmorum acatholicorum, quod attinet ad advocandum eorum ministrum; et
bonum esse, exorta occasione id iis declarare ; sed addunt adhiberi
posse ab iis pro advocando ministro aliquam personam, quae ad
respectivam sectam eorum qui postulent pertineat. Hac agendi
ratione salva manet lex, quae vetat communicationem in Sacris.
Sequenti vero Feria VI dic 16 Dee. eiusdem mensis ct anni (1898)
403
in solita audentia a SSrho D. N. Leone div. provid. PP. ΧΙΠ
R.P.D. Adessori impertita, SSrhus D.N. resolutionem EE. & RR.
Patrum adprobavit.
(This is the complete text printed by Lehmkuhl, Casus, I [1913],
p. 224. Odier versions substantially the same, though less complete,
e.g. Diet. Thcol., VI, col. 2239, give the date of the previous decision
as 5 February, 1872. Since 1898 there has been no further direction
published about the matter.)
i. These decrees arc published in private collections, and are
not in the Fontes of the Code, but there can be no doubt concerning
either their authenticity or their binding force. The decision of 1848
and the explanation of 1872 are based on principles which cannot
be questioned or repudiated, difficult though they may be to explain
to non-Catholics, especially in countries where all religions enjoy
equal favour in the eyes of the civil law and of the population. A
Catholic hospital gladly extends its material benefits to all comers,
whether Catholics or not ; the non-Catholics, as they are bound in
conscience to do, worship God according to their lights, and their
ministers are not refused access. Catholics, however, as is well
known to all, may not co-operate directly in the specifically religious
actions of heretics : summoning an heretical minister comes within
this forbidden co-operation, since it is active and not merely passive.
ii. The Holy Office in 1848, adhering to a distinction which is
now in canon 1258, recommended the nuns to be passive in the
matter of summoning heretical ministers. The meaning of “passive”
is quite clear λνΐιοη it is a question of merely being present at
heretical rites, without giving any active assistance, e.g. by joining
in the prayers, but it is not surprising that the Sacred Congregation
was asked to elucidate the meaning of “passive” in the context of
the reply; and the meaning given in 1872 and again in 1898 was
that the non-Catholic minister might be summoned by a non
Catholic. The word “iis” in the phrase “id iis declarare” is correctly
taken by Lehmkuhl and others to mean “infirmis”, and it seems
to us that the same must apply to the word in the second phrase
“adhiberi posse ab iis”. Otherwise, if “iis” in the second phrase
means “monialibus vel aliis catholicis”, it would almost seem that
the Holy Office was, for the moment, forgetful of the axiom “qui
facit per alium facit per sc”. On this interpretation the force of the
word “passive” is clear: the nuns or the Catholic nurses neither
ask for the minister nor obstruct him—they merely look on, as a
Catholic would do, say, at a Protestant wedding.
iii. The commentators, whilst being loyal to the decrees of the
Holy Office, try to find a way out of further difficulties which might
Q. 29b
Joint I Vorship or Action with non-Catholics
404
Priests' Problems
Q. 299
arise, when there is no non-Catholic messenger available and the
sick person insists on having a minister, particularly when even the
appearance of refusal would cause discredit to the Catholic religion,
as it certainly would in a mixed or secular State. Some writers,
feeling doubtless that the limit of their power of making distinctions
has been reached, teach that in such circumstances the minister
may be summoned by a Catholic. Others, more correctly we think,
point out that the right course is to let the minister know that a sick
man wishes to see him, without specifying anything further.1
299.
SPIRITISM
What is the teaching of the Church about spiritism and the doctrinal reason
for the faithful being forbidden to take part in spiritistic séances?
Deut. xviii, 10-12: Neither let there be found among you any
one . . . that seeketh the truth from the dead.
5. Of., 24 April, 1917; Denz. 2182: An liceat per Medium, ut
vocant, vel sine Medio, adhibito vel non hypnotisme, locutionibus
aut manifestationibus spiritisticis quibuscunque adsistere, etiam
speciem honestatis vel pietatis praeseferentibus, sive interrogando
animas aut spiritus, sive audiendo reponsa, sive tantum aspiciendo,
etiam cum protestatione tacita vel expressa, nullam cum malignis
spiritibus partem se habere velle. Resp. Negative in omnibus.
i. The above reply was occasioned by the increase in spiritistic
practices during the First World War. Earlier directions were given
by the Holy Office, 30 March, 1898 (forbidding the practice of
automatic writing) and 30 July, 1856 (forbidding evoking spirits of
the departed).2
ii. Since the doctrinal reasons for the prohibition are not given,
and it is not usually the practice of the Roman Curia to give reasons,
one is free to speculate about them. Some think that spiritistic
phenomena can all be explained on natural grounds alone, others
that they are all diabolical. A via media holds that spiritism is at
least occasionally suspect of diabolism, and this is probably the best
view to adopt, and one which fully justifies the prohibition. If even
this guarded opinion seems offensive to the many excellent people
who indulge in these practices, it suffices that spiritism is, for many
of its adherents, a form of religion, and is for this reason alone
forbidden to those who profess the Catholic religion. The reader is
1 Génicot, Thecl. Moralis, I, n. 201, V.
2 The American Ecclesiastical Review, October 1947, p. 277, cites these two direc
tions; they are not in Fontes.
N
Q. 300
Joint Worship or Action with non-Catholics
405
referred to the fuller discussion in the articles written for The
Clergy Review by Rev. Humphrey J. T. Johnson, 1949, XXXII,
pp. b I56> 299> and
ΧΧΧΠΙ, p. 145.1
300. CIVIL RELATIONS WITH COMMUNIST
GOVERNMENTS
Now that it is perfectly evident that the Communist-dominated governments
of Eastern Europe, in particular at the present moment Czechoslovakia,
Hungary, Yugoslavia, Rumania, are directly persecuting the Church and
denying the most elementary rights and liberties to the individual, ought
Catholics in other countries to urge actively that their governments refrain from
all commercial agreements {alternative, break off official relations', with those
governments?
i. In weighing the wrongness of any action or line of conduct,
whether on the part of individuals or of States, our first concern is
to see whether it is intrinsically wrong. Public relations, both com
mercial and diplomatic, with a government which is persecuting
the Church, are clearly not wrong in themselves. Discussing a some
what similar topic a few years ago2 our conclusion was that it is
lawful for a Christian State to enter upon a belligerent alliance with
a State which is professedly anti-Christian. For the point to be
examined is not the internal policy of the anti-Christian government,
but the enterprise which it is proposed to undertake in alliance,
namely the purpose of the war. If this purpose is unjust, an alliance
even between two Catholic States is intrinsically wrong. Similarly,
one must regard the immediate purpose of the commercial or
diplomatic relations.
ii. The Communist government is almost certainly excommuni
cated, either as such or as persons attacking the rights of the Church.
In earlier days excommunication carried with it the obligation on
the rest of the faithful to avoid even civil relations with persons
under this ecclesiastical censure. This is no longer die law except,
from canon 2267, in the case of excommunicatus vitandus, and even
then a reasonable cause justifies civil communication. One cannot,
therefore, discern at the present time any positive law of die Church
forbidding commercial or diplomatic alliance with a Communist
government.
1 Commenting on the above reply, Father Johnson wrote: ‘'It may perhaps be
conjectured that die decree of the Holy Oflice of 1917 was partly determined by a
psychological consideration, viz. that many pious persons who have started as
investigators have ended up by becoming mediums themselves” (77:e Clagy Review,
1951, XXXV, p. 428).
2 The Clergy Review, I94I> λ>ΧΙ, ρ· 239.
14*
406
Priests' Problems
Q. 300
iii. It is understood, however, that the treaties signed at Paris in
1947 with countries which have since become Communist and anti
Catholic, included an article safeguarding religious freedom in these
countries. It is for the other parties to this agreement to secure by
all means which are lawful and opportune the due observance of
this article of the Treaty, and it may well be that a commercial or
diplomatic rupture might secure its observance ; on the other hand
it might intensify the Communist and anti-Catholic activities of
these governments. A decision on the sanctions to be applied for
implementing a treaty must be left to the responsible government,
and it will depend very largely on its political complexion. It is
open to Catholic subjects, if they so desire, to urge by every lawful
means the application of sanctions, exactly as they would in any
other question of public policy. But, in our view, one cannot say
that Catholic subjects “ought”, i.e. that they have a moral obliga
tion, to urge such sanctions. There may be other grave reasons
arguing against this policy, and Catholics may, if they wish,
refrain from urging it, leaving it to the responsible government to
adopt whatever policy seems best in the circumstances.
XXVI. ECCLESIASTICAL CENSORSHIP
3OI. CENSORSHIP OF PARISH MAGAZINES
On what principle do these publications, which usually contain matter
dialing with religion, appear without the “Imprimatur”?
Canon 1384, §2: Quae sub hoc titulo de libris praescribuntur,
publicationibus diariis, periodicis et aliis editis scriptis quibuslibet
applicentur, nisi aliud constet.
It is sometimes thought that periodical literature does not come
within the censorship laws, and it must be admitted that the practice
varies considerably, even in the case of purely theological journals.
The explanation probably lies in the fact that this type of literature
must be published regularly and that the delay in obtaining an
imprimatur would be injurious, or it may be that the local Ordinary
having complete confidence in the editor is satisfied that either he
or a priest member of the staff is exercising due vigilance and may,
by implication, be regarded as a deputed censor. It cannot, however,
be maintained that periodical literature as such is exempt from the
law, and canon 1392, §2, directs that republished extracts from
periodicals need no fresh approbation, thus assuming that they have
it already, as required from canon 1384, §2.
A further consideration applies to the parish magazine which,
being restricted in circulation to the parishioners, cannot rightly
come within the term “edantur” of canon 1385, §1. There is agree
ment amongst the commentators1 that to come within the law a
book or periodical must be “published” in the sense that it is
offered to the public in general, and not merely to a selected group
as, for example, to the members of a school, community, or parish.
302.
NON-CATHOLIG RELIGIOUS TRANSLATIONS
There exist many good English versions of Catholic classics, such as “St
Augustine’s Confessions” or “The Devout Life” by St Francis de
Sales, which are the work of non-Catholic translators, and for this reason
have no “Imprimatur”. May the faithful use these books?
Canon 1385, §1, 2: Nisi ecclesiastica censura praecesserit ne
1 E.g. Bcste, Introductio, p. 696.
407
408
Priests' Problems
Q.· 3°3
edantur etiam a laicis . . . Libri . . . ac generaliter scripta in quibus
aliquid sit quod religionis ac morum honestatis peculiariter intersit.
Canon 1392, §1 : Approbatio textus originalis alicuius operis,
neque eiusdem in aliam linguam translationibus neque aliis edition
ibus suffragatur; quare et translationes et novae editiones operis
approbati nova approbatione communiri debent.
Canon 1399, 4: Ipso iure prohibentur. . . . Libri quorumvis
acatholicorum, qui ex professo de religione tractant, nisi constet
nihil in eis contra fidem catholicam continere ; . . .
The translator, editors and publishers, though of course in good
faith, break the law of canon 1385, for it is clear that, since a trans
lation needs an imprimatur, the translated text is a book that comes
within this law.
It is also clear that the translation of a Catholic book by a non
Catholic translator is a book within the meaning of canon 1399.4.
But, unlike the biblical texts enumerated earlier in the same canon,
the faithful are not absolutely forbidden to read them, but only if it
is established that the translator has not fallen into any error in
the course of his work. This assurance, which normally should be
obtained by the usual imprimatur, may be supplied by any competent
person, for example a teacher or a reviewer. There is a presumption
that a non-Catholic is likely to fall into error, but it is a presumption
which must yield to the truth in any given case.
Though it is obviously advisable that the faithful in general should
read Catholic classics in a translation made by a Catholic writer,
the only wrong one can discern in using other translations, once it is
established that they are accurate, is that it encourages a breach of
the law of censorship.
There is less chance of error in translation made by a competent
person, but the above applies equally to original works by non
Catholics on religious subjects.
A priest is within his right in simply telling the faithful not to
read them, owing to the presumption of error therein ; it is then for
the faithful who want to use them to get assured that the books are
free from error and that the presumption is not verified.1
303.
BROADCASTING BY SECULAR CLERGY
Does the rule of canon
as broadcasting?
1386
apply equally to other kinds of publicity such
Canon 1386, §1 : Vetantur clerici sacculares sine consensu suorum
Ordinariorum, religiosi vero sine licentia sui Superioris maioris et
1 Cf. Ecclesiastical Review, June ι946? ρ. 4Ο3.
Q. 304
Ecclesiastical Censorship
409
Ordinarii loci, libros quoque, qui de rebus profanis tractent, edere,
et in diariis, foliis vel libellis periodicis scribere vel eadem moderari.
Canon 19: Leges quae poenam statuunt, aut liberum iurium
exercitium coarctant, aut exceptionem a lege continent, strictae
subsunt interpretationi.
i. An activity of this kind may be forbidden indirectly owing to
its conflict with some law other than canon 1386. It may, for
example, be incompatible with the office which a cleric is required
to perform, as provided for in canon 128; or it may be preaching
which from canon 1328 requires a commission from ecclesiastical
authority; or it may be of a political character coming within the
directions of S.C. Cone., 15 March, 1927, which replied affirmatively
to the question: “Utrum Ordinario ius sit et officium interdicendi
per praeceptum actionem politicam viris ecclesiasticis, qui in ea
explicanda non se conforment instructionibus S. Sedis?”1; or,
finally, it may be related to the forbidden occupations enumerated
in canon 139.
ii. If broadcasting is held to be included in canon 1386, an
opinion which we shall have to reject in (iii), it will at least be
subject to the same interpretation as “edere”, “scribere” and
“moderari” in that canon. In many respects the law here codified
is much stricter than it was before the Code,2 the point about it
being that the Ordinary’s permission is something quite distinct
from censorship. Commentators limit the law to matters of some
moment or to an activity which is frequent if not habitual. Failing
any local law to the contrary, this liberal interpretation of the words
“edere”, etc., may be followed.
iii. We think, however, relying on canon 19, that broadcasting
is not included in this law, even though it may be thought that the
same reasons which apply to the activities expressly mentioned in
canon 1386 apply also to broadcasting. Certainly it must be held
that, if a local censure l.s. were attached to a violation of this canon,
it would not be incurred by broadcasting, for canon 2219, §3,
expressly rejects this method of extending one case to another
“quamvis par adsit ratio, imo gravior”. The broadcast, it is true,
will reach a far greater number of persons than a book or article,
but there is, on the other hand, a permanence about the written
word which is lacking in a speech.
304. “imprimatur”
unpublished
Occasionally a book appears without the “Imprimatur”, and on inquiry
it is found that the work was exatnined and passed by the censor but permission
1 A.A.S., 1927, XIX, p. 138·
2 Cf. Collationes Bvugenses, 1928, pp. 37, 38.
410
Priests' Problems
Q. 304
to omit the publication oj the usual formula was obtained. On what principle
is this practice lawful?
Canon 1394, §1 : Licentia, qua Ordinarius potestatem edendi
facit, in scriptis concedatur, in principio aut in fine libri, folii vel
imaginis imprimenda, expresso nomine concedentis itemque loco et
tempore concessionis.
Canon 2318, §2: Auctores et editores qui sine debita licentia
sacrarum Scripturarum libros vel earum adnotationes aut com
mentarios imprimi curant, incidunt ipso facto in excommunica
tionem nemini reservatam.
i. The law requires the episcopal permission to be printed on the
book, and this usually takes the form of the word Imprimatur with
the date and name of the Ordinary. The law does not require the
censor’s name to be printed though this is usually included in this
country : doubtless it is an added safeguard for the public to know
who passed the book, and it is also a further assurance of care on
the censor’s part. The censure of canon 2318, §2, applies only to
works on Holy Scripture : neglect of the law in regard to other books
can be met by penalties ferendae sententiae. Even with regard to books
on Holy Scripture the substance of the law is preserved by obtaining
the Imprimatur, so that the censure would not, we think, be incurred
by wrongly omitting, without permission, the publication of the
accustomed formula.
ii. Fr Jombart, S.J., writes as follows about the non-publication
of the Imprimatur-. “Ex can. 1394 licentia edendi est imprimenda
in principio aut in fine libri. Sed non urget lex positiva cuius finis
‘cessat contrarie’, i.e. cuius observatio litteralis in casu quodam
foret graviter nociva bono animarum.”1 Others quote this opinion
with approval,2 explaining that it is an application of the principle
of epikeia. Better, perhaps, one could recognise in what is after all
only a partial neglect of the law an application of canon 81, which
permits Ordinaries to dispense general laws of the Church in special
circumstances
1 Periodica, 1932, p. 190.
2 Bouscaren-Ellis, Canon Law, p. 713.
XXVII. JUDICIAL PROCESSES
305. DEPRIVAL OF PARISH
How is canon 1576, §1, which requires a trial and a judicial sentence
three judges, harmonised with canons 2168-2194, where a deprival can
by
be
decreed by the Ordinary after an administrative process?
Canon 192, §2: Si agatur de officio inamovibili, Ordinarius
nequit clericum eodem privare, nisi mediante processu ad normam
iuris.
Canon 1576, §1 : Reprobata contraria consuetudine et revocato
quolibet contrario privilegio : 1. Causae . . . criminales in quibus res
est de privatione beneficii inamovibilis . . . tribunali collegiali trium
iudicum reservantur.
Canon 1933, ’ Delicta quae cadunt sub criminali iudicio sunt
delicta publica.
§2 : Excipiuntur delicta plectenda sanctionibus poenalibus de
quibus in can. 2168-2194.
Canon 2299, §1 : Si clericus beneficium inamovibile obtineat,
eodem in poenam privari potest solum in casibus iure expressis.
i. The canonical trial provides the surest safeguard for the rights
of a parish priest who is threatened with deprival of his benefice,
and if his rights were the sole issue at stake justice demands that he
should not be deprived as a punishment except after a judicial
trial and sentence. Canon law, however, must take account of
other things besides the rights of an individual parish priest ;
suprema lex salus populi is an axiom which must apply most of all to
the government of a society, the Catholic Church, which exists for
the spiritual good of the faithful. Accordingly the law provides for the
infliction of punishments extra-judicially, that is to say without all
the formalities of a trial, or even without formalities of anv kind.
as in the case of suspension ex informata conscientia in canons 21862194.1 This does not mean that the Ordinary may act in an arbitrary*
manner when punishing delinquent clerics ; it means that he may do
so, in the measure and with the procedure defined by canon law,
as an administrative act and without the strict formalities of a trial,
whilst observing nevertheless the essential requirements of natural
*
/
J
1 For the justification of extra-judicial punishments, which are unknown in
most civil codes, cf. Ius Pontificium, 1922, p. 37, and 1923, p. 205.
411
412
Priests' Problems
Q,. 306
justice. 1 he beginnings of this administrative process are in the
legislation ol the Council of Ί rent, which became gradually
crystallised after three centuries in the famous decree Maxima Cura,
20 August, 1910,1 now incorporated with some modifications2 into
the Code, canons 2142-2185.
ii. 1 here is, indeed, some difference of opinion whether the
processes dealt with in these canons are to be called “judicial” or
merely “administrative”. Their position in the Code, their rules
and procedure, and the common view of the writers explaining
them support the view, which we think correct, that they are not
judicial but administrative acts. Hence there is no conflict between
these processes and canon 1576, §1. The deprivation of canon 2177.2,
for example, is an administrative decree, whereas the deprivation of
canon 1576, §1, is a judicial sentence in a canonical trial. Noval
expresses the point very clearly: “. . . si delictum certum esset
publicum, neque contemplatum in canonibus 2168-2194, servandus
esset processus iudicialis quia delicta publica sunt objectum iudicii
(can. 1933, §1) nisi sint excepta (can. 1933, §2) . . .”3 Accordingly,
whenever some crime is in question which is not amongst those
provided for in canons 2168-2194, penal deprivation of an im
movable benefice must be by judicial sentence given by a collegiate
tribunal of three judges. The consequences of a judicial deprivation
are more serious than the deprivation occurring in the administrative
processes.4
iii. The deprivation we have been discussing is totally different
from removal or translation from one parish to another, which
might be decreed by the Ordinary for reasons involving no fault
whatever on the parish priest’s part, for example owing to sickness
or old age. The procedure is described in canons 2147-2167, and
a good modern commentary adapted to English conditions exists in
Dr Ronchetti’s Administrative Removal of Parish Priests, reviewed in
The Clergy Review, 1949, XXXI, p. 68.
3o6. delay in marriage tribunal’s functioning
Is there any remedy for the parlies who have had their case accepted by a
diocesan tribunal and after twelve months have no assurance of obtaining a
decision in the near future?
Canon 1620: Indices et tribunalia curent ut quamprimum, salva
1 Fontes, η. 2074; Eng. tr. Leeds Synods, 1911, p. 130.
2 The Code is less favourable to the parish priest than Maxima Cura, e.g. the
vote of the consultors is no longer decisive but merely advisory. Cf. Jus Pontificium,
1935> P· *3· „
3 De Processibus, III, §475.
4 Regatillo, Institutiones, II, §294.
Q. 307
Judicial Processes
413
iustitia, causae omnes terminentur, utque in tribunali primae
instantiae ultra biennium non protrahantur, in tribunali vero
secundae instantiae ultra annum.
i. Since the law suggests two years as a reasonable period for
obtaining a decision from the court of first instance, the parties
mentioned in the above question have no grievance. As everyone
knows, it is far easier to get married than to have the contract
declared null and void. The indissolubility of a valid and consum
mated marriage between Christians is of divine law, and therefore
a most careful investigation is essential before a decision can be
given declaring the contract to be invalid from the beginning. An
instruction from the Vigilance Commission of the Congregation of
the Sacraments, 15 August, 1949, insists on the observance of the
time limits in canon 1620 “quantum saltem ab ipsis (tribunalibus)
dependet”, and a commentator on this document notes that
excessive delays are often the fault of the parties themselves, or of
their advocates, in producing too many witnesses to give evidence.1
It must be remembered, also, that in this country the members
of the tribunal undertake the arduous work in addition to their
usual occupation, and the parties -will be fortunate if they have
a decision within the two years permitted by the canon. A parish
priest or a priest friend of the parties usually acts as an informal
advocate, and it would be wise for him always to warn them that
they may have to wait three years for a decision, and perhaps
longer if the D.V. of the tribunal of second instance appeals to the
Holy See.
ii. However, to answer the question put, we cannot find any
commentator who discusses the remedy of parties who may have a
real and not an imaginary grievance. We suppose that, as in any
other matter, the remedy lies in recourse to the Ordinary and,
beyond the Ordinary, to the Congregation of the Sacraments.
307.
AGGRIEVED PETITIONER’S REMEDY IN
MARRIAGE GAUSES
The diocesan tribunal, after examining the facts alleged, declines to allow
a case of marriage nullity to proceed. What is the remedy for the aggrieved
parties?
Canon 1709, §1: ludex vel tribunal, postquam viderit et rem
esse suae competentiae et actori legitimam personam esse standi
in iudicio, debet quantocius libellum aut admittere aut reiicere,
1 Monitor Ecclesiasticus, 1949, p. 104; 1950, p. 52.
414
Priests' Problems
Q. g08
adiectis in hoc altero casu reiectionis causis. (Incorporated in
Provida^ art. 61.)
§3 : Adversus libelli reiectionem integrum semper est parti intra
tempus utile decem dierum recursum interponere ad superius
tribunal: a quo, audita parte, et promotore iustitiae aut vinculi
defensore, quaestio reiectionis expeditissime definienda est. (In
corporated in Provida, art. 66, which adds : exclusa appellatione ad
normam canonis 1880, n. 7. §2. Si tribunal superius libellum
admittat, causa remittenda est pro eius definitione ad tribunal a quo.)
i. The well-informed faithful are nowadays aware of the fact
that a marriage may be declared null by a competent ecclesiastical
tribunal, but they do not usually appreciate the necessity of pro
ducing adequate proof in support of the contention that a marriage
is invalid, nor are they aware of the complexity of the process and
the amount of time and labour to be expended by the court in
completing it. Therefore the law provides for a preliminary review
of the case and the evidence adduced, permitting the tribunal
straightway to reject the libellus accusing a marriage of nullity; if
this rejection is based, for example, on the inadequacy of the
evidence offered, the libellus may be amended and presented again,
as in §2 of canon 1709, and Provida, art, 62. Lest, however, the
tribunal should unjustly reject a libellus, the aggrieved party may
have recourse to a higher tribunal, which has the power to reverse
the decision of the first. This tribunal of recourse is either that of
another diocese or the Rota.1
ii. If the tribunal of recourse also rejects the libellus, Provida,
art. 66, quoting canon 1880, n. 7, directs that no further “appeal” is
permitted. The decision is definitive and the cause is finished so far
as the libellus in this instance is concerned. Most of the commentators
we have consulted do not indicate the petitioner’s remedy against
the second rejection. It appears that the only course is to start all
over again with a fresh libellus,2· and since its fate would be a foregone
conclusion if sent again to the same tribunal, there is no reason
why it should not be presented either to another competent tribunal,
as in Provida, art. 3 and 11, or to the Holy See, as in canon 1603, §2.
308. ROGATORY COMMISSION PROCEDURE
A short time ago the diocesan tribunal handling a marriage case delegated
me (a parish priest, not a synodal judge) to examine a witness in my parish
who, owing to illness and the distance, could not give evidence in the place
1 Thus Dohcny, Canonical Procedure in Matrimonial Cases, p. i?Q.
2 Kcaly, The Introductory Libellus, p. 76.
Q, 308
Judicial Processes
415
where the tribunal assembles, and I performed this office to the best of my
ability. Could you explain exactly the correct procedure on such occasions?
Canon 1770, §1 : Testes sunt examin suibiiciendi in ipsa tribunalis
sede.
§2: Ab hac generali regula excipiuntur. ... 4. Qui in dioecesi
quidem commorantur, sed in locis ita dissitis a tribunalis sede, ut
sine gravibus impensis neque ipsi iudicem adire, neque a iudice
adiri possint. Hoc in casu iudex debet propiorem aliquem sacer
dotem dignum et idoneum deputare, ut cum assistentia alicuius,
qui actuarii munere fungatur, examen horum testium perficiat,
transmissis pariter eidem interrogationibus faciendis, datisque op
portunis instructionibus.
Provida, art. 98, §1 : Personae autem, de quibus in canone 1770,
§2, eximuntur ab obligatione examini se subiiciendi in ipsa tribunalis
sede, earumque examen perficitur ad normam citati canonis.
The term ‘‘rogatory commission” strictly applies in the circum
stances of canon 1570, when one tribunal claims the aid of another
in examining a witness, but for want of another term it can apply
to the above procedure : moreover it might happen that the parish
priest’s assistance was requested in carrying out a rogatory’ com
mission accepted by his own diocesan tribunal. Briefly, as in the
concluding words of canon 1770, §2, this parish priest must carry
out with care and expedition all the directions of the tribunal, even
though he thinks them unnecessarily detailed, and these directions
will contain, explicitly or implicitly, the following points of
procedure.
i. Phe persons taking part, in addition to the witness, are the
parish priest acting as delegated instructor, and another priest
acting as notary also appointed by the tribunal. A delegated or
substitute defensor vinculi is not required,1 though some tribunals
prefer to nominate one relying on canons 1968 and 1969, as well as
art. 70 of Provida. It is assumed that the tribunal’s defensor, having
prepared the interrogatory and presented it to the tribunal's judge,
has sufficiently “intervened”.
ii. The session opens with an oath to speak the truth taken by
the witness cited by the tribunal; the two priests may also be
directed by the tribunal to take an oath faithfully to perform their
office. The notary records in writing the date of the session, the
presence of the parties and the oaths they have taken ; the delegated
instructor takes the evidence given by the witness in answer to the
questions, and the notary records the answers in writing. The replies
1 Dohcny, Canonical Procedure, Formal, p. 311, n. 21.
416
Priests' Problems
Q. 309
of the witness may be vague and diffuse, in which case the instructor
will clarify them and a record will not be written until the witness
agrees that the clarification accurately represents what he wants to
say. The examiner may also put supplementary questions for the
purpose of implementing those sent by the tribunal whenever he
judges this to be necessary. If the examination was held in the
normal way in the place where the tribunal usually assembles and
before its own regular officials, canon 1968, 1, requires these
questions to be handed by the defensor to the judge or auditor in a
sealed envelope. Some tribunals might direct this to be done in
the delegated process we are discussing, which would mean that
the examining priest sees the questions for the first time when the
session has begun. This seems to us an altogether unnecessary
precaution which is not required by the common law; on the
contrary, it is an advantage for the delegated examiner to know
beforehand what the questions are.1
When the examination is concluded, the written evidence taken
down by the notary is read to the witness. If he is satisfied that it
represents his mind, he takes another oath affirming the evidence
to be true, and that it will not be divulged. Each page of the whole
proceeding, as recorded by the notary, is signed by the witness,
the examining priest and the notary. When it is returned to the
diocesan tribunal, a note of any expenses incurred may be added.
309.
ROGATORY COMMISSION---- EVIDENCE WITHOUT
NOTARY
In the above reply to a question about the due carrying out by a parish
priest of a rogatory commission collecting evidence in a marriage cause, the
necessity of a notary was stressed. Why is it that in a similar commission
collecting evidence in a case of alleged non-consummation the services of a
notary may be dispensed with?
7 May, 1923, n. 24, §4: Si delegatus hand
possit habere sacerdotem quem sibi adsciscat in munere defensoris
vinculi, id notet in actis et ipse ex officio faciat interrogationes aut
alia animadvertat: itemque si desit, in regionibus parum vel nullimode excultis, qui actuarii munus expleat, facta debita adnotatione
in actis, ipse iudex actum exceptae attestationis, cum debitis notis,
redigat.
Catholica Doctrina,
1 Some commentators, however, require this precaution of the sealed envelope
when a tribunal is given a rogatory commission by another. The practice of the
Rota is to send them in an unsealed envelope ; cf. Pinna, Praxis ludicialis Canonica,
p. 69.
Q. βίο
417
Quo Facilius, io June, 1935 (pro Ecclesia Orientali), η. 24:
Deficiente idoneo sacerdote qui munus defensoris obire possit, ipse
moderator actorum delegatus eiusdem partes agat, facta de re
mentione in actis. Semper autem requiritur actuarius, ad quod
munus, in casu necessitatis, scandalo et admiratione remotis, assumi
potest etiam laicus.
Since the office of delegated instructor might come the way of
any parish priest, the point which has been raised by our corre
spondent can usefully be discussed.
i. One explanation of Catholica Doctrina, η. 24, §4, might be that
this process is not strictly judicial but administrative. Nevertheless,
even in administrative processes, the canon law most firmly main
tains that the intervention of a notary is required at every stage,
though there may be now and then a query whether the nonobservance of the rule invalidates the act. This text is, to the best of
our knowledge, the only exception to the rule of canon 1770, §2.4,
which is contained indeed within the canons on judicial processes
but is nevertheless a reflection of a universal rule of procedure.
ii. N. 24 of Quo Facilius for the Eastern Churches is interesting
because it appeared some years after Catholica Doctrina, and, as we
have had occasion to note in other legal texts issued for Eastern
Churches, the Roman Curia is accustomed to take the opportunity
of making any necessary changes or clarifications which are at some
future time to be introduced into our own law. The section of Quo
Facilius corresponding to that in Catholica Doctrina insists on the
necessity of a notary, and in declaring that any suitable layman
suffices it repeats the direction of Catholica Doctrina, η. 24, §2.
iii. The delegated parish priest will faithfully carry out the
instructions received from his diocesan curia, but he will not dis
pense with a notary unless he is directed to do so. One can hardly
imagine any district in this country unable to produce a suitable
layman for the office.
Judicial Processes
310.
“CONIUX INHABILIS AD ACCUSANDUM
MATRIMONIUM ”
A party who is the cause of marriage invalidity, for example by giving a
defective consent, is not “inhabilis” in the sense of “incapax standi in
iudicio” {Code Commission, 4. January, 1946). Why then is the same party
deprived of the right to appeal {Code Commission, 3 May, 1945) ·?
3 May, 1945: An coniugi inhabili ad accus
andum matrimonium ad normam canonis I97tj §ΐ· i> competat ius
Code Commission,
418
Priests' Problems
Q.
appellandi vel recurrendi adversus sententiam in favorem matri
monii latam. Resp. Negative, salvis extraiudicialibus recursibus.
4 January, 1946: An inhabilitas coniugis ad accusandum matri
monium, a canone 1971, §1.1, statuta, secumferat incapacitatem
standi in indicio, ita ut sententia vitio insanabilis nullitatis laboret
iuxta canonem 1892.2. Resp. Negative.
i. Canon 1971, §1. 1, which declares “inhabilis ad accusandum
matrimonium” the party who is the cause of the impediment or
nullity, has been interpreted by many replies of the Roman Curia,
some of which strengthen the law and others favour the guilty
party. The whole series was printed in The Clergy Review in 1946,1
and to the best of our knowledge none has been published since.
We should like to write that these replies have “clarified” the
meaning of the canon and its equivalent in arts. 37 and 38 of the
instruction for diocesan tribunals, 15 August, 1936; but this would
be an exaggeration if not indeed the reverse of the truth. This
somewhat confused situation has arisen because, on the one hand,
it is obviously right and necessary to prevent persons starting
nullity proceedings when they are themselves its cause; on the
other hand, assuming repentance for the past, it is often necessary
for the good of souls that the legal procedure for obtaining a nullity
declaration should not be absolutely barred. Hence we have at
present a complicated set of rules designed for the purpose of
providing a just remedy for both aspects of the matter : the person
is denied the right of accusing the marriage of nullity, but the
accusation may, with appropriate checks and safeguards, be brought
by the Promoter of Justice.
ii. The only commentator known to us who attempts an explana
tion of the contradiction of the two replies printed above is Bernadini2: “Si enim inhabilitas non est defectus capacitatis processualis
seu praesuppositi processualis, uti docet reponsio altera, coniux
inhabilis videtur habere personam standi in iudicio et esse vere et
proprie pars in causa; inde sequi videtur eundem posse appellare.
Cum autem inhabilis ad appellandum fuerit declaratus, dicendum
est primam responsionem intelligi debere tanquam ius singulare,
contra tenorem iuris communis, propter speciales rationes a
Legislatore probatas, positive statutum.”
311. MARRIAGE NULLITY: THE GUILTY PARTY
Is a convert who contracted marriage whilst he was a non-Catholic ex
cluded from accusing his own marriage of nullity in the following circum1 The Clergy Review, 1946, XXVI, p. 661.
2 Apollinaris, 1947, p. 57.
ΰ·3π
Judicial Processes
419
stances: his intention “contra bonum prolis” was introduced in good faith,
relying on the teaching of the Anglican Church, because he thought it justified
Giving to his partner's infirmity?
27 July, 1942 : Utrum secundum canonem 1971,
§1, i, et responsum diei 17 Julii, 1933, ad II, inhabilis ad accusandum
matrimonium habendus sit tantum coniux, qui sive impedimenti
sive nullitatis matrimonii causa fuit et directa et dolosa, an etiam
coniux qui impedimenti vel nullitatis matrimonii causa exstitit vel
indirecta vel doli expers? Resp. Affirmative ad primam partem,
negative ad secundam.
Canon 2200, §1 : Dolus heic est deliberata voluntas violandi
legem, eique opponitur ex parte intellectus defectus cognitionis et
ex parte voluntatis defectus libertatis.
§2: Posita externa legis violatione, dolus in foro externo praes
umitur, donec contrarium probetur.
S.R. Rota, 20 May, 1944, “coram Canestri”; Ephemerides luris
Canonici, 1946, p. 173: Ex quibus omnibus patet, non otiose, sed
necessarie utrumque terminum “directae et dolosae” applicatum
fuisse causae impedimenti. Aliquando dari potest unum sine altero ;
qui v.g. excludit prolem in ignorantia invincibili proprii peccati,
puta, quia tenet se ad hoc obligari ob infirmam sui valetudinem,
ponit causam directam, minime vero dolosam: ac tali in casu,
coniux ille jure accusandi matrimonium non privatur: ob haec,
omnis causa dolosa est etiam directa, sed non viceversa.
i. The scandal caused by declarations of nullity being given in
ecclesiastical courts at the instance of a party who was the cause of
the nullity has rightly led to a whole series of directions restricting
or denying the guilty party’s right to start a nullity suit,1 all of them
being interpretations of canon 1971, §1, 1. The instructions of the
Congregation of the Sacraments have been, on the whole, stricter than
the replies of the Code Commission and certain Rotal decisions. From
the litigant’s point of view, if he is considered barred from accusing
his own marriage, the only remedy is to secure its accusation by the
Promotor lustitiae who cannot act without the Ordinary’s sanction,
as set out in the instruction Provida, arts. 38 and 39. On the other
hand, if he is not considered barred, he enjoys the right of bringing
his case to a diocesan tribunal for judgement, a right which must
not be denied him.2
ii. The reply of the Code Commission, 17 July, 1933, ad. II,3
Code Commission,
1 The Clergy Review, 1946, XXVI, p. 660.
2 Cf. S. Sacram., 15 August, 1949, ad. 2 ; Monitor Ecclesiasticus, 1949, p. 99.
s The Clergy Review, 1934, VII, p. 73, and 1946, XXVI, p. 661.
Q. 312
deciding that the party who is the “culpable” cause of a marriage
nullity is barred from bringing a suit, led to some doubt as to the
meaning of “culpability” in this connexion, a dispute which the
reply, 27 July, 1942, settled by applying the terms “directa ct
dolosa” to elucidating the meaning of “culpability”. One might
discern, indeed, a little conflict perhaps between this reply and
certain instructions of the Sacred Congregation, in which case the
reply must prevail over the instructions.
ii. In our view, the procedure for a case of this kind, bearing in
mind the rule of canon 2200, §2, is for the diocesan tribunal to give
a decision on culpability, dealing with it as an incidental question
according to the rules of canons 1837-1841, and Provida, arts.
187-195. If the decision is favourable the action will proceed as in
any other case, and the Defensor may use his right to criticise the
tribunal’s decision ; if it is not favourable the only remedy for the
parties is to secure the intervention of the Promotor, by persuading
the Ordinary to sanction the procedure, which will always be a
difficult and hazardous enterprise, since some Ordinaries will be
more exigent than others.
420
Priests1 Problems
312.
IMPEDIMENT OF CRIME AND NULLITY PROCESS
If a marriage is invalid owing to an undispensed impediment of crime in
the first degree, the parties may not accuse it of invalidity since they are the
cause of the impediment; neither may the “promotor iustitiae” start
proceedings since this impediment is clearly not public. How then is the
process started?
art. 35, §1, Habiles ad accusandum sunt: 1. Coniuges,
nisi ipsi fuerint impedimenti causa; 2. Promotor iustitiae, in im
pedimentis natura sua publicis, iure proprio et absque praevia
denuntiatione ; praevia denuntiatione in aliis impedimentis, si iure
actionem instituendi ad obtinendam declarationem nullitatis sui
matrimonii denuncians careat. . . . (This article is an expansion of
canon 1971.)
Canon 1037: Publicum censetur impedimentum quod probari in
foro externo potest ; secus est occultum.
Some commentators, both before and after the Code,1 give a
special meaning to the distinction between impediments which are
public and those which are not : impediments iuris publici are those
which principally relate to the common good, iuris privati those
which principally concern the private good of individuals, e.g.
Provida,
1 E.g. Wemz-Vidal, Ius Canonicum, V, §147, ix.
O.313
Judicial Processes
421
impotence. It is certain that the impediment of crime, though
nearly always extremely occult, is public in the sense that it has
been macle for the protection of the sanctity of marriage as a public
institution. This being so, it comes within the province of the
Promotor Iustitiae, subject to all the provisions of the law in such
cases1 to start the proceedings for a declaration of nullity.
The Rotal jurisprudence has more than once accepted this
meaning of “public” in the present context, a meaning which goes
far beyond that in canon 1037. One example, a judgement given
ii August, 1928,2 is printed by Bouscaren, Digest, II, p. 543, in an
English translation. Another more recent one (1934) is explained
by Dohcny, Canonical Procedure (second edition), p. 112.
313.
MARRIAGE CAUSES OF NON-CATHOLICS
A non-Catholic man, invalidly married to a non-Catholic owing to an
impediment of consanguinity, after obtaining a civil divorce wishes to marry
a Catholic woman. May he take his case to the Ordinary for a summary
declaration of nullity in order that he may marry the Catholic?
Canon 1990 : Cum ex certo et authentico documento . . . con
stiterit dc existentia impedimenti . . . consanguinitatis . . . simulque
pari certitudine apparuerit dispensationem . . . datam non esse,
praetermissis solemnitatibus hucusque recensitis, poterit Ordinarius,
citatis partibus, matrimonii nullitatem declarare. . . .
S. OJf., 18-27 January, τ928; A.A.S., XX, p. 75, ad I: Utrum in
causis matrimonialibus acatholicus sive baptizatus sive non baptizatus,
actoris partes agere possit. Resp. negative . . . recurrendum ... in
singulis casibus.
Instr. Provida, 15 August, 1936, art. 35, §3: Itidem actoris partes
agere nequeunt in causis matrimonialibus acatholici sive baptizati
sive non baptizati ; si quidem autem speciales occurrant rationes ad
eosdem admittendos, recurrendum est in singulis casibus ad S.C.S.
Officii (cfr. responsionem S.C.S.O., diei 27 lanuarii, 1928).
S. Off., 22 March, 1939, ad I: Utrum decisio Supremae S.
Congregationis S. Officii data die 18 lanuarii, 1928 ad I, qua nempe
declaratum fuit acatholicos in causis matrimonialibus actoris partes
agere non posse, spectet tantum Tribunal S. Romanae Rotae, an
etiam Tribunalia dioecesana. Resp. Negative ad primam partem,
affirmative ad alteram, seu : spectare etiam Tribunalia dioecesana.
Code Commissions, 6 December, 1943, ad II : Utrum processus,
1 Cf. the series of texts in The Clergy Review, 1946, XXVI, p. 660.
2 R.D. XX, p. 405.
422
Priests' Problems
Q. 314
de quo in canone 1990, sit ordinis iudicialis, an administrativi. Resp.
Affirmative ad primam partem, negative ad secondam.
i. If previous recourse is had to the Holy Office the non-Catholic
may have his cause judged by the Ordinary’s tribunal, and there is
not the slightest doubt that recourse is necessary when there is to be
a formal trial before a collegiate tribunal. The Ordinary may also
decide to have previous recourse to the Holy Office even though
the matter can be settled by the summary process of canon 1990.
ii. Before the Code Commission reply, 6 December, 1943, the
view was widely held, and supported by private Roman replies,1
that recourse to the Holy Office was not required for the summary
process, since many held that it was administrative not judicial.
After the reply, however, some commentators who formerly held
this view have modified it and require recourse.2
iii. Recourse to Holy Office entails a certain amount of labour
and delay in what would otherwise be a very simple and expeditious
procedure, and if it is certain that recourse is necessary the parties
will have to be patient. But we do not know of any express Roman
decision affirming its necessity. Regatillo, in a book published well
after 1943,3 maintains that it is not necessary in the summary cases
of canon 1990, and his opinion immediately follows a commentary
on the Code Commission reply, 6 December, 1943: “...hoc
responsum (S.O., 27 January, 1928) se refert solum ad processum
ordinarium. In summario, de quo c. 1990-1992, competens est loci
Ordinarius, etsi actor seu accusator sit acatholicus. Nam (a) Ita
erat in iure praecedenti, ut apparent ex fontibus c. 1990 ; et cum hic
ius antiquum referat, ex veteri iure est interpretandus (c. 6, n. 2).
(b) Applicatio responsi a. 1928 ad. c. 1990 importaret restrictionem
iuris Ordinariorum, quae interpretatio restrictiva a sola C.I. dari
potest. Quare in responso a. 1928 S.O. non intendebat interpreta
tionem restrictivam dare, sed definire limites propriae competentiae
ad SS. Congregationes et tribunalia.” Regatillo’s view is shared
amongst others, by Beste,4 and we think it may be safely followed
until it is authoritatively rejected.
314. PROOF OF NON-CONSUMMATION OF MARRIAGE
When may the medical evidence, which is normally a part of the canonical
process proving non-consummation, be disregarded?
1 E.g. Bouscaren, Digest, II, p. 552.
2 Thus Dohcny, Canonical Procedure (Informal), p. 152; The Jurist, 1944, IV,
P· θ25·
.
3 Interpretatio et lurisprudentia, C.I.C. (194.9), §753·
4 Introductio (1946), p. 871.
Judicial Processes
a· 315
423
5, 0/, i2 June, 1942: (I) Examen physicum coniugum, prae
sertim vero mulieris, utpote inutile, omittitur iuxta Regulas servendos. . .7 Maii 1923 (art. 86) :
(a) si consummatio haberi non potuit quia nec tempus nec locus
ncc modus adfuerunt matrimonii consummandi ;
(/>) si iam constat dc mulieris defloratione.
His casibus alii duo addendi sunt, nempe :
[c) omitti poterit inspectio si, attenta partium ct testium morali
excellentia, ac serio pensatis eorum animi dispositionibus necnon
ceteris adminiculis aut argumentis, Ordinarii iudicio, plenissima iam
habeatur probatio de impotentia vel de inconsummatione ;
(d) omittatur mulieris inspectio, si ex inspectione viri plene
constiterit de huius incapacitate ad matrimonium consummandum.
The Regulae servandae referred to consist of 106 rules which
accompanied the decree of the Congregation of the Sacraments
Catholica doctrina, 7 May, 1923. This long document may be read in
an English translation by Bouscaren, Digest, I, pp. 764-792. A
translation and commentary is given by Doheny, Canonical Procedure
in Matrimonial Cases (Informal), pp. 191-496. A briefer commentary
on the whole process is by Naz and Lerouge, La Dispense Super Ratum
tt Non Consummatum.
The rules of Catholica Doctrina
other documents: S.C. Sacram., 27
have been supplemented by two
March, 1929, rules for preventing
a fraudulent substitution of some other person, A.A.S., 1929, p. 362 ;
and S. Offi, 12 June, 1942, quoted above, decreeing certain safe
guards in these processes.
The canonical procedure for proving non-consummation is vastly
more exacting than the English civil process, but it is not true that
a widow attempting to prove non-consummation of her second
marriage is in a weak position owing to the futility of medical
examination. The proofs in her case will be the o th ci's outlined in
the documents, and particularly the testes septimae manus, witnesses
to the worth and credibility of the petitioner.
315.
MARRIAGE CAUSES — SUMMARY PROCESS
Why is the vicar-general excluded from conducting these causes? And why
may the official deal with the second instance but not with the first?
15 August, 1936, art. 228. Ordinario absente aut
impedito, sententia, de qua in articulo praecedenti, datur ab
officiali dc mandato speciali Ordinarii.
Code Commission, 6 December, 1943: III. An nomine Ordinarii, dc
S.C. Sacram.,
424
Priests' Problems
Q. 315
quo in canone 1990, veniat Vicarius generalis, saltem de speciali
mandato Episcopi? Resp. Negative. IV. Utrum sub verbis iudex
secundae instantiae, de quibus in canonibus 1991 et 1992, veniat
tantum Episcopus, an etiam Officialis? Resp. Negative ad primam
partem, affirmative ad secundam.
The question relates to the summary process for deciding the
validity of a marriage when its alleged invalidity turns on the
existence of an impediment which can easily be verified by certain
and authentic documents : for example, the subdiaconate received
by someone who subsequently, and without a dispensation, at
tempted marriage. The matter is dealt with in canons 1990-1992
of the Code and in articles 226-231 of the instruction issued for
diocesan tribunals by the Congregation of the Sacraments in 1936.
i. Until the decision of the Code Commission, given under the
same date as the two above quoted, that this summary process is
judicial and not administrative, many held it to be administrative,
in which case it would come within the competence of the vicar
general. The decision, however, necessarily required the reply given
under III : the vicar-general is not competent from his office. But
it is a little difficult to understand why he should not be appointed
by a special episcopal mandate, since in principle any ordinary
powers enjoyed by the bishop may be delegated, from canon 199,
§1, “nisi aliud expresse iure caveatur”. The best explanation is that
the powers of a vicar-general qua talis are indeed administrative and
not judicial, and include everything administrative except matters
which are reserved to the bishop or which require a special man
date1 ; a special mandate may be given once for all to the vicar
general on his appointment, and the Commission declares that this
cannot include the summary marriage process of canons 1990-1992.
The bishop may, nevertheless, if he so desires, specially appoint
the vicar-general not qua talis but qua clericus,2 just as he may, in
small dioceses, unite the offices of vicar-general and official in one
person.
ii. Hence the position of the official is made clear in these sum
mary processes. There is no real contradiction, for the only person
who can give a decision in a summary process of first instance is
the bishop or the person specially delegated by him. It is a judicial
process and once started on its way is subject to the ordinary law:
in the event of the defensor vinculi appealing against the verdict to
the tribunal of second instance, the case may be decided, like any
other, by the official of the diocese to whose tribunal the appeal is
1 Canon 368. The Jurist, 1942, II, p. 346.
2 Thus Rcgaiillo, his Sacramentarium, §1521 ; Interpretatio et Jurisprudentia, §752.
Q-3'5
Judicial Processes
425
directed. Owing to the summary nature of these judicial processes
it has seemed good to the legislator to withdraw the first instance
even from the official who handles all other marriage causes, and to
require the bishop or his special delegate to be the judge; it is for
the official of the first instance merely to decide whether there is a
prima facie case to be brought before the Ordinary, as directed in
art. 226 of the 1936 instruction.
XXVIII. CRIMES AND PENALTIES
316.
ABSOLUTION FROM RESERVED CENSURE
A priest has persuaded a penitent who has incurred the excommunication of
canon 2319, §1, 1 {marriage in a Protestant church) to come to confession,
and in the meantime he applies for and obtains from the Ordinary the faculty
to absolve from this censure. The party, however, does not come, but it happens
that another person under the same censure does come. May the faculty be used
for the second person's absolution?
Canon 207, §1 : Potestas delegata extinguitur, expleto mandato;
elapso numero casuum pro quo concessa fuit ; cessante causa finali
delegationis. . . .
Faculties to absolve from reserved censures are sometimes granted
for a given number of cases, irrespective of the identity of the
penitents in whose favour they may be used. More usually, however,
especially in this country, the confessor either has habitual faculties
to absolve all cases of a given kind, or he has none at all, and must
apply in each case, though employing whenever permissible the
procedure of canon 2254.
If the faculty had been granted for the external forum, the name
of the individual to be absolved would be mentioned, and it is clear
enough that the rescript could not be used for some other person.
The same must be said for the internal forum, even though the
faculty is granted for the absolution of a person with a fictitious
name, e.g. Titius. Moreover, in theory at least, the superior would
have to take account of the circumstances in delegating the power
to absolve, and the circumstances would not necessarily be the same
for both penitents in the above case.
It seems to us that the principle of canon 207 must be applied,
and that the clause “cessante causa finali” forbids using the faculty
except for the identical person for whom it was obtained. Thus
Beste, Introductio, p. 221 : “Cessante causa finali, eo quod negotium
iam finem cepit, v.g. composita controversia, aut impossibile evasit,
g. morte partis cui opus erat dispensatione”. For “morte” read
v.
“absentia” and it applies exactly to the above question. Farrugia
is the only commentator we can discover who solves the doubt in
this sense: “Facultas absolvendi a reservatis concessa ab Episcopo
ad absolvendum determinatum penitentem, nequit a confessario
426
Crimes and Penalties
Q- 3'7
427
adhiberi in gratiam alterius poenitentis, si prior poenitens non
redeat ad confessarium.”1
317.
CENSURE
“ab
homine”
An Ordinary publicly declared that A.B., a lapsed Catholic who is a
notorious communist, has incurred the excommunication attached. Does this
declaration make the censure “ab homine", i.e. cause it to be reserved to that
Ordinary?
Canon 2217, §1, 3: Poena dicitur a iure, si poena determinata in
ipsa lege statuatur, sive latae sententiae sit sive ferendae ; ab homine
si feratur per modum praecepti peculiaris vel per sententiam
iudicialcm condemnatoriam, etsi in iure statuta; quare poena
ferendae sententiae, legi addita, ante sententiam condemnatoriam
est a iure tantum, postea a iure simul et ab homine, sed consideratur
tanquam ab homine.
Canon 2245, §2 : Censura ab homine est reservata ei qui censuram
inflixit aut sententiam tulit. . . .
§4: Censura latae sententiae non est reservata, nisi in lege vel
praecepto id expresse dicatur; et in dubio sive iuris sive facti
reservatio non urget.
i. As Dr McReavy clearly demonstrated,2 the decree of the Holy
Office, i July, 1949,3 is not a new piece of legislation but merely
applies to professed communists (materialistic and anti-Christian)
the l.s. penalty of excommunication contained in canon 2314.
Similarly the conditions for its absolution set out in the Jubilee
documents4 arc not something new but merely a reminder of the
abjuration required by canon 2314, §2, before absolution.
ii. The notion of a reservation “ab homine" has caused many
difficulties, since in the first place the Code legislation is somewhat
different to what preceded it, and this has not been perceived by
some commentators ; and in the second place the Code terminology
itself is not transparently clear. The declaration that a named
person has incurred a censure l.s. may be given judicially in the
course of an ecclesiastical trial, or administratively without the
formalities of a trial, but in neither case does the censure thereby
become “ab homine" and its absolution reserved to the authority
making the declaration. This happens only when a condemnatory
sentence of censure f.s. is inflicted judicially (therefore sententiam in
canon 2245, §2> means sententiam iudicialcm condemnatoriam as in
1 De Casuum Conscientiae Reservation, p. 51 ·
2 The Clergy Review, 1949, XXXII, ρ· 3θ9·
3 Ibid., p. 208.
4 E.g. A.A.S., 1949, XLI, p. 520; The Clergy Review, loc. cit. p. 420, ad 5.
428
Priests' Problems
Q. 318
canon 2217, §1, 3) or administratively without the formalities of a
trial (therefore feratur of canon 2217, §1, 3 is the equivalent of
censuram inflixit of canon 2245, §2). Stricter interpretations are found
in certain writers, but wc think this the clearest and the simplest to
adopt, and the dubium iuris is covered by the concluding words of
canon 2245, §4·1 Though it is not within the terms of the above
question, note that a censure l.s. added to enforce a particular
precept is equally not “ab homine” according to Roberti and
Michiels, who are now generally followed.2
iii. The effect of the Ordinary’s declaration in this case is not to
make the censure “ab homine” and therefore reserved to that
Ordinary, but to make it publici iuris. It may be absolved servatis
servandis by any Ordinary in the external forum with the procedure
of canon 2314, §2; or it may be absolved by a confessor delegated
by the Holy See with powers to absolve even public cases reserved
speciali modo', or it may be absolved by any confessor with the
procedure of canon 2254. If absolved not by a local Ordinary in
the external forum but by a confessor, the penitent must undertake
to submit himself to the external authority which will deal with the
case as provided for in canon 2251, and until the requirements of
the external forum have been satisfied he must, for the purpose of
avoiding scandal, act externally as though still under the censure.
318.
IGNORANCE OF RESERVATION OF CENSURE
Ignorance of the existence of a censure excuses one from incurring it, with
some exceptions. Does the same rule apply to the reservation of a censure,
at least in the sacramental forum, so that a person who knows of the censure
but is ignorant of its reservation is under no obligation to approach the
reserving authority for absolution?
Canon 2245, §4: Censura latae sententiae non est reservata, nisi
in lege vel praecepto id expresse dicatur ; et in dubio sive iuris sive
facti reservatio non urget.
The Code provides for a confessor’s ignorance of the reservation
of a censure in canon 2247, §3, but does not expressly decide the
question of a penitent’s ignorance. The question is controverted,
and we agree with the view that ignorance merely of the reservation
of the censure does not affect the penitent’s obligation to have
recourse to the reserving authority.3 There is no basis in the law for
1 Cf. Hcylcn, De Censuris, pp. 17-19; Brys, Compendium, II, §968.
2 Cf. I' Ami du Clergé, 1947, p. 727.
3 Thus Cappello, De Censuris, §72; Hcylcn, De Censuris, p. 31, 4; Noldin, De
Censuris, §24.
Q. 319
Crimes and Penalties
429
the opposite view, since the reservation is rather a limitation of the
confessor’s powers than a matter directly affecting the penitent.
Nevertheless, the view which excuses from reservation a penitent
who is ignorant of it is held by some canonists, and it is an opinion
which is at least extrinsically probable and may be followed in
practice unless the reserving authority expressly declares to the
contrary.1 Idle reason for this view is that, very likely, the reservation
is itself part of the penalty incurred and is therefore subject to the
same rules as ignorance of the censure.
There is always the procedure of canon 2254 for a confessor who
prefers not to take this liberal view. If he takes it, as Farrugia notes,
he should warn the penitent that the censure is reserved, so that
future lapses will have to go to a superior tribunal.
319.
FEAR EXCUSING FROM CENSURE
When the law declares that grave fear excuses from incurring a censure does
this include fear arising from intrinsic causes, or is it to be restricted, as in
the marriage impediment, to fear inflicted extrinsically by a free agent? For
example, an unmarried pregnant woman fearing the loss of her good name
might commit abortion: does she incur the censure of excommunication?
Canon 2229, §3.3 : Metus gravis, si delictum vergat in contemptum
fidei aut ecclesiasticae auctoritatis vel in publicum animarum
damnum, a poenis latae sententiae nullatenus eximit.
Code Commission, 30 December, 1937: An metus gravis a poenis
latae sententiae eximat si delictum, quamvis intrinsece malum et
graviter culpabile, non vergat in contemptum fidei aut ecclesiasticae
auctoritatis vel in publicum animarum damnum ad normam
canonis 2229, §3.? Resp. Affirmative.
Canon 2350, §1 : Procurantes abortum, matre non excepta,
incurrunt, effectu secuto, in excommunicationem latae sententiae
Ordinario reservatum. . . .
Fear is always something subjective in the person suffering it :
the distinction between “intrinsic” and “extrinsic”, however, is a
convenient method of differentiating between fear which arises from
the nature of things, e.g. fear of disease or of dishonour, and that
which is caused by an external free agent. The distinction has no
relation to the well-established difference between sins which are
wrong intrinsically and those which are not. Moreover, it is not in
dispute that grave fear never permits a person to do something
1 Cf. Farrugia, De Casuum Conscientiae Reservatione, p. 80 ; Pellé, Le Droit Pénal,
p. 92; Davis, Moral and Pastoral Theology, III, p. 447.
15
430
Priests' Problems
Q. 319
intrinsically and gravely wrong, though it will often excuse from the
observance of positive laws : hence it is not in dispute that abortion
is usually gravely sinful, even when committed through grave fear,
and the problem to be solved concerns only the ecclesiastical
penalty.
i. The text of the law about fear excusing from censures does not
state whether the fear is intrinsic or extrinsic, whereas in other laws,
as for example in the definition of the marriage impediment of fear,
it is clearly stated: “ob vim vel metum gravem ab extrinseco et
iniuste incussum”.1 Neither do the generality of commentators
expressly decide the point at issue, though their doctrine supposes
that by fear they mean both kinds. Thus Brys : “. . . propter can.
2229, §3.3, ubi hoc directe asseritur, si mater ex gravi metu sibi
abortum procuret (qui casus non infrequens est), quamvis a gravi
peccato haud excusetur, censuram non contrahit”.2
ii. Amongst those who take the stricter view, Michiels—one of
the classical commentators—holds that the juridical notion of fear
is always restricted to that which is extrinsic, and undoubtedly
many canons support this interpretation by using the word “in
cussus” when describing fear, as in canon 103, §2. Coronata also
adopts this view. The commentators on Code Commission, 30 Dec
ember, 1937, do not advert to the point, with the exception of
Regatillo: “Metus, qui a poenis l.s. excusat, est ab extrinseco,
iniustus; non ab intrinseco. Sic mater sibi procurans abortum ob
metum infamiae, excommunicationem contrahit.”3
iii. The only writer known to us who examines the difficulty fully
and expressly is Beijcrsbergen, S.J.4 He defends the opinion that, as
regards the application of the penal law, the notion of fear includes
that which is intrinsic, though outside the penal law it is restricted
to fear caused by a human agent ab extrinseco. Amongst the many
excellent reasons adduced for this liberal interpretation are, for
example, the principle of canon 2205, §2, which allies grave fear
to necessity and grave inconvenience; or the well-known require
ment of contumacy for incurring censures; and, still more, the
familiar rule of canon 2219, §1, “In poenis benignior est inter
pretatio facienda.” They are reasons which, in practice at any rate,
weigh with all the canonists writing on the subject, even though
they do not expressly deal with the difficulty we are examining.5
1 r Beijersbergen’s interpretation is adopted by some later writers,
1 Canon 1087, §1.
2 Collationes Brugenses, 1934, p. 45; Did. Droit Canon., Ill, col. 183.
Interpretatio et Jurisprudentia, §769.
i Periodica, 1941, p. 274.
5 E.g. Apollinaris, 1932, p. 253 ; Periodica, 1938, p. 163.
431
e.g. Bouscaren-Ellis :
. it is at least solidly probable that grave
fear is a complete excuse even though not external. . . ,”1 ; I leylen :
“Stante controversia, censura in praxi urgeri nequit”2; Cloran:
. . grave fear excuses from the penalty, even though the crime is
intrinsically wrong and gravely culpable, and even though the
fear is merely internal and not unjustly inflicted by an external
agent”.3
We think this solution of the doubt may safely be followed until it
is officially decided in an opposite sense ; accordingly the pregnant
woman who commits abortion through fear of losing her good name
does not incur the censure of excommunication.
Crimes and Penalties
Q. 320
320. ABSOLUTION FROM CENSURE---- “iNIUNCTIS
DE IURE INIUNGENDIS”
147?αί precisely
iniungendis”, in
is contained within the phrase “iniunctis de iure
respect to the priest absolving in the confessional from a
censure?
Canon 2242, §3 : Contumaciam desiisse dicendum est, cum reum
vere delicti commissi poenituerit et simul ipse congruam satisfac
tionem pro damnis et scandalo dederit aut serio promiserit ;
indicare autem utrum poenitentia vera sit, satisfactio congrua aut
eiusdem promissio seria, necne, illius est a quo censurae absolutio
petitur.
Canon 2248, §2 : Absolutio denegari nequit cum primum delin
quens a contumacia recesserit ad normam can. 2242, §3.
i. When absolution is given with the obligation of recourse to a
superior, under pain of reincurring the censure, as in canon 2254,
the superior’s mandate will make more explicit the content of the
phrase. If given without obligation of recourse by a confessor who
has the faculty, as many wdll have during a Holy Year for certain
cases, or by a confessor wdio is acting within the terms of canon
2254, §3, the content of the phrase is usually analysed, follow ing
canon 2242, §3, under three headings:
(a) A serious promise of making restitution. This is required from the
nature of things for crimes involving injustice to others, as for
example usurping the goods of the Church,4 exactly as it is required
in absolving a sin of theft not punished by censure.
(/>) A serious promise to repair scandal given to others. Again, this is no
more than a natural obligation, applying equally to any grave
1 Canon Law (1946), p. 796·
3 Previews and Practical Cases, p. 104.
2 D* Censuris, p. 30.
4 Canon 2346.
432
Priests' Problems
Q. 321
scandal. Thus the head of a nursing home who has taught and
encouraged subordinates to cause abortion (Canon 2350, §1) must
undertake to do what is possible to make them understand the
gravity of this crime.
(r) The imposition of a salutary and fitting penance. This is something
in addition to the sacramental penance imposed when absolving
from the sin to which the censure is attached, and will vary both
according to the number and gravity of the crimes committed, and
according to the capabilities of the penitent. There are no explicit
instructions about it, and authors differ considerably in their sug
gestions : the daily recitation of the rosary for three months may be
reckoned objectively and absolutely to be a grave and prolonged
penance, and therefore adequate for grave crimes.1
It will be found that other more explicit determinations of the
content of the phrase, as indicated for example in the Jubilee
Monita of the Sacred Penitentiary,2 can either be reduced to one or
other of the above three headings, or are to be considered as
measures imposed for avoiding the occasion of sin.
321.
ABSOLUTION OF SIN RESERVED
“propter censuram”
A penitent has certainly incurred the reserved excommunication attached,
say, to the sin of abortion, and the confessor knows that this is so. If, neverthe
less, the confessor absolves unlawfully from the sin alone, is the absolution
valid?
Canon 2246, §3 : Reservatio censurae impedientis receptionem
Sacramentorum importat reservationem peccati cui censura adnexa
est ; verum si quis a censura excusatur vel ab eadem fuit absolutus,
reservatio peccati penitus cessat.
Canon 2250, §2 : Si vero agatur de censura quae impedit Sacra
mentorum receptionem, censuratus nequit absolvi a peccatis, nisi
prius a censura absolutus fuerit.
Canon 2260, §1 : Nec potest excommunicatus Sacramenta
recipere. . . .
i. In nearly every doubtful point connected with reservations it
is necessary to eliminate a number of issues which are not strictly
relevant and which only serve to obscure the question under discus
sion. It is certain, firstly, that excommunication as such does not,
1 Cf. Moriarty, The Extraordinary Absolution from Censures, p. 246.
2 17 September 1949; The Clergy· Review, 1949, XXXII, p. 420.
Q. 32i
433
other things being equal, make the reception of sacraments in
general invalid: thus, confirmation or holy order may validly be
received by the excommunicated ; our question relates to the limita
tion of a confessor’s powers over one particular case which happens
to be reserved not ratione peccati—in which case there is no doubt
that the attempted absolution would be invalid—but ratione censurae.
Moreover, secondly, if a penitent is aware of his excommunication
and remains contumacious, the absolution of his sin will be invalid
owing to his being indisposed for a valid absolution. It must also
be admitted, thirdly, that in given circumstances when a penitent
is in good faith about the effects of excommunication, the absolution
of the sin to which the censure is attached could be effected in
directly if some other sin is presented at the same time for direct
absolution.1 Lastly, the law itself in canon 2247, §3, indulgently
asserts the validity of absolution given in ignorance of the excom
munication, provided the censure is not ab homine or reserved to the
Holy See specialissimo modo.
ii. On the point, as limited above, the commentators are not in
agreement, and many do not discuss the matter at all. Amongst
those who do, Gougnard is the most satisfactory,2 he himself in
clining to the view that the absolution both of the censure and of
the sin is invalid.
On the other hand, w’idely used manualists such as Noldin3
maintain that absolution of the sin, in the case wc are discussing, is
valid, since it is beyond the power of the canon law on censures to
declare a person incapable of sacramental absolution, and in the case
under discussion the jurisdiction of the confessor is limited directly
only in regard to the censure. This view is defended by Dr Bride4
and although he does not take account of the word “nequit” in
canon 2250, §2, one may hold that it refers to the lawfulness and not
to the validity of absolution, in rather the same way as “nee potest”
of canon 2260, §1 5 ; we may also observe that when the canons -wish
to declare the invalidity of an action this meaning is usually explicitly
asserted, as it is in canon 884, “de absolutione complicis”.
Our conclusion must be that there is, at the moment, a dubium
iuris on the point under discussion, to be resolved on the familiar
principle of canon 209, and a liberal view is all the more permissible
since the law on reservations, from canon 2246, §2, must be strictly
interpreted.
Crimes and Penalties
1 Cappello, De Censuris, §107.
2 Collect. Mechlinien., 1936, p. 154’
3 De Censuris, §40.
6 Heylcn, De Censuris, p. 49.
Uationes, II (1936), p. 146.
4 Diet. Droit Canon., III, 219.
434
Priests' Problems
Q. 322
322. ABSOLUTION FROM HERESY IN DANGER OF DEATH
On what canonical principle is one required to have recourse to the Ord
inary after receiving a convert in danger of death? It would appear from
canon 2252 that this is not necessary.
Canon 2252 : Qui in periculo mortis constituti, a sacerdote,
specialis facultatis experte, receperunt absolutionem ab aliqua
censura ab homine vel a censura specialissimo modo Sedi Apostolicae reservata, tenentur, postquam convaluerint, obligatione
recurrendi, sub poena reincidentiae. . . .
Canon 2314, §2: Si tamen delictum apostasiae, haeresis vel
schismatis ad forum externum Ordinarii loci quovis modo deductum
fuerit, etiam per voluntariam confessionem, idem Ordinarius. ..
resipiscentem, praevia abiuratione iuridice peracta aliisque servatis
de iure servandis, sua auctoritate ordinaria in foro exteriore
absolvere potest. . . .
Cardinal Vaughan, Montinum, 8 May, 1902 ( Westminster Synod,
1902, p. 21) : . . . quum praeterea expediat ut Episcopi, summi in
suis Dioecesibus Pastores, qui iuxta evangelicam institutionem oves
suas agnoscere debent, illas praesertim oves agnoscant quae a
pascuis alienis in unicum Jesu Christi ovile reducantur; idcirco ab
Episcopis unanimis, in recenti suo annuo Provinciae Westmonasteriensis Conventu, decisum est ut convertendorum Ecclesiae
reconciliationem unusquisque Episcopus in propria sua Dioecesi
sibi reservaret. . . . Quod ad eos attinet pro quibus, in articulo
mortis constitutis, tempus huius facultatis obtinendae defecerit, Nos
de reconciliatione eorum facta, in scriptis sine mora, et singulis in
casibus, certiores fieri debebimus.
i. The reception of a convert is something essentially pertaining
to the external forum, and the censure attached to heresy is assumed,
from canon 2200, §2, to have been incurred. From this censure a
priest reconciling a convert in danger of death absolves, relying on
the well understood principle that all reservations then cease. There
is reason in the above question since this censure is neither ab homine
nor reserved specialissimo modo to the Holy See, and therefore no
recourse is necessary when the danger of death has ceased, as stated
in canon 2252. Regarding the question uniquely from the point of
view of absolving the person from censure it is correctly deduced
that recourse is unnecessary. The resolution of the bishops in 1902,
still in force, is not at variance with the common law rule, for they
do not require recourse under pain of the censure being re-incurred,
but merely direct that they are to be informed of reconciliations
Q. 322
Crimes and Penalties
435
made in danger of death. The native right of the episcopate for the
external forum in everything pertaining to heresy “sua auctoritate
ordinaria” is fully sustained in canon 2314, §2, and the direction
requiring notice about reconciliation can be brought within the
familiar phrase “servatis de iure servandis” of the same canon.
ii. It is noticeable, moreover, that the episcopal decision of 1902
does not even mention absolution from censure when requiring to
be informed of conversions in danger of death, since various views
are possible on the question whether all prospective converts are
actually under the censure attached to heresy.1 The point is not
strictly relevant to the question we are discussing, and it can be
avoided by supposing that the person in danger of death is un
baptised and therefore incapable of incurring a censure. In the
common law we cannot discern any regulation requiring the local
Ordinary to be informed of conversion whether in danger of death
or not, except in canon 744 which directs absolute baptism to be
brought to the Ordinary’s notice whenever this can be done con
veniently ; this law is for the purpose of having a greater solemnity
at baptisms of this kind, and does not apply to the question wre are
discussing, since baptism has already been administered. The 1902
regulation ol the bishops expressly includes converts from infidelity
in its opening phrase, and the use of the word “reconciliatio” in
requiring to be informed of conversions in danger of death must be
held to apply also to converts from infidelity, although the word is
technically, perhaps, inapplicable. It is a local law which is of
obligation only within the territory of the bishops who enacted it,
and its justification is found in the dogmatic principle that bishops
have iure divino the care of all souls within the dioceses committed
to them, a principle reflected in such canons as 334, 335, 451.2
In the circumstances prevailing in countries where the Church
is in a minority, and where conversions and the care of converts
has a special importance, the bishops use their right as chief pastors
of the flock in requiring to be informed about all conversions to
the Church, including cases where absolution from censure is not
implicated.
iii. There must be very few priests who can remember the
situation as it existed before 1902. As was to be expected, the new
regulation was not universally welcomed by the clergy,3 although
there docs not appear to have been any particular criticism of the
rule about informing the Ordinary of converts received in danger
1 Cf. The Clergy Review, 1933, V, p. 319.
2 Cf. The Clergy Review, 1946, XXVI, p. 550.
3 Pastoralia, 1902, p. 208.
436
Priests' Problems
Q· 3=3
of death. It was promulgated by individual bishops in their dioceses,
and is often repeated in modern collections of diocesan laws, as in
Northampton Statutes (1947), n. 50.
323.
RECONCILIATION OF CONVERT---- VARIATIONS
IN A PRAYER
In the Form for the Reconciliation of a Convert, §4, which text of the
prayer “Deus cui proprium” should be used: that printed in the “Ordo
Administrandi”, with the clause “quem excommunicationis sententia
constringit ”, and short conclusion, or that prescribed in the instruction of the
Holy Office, 20 July, 1859, which the “Ordo Administrandi”professes
to follow, but which gives “catena” here in place ο/'“ sententia ”, and the
long conclusion?
It is, we think, certain that, at the reception of a convert, priests
in this country should recite the prayer as it stands in the Ordo
Administrandi, Tit. iii, cap. iv, n. 4. The last edition of this book,
1915, though at present out of print, is the editio typica, to which all
extracts should conform. The current, 1947, C.T.S. edition conforms
exactly.
i. Catena or sententia. Previous editions of the Ordo Administrandi,
1891, 1831, 1812, and earlier undated ones, read sententia. The
instruction of the Holy Office, which the Ordo Administrandi refers to
under the date 20 June, 1859, appears in Fontes, n. 953, as dated
20 July, 1859. This may be merely a mistake of the editor, or the
document may have been sent originally to the English bishops in
June, and in a slightly different form to the bishop of Philadelphia
in July. The Rituale Romanum, Tit. IV, cap. iii, reads sententia, and
also the American supplement to the Desclée edition, 1935.
Pontificale Romanum, however, Ordo Excommunicandi et Absolvendi,
reads catena both in current and earlier editions. The same reading
is given in the supplement to the Desclée, 1947, edition of the
Rituale Romanum, and in certain widely used American publications
such as The Priest's New Ritual, 1940, and The Layman's Ritual, 1944In the Gregorian Sacramentary the prayer, of which the one we are
discussing is a slightly extended form, also reads catena. Probably,
therefore, the prayer in Fontes, n. 953, was drawn from the Pontifical,
but the editors of our Ordo Administrandi printed sententia instead of
catena because they desired to continue the form already existing in
the Ritual.
ii. Long or short conclusion. Most editions of this prayer known to us
have the short conclusion. The principle formulated by the rubri-
Crimes and Penalties
\3Ί
Q. 324
ciaiis is that the long conclusion is to be used at Mass for Collect,
Secret and Postcommunion, and for the prayer at the conclusion of
the canonical hours. On all other occasions the short form is to be
used unless the long form is ordered. Unhappily this “nisi” occurs
continually in all rubrics, and only occasionally can the reason for
an exception be discerned. Thus the prayer Deus qui nobis in Rituale
Romanum, Tit. v, cap. ii, n. 7 (Ordo Administrandi Communionem)
has the long form, whereas the same prayer in Tit. v, cap, iv, n. 24
(De Communione Infirmorum) has the short form; the reason for
this, it is thought, must be due to the fact that in earlier ages the
faithful, unless they were sick, did not communicate outside Mass,
and the Ritual preserves this connexion in the long conclusion.
But we can suggest no reason why Fontes, n. 953, has the long
conclusion.
324.
EXCLUSION OF DECEASED NON-CATHOLICS
FROM PUBLIC SUFFRAGES
Is there some intrinsic reason why prayers and Masses should not be
offered publicly for deceased non-Catholics? If it is purely a matter of
positive law, heretics dying in good faith should escape, it seems, the rule of
canon 2262.
Canon 809 : Integrum est Missam applicare pro quibusvis tum
vivis, tum etiam defunctis purgatorio igne admissa expiantibus,
salvo praescripto can. 2262, §2, 2.
Canon 2262, §1 : Excommunicatus non fit participes indul
gentiarum, suffragiorum, publicarum Ecclesiae precum.
§2: Non prohibentur tamen: 1. Fideles privatim pro eo orare;
2. Sacerdotes Missam privatim ac remoto scandalo pro eo applicare ;
sed, si sit vitandus, pro eius conversione tantum.
i. One could, perhaps, discern intrinsic reasons behind the law,
since heretics die outside the visible body of the Church, whether
they are in good faith or not. But, unlike the practice of praying
publicly with heretics which many used to think, with some reason,
to be intrinsically wrong,1 the prohibition against publicly praying
for them seems always to have been regarded by the Holy See and
by theologians and canonists as a positive law only, and it has been
interpreted in a progressively liberal direction. One exception, in
the prayers of the liturgy of Good Friday, is of great antiquity,
though on this occasion the prayer is for the living. It is clear,
1 Cf. The Clergy Review, 1950, XXXIII, p. 398.
16
438
Priests' Problems
Q. 324
however, from a comparison of canon 809 {quibusvis) with canon 2262,
that the latter includes deceased heretics, the only exception being
the vitandus.
ii. Before the Code the common teaching was that Mass could
not be offered for a deceased heretic even privately, following a
negative reply of the Holy Office, 7 April, 1875, to the question:
“An liceat etiam in casu, quo huiusmodi applicatio Missae tantum
sacerdoti, et illi qui dat eleemosynam nota esset”1 ; it was customary
on such occasions to offer the Mass for all the faithful departed.
The qualification privatitn is capable of wide interpretation on the
part of those who wish to interpret the law as generously as possible.
In our view it means “without any public announcement”2 and
the same applies to any prayers said by the faithful, but we are well
aware that more liberal views are current.3 It is for the local
Ordinary to give directions on the subject and to correct abuses
that may occur.
iii. There remains the point raised by our correspondent that the
majority of people nowadays who die outside the Church are not
under the censure of canon 2314 since they are in good faith. But
canon 2262 denies public prayers and Mass only to the excom
municated, and therefore it would seem that even manifest and
notorious heretics are not necessarily included in the prohibitions of
this canon.
If it were a question of administering sacraments to heretics in
good faith, who are assumed to escape the censure, we have the
explicit direction of canon 731, §2, forbidding it, but we have nothing
similar in the matter of praying publicly for them after their
decease. The significance of canon 731, §2, is seen in the fact that
the reception of a sacrament is, amongst other things, a sign of
external communion, and therefore must in the nature of things be
denied to heretics even though it has been proved, let us suppose,
in the external forum that they have certainly not incurred the
censure of canon 2314.
Does it not follow, therefore, that public prayers, and even public
Masses, can be offered for manifest heretics dying in good faith,
since there exists no prohibition equivalent to the prohibition of
canon 731, §2? We think this conclusion must logically follow
provided it has been proved in the external forum that they have
escaped the censure. Unless this proof is forthcoming, or pending
1 Fontes, n. 1041.
- \ crmcersch, Periodica, 1931, p. 84, an excellent commentary on the whole
subject.
3 Cf. Middlesbrough Statutes, n. 190, and announcements in the Press on the
occasion of the death of George VI.
Q. 324
Crimes and Penalties
439
some decision of the Church on their condition,1 we must in the
external forum and for all public purposes regard them as censured,
relying on canon 2200, §2: “Posita externa legis violatione, dolus
in foro externo praesumitur, donec contrarium probetur.” A similar
reason explains why converts are absolved from censure, even
though they are generally in good faith and could be regarded in
the internal forum as not excommunicated ; theoretically at least it
is open to a convert to prove to the satisfaction of the local Ordinary
that he is not censured, in which case the absolution even with the
word “forsan” will be unnecessary.2
[Editorial Note.—The canonical position of non-Catholic
Christians was more thoroughly discussed in a joint article ( 77 e
Clergy Review, 1952, XXXVII, p. 449) by Dom Theodore Richard
son, O.S.B., and the author. Dom Theodore contended that “there
appear to be no grounds for attributing to non-Catholics in general,
born and bred outside the Church, even the lowest degree of
pertinacity, and until pertinacity is proved, not only are they not
canonically formal heretics, but they are not even, speaking with
the canonical rigour required in penal matters, material heretics,
in the sense that the corpus delicti, the material element of the delict
of heresy, is not present. Not only, therefore, do they not de facto,
in the internal forum, incur excommunication, but they cannot be
presumed in the external forum, in virtue of canon 2200 or any other
canon, to have done so.” Moreover, he argued, owing to the
presence of the word “pertinaciter”, any diminution of imputability
excuses from the penalty latae sententiae (can. 2229, §2), and no
special investigation can be required to establish diminished im
putability in the average case.
Canon Mahoney, in his reply, took the line that the act of heresy
consists in “the denial of a doctrine which one knows to be taught by
the Catholic Church as being revealed by God.” To incur the guilt
in the forum of conscience, the denial must be coupled with the
knowledge that the Catholic Church is the mouthpiece of God in
the matter concerned; but in the external forum it is requisite
and sufficient that one persist in the denial of a doctrine, after
knowing that the Catholic Church teaches it as of faith. This, he
claimed, is more in harmony with other dispositions of the Code,
both in theory and in practice, than the interpretation offered
1 Umberg, S.J., in Periodica, 1948, 102, concluding an article on the subject of
administering sacraments conditionally to heretics dying unconscious, forecasts a
decision of this kind “haec questio solutionem expcctat per auctoritatem S. Sedis”.
2 Cf. The Clergy Review, 1933, V, p. 319.
440
Priests' Problems
Q. 325
by Father Richardson. The discussion was continued in sub
sequent correspondence (op. cit., pp. 635, 700). Both held to their
positions.]
325.
THE “PERTINACITY” OF HERETICS
Assuming, though not necessarily conceding, your explanation of the word
“pertinaciter" in the definition of heresy, does it not follow that before
applying to non-Catholics the rule of canon 2200, §2, their pertinacity,
guiltless though it may be, must first be established in the externalforum before
they can be treated as censured?
i. Those readers who have not followed the discussion of the
subject in The Clergy Review,1 between Father Theodore Richardson,
O.S.B., and the writer, may be reminded that the definition of a
heretic is “Post receptum baptismum si quis, nomen retinens
Christianum, pertinaciter aliquam ex veritatibus fide divina et
catholica credenda denegat aut de ea dubitat, haereticus est”.2 The
person coming within this definition incurs, from canon 2314, §1,
the censure of excommunication; guilt or culpability in varying
degrees is necessary before anyone can be censured, but this guilt
is presumed in the external forum from canon 2200, §2. We have
defended the view that guilt or culpability, or in other words good
or bad faith, does not enter into the definition of heresy, because the
word “pertinaciter” does not necessarily convey this notion: it is
merely a convenient and brief way of stating that a person knows
some doctrine to be taught by the Catholic Church and nevertheless
withholds his assent. The discussion so far has been on a question
of law, the meaning of “ pertinaciter ” ; the question now raised by
“X” is one of fact not of law, and in what follows the phrase
“teaching of the Church” must be understood in the sense of some
doctrine taught by the Catholic Apostolic Roman Church as
revealed by God.
ii. The question of fact is important since a baptised Christian
who denies some revealed truth, whilst not knowing that the Church
teaches it, is in error indeed but is not a heretic. The answer, there
fore, to the question put by “X” must be in the affirmative, both
from the meaning of the word “pertinaciter” as already explained,
and from the interpretation commonly accepted by canonists that
even affected ignorance of the teaching of the Church suffices as
an excuse from heresy. Thus, an unlettered Catholic who denies
the Assumption through ignorance of its definition is not a heretic.
1 The Clergy Review, 1952, XXXVII, pp. 449, 635, 700.
2 Canon 1325, §2.
y
z
Q.· 3’6
Crimes and Penalties
441
And doubtless there are many non-Catholic Christians in remote
parts of Scandinavia, or in parts of the mission fields evangelised
exclusively by heretical sects, who have never heard of the existence
’ of the Catholic Church, let alone of her teaching.
iii. How is this question of fact to be established ? Occasionally,
when a fact may sometimes be uncertain, ecclesiastical authority
issues a statement affirming that certain groups of persons have, in
fact, committed a delict, as the Holy See recently affirmed in regard
to those implicated in attacks upon the Church in Central Europe.
Laws, however, must regard what usually happens and the common
estimation of men, and when a fact is manifest it would be absurd
to expect some authority to affirm what is already well known. The
professed and practising members of heretical sects must, by reason
of that adscription, be regarded in the external forum as heretics :
for a person is presumed to accept the teaching of the sect to which
he belongs. Baptised Christians who belong to no sect at all know
sufficiently, in this country at least, of the existence of the Catholic
Church : they knowingly dissent from her teaching on one or more
points of doctrine and are therefore heretics. On the occasion, for
example, of the definition of the Assumption, the newspapers gave the
event every publicity, leaders of sects commented upon it adversely,
and it gave rise to much public correspondence. But it occurred
to no one in authority, during this discussion, to offer the informa
tion that the doctrine was taught by the Catholic Church, for the
fact was manifest, and baptised Christians who denied this truth
were manifestly heretics. What is true of a newly defined doctrine
is true of others defined long ago. People who know of the Catholic
Church and who nevertheless, for reasons that seem to them good,
elect to follow another rule of faith, are “pertinacious”. To resume
briefly in the words of Suarez : “. . . voluntas non se subiiciendi
Ecclesiae auctoritati necessaria est et sufficit ad pertinaciam fidei
contrariam”.1
326. SPONSORSHIP AT HERETICAL BAPTISM--ANY PENALTY ?
Hearing that an ill-instructed parishioner was proposing to be sponsor at a
baptism of an infant relative in the Church of England, I succeeded in dis
suading him from performing this office by reminding him that he would
thereby incur excommunication. I had some idea at the time that this was so,
but later was unable to verify it. What penalties, if any, are incurred by a
Catholic being sponsor at baptism performed by a minister of a sect?
1 Vivès, Opera, XII, p. 474.
442
Priests' Problems
Q. 327
5. Off., 10 May, 1770. Collectanea Prop. Fide (ed. 1893), n. 1845.
Catholicis absolute non licerc vel per sc vel per alios fungi
officio patrini in baptismis qui haereticorum filiis ab haereticis
ministrantur.
Canon 2316. Qui quoquo modo haeresis propagationem sponte et
scienter iuvat, aut qui communicat in divinis cum haereticis contra
praescriptum can. 1258, suspectus de haeresi est.
Canon 2315. Suspectus de haeresi, qui monitus causam suspi
cionis non removeat, actibus legitimis prohibeatur ... ; quod si intra
sex menses a contracta poena completos suspectus de haeresi sese
non emendaverit, habeatur tanquam haereticus, haereticorum
poenis obnoxius.
i. Any priest could be excused for not having at his fingers’ ends
the very complex laws about censures : in this case the priest was
relying, perhaps, on his recollection of canon 2319 which contains
an excommunication l.s. incurred by parents who get their children
baptised by a non-Catholic minister ; or else the priest reached the
conclusion too readily that the proposed act of sponsorship was
itself the crime of heresy. The most that can be said is that the
Catholic sponsor at a baptism administered by a heretical minister
is favouring the propagation of heresy and is actively communicating
with heretics in a purely religious rite : the result is that he is under
suspicion of heresy by performing this function, and is liable to the
procedure of canon 2315, a procedure which if canonically observed
may mean that, as a penalty, he will be deprived of the right to
perform certain actions enumerated in canon 2256.2, a penalty
ferendae sententiae ; and further, after a period of six months under this
penalty, he will be regarded as a heretic unless he repents.
ii. Apart from all ecclesiastical penalties or the threat thereof,
sponsorship at heretical baptism is gravely wrong: firstly, because
it recognises the claims of heretics, and secondly because it is
usually a deception and acting a lie since the heretical minister will
assume that the sponsor is of the same religious persuasion as
himself. In cases of this kind, where relatives are concerned, there
may be good reasons for tolerating a Catholic’s presence at the rites
but he must be passive and take no active part, as laid down in
canon 1258, §2.
327. PROOF OF ABSOLUTION FROM CENSURE
man who has incurred the censure of canon 2319, §1, on being
A
refused
the sacraments by the parish priest of the place where the man’s condition is
publicly known, alleges that he has repented, has been absolved from the
Q.· 327
Crimes and Penalties
443
censure in the confessional, and has rectified his marriage elsewhere by
revalidation. The parish priest verified the revalidation but maintains that the
man must be absolved from the censure in the external forum before being
permitted to receive the sacraments in the parish where his delinquency is known.
Is this correct?
Canon 2319, §1 : Subsunt excommunicationi latae sententiae
Ordinario reservatae catholici: Qui matrimonium ineunt coram
ministro acatholico contra praescriptum can. 1063, §1.
Canon 2251 : Si absolutio censurae detur in foro externo, utrumque
forum afficit; si in interno, absolutus, remoto scandalo, potest uti
talem se habere etiam in actibus fori externi; sed, nisi concessio
absolutionis probetur aut saltem legitime praesumatur in foro
externo, censura potest a Superioribus fori externi, quibus reus
parere debet, urgeri, donec absolutio in eodem foro habita fuerit.
Canon 2260, §1 : Nec potest cxcommunicatus Sacramenta
recipere, imo post sententiam declaratoriam aut condemnatoriam nec Sacramentalia. . . .
i. The parish priest rightly refuses the sacraments to this man,
owing to his condition as a public sinner, so long as the danger of
scandal exists, and he rightly does so quite apart from all the
intricacies of the law on censures. The man may not have incurred
the censure for various reasons, or he may not have committed
grave sin owing to ignorance ; nevertheless it is a cause of scandal
to the faithful in a parish if one of its members, who is publicly
known to be unworthy, receives the sacraments publicly. The
parish priest is competent to decide that the sacraments must be
refused, and to indicate how the scandal should be repaired ; if the
man is aggrieved his remedy is in recourse to the Ordinary·.1
ii. Assuming that, in addition, the censure has been incurred by
this man,2 he is for that reason to be excluded from the sacraments
until he has been absolved from the censure.
The Church indulgently declares in canon 2251 that absolution
in the internal forum may suffice, which means that it has a con
ditioned efficacy, the condition being that the appropriate superior
of the external forum is content with it. This point is admirably
explained by Father Bertrams, S.J., as follows: “Altera ex parte
Superior legitimus fori externi rationem habere absolutionis in foro
interno concessae non tenetur; irnmo, etiamsi legitime probatus
concessio absolutionis in foro interno, Superior legitimus fori externi
1 Cf. The Clergy Review, 1944, XXIV, p. 425.
2 The corpus delicti is discussed ibid. XXIII, 1943, p. 131, and very fully in
l'Ami' du Clergé, 195b Ρ· 23·
444
Priests' Problems
Q, 328
potest quidem, scd non tenetur, illam ratam habere etiam in foro
externo.”1
If the priest in this case thinks fit to insist on absolution in the
external forum, it must come not from him, obviously, but from the
Ordinary to whom it is reserved in canon 2319. He is within his right
in putting the matter before the Ordinary together with his reasons
for requiring the man to be absolved in the external forum as well.
Very likely the Ordinary’s decision will be that he is content with
the absolution obtained in the internal forum, and that the man’s
word on this point may be accepted seeing that he has revalidated
his marriage. We have heard, however, that in some places the local
Ordinary requires an external forum absolution in these cases.
Relying on canon 2251 the parish priest may accept the alleged
absolution given in the internal forum, unless he has some directions
of his Ordinary to the contrary, and this indulgent attitude is the
right course to take.
iii. The removal of scandal, required in the nature of things even
if the person is not censured, is expressly mentioned in canon 2251.
Unless the Ordinary has determined what form this is to take, the
parish priest may require the man to sign a written witnessed
statement expressing repentance and affirming the rectification of
his marriage, a statement which may be shown to other parishioners
if necessary : usually, however, unless there are some specially ag
gravating circumstances, the fact that a delinquent has gone to
confession in a church open to the public suffices for the reparation
of scandal caused.
328.
ABSOLUTION FROM THE CENSURE OF
CANON
2363
In absolving from censure in the internal forum with the procedure of
canon 2254, the penitent's serious promise to make reparation for any serious
damage suffices in principle. Is canon 2363, requiring actual reparation before
absolution, an exception?
Canon 2254, §1 : In casibus urgentioribus, si nempe censurae
latae sententiae exterius servari nequeant sine periculo gravis
scandali vel infamiae, aut si durum sit poenitenti in statu gravis
peccati permanere per tempus necessarium ut Superior competens
provideat, tunc quilibet confessarius in foro sacramentali ab eisdem,
1 Periodica, I95*> P· 32θ· This is the best exposition we have seen of this key
canon 2251, and contains a long citation from the Thesaurus Casuum Conscientiae of
Gregory Sayers, O.S.B., an English canonist of Monte Cassino, ob. t6o2.
Q. 328
Crimes and Penalties
445
quoquo modo reservatis, absolvere potest, iniuncto onere recurrendi,
sub poena reincidentiae, intra mensem saltem per epistolam et per
confcssarium, si id fieri possit sine gravi incommodo, reticito
nomine, ad S. Poenitentiariam vel ad Episcopum aliumve Super
iorem praeditum facultate et standi eius mandatis.
§3 : Quod si in casu aliquo extraordinario hic recursus sit moraliter
impossibilis, tunc ipsemet confessarius, excepto casu quo agatur de
absolutione censurae de qua in can. 2367, potest absolutionem
concedere sine onere de quo supra, iniunctis tamen de iure injung
endis, et imposita congrua poenitentia et satisfactione pro censura,
ita ut poenitens, nisi intra congruum tempus a confessario praefini
endum poenitentiam egerit ac satisfactionem dederit, recidat in
censuram.
Canon 2363 : Si quis per seipsum vel per alios confcssarium de
sollicitationis crimine apud Superiores falso denuntiaverit, ipso facto
incurrit in exconununicationem speciali modo Sedi Apostolicae
reservatam, a qua nequit ullo in casu absolvi, nisi falsam denuntia
tionem formaliter retractaverit, et damna, si qua inde secuta sint,
pro viribus reparaverit, imposita insuper gravi ac diuturna poeni
tentia, firmo paescripto can. 894 (Unicum peccatum ratione sui
reservatum).
Pius XI, Servatoris Jesu, 25 December, 1924, viii : A.A.S., 1925,
XVII, p. 616: Qui falsam sollicitationis denuntiationem admiserit,
is ne absolvatur, nisi aut eam formaliter retractaverit, aut saltem
ad eam quamprimum retractandam atque ad sarcienda calumniae
damna serio paratum se praebeat.
i. The conflict between canon 2363 and the procedure of canon
2254 is less evident in §1, since recourse must be had to the Holy See
within a month under pain of re-incurring the censure, and the
conditions imposed when the superior’s mandate is received will
meet the difficulty by relieving the confessor of his obligations. It is
more serious in §3 of canon 2254, since no recourse is then imposed ;
equally in canon 2252, when absolution is given from the censure
in danger of death without the obligation of recourse ; in both cases
the confessor must decide whether he may absolve from this censure
merely with a serious promise of reparation.
ii. Some of the commentators take the severe view, relying on the
wording of canon 2363, which denies absolution in any case whatever
unless the calumniator has retracted and made reparation: “ini
unctis de iure iniungendis” of canon 2254, §3, means not merely a
promise but the actual performance of the obligation. Thus
Vcrmeersch-Creusen : “Si excipias casum quo reus faciendae re
tractationis physice, v.g. morbo gravi impeditur, verba canonis ita
446
Priests' Problems
Q· 329
sunt explicita ut absolutionem non permittant etiam post seriam
retractationis promissionem”.1 Different interpretations are possible
of the method in which this formal retractation is to be effected. The
minimum is a signed and witnessed letter retracting the calumny,
obtained with the penitent’s permission outside the confessional, a
fairly simple procedure which is always to be recommended.
iii. It is not certain, however, that this severer view is the only
possible interpretation of the wording of canon 2363. That a serious
promise suffices is the view of De Smet2 and of others who accept
his ruling.3 We agree with this view provided, as De Smet recom
mends, the absolving confessor explains to the penitent that the
censure will be re-incurred within a fixed time unless the retractation
is made : it is not clear, perhaps, that this re-incidence will happen
in the nature of things, and the confessor should always make it an
explicit condition of his use of the faculty in canon 2254, §3, as he is
certainly entitled to do.
The reasons which support De Smet’s solution of this difficulty
are, firstly, the general sufficiency of a penitent’s dispositions for
absolution in the internal forum when a promise is seriously made.
Secondly, the wording of the canons in question: “nequit ullo in
casu absolvi” must admit an exception at least in the hour of death;
the only difference between §1 and §3 of canon 2254 is in absolving
from the censure of canon 2367 which is expressly mentioned,
whereas canon 2363 is not. Thirdly, the instructions of the Holy
See, 25 December, 1924, given in view of the faculties for the 1925
Jubilee, clearly declare that a serious promise suffices. It is true that
in later Jubilees, including that of 1950, this particular faculty is
not so expressed,4 the Holy See being content to describe the
absolution of the reserved sin of canon 894 in the words used for
the reserved censure in canon 2363. We think this difference of
terminology has no particular significance, for unhappily there has
never been any consistency in the faculties and Monita issued at the
time of Jubilees, which always vary in a few particulars. The
redactor of 1925 saw fit to call attention to the more liberal inter
pretation of these canons, whereas the redactor of 1950 thought it
unnecessary to do so.
329. MEANING OF “SUPERIORES” IN CANON 2363
Canons 2363 and 904 deal with the crime offalse denunciation, which is
the one sin reserved to the Holy See in the Code and is also punished by a
'
§5θ5·2·
2 De Absolutione Complicis et Sollicitatione, §132.
' y* M°riarty> The Extraordinary Absolution from Censures, p. 268.
4 'X]J> P· 5T5> vi*i> *95°» XLII, p. 902, xi; The Clergy Review,
I951» XXXV, p. 198.
Q.· 329
Crimes and Penalties
447
reserved censure. In canon 894 the denunciation is described as 'apud indices
ecclesiasticos”, whereas in canon 2363 the censure is incurred by denunciation
“apud superiores”. Does “superior” here mean “iudex ecclesiasticus”? And
what is the practical effect of this double reservation?
Canon 894: Unicum peccatum ratione sui reservatum Sanctae
Sedi est falsa delatio, qua sacerdos innocens accusatur de crimine
sollicitationis apud iudices ecclesiasticos.
Canon 2363 : Si quis per seipsum vel per alios confessarium de
sollicitationis crimine apud Superiores falso denuntiverit. . .
i. It is evident that, false denunciation of a confessor being a
calumny of the gravest kind, the penitent who is guilty of this sin
is not properly disposed for absolution unless the obligation of
making due reparation is accepted. It is almost impossible to
imagine any circumstances in which this obligation of the natural
law can rightly be evaded by a penitent seeking absolution. There
fore, quite apart from all the technical doubts and difficulties
which always arise whenever a question of reservation comes up
for discussion, the situation is sufficiently clear, and the obligations
of the calumniator are sufficiently defined from the nature of the
offence committed. To emphasise its gravity, the canon law attaches
thereto a censure which is reserved speciali modo to the Holy
See, and also reserves the absolution of the sin to the Holy See.
But the obligations to be accepted by a repentant calumniator
would exist even though the sin were not reserved or censured in
any way.
ii. Apart from one or two manualists who write of “superiors” in
explaining canon 2363 without adverting to the difficulty presented
by the term, we find that all the commentators give “superiors”
the meaning contained in canon 904: to incur the censure the false
denunciation must be made judicially to a superior who is com
petent to inflict punishment on the priest who is falsely accused, that
is to say to the Holy Office or to the local Ordinary. A false accusa
tion made to a vicar-general, to a local religious superior or parish
priest, or an accusation made anonymously even to the Holy Office,
is a grave sin calling for restitution, as explained above, but no
censure is incurred and the sin is not reserved.1 In defining the mode
of denunciation which suffices for incurring the censure, some think
that a signed letter suffices.2 We prefer the more common opinion
requiring the accusation to be injudicial form before the bishop or
1 Cf. in addition to the usual manuals Apollinaris, 1931, p. 583 ; Cloran, Previous
and Practical Cases, p. 278.
* De Smet, De Absolutione Complicis et Sollicitatione, §123.
330
his delegate with the intervention of a notary,1 but it suffices for a
person effectively to bring this about through another’s agency.
iii. The reservation of the sin, now codified in canon 894, dates
from the time of Benedict XIV, as contained in Sacramentum Poeni
tentiae, i June, 1741, §3, printed as Documentum V at the end of the
Gode. The censure, however, of canon 2363 appeared for the first
time in the Code, its insertion no doubt being due to the modern
facility of obtaining absolution from reserved sins in the circum
stances of canon 900 ; all are agreed that this papal reservation is
not excepted. The only practical effect of this double reservation
is that a person who escapes the censure for any of the reasons which
excuse one from incurring it is nevertheless obliged to get absolved
from the sin either by a privileged confessor or in the circumstances
of canon goo. It is an additional safeguard and therefore the Code
censure concludes with the words “firmo praescripto can. 894”.
But the only effective remedy is the censure which cannot usually
be evaded on the score of ignorance, since the ecclesiastical
judge on receiving the accusation will warn the accuser of the
penalty.
Priests' Problems
330.
Q,
major orders: civil marriage
1 have no actual case in mind but would like a precise explanation of the
status of a priest who, having attempted marriage in a register office, has now
fully repented. Under what conditions will he be reinstated and allowed the
exercise of his orders?
Canon 188.5: Ob tacitam renuntiationem ab ipso iure admissam
quaelibet officia vacant ipso facto, si clericus . . . matrimonium,
etiam civile tantum, ut aiunt, contraxerit.
Canon 985.3 : Sunt irregulares ex delicto . . . qui matrimonium
attentare aut civilem tantum actum ponere ausi sunt, vel ipsimet
vinculo matrimoniali aut ordine sacro aut votis religiosis etiam
simplicibus ac temporariis ligati, vel cum muliere iisdem votis
adstricta aut matrimonio valida coniuncta.
Canon 2388 : Clerici in sacris constituti vel regulares aut moniales
post votum sollemne castitatis, itemque omnes cum aliqua ex prae
dictis personis matrimonium etiam civiliter tantum contrahere
praesumentes, incurrunt in excommunicationem latae sententiae
Sedi Apostolicae simpliciter reservatam ; clerici praeterea, si moniti,
tempore ab Ordinario pro adiunctorum diversitate praefinito, non
resipuerint, degradentur, firmo praescripto can. 188, n. 5.
1 Cappello, De Censuris, §289.
Crimes and Penalties
449
Q.· 33°
The Church, in so far as may be consistent with the avoidance of
scandal, is always inclined to be indulgent towards any person who
has truly repented, no matter what the offence may have been.
i. The priest may desire to enjoy the benefit explained in Lex
Sacri Coelibatus, 18 April, 1936,1 and in the subsequent declaration
of 4 May, 1937,2 by which the Sacred Penitentiary may grant
absolution from the excommunication of canon 2388, provided the
priest lives in chastity as a layman, even though he continues to
dwell with his partner under the same roof. This is a merciful
provision since there will often be valid reasons which prevent him
from abandoning the civil union. Absolution from the censure under
these conditions may not be given by a confessor with the procedure
of canon 2254, but only in danger of death and with the obligation
of recourse to the Sacred Penitentiary when the danger has ceased.
This procedure of Lex Sacri Coelibatus is a good example of absolution
in the internal non-sacramental forum, as regulated by canons 1047
and 2251.
ii. If the priest penitent, far from seeking this benefit, has ceased
to live with his partner for any reason, his only desire being to
return to his priestly life and duties, he has ceased to be contumacious
and is therefore entitled at once to absolution from the censure of
canon 2388. This absolution may be given by any confessor with the
procedure and conditions of canon 2254, and ^ie absolved priest
may then receive the sacraments like any other Catholic. The
priest so absolved is reinstated in the sense that he is no longer
excommunicated and, with due safeguards against scandal, may
receive the sacraments, but the irregularity remains and absolution
of the censure has effect only in the internal forum of conscience.
There may be many difficulties in the use of the faculty given by this
canon, especially regarding the safeguards which must be employed
against the danger of scandal, but they are not insuperable and we
think it certain that the absolute reservation of the censure to the
Sacred Penitentiary applies only to the case explained in (i) where
the priest desires to live under the same roof with his partner.3
iii. His reinstatement in the exercise of his priestly orders is
entirely a matter for the authorities of the external forum. He has
lost whatever ecclesiastical office he possessed from canon 188.5, and
his Ordinary may have inflicted various penalties which will need
remission. The chief obstacle, however, to his employment as a
1 The Clergy Review, 1936, XII, p. 158.
2 Op. cit., 1937, XIII, p. 270. The fullest commentator on the \vhole subject is
Rossi, Decretum ''Lex Sacri Coelibatus”, Turin, 1938.
3 Moriarty, The Extraordinary Absolution from Censures, pp. 279-90; Periodica, 1936,
p. 201, and 1937, p. 506 ; Collationes Brugenses, 1936, p. 337; Apollinaris, 1936, p. 588^
450
Priests' Problems
Q. 330
priest is the irregularity of canon 985.3, which is reserved to die
Holy See. One or two writers tell us what the practice of the Roman
Curia is in cases of this kind.1 Dispensation from the irregularity
and absolution from the censure in the external forum is given by
the Holy Office, which is accustomed to proceed as follows: the
censure is at once removed but the irregularity remains until the
priest’s repentance has been put to the test for a determined period
under his Ordinary’s supervision, whereupon he may be permitted
to say Mass a certain number of times with all due safeguards
against scandal, and eventually may be fully reinstated in the
exercise of his priesthood, usually by becoming attached to a distant
diocese where his history is not known. The essential requirement,
however, of the Holy Office before dispensing from the irregularity
is the assurance that the priest is freed from all entanglements arising
from his civil union, such as the existence of children requiring
parental care, or the continuance of the civil bond. These difficulties
may not exist in some cases, and may not be insuperable in others,
but the commentators are agreed that dispensation from this ir
regularity is not easy to obtain. If it is definitely refused, the simplest
course is for the priest to seek reduction to the lay state.
1 Sartori, Jurisprudentiae Ecclesiasticae Elementa, p. 93 ; Periodica, 1937, p. 505.
XXIX. SUNDRY MORAL QUESTIONS
331.
suicide: secret service agents
Is it possible to justify on Catholic ethical principles the practice during war
of secret service agents who, lest torture should make them reveal important
secrets, swallowed poison when captured?
II Machabees xiv, 41 : Now as the multitude sought to rush into
his house, and to break open the door, and to set fire to it, when he
was ready to be taken, he (Razias) struck himself with his sword :
choosing to die nobly rather than to fall into the hands of the wicked,
and to suffer abuses unbecoming his noble birth.
Summa Theol., II—II, 64, 5, ad 5 : Sed quod aliquis sibi ipsi inferat
mortem ut vitet mala poenalia, habet quidem quamdam speciem
fortitudinis, propter quod quidam seipsos interfecerunt aestimantes
se fortiter agere, de quorum numero Razias fuit: non tamen est
vera fortitudo, sed magis quaedam mollities animi non valentis mala
poenalia sustinere, ut patet. . . .
The question is one in which the common opinion is almost in
superably at variance with the logical application of Catholic
ethical principles, as the present writer found more than once during
the war when answering queries on the subject at meetings of
Catholic members of the services : one sensed that their acceptance
of the answer was purely notional, like the acceptance of some
theorem of Euclid which apparently has no practical application.
Moreover it is always unattractive for the clergy, who may not take
part in wars, to tell fighting men what their moral obligations are.
i. The principle as usually formulated affirms that it is intrinsically
and of its nature a grave sin to kill one’s self directly on one’s own
authority, the word “directly” being introduced to allow for cases
when death occurs indirectly as the second effect of a lawful action,
which is clearly not applicable to this case; and the term “on one’s
own authority” included in order to cover a few instances of suicide
committed by divine inspiration, as that of St Apollonia, commem
orated in the Office of 9 February, which incidentally is the day on
which this note is being written. An alleged extraordinary divine
inspiration has all the qualities of a Deus ex machina, except that it
can only be invoked when there are reasons for supposing that it
happened, as the fact that St Apollonia is canonised, or that Holv
451
452
Priests' Problems
Q. 331
Scripture records such events with apparent approval. Though it is
clearly open to God to delegate His prerogative to someone else, it
has never been maintained that secret service agents kill themselves
by an immediate divine inspiration, but only that they do so on
the authority of the State ; and if it could be proved that the State
possesses the right not only of putting malefactors to death for the
common good of society, but also of killing innocent persons, the
elimination of secret service agents could quite reasonably be added
to mercy killing, sterilisation, therapeutic abortion, and the mass
murder of hostages, Jews, or any other classes who happen to be
unwanted or inconvenient. There is no need for us to prove that
the State lacks these rights, and accordingly lacks the right to
authorise suicide.
ii. If it cannot be justified in principle, still less can it be done by
the casuistical method of arguing from one case to another. Thus, it
may be held as probably lawful that the State may order a male
factor justly condemned to death to kill himself, or that anyone may
expose himself to certain death to avoid a more painful one, or that
as a protest against injustice a prisoner may go on hunger-strike.
In all these instances there is no exact parity with the one we are
considering, and even the most enthusiastic defender of the hunger
strike will not admit that the prisoner may poison or shoot himself
as a protest against injustice. For the most part they are applications
of the double effect principle, which supposes that the immediate
action is good or indifferent and that the second or evil effect is not
directly intended. In fact, the only justifiable course for the secret
sendee agent when threatened with capture is to resist his opponents,
even though there is not the slightest prospect of escaping death at
their hands; or to attempt escape by any action which is not
certainly and of its nature direct self-destruction.
iii. Though unable to justify this type of suicide, either in principle
or by casuistical methods of argument, we think that persons so
placed are deserving of an intelligent sympathy, which may take
the form, firstly, of deciding that the circumstances are usually such
as to excuse from grave sin, and therefore from the ecclesiastical
penalties attached to suicide by canon 1240, §1, 3; one could even
say, in many instances, that there is no formal sin at all owing to an
invincibly erroneous conscience. It will follow, secondly, that it is
best for a priest to leave these people in good faith if it is possible
to do so without causing scandal ; there is no need, especially during
a war, to preach the doctrine of (i) and (ii) in season and out of
season, but ii one is pressed for a decision the answer must be that
the action is direct suicide and forbidden by the natural law.
Q. 332
Sundry Moral Questions
453
iv. Our correspondent asks for the opinions of theologians on the
subject, and whether there exists at least an extrinsic probability
justifying this type of suicide. Perhaps the commendable reticence
mentioned in the previous paragraph accounts for the lack of
modern theological opinion in the journals. We know of only one
modern writer who deals with the point, in VAmi du Clergé, 1947,
p. 189, quoted with approval in Theological Studies, 1948, p. 89,
whose conclusions are as we have stated above. The older theologians
unburden themselves on II Machabces xiv, 41, and an excellent
summary of their approaches is in Collationes Brugenses, 1900, p. 403 :
they either conclude that Razias committed grave sin, or that he
acted under God’s inspiration, or that he had an invincibly er
roneous conscience and committed only material sin. Anyone bent
on finding some plausible argument or authority justifying the
action might consult the seventeenth-century casuists : Sylvius is
quoted as justifying Razias in the recent Leonine edition of the
Summa Theologica, but no reference is given. Those we have con
sulted, including the English Benedictine Gregory Sayers, O.S.B., in
Clavis Regia, VII, ix, 10, give the doctrine as above in (i) and (ii).
A recent article in Dictionnaire de Théologie Catholique XIV, col. 2739,
treats many new aspects of the subject of suicide not found in the
manuals, but does not include this case except by implication in
giving the usual solution about Razias. We shall be glad to know
of any serious contribution to the question by modern writers, but
we think, until better informed, that no justification of the practice
is logically possible, except on premisses about the State’s powers
which must be rejected. Thus De Lugo, Disp. x, 1, n. 3, Vives VI,
p. 38, rejects the view which regards suicide as essentially a crime
against the State, because this would mean that the State could
authorise suicide.
332.
EUTHANASIA---- PAPAL PRONOUNCEMENTS
Are there any recent pronouncements of the Holy See on the subject of
mercy-killing?
2 December, 1940 : Quaesitum est ab hac Sacra Congrega
tione: Num licitum sit, ex mandato auctoritatis publicae, directe
occidere eos qui, quamvis nullum crimen morte dignum com
miserint, tamen ob defectus psychicos vel physicos nationi prodesse
iam non valent, eamque potius gravare eiusque vigori ac robori
obstare censentur? In generali consessu . . . respondendum man
darunt : Negative, cum sit iuri naturali ac divino positivo contrarium.
Mystici Corporis, 29 June, 1943 : Ut enim iure meritoque Apostolus
S. Off.,
454
Priests' Problems
Q. 333
admonet: “Multo magis quae videntur membra corporis infirmiora
esse, necessariora sunt; et quae putamus ignobiliora membra esse
Corporis, his honorem abundantiorem circumdamus.” (1 Cor. xii,
22.) Quam quidem gravissimam sententiam Nos in praesens, pro
altissimi conscientia officii, quo obstringimur, iterandam reputamus,
dum magno cum maerore cernimus corpore deformes, amentes
patriisque morbis infectos, utpote molestum societatis onus, vita
interdum privari ; idque a quibusdam efferri quasi novum humanae
progressionis inventum, communique utilitati maxime consen
taneum. At quisnam cordatus non videat hoc non tantum naturali
divinaeque legi, in omnium animis inscriptae, sed altioris etiam
humanitatis sensibus acerrime adversari ? Horum igitur sanguis, qui
sunt Redemptori nostro idcirco cariores, quod maiore sunt misera
tione digni, “clamat ad Deum de terra”.
A radio message, given by the Holy Father, 25 May, 1948, to an
Italian Congress of medical men, was printed in I' Osservatore Romano,
23 May, 1948, and in Documentation Catholique, 1948, p. 775. It
contains the following passage, which we have translated: “There
are other cases which may arise, the solution of which cannot be
described as more difficult, since one’s duty is abundantly clear;
they are, nevertheless, more distressing because of the tragic con
sequences which may follow the performance of this duty. They are
the cases where the moral law imposes a veto. If you alone were
concerned you would not find it difficult to reject pleas based on
unrestrained feelings of pity, and reason would prevail over emotion.
But how often are you confronted not with common and disgraceful
demands born of self-interest, or of inexcusable passion, but with
the perfectly intelligible anguish born of conjugal love or family
affection. The principle nevertheless is inviolable. ... It is never
lawful to terminate human life, and only the hope of safeguarding
some higher good, or of preserving or prolonging this same human
life, will justify exposing it to danger.”
None of the above statements deals solely and exclusively with
euthanasia, or mercy-killing. Its wrongness is deduced from a general
principle, and requires no elucidation, but only the warning that
we must be guided by reason, not by emotion.
333·
papal teaching on leucotomy
Has there yet appeared any papal direction on the lawfulness of leucotomy?
Iis qui interfuerunt Conventui primo internationali de Histopathologic
Systematis nervorum, Romae habito 13 September, 1952. A.A.S., 1952,
XLIV, p. 779 :
Sundry Moral Questions
455
Q.· 333
En outre, clans la mise en œuvre de son droit à disposer de luimême, de ses facultés et de ses organes, l’individu doit observer la
hiérarchie des ordres de valeurs—et à l’intérieur d’un même ordre
de valeurs, la hiérarchie des biens particuliers, pour autant que les
règles de la morale l’exigent. Ainsi par exemple, l’homme ne peut
entreprendre sur soi ou permettre des actes médicaux—physiques
ou somatiques—, qui sans doute suppriment de lourdes tares ou
infirmités physiques ou psychiques, mais entraînent en même temps
une abolition permanente ou une diminution considérable et
durable de la liberté, c’est à dire de la personnalité humaine dans sa
fonction typique et caractéristique. On dégrade ainsi l’homme au
niveau d’un être purement sensitif aux réflexes acquis, ou d’un
automate vivant. Un pareil renversement des valeurs, la loi morale
ne le supporte pas; aussi fixe-t-elle ici les limites et les frontières
de “l’intérêt médical du patient”.
For the details of this operation on the frontal lobes of the brain
the reader is referred to the excellent account of the subject by Rev.
J. Diamond, S.J., in The Clergy Review, 1951, XXXVI, p. 231.
Subject to stringent conditions and safeguards the opinion there
given favoured the lawfulness of the operation, a view which is now
commonly held by Catholic moralists.1
It must be admitted, we think, that the papal words taken out
of their context are capable of being read in a sense unfavourable
to the lawfulness of the operation. But the Holy Father does not
specifically name this operation, and taking into account the
teaching of moralists which has so far been accepted in theological
circles something much more explicit is required before we even
suspect that their teaching has been rejected by the Holy See. The
only writer known to us who has commented on the papal address
is Father G. Kelly, S.J., who contributes an excellent summary on
current problems to the American journal Theological Studies.2 We
agree with his view that the papal words, if they refer to leucotomy,
must apply to cases where less radical procedures are available and
effective ; if some proportionate benefit is expected (and it is only
on this supposition that moralists permit the operation) the rest of
the papal address leads us to conclude that the operation is permis
sible.
An English translation of the whole address is given in Catholic
Documents, X, February 1953, pp. 12-20, where the date is given as
14 September, instead of 13 September, 1952.
1 E.g. Theological Studies, 1949, p. 88; American Ecclesiastical Review, 1948, p. 197;
Irish Ecclesiastical Record, May 1949, p. 433; Kelly, S.J., Medico-Moral Problems,
h P- 43, „
2 Theological Studies, 1953, p. 44.
456
Priests' Problems
QQ· 334. 335
334 RESTITUTION FOR GRAVE DAMAGE
A thief deprives the owner of a ring, worth in the thief's estimation £io.
After disposing of it for fiQ the thief learns that its real value is £50. Is the
amount of restitution £10 or £50?
i. An adequate solution of all doubts about restitution requires
one to bear in mind a great number of principles, so that it is rarely
possible to deal with such problems within the limits permitted in
answering questions in this journal. In the above case there is no
dispute about the obligation of restoring at least £10, since the thief
is bound to do so on the basis of being an unjust possessor of £10.
If he is bound to do more than this it will be on the basis of unjust
damnification, a duty which arises in conscience only if the act is
committed with “theological” culpability, and this limits restitution
to the extent of the damage voluntarily intended. The qualification
“theological” is used in this context to distinguish the culpability
from that which is “juridical”: there is no dispute that in the
external forum of law, since it is not possible to take into account
the individual conscience, the thief could be forced to pay the full
amount of the injury, £50, and the theologians are agreed that after
judicial sentence he is bound in conscience, as well as in civil law,
to restore this amount to the person unjustly damaged.
ii. The point raised in the above question can best be considered
by slightly altering the circumstances. The thief, let us suppose,
voluntarily elects to cause damage which he has no reason at all
for supposing is above £10; and let us suppose, secondly, in order
to avoid a lot of vexatious problems about the subsequent unjust
possessors, that he throws this ring into the sea. The solidly probable
solution about his obligations of strict justice in conscience is that
he is bound only to the extent of the damage that he foresaw and
consented to at the time of the injury, namely £10. Thus, all the
current manualists who discuss the point, e.g. Iorio, Theol. Moralis,
II, §648; Ferreres, I, §783, 10. Also O’Donnell, Moral Questions,
p. 146. T hey rely on the teaching of the classical writers and suppose
that, in conscience, the unjust damnificator was invincibly ignorant
of causing damage in excess of £10.
335·
mental restriction under oath
May a priest witness when giving evidence under oath use mental restric
tions exactly as he is permitted to do, with all the necessary conditions and
safeguards, when not under oath?
i. The doctrine about the lawfulness of using a mental restriction
is bom oi die traditional Augustinian definition of lying—locutio
Q. 335
457
contra mentem—since occasions arise when a person is gravely bound
not to reveal to a questioner the knowledge he possesses, as might
happen if a priest were questioned about matters pertaining to the
seal of confession : his reply denying all knowledge of the matter is
uttered with a mental reservation : “ I do not know, i.e. apart from
knowledge obtained in the confessional.” It is a “broad” mental
reservation since any intelligent listener, knowing that a priest may
never reveal a confessional secret, is able to deduce that the priest’s
reply to all questions is necessarily limited to knowledge obtained
outside the confessional. A “strict” mental reservation is not per
missible because it is made in such circumstances that no one could
possibly guess its presence : it differs in no way from lying.
ii. The “broad” mental reservation not being a lie, it is not
perjury to use it when under oath to speak the truth. This is the
common teaching,1 though some require a graver cause than what
might suffice when using it without an oath.2 The doctrine does not
come within the condemned propositions of Innocent XI3 which
refer to the “strict” mental reservation. Priimmer concludes:
“lurare autem cum restrictione late mentali non licet nisi ex gravi
causa; in eo sc. casu, quo nullum aliud praesto est medium, se
ipsum aut alios tuendi contra iniustam aggressionem, iniustum
modum interrogandi aut aliud grave malum. Sic confessarius, qui
inique cogitur ad testimonium iuratum ferendum de rebus, quas sub
sigillo confessionali cognovit, potest, immo et debet iurare cum
restrictione mentali.”4 What an oath does is to add an obligation
of religion to the obligation of telling the truth, thus leaving intact
the whole doctrine about lying as such. A lie may be only a venial
sin against the virtue of veracity, but when confirmed by an oath
it is a grave sin against the virtue of religion.
Sundry Moral Questions
1 E.g. Iorio, Theol. Moralis, II, §76.
2 Marc-Gestermann, I, §608, ii.
3 Denz., 1176, 1177.
* II, §444· Cf. Irish Ecclesiastical Record, 1943, LXII, p. 336.
c<
5
320
321
9» 327
322
328, 330
321, 327
295
324
3θ5
322
326
Canon
2316
2318
2319
2324
2350
2356
2363
2366
2375
2379
2388
461
Qj&stinn
326
3°4
327
106, 172
328, 329
10
43
11
330
II. SUBJECT INDEX
{References are to Questions)
Absolution :
from censure, v. sub “Censure”
from sin only, 321
local reservations, 123
mention of refusal, 124
Abstinence, broken, still binds, 265
Ad mentem, in rescripts, 5
Adiuva nos Deus, genuflexion, 97
Administrator of vacant parish, 14
Affinity in direct line:
proof of non-consummation, 191
why excluded in cc. 1043-44., 190
All Souls’ Day, one stipend only, 64
Alleluia in votive Masses, 06
Altar :
candlesticks, height, material, 24g
consecration, indulgence, 132
crucifix, form of, 237
fixed yet portable, 246
number of steps, 247
privileged, obligation, 68
Amplexus reservatus, 237
Angelus, in Mass vestments, 86
Antimension for altar stone, 63
Aspersion, baptism by, 39
Assistant priest, appointment of, 19
Banns, marriage of catechumen, 183
Baptism:
by aspersion, 39
certificate for civil purposes, 44
conditional, in doubt, 46
“in the Catholic Church”, 214
minister as sponsor, 41
mother as minister, 37
of adopted child, 38
of adults; who answers?, 45
of children of nominal Catholics, 197
of children of non-Catholics, 40
sponsor, unlawful, 43
sponsor at non-Catholic rite, 326
sponsor pro forma, 42
Benedicite, why plural in Prime ?, 289
Benediction of Blessed Sacrament :
a priestly blessing?, 282
during exposition, 279
side-altar candles lit, 281
use of vernacular, 277
with pyx, 280
Betrothal, v. sub “Engagement”
463
Bination, on ordinary days, 57
Blessing :
apostolic, v. sub “Last Blessing”
by parents of new priest, 165
of provisional church, 239
of vestments, delegation of curate,
255 ..
Bonum fidei in marriage contract, 206
Brigittinc indulgences, 137
Broadcasts by clergy, leave of Ordinary,
303
Burial at sea, 256
Candlesticks, the “Sixes”, 249
Cause, canonical, for dispensation, 7
Censorship of parish magazines, 301
Censure :
ab homine, 317
absolution, proof of, 327
absolution in ignorance of reserva
tion, 318
absolution from sin only, 321
excuse of fear, 319
faculty used for another case, 316
iniunctis de jure iniungendis, 320
Chain prayers, 270
Chalice, 254
Chancellor granting dispensation, 6
Children of Mary, 36
Church :
consecration, fast on eve, 238
corner stone, 241
hatless women, 272
memorial tablets, 242
music, royalties on, 243
piety stalls, 244
provisional blessing, 239
Churching :
after infant’s death, 49
penitential features, 48
Clerics :
dress on holidays, 11
local councillors, 13
practising medicine, 12
Clothing of postulants, papal enclosure,
21
Cohabitation with infidel spouse, 200
Communicatio in sacris, godparent, 326
Communion :
before conventual low Mass, 101
464
SUBJECT INDEX
Communion :
Easter or annual, i io
First, deciding fitness, 105
forbidden by religious superior, 27
frequent ; advice of confessor, 111
frequent; in religious houses, 112
frequent; mental defectives, 114
frequent; of seminarists; ordination,
n3
from Hosts consecrated in same Mass,
83
purification of plate, 84
pyx taken during another’s Mass, 115
remarried divorcees, 106
shortage of Hosts, 81
Communists, 196
Confession :
converts before reception, 126
faculties on pilgrimage, 120
faculties on train journey, 1 tg
foreign language, 127
local reservations, 123
mention of refusal of absolution, 124
penance, grave, 121
penance declined after absolution,
122
pre-baptismal sins, 125
religious not under P.P.’s care, 117
reserved cases at sea, 118
supplied jurisdiction, 10
Confessional, for men’s confessions,
129
Confessor rectifying marriage at death,
189
Confirmation :
by administrator of vacant parish, 55
by “supply” priest, 56
case of apparent death, 53
degree of danger of death, 50
obligation to administer, 52
obligation to receive, 51
of heretic in danger of death, 54
Confiteor at Communion of sung Mass,
82
Confraternities, exclusion of women, 34
Confraternity of B. Sacrament, 35
Consecration of church, fast on eve, 238
Consecration of ciborium, intention, 80
Consecration of semi-public oratory,
240
Consummation of marriage, contracep
tion, 170
Contrition, perfect, motive, 128
Convert :
confession before reception, 126
form of prayer at reception, 323
nuptial blessing, 218
received in danger of death, 322
use of Pauline privilege, 226
Cooperation :
by summoning non-Catholic minis
ter, 298
by trade with communist States, 300
Corner stone of new church, 241
Coronation :
of Lady statue, liturgical, 284
of Lady statue in May devotions, 285
Councillors, local, clerics as, 13
Counsels in the Code, 1
Credence, 250
Crimen:
contraceptive adultery, 203
investigation, 186
occult; dispensation, 187
undispensed; plea of nullity, 312
Crozier indulgences, 136
Crucifix :
on altar, form of, 248
power to give Stations indulgence,
134
,
Curate, appointment audito parocho, 19
Deacon, conducting funerals, 258
Devotions, authorization, 268
Dies Irae, 290
Dimissorials, 164
Disparitas cultus:
among dissident Orthodox, 201
dispensation ad cautelam, 202
supervening after marriage, 200
Dispensation :
direct affinity; non-consummation,
19I
inadequate canonical cause, 7
power of chancellor, 6
Divine Praises, 87
Divorce, permission of Ordinary, 230
Divorcees, admission to Communion,
106
Dowry of moniales, 23
Dress, clerical, on holiday, 11
Duplication, on ordinary days, 57
Easter :
Conununion, paschal or annual, 110
Mass stipends, 66
Education, exclusion of, 205
En ego, Communion each time, 130
Enclosure, papal :
clothing of postulants, 21
entry of ecclesiastical superior, 29
variety of observance, 28
Engagement to marry, canonical:
delegation of P.P.’s function, 175
refusal to witness, 174
religious rite, 173
Enthronement of S. Heart, formula,
286
SUBJECT INDEX
Error, common, deliberate use, io
Euthanasia, papal teaching, 332
Evening Mass, fulfilment of precept,
261
Exemption from episcopal visitation,
20
Exploratio voluntatis before profession, 24
Exposition of Blessed Sacrament :
XL Hours, continuous in diocese,
275
XL Hours, functions at altar, 276
number of watchers, 274
preaching during, 278
vernacular prayers, etc., 277
Extreme Unction:
apparent death, 146
before operations, 148
in danger of infection, 153
monthly repetition, 149
of unconscious, after refusal, 147
why after Viaticum?, 150
Eye, left missing, not irregularity, 163
Fast, ecclesiastical :
Christmas Eve, ieiunium gaudiosum, 266
eve of consecration of church, 238
violation, contrast with abstinence,
265
women aged fifty, 267
Fast, eucharistie:
motive of law, 107
old age as infirmity, 109
quoad potum, 108
Fear, as excuse from censure, 31g
Fee, for indulgencing faculty, 143
First Friday votive Mass repeated, go
First Thursday votive Mass, 88
Font, baptismal, Holy Oils, 47
Forty Hours, v. sub “Exposition”
Forum, internal non-sacramcntal, 9
Funeral :
conducted by deacon, 258
of dissident Orthodox, 257
pall not removed at absolution, 260
significance of sprinkling, 259
Genuflexion, crucifix, Blessed Sacra
ment, 273
Good Friday, why no Mass?, 99
Guild of Blessed Sacrament, 35
Heretic, proof of “pertinacity”, 325
Holy Saturday, fire ceremony origin,
100
Holy Souls’ Box Masses, 67
Host, unconsumed, disposal of, 116
Illegitimacy, baptismal certificate, 44
Impotence, double vasectomy, 198
465
Imprimatur, not published, 304
Incardination of dismissed religious, 31
Indissolubility:
of sacramental marriage, 168
intention in civil marriage, 171
Indulgenced prayers, textual variations,
HS
Indulgences:
apostolic, M.U.C. faculty, 140
apostolic, sede vacante, 142
attached to divine office, 131
Brigittine, 137
consecration of altar, 132
Crozier, 136
En Ego, special Communion re
quired, 130
fees for faculties, 143
objects blessed by Pope, 139
plenary effective at death, 144
Way of Cross, v. sub “Stations’*
Institutes, Secular, support of mem
bers, 32
Interpretation :
of provincial laws, 4
retrospective, of law, 3
Introit, sung in procession, 76
Irregularity, cculus canonis, 163
Jurisdiction :
in case of “common error”, to
of priest supplying, 18
Last Blessing :
apparent death, 156
conditions for validity, 154
repetition, 157
resignation to death, 155
Last Rites, commendatio animae, 158
Laws:
papal, promulgation, 2
provincial, interpretation, 4
retrospective interpretation, 3
Legitimacy :
putative civil marriage, 222
registration, 224
subsequent marriage of parents, 223
Leucotomy, papal teaching, 333
Libellus, appeal against rejection, 307
Litanies, authorized for public use, 269
Liturgy, Pius X on active participa
tion, 293
Marriage, different kinds:
civil, intention of indissolubility, 171
civil, solely for civil effects, 172
ra turn, meaning of, 169
sacramental, by subsequent bap
tism, 167
sacramental, indissolubility, 168
466
SUBJECT INDEX
Marriage, different kinds :
sacramental, Tanqucrcy’s view, 166
unconsummated, but contraception,
170
Marriage, dissolution :
in favorem fidei, preparing case, 229
Ordinary’s leave for divorce, 230
v. sub “Pauline Privilege”
Marriage, form :
ab acatholicis nali, 217
before witnesses only, religious rite,
. 2I3
civil marriage and can. 1098, 211
competent priest for mixed marriage,
208
lapsed Catholics, dispensation, 216
P.P. of non-Catholic bride, 210
proxy without mandate, danger of
death, 192
sense of “converted to Catholic
Church”, 215
use of neighbouring church, 207
Marriage, impediments:
communists, 196
dispensation overlooked till too late,
J93
dispensed by priest, Ordinary to be
told, 194
nominal Catholics, 197
vetitum Ecclesiae, 188
v. sub proper names, e.g. “affinity”
Marriage preliminaries, v. sub “Pre
nuptial Inquiry”
Marriage, revalidation :
before witnesses, without registrar,
212
by confessor in danger of death, 189
need of registrar’s presence, 231
sanation, v. sub “Sanatio in radice”
Marriage, use of:
amplexus reservatus, 237
Noldin on use of sterile period, 236
Pius XII on sterile period, 234
publicizing use of sterile period, 235
Marriage Causes:
appeal against rejection of libellus, 307
conflict offora, 199
defect of bonum fidei, 206
exclusion of educatio prolis, 205
incapacity to plead; effects, 310
local examination of witnesses, 308
non-Catholic plaintiff, summary, 313
non-consummation, medical exami
nation, 314
nullity through insincerity, 195
responsible for nullity in good faith,
311
rogatory commission without notarv,
309
Marriage Causes :
summary process, 315
tribunal slow in functioning, 306
undispensed crimen \ plea of nullity,
312
Marriage of conscience, to retain pen
sion, 221
Marriage rite, organ at mixed marri
age, 209
Marriage registration, in church of
baptism, 219
Mass, celebration:
at sea, 60, 70
duplication on ordinary days, 57
in a bedroom, 62
in an aeroplane, 61
on an antimension, 63
pro populo, diocesan variations, 15
without a server, 58-9, 71
Mass, ceremonies:
Angelus, while still vested, 86
children praying aloud, 75
Communion Confiteor sung, 82
Communion from hosts of same Mass,
83
....
consecration of ciborium; intention,
80
conventual low Mass, Communion
before, 101
Divine Praises after Mass, 87
Hosts used as soon as consecrated, 81
Introit sung in procession, 76
Orate Fratres, why full turn?, 78
“People’s Offertory”, 77
plainsong of ferial Mass, 74
position of stole, 73
prayer for Queen after Mass, 85
Secret prayers, why so called?, 79
voice when many celebrating, 72
Mass, votive:
Alleluia in votive Masses, 96
First Friday votive Masses, 90
First Thursday votive Masses, 88
formula at ordination anniversary,
92.
nuptial Mass, 93-5
solemn votive, concursus populi, 89
Mass intentions:
All Souls’ Day, one stipend only, 64
anticipated suffrage, 65
Easter Masses, 66
Holy Souls’ Box offerings, 67
induit to transfer at lower rate, 69
obligation of privileged altar, 68
Mass precept:
binding in evening, 261
fulfilment in domestic chapel, 263
fulfilment in parish church, 262
Medicine, priest practising, 12
SUBJECT INDEX
Memorial tablets in churches, 242
Mental defectives, frequent Commu
nion, 114
Mental restriction under oath, 335
Missionary Union of Clergy faculties,
140-41
Moniales:
entry by Bishop’s delegate, 29
need of dowry, 23
variety in papal enclosure, 28
Moral rearmament, 33
Nihil obstat, prenuptial, 177-81
Non-Catholic :
minister summoned by Catholic
nurse, 298
schools, Catholic teachers and pupils,
296
translations of Catholic classics, 302
Non-Catholics :
at Catholic services, 297
confirmation in danger of death, 54
exclusion from suffrages after death,
324
praying with, 294
receiving sacraments from, 295
Non-consummation, medical examina
tion, 314
Notary, in rogatory commission, 309
Nullity of marriage, v. sub “Marriage
causes”
Nuptial blessing of converts, 218
Nuptial Mass :
Communion with Hosts of same
Mass, 95
spouses in the sanctuary, 94
sung, 93
Oath, with mental restriction, 335
October devotions, 283
Offertory, oblata brought by congrega
tion, 77
Oils, holy :
for baptismal font, 47
handled by lay person, 152
Oleum infirmorum, blessed by priest, 151
Orate Fratres, 78
Oratory :
domestic, under bedroom, 245
semi-public, consecration, 240
Orders, holy:
exercise of, during interstices, 161
fitness for; frequent Communion,
I!3 .
proper Bishop for tonsure, 159
titulus patrimonii, 162
Ordinary, local:
interpretation of provincial laws, 4
religious P.P., 30
467
Ordination anniversary Mass formula,
92
Organ, at mixed marriages, 209
Orthodox, dissident. Catholic burial,
257
Papal blessing of pious objects, 139
Parish ;
deprival of without judicial trial, 305
time-limit of vacancy, 14
Parochial visiting, obligation, 16
Passion, laymen as Synagoga, 98
Patrimony, as ordination title, 162
Pauline privilege :
baptism but not cohabitation, 225
inoperative, 227-28
to solve convert’s marriage problem,
226
Pax, omission during Triduum Sacrum,
91
Penance :
declined after absolution, 122
grave, 121
Pertinacity in heresy, 325
Petrine privilege, preparing case, 229
Piety stalls in churches, 244
Pilgrimage, confessional faculties, 120
Plainsong, at ferial Mass, 74
Postulants, papal enclosure, 21
Prayer with non-Catholics, 294
Prayers, authorized for public use, 268
Preaching, during exposition of B.S.,
278
Prenuptial Inquiry:
banns for catechumen, 183
crimen, investigation of, 186
dissolved civil marriage, 185
Nihil obstat, 177-81
proper parish priest, 182
Sacrosanctum, how far binding, 176
Sanatio and Sacrosanctum, 232
witnesses as proof of freedom, 184
Priest :
parental blessing after ordination,
165
reinstatement after civil marriage,
33θ
Priesthood, preparation outside sem
inary, x6o
Prime, structure of, 288
Profession, religious:
disposal of property, 25
exploratio voluntatis, 24
Promulgation of papal laws, 2
Publica honestas, doubtful, 204
Quaranl Ore, v. sub “Exposition”
Quasidomicile, plurality of, 8
Queen, prayer after Mass, 85
468
SUBJECT INDEX
Religious :
dismissed, incardination of, 31
exemption from Bishop’s visitation,
20
parish priest and local Ordinary, 30
superior, forbidding Communion, 27
withdrawn from P.P.’s care, 117
Reserved cases:
at sea, 118
episcopal, subjection to, 123
Restitution, value of damage mistaken,
334
Rogatory commission, procedure, 3083θ9
Rosary of Five Wounds, prohibition,
271
Rosary rings, 138
Royalties on church music, 243
Sacraments :
admission of censured persons, 327
from non-Catholic minister, 295
in danger of infection, 153
Sacra Tridentina synodus, annual reading,
112
Sacred Heart, enthronement formula,
286
Sacrosanctum, obligation of, 176
Safe period, use, publicitv, 234-26
Sanatio in radice:
previous confession, 233
registration, 220
Sacrosanctum not applicable, 232
Schools, non-Catholic, problems in, 296
“Secret” prayers, why so called, 79
Secular Institutes, support of members,
„ · ?2
Sedilia, correct form of, 251
Seminarians, frequent Communion,
Orders, 113
Seminary studies, whether necessary,
160
Septuagesima, origin of term, 292
Servile work, custom on Holy Days, 264
Solicitation, false denunciation of, 328
Spiritist seances, attendance at, 299
Sponsalia, v. sub “Engagement”
Sponsor at non-Catholic baptism, 326
Stations of the Cross :
change of position, 133
faculty to indulgence crucifix, 134
rosary of fourteen medals, 135
Sterilisation, male, impotence, 198
Stole, position of, 73
Suicide, secret service agents, 331
“Superiores”, in canon 2363, 329
Supply-priest, jurisdiction of, 18
Tabernacle :
curtain for conopaeum, 252
key, S. C. Sacr. Instruction, 253
Tonsure, proper Bishop for, 159
Trading, women religious, 26
Translations, non-Catholic, 302
Tribunal, matrimonial, dilatory, 306
Ut queant laxis, origin of tonic sol-fa, 291
Vasectomy, impotence from, 198
Vespers, parochial, of B.V.M., 287
Vestments, blessing by curate, 255
Viaticum:
to the insane, 103
to the unconscious, 102
sub specie vint, 104
why before Extreme Unction, 150
Vicarius:
adiutor, faculty to confirm, 56
oeconomus, Confirmation; tenure, 55,
14
paroecialis, tenure, 17
substitutus, Confirmation, 56
Visitation, episcopal, or religious, 20
Visiting, parochial, obligation of, 16
Vocation, religious, parental need,
22
Women, hatless in church, 272