

CANONICAL

ODDS AND ENDS

Lawrence G. Wrenn

Text copyright 2019 Lawrence G. Wrenn

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# PREFACE

This e-book, consisting of nine previously published articles, is the final installment in a trilogy on canon law, with the other two books in the series being titled _Reflections on the History of Procedural Law_ (published in 2016) and _Reflections on Matrimonial Jurisprudence_ (published in 2018).

The title of this third book, _Canonical Odds and Ends_ , might seem to suggest that the articles that comprise this book are just some unimportant leftovers but in fact the title simply indicates that, while each of the first two books concentrates on just one single topic (court procedures for book one and jurisprudence for book two), this third book discusses a number of different topics, a variety of interesting canonical issues.

Let me offer just a few comments on the nine articles themselves. Article 1 was prepared as a kind of pep talk, by a non-academic outsider, to canon law students in the middle of their academic year and was meant to be a break from the more scholastic lectures given by their regular professors. So, as you will see, the style of Article 1 is quite different from that of the other eight. Article 2 gives a shocking view of the immorality that plagued the church in the years just prior to Martin Luther, and it describes in detail the boldest of the many calls for reform that were being proposed at the time. Article 3 discusses the medieval power struggle between Church and State as it involved the judiciary. Articles 4 and 5 are biographical sketches of ten of the greatest canonists who ever lived, all of whom were immensely influential in the 1950s. Every age, I suppose, is blessed with outstanding canon law professors but for so many giants to have been active in just a little more than a single decade would, I think, be an almost unrepeatable historical phenomenon. Article 6 is about the fierce 18th century debates in the Presbyterian Church in America, and while these debates might, at first glance, seem to be of little interest to a 21st century canonist, they in fact have much to teach us. Article 7 speaks of little known facts about what is sometimes called the Petrine Privilege. The rather lengthy Article 8, reproduced here with the kind permission of the CLSA, is about the authentic interpretation of law. And finally, regarding Article 9 about Law and the Brothers Grimm, I would simply note that Albert Einstein once offered the following advice to parents: If you want your children to be intelligent, read them the Fairy Tales. If you want them to be more intelligent, read them more Fairy Tales.

So these are my canonical odds and ends.

Lawrence G. Wrenn

June 26, 2019

Sarasota, Florida

# TABLE OF CONTENTS

PREFACE

1. THE JOYFUL VOCATION OF THE CANONIST

2. GIUSTINIANI AND QUIRINI

3. THE SCOPE OF THE CHURCH'S JUDICIAL COMPETENCE

4. IN DIEBUS ILLIS

5. CHARLES AUGUSTINE, O.S.B.

6. LAW AND THE LOCAL CHURCH

7. SOME NOTES ON THE PETRINE PRIVILEGE

8. AUTHENTIC INTERPRETATIONS ON THE 1983 CODE

9. LAW AND THE BROTHERS GRIMM

# ARTICLE ONE

## THE JOYFUL VOCATION OF A CANONIST
INTRODUCTION

What follows are just a few reflections by an old canon lawyer on the joy of being a canonist.

There is, of course, a widespread _assumption_ that there is no joy in being a canonist; but then all assumptions, as we know, are risky. Perhaps you've heard about the little boy who comes home one day all covered with mud. His mother, who is out in the backyard, sees him and says, "you go into the house right now, young man, and you take off those dirty pants and you wash them out." A little while later the mother goes back into the house, and the pants are on the sink in the kitchen, and the door to the cellar is open, and she assumes he is downstairs. So she goes over to the door and she calls down. "Young man, are you running around down there without your pants on?" And a deep voice answers, "No, ma'am. I'm down here reading the gas meter."

So assumptions, you see, are hazardous. Nevertheless, that having been said, it must be admitted that there are several genuine reasons, not just assumptions, but genuine reasons why many people do not usually look upon the practice of canon law as a joy. For one thing the practice of canon law in the Church today can look suspiciously like rearranging the deck chairs on the bark of Peter while this poor old bark is foundering, or at least in very rough seas, and deck chairs seem pretty irrelevant. For another thing, the day to day practice of canon law in places like chanceries and tribunals (which is where most of us wind up) can often be repetitive, humdrum, tedious, unchallenging and boring. Worse still, it can be frustrating, and can appear at times like a no-win situation. People in tribunal work, for example, often feel caught in the middle. On the one hand Rome keeps telling us that we are doing _too many_ cases and are not following proper procedures, while, on the other hand, petitioners and their various supporters keep telling us that we are doing _too few_ cases and that we are too strict and too slow in the way we administer justice. And besides all that, practicing canon law, often in a somewhat sterile, ivory towerish environment, can, from a purely human point of view, be far less rewarding than say parish work where consoling the bereaved, having fun with the kids, praying with the sick, rejoicing with the festive and offering helpful advice to the confused and the fragile, can, as a kind of by-product, bring immense consolation to the minister. And finally, of course, there is that uneasy, haunting feeling that at judgment time Jesus is going to say to us canonists, "I was hungry, and you asked me to complete a form. I was thirsty, and you quoted a canon at me."

So being a canonist, as we all know, is far from being a life of pure joy. But then what is? Into every life some rain must fall, and my guess is that as canonists we probably get our share of rain but no more than our share. I am, in fact, convinced that with just a few basic qualities we can all find lots of sunshine and great joy in the vocation of a canonist.

THREE QUALITIES

1. In order for us canonists to enjoy our work we must first of all be STUDENTS, serious students of the law and related topics. It is not necessary that all of us be genuine scholars or even that we publish or lecture to any great extent. But at least internally, within ourselves, it is important that each year of our lives we continue to build on the wonderful foundation that was laid back in canon law school.

To speak in terms of building on a foundation is, I suppose, to liken ourselves to contractors or perhaps architects. And maybe there is merit in that. Perhaps it would serve us well if we saw our task over the next years as designing and creating within ourselves a great mansion, an ever expanding mansion of knowledge. Ultimately, of course, the mansion is built in order to be of service to others but meanwhile knowledge, like virtue, is its own reward. And the building of the mansion keeps our creative juices flowing. It keeps alive the creative flame that is within each of us.

Let me recount for you an old story. One day a king returns from his duties of overseeing his kingdom. As he rides up to his castle, he is met by the dog who for many years has been his faithful and loyal companion and protector, and who, in more recent months, has also been the guardian of his dear child. To his horror the king sees that the dog's mouth, paws, and ruff are smeared with blood. With his heart racing, the king follows the dog to his child's nursery where he discovers a bloody heap of blankets in the baby's crib.

In a rage the king promptly draws his sword and kills the dog. Only then does he hear a small cry coming from beneath the crib. He looks and sees the torn body of a wolf. the very wolf who has been terrorizing his kingdom for some time. The king hurls aside the carcass of the wolf and then, to his immense relief, finds his child alive and unharmed.

The king then realizes that his devoted dog had risked his own life in thwarting the wolf's attempt to harm his child; and standing helplessly over the lifeless form of his faithful friend, the king begins to sob.

One way to read that story is this. Within the heart of each of us there is a creative force, a creative flame, which, in the story, is symbolized by the child. As we go through life, we inevitably encounter along the way circumstances or people who encourage and inspire us, and who protect and nurture our creativity; or, as the story puts it, we all have a dog as a faithful friend. But there is also a wolf in the picture, voices from without and from within telling us that we're stupid and have nothing to offer and can never learn enough and would do better to quit. Too often, unfortunately, we side with the wolf; we listen to these negative voices and we quit. Like the king in the story we kill our beloved dog, our boon companion who was always dedicated to protecting and nurturing the creative flame within us.

The point could be made, of course, that many canon lawyers are extremely creative people but have simply decided to exercise their creativity in areas other than canon law. Perhaps they allow their creative flame to burn in the area of liturgy; or maybe Christology is their favorite subject, or natural history or theater or music or baseball or whatever. And they have great fun and derive enormous satisfaction from designing and constructing their internal mansion of knowledge in one of these areas. And that's fine. I would suggest, however, that for people who obtain a licentiate or doctorate in canon law and then spend several years of their lives working in that field, it simply makes sense to channel a certain portion, perhaps even a substantial portion of their creative energies into the study of canon law. I do not suggest that we stifle creativity in other areas, but only that we do not neglect canon law.

It occurs to me that there are two rather obvious factors that discourage us from the ongoing study of canon law. The first is that the sheer magnitude of the field tends to scare us off. To an outsider, of course, the magnitude of the field is by no means apparent. I am reminded of the astronomer and the bishop who were sitting next to each other on an airplane. The astronomer, who was something of an atheist, turned to the bishop and said, "You know, I think all religious truth can be summed up in the Golden Rule." And the bishop, tongue in cheek, said to the astronomer, "And I think that all astronomy can be summed up in 'Twinkle, twinkle, little star'." Perhaps it is true that we all tend to underestimate the other person's discipline, but anyone who has studied canon law for even a few months can, as you know, get easily overwhelmed by it all and then get discouraged. So we get through our courses and learn enough to be reasonably efficient in our work but we never really try to plumb the depth or explore the breadth of canon law and so never really draw any joy from it because we have been conned by the wolf of discouragement. In my own life, I know, the wolf never goes away. He hangs around and hangs around and keeps reminding me that I don't know one thousandth of what I should, so why bother.

But there is, of course, another way of looking at this magnitude issue and that's the positive way. Bigness can be liberating. The wide open spaces can set us free. The more expansive the field the more room there is for us to build our mansions. So what if we never get to appreciate every square inch of the terrain. We are who we are. We learn at our own pace. But over the centuries so many wonderful minds have wrestled with so many fascinating questions in canon law that we shall never run out of interesting material. The possibilities are endless. That's the positive side of it.

But there is a second factor that contributes to our neglect of study and that is the lack of urgency. The fact is that life today tends to revolve around what is urgent or what we see as urgent. So we tend to rush around all day doing a lot of urgent things. And then, when we finish doing all the urgent things that need doing every day, we're so exhausted that we tend to sit around and do something totally unimportant, like watching television. But the problem is that there are some things in life, like prayer, for example, that are important, even very important, even very very important, but for all their importance, they are not really urgent. So they tend not to get done This is a real problem in life today: we tend to neglect what is _important_ in favor of what is urgent, even if the urgent stuff is clearly _un_ important.

Certainly one of the things besides prayer that tends to get caught in this trap is study. And study is important not only because it is a form of personal creativity but because it's useful to others as well, and because, when all is said and done, it's the best way to get the job done. Most of you know the old story about the slight elderly woodsman who, whenever competitions among woodsmen were held, would always beat all the powerful, young giants. Time after time, at the end of a day-long competition, this elderly man would have cut more wood than any of them. Finally, somebody asked him to what he attributed his amazing efficiency, and he replied that he didn't really know unless it was that he stopped once every hour and sharpened his saw.

And that, I guess, is what study is. It's stopping to sharpen the saw. Which is more important than most of us think.

This, at any rate, is the first quality that can make working as a canonist a joyful experience - being a student.

2. The second is being a SHEPHERD. In one sense, I suppose, canon lawyers are nothing like shepherds. To begin with, a shepherd is not a shepherd unless he or she has a flock, but a canon lawyer doesn't have a flock. A bishop could be said to have a flock; and a parish priest or parish minister has a flock. In the United States, indeed, the pastor of a parish is so identified with a shepherd that the word 'pastor' is nothing more than the English pronunciation of the Latin word that means shepherd. And this identification of a pastor with a shepherd is understandable, because a pastor, perhaps more than anyone else, truly has a flock. But a canon lawyer has no flock or at least no stable flock, so in what sense may we legitimately think of ourselves as shepherds?

Well, canon lawyers have, I think, more in common with shepherds than meets the eye. First of all we share one very important role - that of the protector. By the time the young shepherd David fought Goliath, he had already killed a lion and a bear in order to protect his sheep (1 S 17:34-37). And in the tenth chapter of John's Gospel, Jesus, as you know, contrasts the good shepherd with the hireling because the hireling runs away when he sees the wolf coming whereas the shepherd stays to protect the sheep, even laying down his life for the sheep if necessary. Like the good shepherd, the canon lawyer too is a protector. Though we may not be called on to protect the _lives_ of people, we often protect their rights and sometimes their reputations. Perhaps they are the parties in a marriage case, each of whom has his or her own set of rights. Or a cleric who has been unfairly treated by his bishop; or a bishop who has been falsely accused of malfeasance; or a layperson whose rights have been ignored by a school board, or who, as a child, was molested by a cleric. Whatever the case, canon lawyers are called upon to protect and defend the legitimate rights of people, people, I might add, who are often quite vulnerable. And, like a good shepherd, the good canon lawyer is expected to bend every effort in order to provide maximum protection to people in need of help.

There is also a second role or function which the canon lawyer has in common with the shepherd, and that is the double function of leading and managing. Someone has said that management is doing things right whereas leadership is doing the right things. Leadership, in other words, involves setting the right goal; management concerns itself with all the details that need to be done in order to reach that goal. Management is climbing the ladder; leadership is making sure the ladder is leaning up against the right wall.

Clearly the shepherd of old performed both roles. He was a _leader_ in that his principal function was to lead his flock to a green pasture; he was a _manager_ in that, along the way, he had to keep the flock together, search out stray sheep, see to it that the sheep were watered once each day, sheltered in inclement weather and so forth. Similarly canon lawyers tend to exercise both functions. They often become intimately involved in the _leadership_ role as advisors to bishops, major superiors and presidents of hospitals and universities, and in this capacity they do, or help others to do, the right things. And they can also exercise the leadership role by writing books and articles that urge the Church at large to do the right things. But besides this, they run or help to run offices like chanceries and tribunals where they primarily exercise the _managerial_ role of doing things right. So here too, in this twofold function, shepherds and canonists have something in common.

There is one other thing they have in common as well and that is their reputation. Which in both cases is a very mixed bag. In biblical times, first of all, shepherds were generally viewed with disdain. As nomads they tended to be dirty and smelly and, besides that, they regularly neglected the ritual washing required by the law, so tending sheep was an occupation that was carefully avoided by an observant Jew. Shepherds, in other words, were considered second class citizens. And to a large extent that's true of us as well. My own personal experience with canon lawyers over the years is that they are not especially redolent, but despite this social nicety our reputation is far from the best. Civil lawyers, of course, have an even worse reputation than canon lawyers, and they seem to be the butt of far more jokes than do we. Let me just recall a couple of them for you.

A doctor and a lawyer in two cars collided on a country road. The lawyer, seeing that the doctor was a little shaken up, helped him from the car and offered him a drink from his hip flask. The doctor accepted and handed the flask back to the lawyer, who closed it and put it away. "Aren't you going to have a drink yourself?" asked the doctor. "Sure; after the police leave," replied the lawyer.

The local United Way office realized that it had never received a donation from the town's most successful lawyer. A local volunteer calls to solicit his donation, saying "our research shows that even though your annual income is over a million dollars, you do not give one penny to charity. Wouldn't you like to give back to your community through The United Way?" The lawyer thinks for a moment and says: "First, did your research show that my mother is dying after a long, painful illness and has huge medical bills far beyond her ability to pay?" Embarrassed. the United Way rep mumbles, "Uh, no." "Secondly, that my brother. a disabled veteran, is blind and confined to a wheelchair and is unable to support his wife and six children?" The stricken United Way rep begins to stammer an apology but is cut off. "Thirdly, that my sister's husband died in a dreadful traffic accident," the lawyers voice rising in indignation, "leaving her penniless with a mortgage and three children?" The humiliated United Way rep, completely beaten, says simply, "I had no idea.'' The lawyer then says, "and if I don't give any money to _them_ , why should I give any to you?"

Canon lawyers, as I say, seem to take less of a bashing than civil lawyers but we certainly seem to get our share and not always in jest. There are a great many Catholics who are seriously convinced that the hierarchy is more concerned about the institution than it is about the Gospel, and so it passes a multiplicity of laws which are designed to keep people in line but which, in fact, lock the Holy Spirit out of their lives and deprive them of the ability to hear the voice of the Spirit calling them to a life of freedom and of true holiness. Naturally people who think this way, even if only vaguely and periodically, tend to regard canon law as generally pernicious, noxious and even draconian, and consequently tend to regard canon lawyers (the principal maintainers of that law) as antagonistic to the true will of God. Which is not the best reputation to have.

But that, of course, is only half the story. The other half, for both the canonist and the shepherd, is much more positive. Certainly the Canon Law Society of America and other canon law societies as well, have, for the past many years, enjoyed a wonderful reputation as truly effective organizations in the Church today. They have, over the years, orchestrated the talents and energies of hundreds of people and have focused those talents and energies on promoting and maintaining peace and justice in our communities. All of which has immensely enhanced the reputation of canon law and of canon lawyers in our countries. At the local level too the value of canon law has come to be appreciated and respected. For years now there have been so many really pastoral canon lawyers out there, plugging away day after day in dioceses or religious communities or wherever, being of assistance to people with legal problems of one kind or another, that the word is out that, by and large, canon lawyers are kind, caring, knowledgeable, competent people who are there for you when you need them, ready to help. Which is not a bad reputation to have.

Like the reputation of the canonist, that of the shepherd of old was by no means entirely negative. There was an upside to it as well. A real upside. In the eyes of Jahweh, indeed, the shepherd seems to have been among the noblest of callings. David, as noted, was a brave and courageous shepherd before he was called to represent his people in the battle against Goliath. In Psalm 23 the Lord himself is portrayed as a shepherd. And in the New Testament Jesus refers to himself as the Good Shepherd and makes Peter a shepherd as well, by commissioning him to feed his sheep. It's noteworthy too, of course, that when Jesus was born, it was to shepherds that the angel was sent to announce the glad tidings.

Clearly, therefore, the role of the shepherd in biblical times was a very special one. And, perhaps more to the point, probably no one in the New Testament is represented as being more joyful than the shepherd. Remember how Jesus, in the parable of the lost sheep, says that when the shepherd finds the lost sheep "he sets it on his shoulders with great joy and ... calls together his friends and neighbors and says to them, 'Rejoice with me because I have found my lost sheep'." Well, my own sense is that we canonists can find a similar joy in our own work. If we not only _conduct_ ourselves as shepherds but actually _think_ of ourselves as shepherds, our work can, I am sure of it, have its own reward and bring with it its own kind of pastoral joy.

3. A third quality that can bring one joy as a canonist is being a MINISTER, and I use the word 'minister' in its primary sense to mean someone who performs a service for another. In this sense of the word, being a minister has for the Christian a very straightforward meaning. It means that we should be followers of the Jesus who washed the feet of his disciples at the Last Supper, urged us to wash one another's feet, and told us that we would be blessed, " _beati_ ", if we did so (John 13, 19). Which, as I understand it, is a kind of promise by Jesus that if we devote ourselves to serving others, to being ministers, we will find joy in it. Always, of course, we should serve others in order to serve _others_ and not for any ulterior motive, but in case we haven't caught on already, it's nice to have Jesus assure us that ultimately service or ministry is a _joyful_ enterprise.

The value of service, however, can be appreciated from a secular as well as from a religious point of view. As one very practical person said, "Service is the rent we pay for the privilege of living on this earth." And George Bernard Shaw noted that "the true joy in life is being used for a purpose recognized by yourself as a mighty one ... instead of [being] a feverish, selfish little clod of ailments and grievances complaining that the world will not devote itself to making you happy. I am of the opinion that my life belongs to the whole community and as long as I live, it is my privilege to do for it whatever I can. I want to be thoroughly used up when I die. For the harder I work the more I live."

John Quincy Adams also had something to say on the topic. After Adams had served one, rather unpopular, term as president, he then began a second career in the House of Representatives. When someone suggested that being a congressman would degrade a former president, Adams replied that a person could never be degraded by serving others, as a congressman or, indeed, as a selectman of his home town; that serving others in whatever capacity is always a worthy thing to do.

So the principle is, I think, clear and generally accepted - service or ministry is a noble and rewarding vocation. But beyond the principle itself, I would also like to suggest just a couple of simple guidelines for making our ministry as canonists reasonably effective.

The first guideline would be this: we should channel most of our energies into areas where we can exert some influence. I remember hearing a story once about a man who was describing how he and his wife split up their responsibilities. He let her be responsible for the little issues, the small things, he said, while he took responsibility for the big things. She took care of things like the discipline of the children, the food they would have in the home, the family budget, where they went on vacation, what the home looked like, and so forth; while he took responsibility for the big things, like whether or not we should send a man to Mars.

Clearly that man had almost completely withdrawn himself from any issue in which he could realistically make a difference. And while the _story_ borders on the absurd, the same kind of thing can actually happen in real life. There are a lot of big problems in the world and in the Church, and perhaps there is some pseudo Don Quixote in each of us that wants to grapple with and solve those problems all by ourselves. But realistically the degree of influence that most of us on our own can exert in those areas is minimal while our real responsibilities usually lie in the day to day service we can provide to others. I am not, I hope you know, opposed to finding adventure in life. And I am certainly not opposed to our taking a position on the major issues that face the Church today. But what I am saying is, _first_ of all, that when it comes to major issues, we should, unless we're just letting off steam, try to take our stand in the most effective way possible, in a way that can really make a difference; and with that in mind, we should probably think of working not on our own but in union with our colleagues in our respective canon law societies, all of which, over the years, have selected their issues realistically, marshaled their arguments convincingly and then tried to galvanize sufficient support to exercise real (if not always successful) influence. United we stand. And _secondly_ I'm saying that we must never, like the man in the story, get so distracted by the "big things" that we abandon our responsibility for the so called "small things," because almost always it's the small things, the routine, daily ministering to people in need of our services, that constitute the sphere where we can exercise the most influence in life. And when you get right down to it, the effective minister is the one who makes a difference.

The second guideline is so obvious that it goes without saying but it's this: we should always try to appreciate where the other person is coming from; there's often more to their position than meets the eye. As we go about trying to be of service to others we deal with lots of people: doctors and truck drivers and CEO's and bishops and victims and molesters and people with a variety of problems. Deep down we know that there are at least three sides to every story; but deeper down we sometimes figure prematurely that we know where the truth lies. A friend of mine says that "the ass on the mountain sees more than the wise man in the valley," but the problem is that in real life one is never sure who's on the mountain and who's in the valley. So it's always extremely important to try to get into the other person's mind, heart and shoes and really understand where he or she is coming from.

There's a wonderful story told by a naval officer who was eyewitness to an interesting event at sea. It goes like this. Two battleships assigned to the training squadron had been at sea on maneuvers in heavy weather for several days. I was serving on the lead battleship and was on watch on the bridge as night fell. The visibility was poor with patchy fog, so the captain remained on the bridge keeping an eye on all activities. Shortly after dark, the lookout on the wing of the bridge reported, "Light, bearing on the starboard bow." "Is it steady or moving astern?" the captain called out. Lookout replied, "Steady, captain," which meant we were on a dangerous collision course with that ship. The captain then called to the signalman, "Signal that ship: We are on a collision course, advise you change course 20 degrees." Back came a signal, "Advisable for you to change course 20 degrees." The captain said, "Send, I'm a captain, change course 20 degrees." "I'm a seaman second class," came the reply. "You had better change course 20 degrees." By that time, the captain was furious. He spat out, "Send, I'm a battleship. Change course 20 degrees." Back came the flashing light, "I'm a lighthouse." We changed course.

The other person, in other words, may be a lighthouse, that is to say, somebody quite different from what we expect. So it's critical that we learn as much as we can about the people we serve, and appreciate their point of view. Because we can't really minister to people unless we understand their real issues and their real needs.

CONCLUSION

These are my rather meager but I hope not too hackneyed thoughts on the joyful vocation of the canonist. A while ago I saw Don Shula, the former coach of the Miami Dolphins, being interviewed on television. The interviewer asked to what Coach Shula attributed his great success over so many years, and Shula immediately responded, "The first thing is you have to enjoy what you're doing." And that, I think, just about sums up my thoughts: that if we're to have any success as canonists we first of all have to enjoy what we're doing. Although the other side of that coin is, I think, also true, that if we devote ourselves to being students, shepherds, and ministers the joy will come.

Probably an even better summary of what I've been trying to say, however, is that little prayer of St. Francis of Assisi, and perhaps I can close with that:

Lord make me an instrument of your peace. Where there is hatred let me sow love; where there is injury, pardon; where there is doubt, faith; where there is despair, hope; where there is darkness, light and where there is sorrow, JOY. Amen.

Return to TOC

1998

# ARTICLE TWO

## GIUSTINIANI AND QUIRINI - A REFLECTION ON CHURCH REFORM

RECOLLECTIONS

A score of years has passed since the opening of the Second Vatican Council. For us older, nostalgic folk, lively memories of the opening are still bobbing around, like sturdy little boats, in the recollection cove of our minds. There is, for example, the image of the smiling, roly poly, peasant-looking Pope John the Great. His word "aggiornamento". The cast of thousands taking part in the drama, literally thousands but notably people like Bea, Ottaviani, Tisserant, König, Agagianian, Alfrink and Felici. We remember too those titillating exposes by Xavier Rynne that appeared in _The New Yorker_ , the first of them dated October 10, 1962, on the very eve of the opening. Many of us sent those pieces by airmail, special delivery to our bishops in Rome; we heard later that they were so popular that they were photocopied many times over. And then there was Hans Küng's _The Council, Reform and Reunion_ , which was supposedly banned in Italy but took the rest of the world by storm.1

HANS KÜNG

The banning in Italy bespoke the powerful forces based there that were bent on trivializing the Council. Küng, on the other hand, saw the Council as a graced moment of history, as a truly crucial opportunity which, if grasped, could rejuvenate the Church but which, if ignored or rejected, could lead to disaster.

The direct task of the Council, as Küng saw it, was the reform and renewal of the Catholic Church. Were this accomplished with some success, then the Catholic Church would, perhaps, be more attractive to other Christians and a reunion of the churches might be facilitated.

Küng reminded his reader, especially perhaps his Protestant reader, that, although Protestants produced and directed The Reformation (with a capital T and a capital R), and, although the Calvinist churches are referred to as The Reformed Churches, still Protestants have no corner on reform. It is not their private preserve. Since the Reformation, Catholics, under Paul III, Leo XIII and Pius XII, to name only a few, had, said Küng, been busy indeed in an attempt to reform the Catholic Church and to meet the valid demands of the Reformers.2 It is not as though we had remained stagnant and quagmired for four hundred years.

Küng, however, also reminded his reader, especially his Catholic reader, that much remained to be done, that our Church is a church of sinners, a church constantly in need of reform, an _ecclesia semper reformanda_. The author had his own agenda for reform in the 1960s, an agenda that centered around and spun off from the enhancement of the episcopal office, but he proposed his agenda quite deferentially to the Council Fathers only as possibilities they might consider.3

KÜNG AND GIUSTINIANI - QUIRINI

It was in Küng's book, _The Council, Reform and Reunion_ that I first read about Giustiniani and Quirini.4 They were two Camaldolese monks who, in 1513, wrote an open letter to Pope Leo X. The Church, at the time, was a crone, but good Christians everywhere dreamed of reforming the deformed old witch and of turning her into a beautiful bride again. It was in this setting that Pope Julius II, in April of 1512, opened the Fifth Lateran Council. Julius, however, died in February of 1513 and the following month, Giovanni de Medici, the second son of Lorenzo the Magnificent, was elected pope and took the name Leo X. The direction of Lateran V was now Leo's responsibility. It was to Leo that Giustiniani and Quirini wrote their open letter.

The similarities between Giustiniani and Quirini on the one hand and Küng on the other are apparent and inescapable. Both the G-Q open letter and the Küng book were, in their respective times, dramatic, at times inspiring calls for Church reform. Although history's judgment on the Küng book is, of course, not yet in, it was certainly an extraordinarily influential work, and to read it in 1962 was a mind expanding experience. The G-Q letter, meanwhile, has come to be acknowledged as a reformist masterpiece. Hubert Jedin speaks of its "frankness" and "grandeur", calls it "a voluminous memorial which was both the widest and the boldest of all the many reform programmes drawn up since the conciliar era", and adds that "it is no exaggeration to say that the reform programme of the two Camaldolese monks preoccupied the Church for more than a century."5

For all their similarities, however, the G-Q letter and the Küng book are ages apart, both chronologically and theologically as well. For one thing, the G-Q letter fell, for the most part, on deaf ears. It didn't work. Luther bolted only four years later and the Church was sundered. And secondly, perhaps the reason the G-Q letter was ineffective was that the reformers themselves were, to some extent, in the clutches of the crone. No one can entirely transcend one's own historical epoch; Giustiniani and Quirini were no exception to that rule. Reading them today they sound, at least at times, like crusade mongers who were anti-Semitic, anti-Islamic, anti-Hellenic and preoccupied with papal power both ecclesiastical and secular. Given their times, one should not, of course, expect anything different, but still it is encouraging to compare the state of Church reform in l513 with that of 1962. One cannot help thinking that we've come a long way.

THE LIBELLUS

What I have been referring to as an "open letter" was actually entitled _B. Pauli Justiniani et Petri Quirini, Eremitarum Camalduensium, Libellus ad Leonem X, Pontificem Maximum_ and is found in Volume IX of the Camaldolese Annals.6

The libellus is 108 pages long and, after a brief introduction, is divided into six sections: I. On the Power and Office of the Pontiff (pp. 614-621), II. On Calling Jews and Idolators to the Faith (pp. 621-630), III. A Proposal Either To Convert the Muhammedans or Conquer them in War (pp. 630-654), IV. On Uniting to the Head the Seven Christian Countries Separated From the Roman Church (pp. 654-668), V. On the Reformation of All Christians Who Profess Obedience to the Roman Pontiff (pp. 668-714), and VI. On Extending the Temporal Empire of the Church to all the Regions of the Infidel (pp. 714-719).

G-Q INTRODUCTION

In the Introduction, the authors obsequiously beg God's vicegerent on earth not to consider them rash or rude. They trust that the Most Blessed Pontiff will be able to see beyond their own inept, confused, bumbling thoughts and to grasp what they really meant to say or should have said. They trust too that His Holiness will be able to convert their dross into a precious metal by subjecting it to the fire of His Extraordinary Wisdom.

G-Q PART I

Thus, the stage is set for Part I, on the power and office of the Pontiff, in which the authors remind Leo: "You have been elected by the Lord and raised to the sublime apex of Pontifical dignity ... for the restoration of the whole Christian religion ... (and) ... so that you can repair the tottering Church of Christ and return it to its pristine, splendid beauty."7 Just as Jesus sent His apostles, not just to Jerusalem, Judea and Samaria, but to the ends of the earth, so now "the whole human race, that is to say, all tribes, peoples and nations which are under heaven, are subject to your power; all things human are to be ruled by your commands and regulated by your decisions."8 This power, however, is given you by God not for the sake of the Apostolic See but so that all peoples will embrace "the faith of Christ, in which alone there is salvation."9 The true Church of Christ, after all, is not a collection of buildings;10 the true Church is a gathering of people, and "the salvation of each and every soul is more precious in the sight of Our Lord Jesus Christ than all the kingdoms and empires of the world."11 Other bishops share neither your power nor your dignity. "Just as Jesus Christ is the one Lord of all in Heaven, so Jesus left Peter and Peter's legitimate successor as the one who would take his place on earth."12 You must, therefore, be all things to all men. Just as there is "no one on earth who is free of the power of your dignity, so there must be no one who is alien to the care of your piety."13 You must reach out to all people, in all their diversity.

G-Q PART II

Part II of the G-Q document refers to two particular groups of people in the care of the Pope's piety: Jews and idolators. Neither group believes in Christ but for different reasons: the idolators because they have never heard of him but the Jews because of their "obdurate perfidy of heart ... for their Law and Prophets clearly spoke of the one who was to come, the one whom their Fathers did not deny they had crucified."14 G-Q suggest that, although it would be useless to try to force Jewish people to convert, still a system of monetary rewards and sanctions would be entirely appropriate as a means of enticing Jews to the Faith. Jews could, for example, "be prohibited from loaning money to Christians, from engaging in commercial trade and exercising other arts: interest rates could be made higher for them than for Christians, they could be forbidden from remaining for long periods of time in any one place, from having their own synagogues and worship services; they could be prohibited from living or walking or sailing with Christians; they could be required, when in Christian regions, to wear some distinguishing sign so that they could be more easily recognized by everyone and be avoided. "We do not believe", said G-Q, "that such measures, which might be found useful in softening the hard Jewish hearts, are either unjust or violent."15 Sometimes, indeed, it is necessary to order "them, as diseased sheep, to be segregated from the Christian flock"16 and "to expel them altogether, under pain of capital punishment, from Christian regions."17 Perhaps the fairest approach, according to G-Q, would be to pass a law, giving the Jews a specified number of years to convert, making it clear that all those who decide not to, will be banished.18

So much for the pious care and pastoral solicitude that a good Pope should show to Jews. What of the other group, the idolators, the people who never heard of Christ? At the time of the G-Q writing, the Americas had only recently been discovered and were being referred to as "The Big Islands of the Occidental Ocean (if indeed they are islands and not parts of a continent, as some think),"19 The inhabitants of "The Big Islands" were, it was known, numerous and were, through no real fault of their own, slaves of idolatry, worshipping as they did, the Sun and the Moon and various animals. Their conversion to Christianity was one of the great challenges of the time. It is the Pope, above all said G-Q, who is responsible for the salvation of these people and God help the Pope should he neglect them, because their salvation is his salvation.20 It means, of course, sending missioners to them, mature men who will preach Christ in any way they can, either through interpreters or just through good Christian example, and younger men who will be able to learn the languages of the natives and instruct them in the truths of the Christian religion.21

G-Q, at any rate, clearly wished to remind Leo X that the conversion of these "islanders" to Christianity was both a great opportunity and an immense challenge.

G-Q PART III

Part III of the libellus is a twenty-five page section dealing with the "Muhammedans", as they were called.22 The theme of this section is that the Muhammedans should be either converted or conquered. With the clear emphasis on the latter. About seven pages23 discuss the possibility, not probability but the possibility, that some Muhammedans might conceivably be converted to Christianity. Two reasons in particular suggest that possibility, first that Islam has traditionally regarded Jesus not only as a prophet but as "the breath of God",24 and second that, if one or another Muslim leader could be persuaded to convert to Christianity, perhaps even for political reasons, then many of his followers would no doubt also convert.25

The conversion of the Muhammedans, however, was seen by G-Q as extremely unlikely.26 The idea apparently was that perhaps one final attempt should be made to help the Muhammedans see the light and, if that failed, as it probably would, then that impious race of men should be wiped off the face of the earth.27

The rest of the chapter, about eighteen pages, then proposes a rather detailed strategy of attack, based largely on the divide and conquer approach. The Pope should capitalize on already existing divisions between the Medes, Persians, Turks, Moors and Arabs.28 He should unite all Christians in common cause against the common enemy29 and strike while the iron is hot, while the enemy is in disarray, "for oftentimes, when an occasion presents itself to us and we do not grasp it immediately, we see it then snatched from our grasp."30

G-Q PART IV

With Part IV the mood switches from the bellicose to the irenic, from the combative to the ecumenical. This section of the libellus is a plea to the Pope to reach out to those non-European churches who were more or less cut off from the Roman Church, some for religious reasons, others for political or geographical reasons. Mentioned specifically are the churches of the Abyssinians, Jacobites, Armenians, Georgians, Syrians, Maronites and Greeks.

G-Q recognized, of course, that between Rome and "the seven separated nations of Christians" there were many divisive elements. Some of these elements were fairly superficial, like the fact that they belonged to different empires, used different religious rites and had different languages and alphabets, with some languages having as many as 150 characters.31 But there were also differences in the way sacraments were administered. "For there are some who receive a baptism of both fire and water, admitting that baptism by water alone is necessary for salvation but holding nonetheless that baptism by both is better. Some confect the Eucharist in fermented morsels, and nearly all administer the Eucharist to infants as well as adults. Some churches admit of divorce, while others do not allow second marriages."32

Some, furthermore, especially the Greeks, do not accept Petrine primacy. "Either they do not recognize the Roman Pontiff or they do not consider him to be the head of all the churches of the world; they regard Peter not as the chief of the Apostles but simply as one among others; they believe that their own churches, which they hold to have been founded by James, Bartholomew and other Apostles, are not inferior but equal to the church of Saint Peter, that is to say, the Roman See."33

Perhaps, indeed, the Greeks should be regarded as a separate case because they are, as everyone agrees, less open than the rest. "We consider the Greeks different from the others. Because of their damnable pride and ingrained ignorance, they find it difficult to listen to anybody else, and, even when they do listen, they cannot be reasoned with. Of all the Christians in the world, the Greeks are regarded by practically everybody as the dregs."34

But, say G-Q, let us not dwell on the factors that separate us. There are unitive factors as well, especially the fact that we share the same Scriptures. Their versions of the New Testament and ours are, indeed, identical. They all contain the very same books, and are even arranged in the very same order.35 So let us begin there and work towards reunion. Perhaps we could send legates to them in order to explain our point of view, and we could also invite some of their bishops and priests to attend our Lateran Council.36 The important thing, at any rate, is reunion, that there be one flock and one shepherd.

G-Q PART V

The fifth section of the G-Q paper, on the internal reform of the Church, is the most celebrated and also the longest section of the paper. It comprises forty-seven pages and constitutes better than forty percent of the whole. It is generally regarded as the heart of the document.

The reform of the Church, according to G-Q, must begin with the Pope himself, because "it is perfectly apparent that the infirmities of all the individual members ... have their origin in the Head, that is to say, the Popes."37 "Since, furthermore, your Beatitude knows that, when it comes to correcting subjects, decrees and laws are effective only to the extent that they are reflected in the holy life of the leader, you must, therefore, begin with yourself, and having turned your back on the shameless ways and scandalous lifestyles of some of our previous Popes, lead the papacy back to the true path."38

The Cardinals too need to reform their lives. These are the men you call brothers. These are the men whose lives should be like candelabra burning brightly with good works in order to light the way for others, but many of them, instead, seem to think they have some sort of license to sin, and they do so without apparent shame. Many of them, furthermore, have too many honors and too many benefices. They should, instead, take care of their own parish and receive a fair salary for their labors, and so return to a simple lifestyle.39

As for bishops, no one should be chosen for that office "unless he be found to be truly learned in Sacred Scripture and Canon Law."40 We do not want criminal, proud, wrathful, hard drinking, litigious, violent, avaricious men as our bishops; we want men who are above reproach, sober, continent, admirable, prudent, modest, hospitable, learned, kind, just and holy men."41

Priests and religious should likewise be learned and holy. As it is, thousands of monks do not know how to read or write and only about one or two percent can read Latin.42 All priests and monks should be required to know Latin and to have read the Bible from start to finish at least once. They should be acquainted with the great Fathers of the Church like Gregory, Ambrose, Augustine and Jerome, and with the four Great Councils of the Church, namely, Nicea, Constantinople, Ephesus and Chalcedon.43 "We have read that, in days of old, a man was not admitted to the priesthood unless he had memorized, besides many other things, all the psalms of the Prophet, and a man who had not memorized some of the psalms was only with great difficulty admitted to the priesthood by the Pope; now, however, it is regarded as some kind of miracle if some priest is found who has committed all or some of the psalms to memory."44

Some priests, however, are so financially strapped that they have opened up businesses of their own which are totally out of keeping with their vocation, and are leading disgraceful lives. Distracted by their other occupations, they are neglecting the people committed to their pastoral care and are giving scandal to their flocks by their own depravity.45 All of this must be stopped.

The poor example of the clergy and the lack of leadership and of sound Christian teaching have led first to widespread ignorance on the part of the faithful and thence to all sorts of superstitious practices. "From this ignorance, which is the mother of all evils, superstition arises; from an evil mother comes an even more evil daughter."46 These two evils taken together, ignorance and superstition, were, according to G-Q, a "lethal cancer" in the body of society, a cancer "which becomes more violent and more incurable the further it spreads from its starting point."47 There was a time when superstition was indulged in only by pagans but now there is scarcely a Christian home which has not become involved in superstitious practices. Magicians, prestidigitators, palm readers, spiritualists and dream interpreters are everywhere, and people put their faith in such things as astrology, chiromancy, hydromancy, pyromancy and geomancy. All of which is idolatrous and diabolical.48

Immorality and lasciviousness are also rampant. In the City of Rome, for example, "every busy street has several prostitutes living on it. The mind shudders to think that your own sacred palace is so surrounded by prostitutes that you cannot go out for a walk, nor can anyone come to visit you without seeing a thousand of them. And who is it that now lives on the very street where you carry the Blessed Sacrament in procession? More whores. It has even come to this: that in the middle of the day members of the Curia unashamedly and openly carry their prostitutes on their horses through the busiest sections of town. We had heard these things before but could not believe them until we saw them with our own eyes. And not just those things but even worse things, too shameful even to mention. Rome, which used to be a kingly, priestly city has been turned into a foul, abominable brothel, to the point where some priests and dignitaries have not just one but many concubines, and they treat them to gourmet meals and dress them in elegant gowns, all paid for with Church funds."49

It was, in short, clear to G-Q that an extensive and radical reform of Church life was urgent and imperative. As is true in every reform, it was, above all, _people_ who had to change. What was needed was "metanoia" in the hearts of all, beginning with Leo X. But beyond that, G-Q also offered suggestions for improvements in the area of practice, procedure and structure. They recommended, for example, a system of checks and accountability whereby each level of governance would be answerable to (and expected to report to) the next _higher_ level, and meanwhile be expected to maintain vigilance over the next _lower_ level.50 Priests, as already noted, should be better trained and screened. Greater liturgical uniformity was desirable and this could be achieved through a common Missal and Breviary and Calendar of Feasts.51 The Bible should be translated into the vernacular, especially for the sake of the laity.52 Religious orders needed reorganization, with some orders needing to be suppressed altogether and others consolidated.53 Those orders that remain should hold chapters regularly. There should also be frequent diocesan and provincial synods and there should be a general ecumenical council for the whole Church held every five or ten years.54

The law of the Church was also seen by G-Q as in need of overhaul. The Church's law in 1513 consisted basically of what G-Q referred to as "those volumes of Decrees, Decretals, the Liber Sextus and the Clementinae."55 G-Q urged the Pope that all contradictions, discrepancies, repetitions and superfluities in those volumes be corrected, and a new simplified edition be published in one volume so that "the Christian people could be taught in a single volume what they ought to be doing and not doing."56 And then, when the laws are clear, they must be enforced "because it is better to have no laws at all than laws that are flouted; and wisdom (which is the bearer of truth) is of no value unless there is also justice (which is the custodian of truth)."57

The task of reforming the Church is, of course, an overwhelming one but, with God's help, great strides can be made in bringing the church closer to that day when it will be seen by the world to be "without wrinkle or stain'"58

G-Q PART VI

In the closing ten pages, G-Q remind Leo, by way of summary, that, while the Church is not interested in extending its own temporal empire merely for imperialistic reasons, it is interested in the eternal salvation of souls, and it has an obligation, therefore, to see to it that the whole world belong to the great Christian empire, so that all the people of the world may have the Gospel preached to them. For this awesome task, God has chosen Giovanni de Medici and has said "I lifted up my chosen one from my people; I found Leo my servant and anointed him with my holy oil."59

CONCLUSION

Jesus told us to love our enemies and to reform ourselves. These are the two wings on which we fly. They are synchronized and work in tandem. A bird cannot fly on one wing.

G-Q had one good wing, the self-reform wing. Their program for the reform of the Church was, in itself, insightful, practical and muscular. It was also, however, limp and impotent, having been immobilized by the deadness of the other wing, the enemy-love wing, which had been broken and devitalized by G-Q's preoccupation with banishing Jews and liquidating Moslems.

It was a fatal flaw; and the eagle remained earthbound.

Return to TOC

1981

ENDNOTES

1 Michael Novak, _The Open Church_ , New York, McMillan, 1964, p. 12.

2 Hans Küng, _The Council, Reform and Reunion_ , New York, Sheed and Ward, 1961, pp. 9, 101-111.

3 _Ibid._ , pp. 158-185. The author introduces this section by saying: "It is not the task of a theologian to draw up a plan of renewal to be laid before the Council; it is not even his task to make proposals; all that is for the bishops. But there is something he can do to help; he can - and it is his duty to do it honestly - point out possibilities. It is then for the bishops to decide about these possibilities."

4 _Ibid._ , pp. 71 and 82.

5 Hubert Jedin, _A History of the Council of Trent_ , Edinburgh, Thomas Nelson and Sons, Ltd., 1957, I, pp. 128-130.

6 Paulus Justiniani and Petrus Quirini, _Libellus ad Leonem X_ , in Mittarelli et Costadoni, _Annales Camulduenses Ordinis Sancti Benedicti_ , Tomus nonus, Venice, 1773, pp. 612-719.

7 _Ibid._ , pp. 614-615: "a Domino electum atque ad sublimem. Pontificalis dignitatis apicem elevatum ... totius jam Christianae Religionis restaurationem ... labentem Christi Ecclesiam reparare, atque in pristinum suae claritatis decorem reducere." In this and other quotations, occasional liberties are taken with word order. In all Latin quotations the case endings are retained as is, even in those instances where they are governed by words that are not included in the quotation itself.

8 _Ibid._ , p. 615: "totum humanum genus, omnes scilicet gentes, populos, nationes, quae sub Caelo sunt, tuae subditas esse potestati; tuisque nutibus regenda humana omnia, atque tuo arbitrio moderanda."

9 _Ibid._ , pp. 616. "Fidem Christi, in qua sola salus est."

10 Pope Leo was a Renaissance humanist whose passion for art and architecture was well known. G-Q seem to be urging him to avoid the temptation of becoming preoccupied with St. Peter's Basilica, the plans for which were already underway when Leo took office. The G-Q advice, however, went unheeded. H. Daniel-Rops, at any rate said of Leo:

"Leo X was only thirty-eight years old at the time of his election, but he was a heavily built, florid man, with protruding eyes, and he looked considerably older. He had been loaded with beneficies from his earliest years, and was already a Cardinal at the age of fourteen. He had a distinguished mind, and had been educated by the greatest scholars of the age, Angelo Polizaiano and Marsilio Ficino being among his teachers. From childhood onwards he had breathed the air of that brilliant worldliness and intellectual refinement which gave Florence such an atmosphere of charged excitement. Possibly this was not the type of education best suited to a future pontiff. His election was easily accomplished; presents and promises had been distributed to good intent. Next he was hastily ordained priest and consecrated bishop, for he was still only a deacon, and finally he was crowned as pope on the steps of the ancient basilica of St. Peter, which was in process of being demolished to make room for the new cathedral. The exceptional pomp and pageantry of the 'cavalcade' in which he showed himself to the Romans was generally assumed to herald a sumptuous and magnificent reign. Nothing was missing: there were endless processions, distributions of largesse, parades of chariots depicting pagan allegories, fireworks and illuminations. Leo X was the first Medici to become pope, and his family spared no expense to mark the event...

"His pontificate, however, demonstrates very clearly that when the cult of intelligence and beauty loses its sense of proportion and makes intellectual and artistic creations an end in themselves, it too constitutes a formidable spiritual temptation.

The Pope who builds the most splendid basilica in the world over the Apostle's tomb, but loses a quarter of his entire flock in the process, is surely carrying foolishness to the point of treachery."

H. Daniel-Rops, _The Protestant Reformation_ , New York, E. P. Dutton, 1961, pp. 247-248.

11 _Libellus ad Leonem X_ , loc. cit., pp. 618-619: "uniuscuiuscumque Animae salus pretiosior sit in conspectu Domini Nostri Jesu Christi, quam omnia universa orbis huius Regna ipsa, et Imperia."

12 _Ibid._ , p. 617. "Quemadmodum enim unus in Coelis est omnium Dominus Jesus Christus, ita unum in Terris, qui eius vices gerat, reliquit Petrum, Petrique legitimum successorem."

13 _Ibid._ , p. 620. (Sentis) "neminem tamen aut a dignitatis tuae potestate liberum, aut a tuae pietatis cura alienum esse."

14 _Ibid._ , pp. 621-622. "Judaei enim ... nulla inscitia, aut ignorantia, sed obdurata potius Cordis perfidia Christum non suscipiunt; Quem enim illorum Lex, et Prophetae venturum manifestissime praedicant; quem Patres eorum crucifixisse negare non audent."

15 _Ibid._ , p. 623: "si nullatenus inter Christianos foenerari permittantur, si mercaturae commercia, aliasque artes exercere prohibeantur, si pedagia rerum omnium plus illis aliquantulum augeantur, quam Christianis hominibus, si non multum temporis in eodem loco manere, neque ita libere synagogas habere, caeremoniasque suas exercere permittantur, si nullo modo cum Christianis habitare, aut ambulare, aut navigare illis concedatur, si manifestissimo signo, in Christianorum regionibus notentur, quo ab omnibus facilius dignosci, a evitare valeant. Non iniusta esse haec credimus, neque violenta, quae ad conterendam sane cordis eorum duritiam non inutilia fortasse reperientur."

16 _Ibid._ , p. 625: "ut illos tanquam morbidas oves a Christianis gregibus ... omnino separari."

17 _Ibid._ , p. 625: "penitus ex omnibus Christianae Dominationis Regionibus, capitis etiam poena constituta, expellere."

18 _Ibid._ , p. 625: "aliquam legem promulgaveris ... non in perpetuum, sed ad quemdam usque praefixum annorum numerum conversionem eorum expectaturum denutiaveris, quo transacto minime permissurum eos inter Christianos ullo modo reperiri declaraveris

19 _Ibid._ , p. 621: "Occidentalis Oceani magnae Insulae, (si modo Insulae et non Continentis partes esse existimantur)."

20 _Ibid._ , p. 627.

21 _Ibid._ , p. 628.

22 Adherents of Islam are referred to, somewhat popularly, as Muhammedans, after the great prophet of that religion, and also, more properly, as Muslims.

23 Libellus ..., loc. cit., pp. 642-648.

24 _Ibid._ , There are references, on pp. 642 and 647, to the Islamic view of Jesus as the "Dei halitus".

25 _Ibid._ , pp. 643, 644 and 646.

26 _Ibid._ , p. 642. The possibility is almost always stated pessimistically, as in the phrase: "One should not entirely despair of their conversion - Quorumdam ... non sic omnino desperanda conversio est."

27 _Ibid._ , p. 631: "quomodo impium hoc hominum genus, aut ad pietatem Fidei revocare, aut delere omnino possis a facie Terrae."

28 _Ibid._ , pp. 635, 637, 639.

29 _Ibid._ , pp. 636, 650.

30 _Ibid._ , 653. "Nam cum saepe saepius opportuna se nobis offerat occasio, si in aliud tempus differatur, eam a nobis auferri videmus."

31 _Ibid._ , p. 658.

32 _Ibid._ , p. 661. "Sunt enim, qui aquae et ignis baptismum suscipiunt, quamquam aquae necessarium ad salutem, ignis vero nequaquam necessarium, sed ad melius esse institutum aiunt. Altaris Sacramentum in fermentata bucella conficiunt, et infantibus quoque fere omnes ministrant. In Matrimonio alii repudium admittunt: alii secundas nuptias non suscipiunt.

33 _Ibid._ , p. 660-661. "Romanum Pontificem aut non cognoscunt, aut omnium Ecclesiarum, quae in universo sunt orbe, Caput nequaquam existimare; Petrum, non Principem Apostolorum, sed unum de numero aliorum credere; earum ecclesias, quas a Jacobo, a Bartholomaeo a caeteris Apostolis constitutas autumnant, Beati Petri Ecclesiae, Romanae scilicet Sedi, non inferiores, sed aequales esse."

34 _Ibid._ , p. 663. "Graecos dumtaxat ex omnibus excipimus, qui pertinaci quadem superbia, crassiorique ignorantia, neque audire facile acquiescunt, neque audientes rationibus cedere consueverunt; qui etiam ab omnibus aliis nationibus communi consensu, postremo loco inter omnes Christianos statuuntur."

35 _Ibid._ , p. 663.

36 _Ibid._ , p. 664.

37 _Ibid._ , p. 698. "Singulorum membrorum ... infirmitates a Capite ipso, a summis scilicet pontificibus ortum habere facile quilibet intueri potest."

38 _Ibid._ , p 691. "Quoniam autem novit Beatitudo tua, nullum decretum, nullam legem tantum valere ad subditorum emendationem, quantum optimi Principis sanctissimos mores ... Ideo a Temetipso incipies relictaque malarum consuetudinum ab aliquibus praeteritis Pontificibus nimium attrita via, ad rectam semitam pontificalis dignitatis ordinem reduces."

39 _Ibid._ , pp. 694-695.

40 _Ibid._ , p. 679: "nullus ad episcopalem dignitatem promoveatur, nisi et Sacrae Scripturae, et Sacrorum Ecclesiasticorum Canonum, non tam doctoribus quam recte doctus esse inveniatur."

41 _Ibid._ , pp. 696-697: "sine crimine ... non superbos, non iracundos, non vinolentes, non litigioso, non percussores, non turpis lucri cupidos, sed irreprehensibiles, sobrios, continentes, ornatos, prudentes, pudicos, hospitales, doctores, benignos, iustos, sanctos."

42 _Ibid._ , pp. 675-676. "Millia multa religiosorum hominum invenies, qui neque legere quidem, neque scribere mediocriter sciunt. In omni autem tam numerosa Religiosorum multitudine vix duo ex centum, aut decem e mille reperies, qui tantum Latinae linguae addiscerint, ut quae Latino sermone conscripta quotidie in Ecclesiis legunt, plane valeant intelligere."

43 _Ibid._ , pp. 679-680.

44 _Ibid._ , p. 698. "Legimus olim, quod ad sacerdotalem ordinem non admittebatur quispiam, nisi, praeter alia plura, omnes Prophetae psalmos memoriter teneret, et qui ex psalmorum numero aliquem memoriae non mandasset, difficillime a Summo Pontifice ad Sacerdotium admittebatur; nunc vero miraculum reputatur, si quis ex sacerdotibus aut omnes, aut aliquos psalmos memoriae tenere reperiatur."

45 _Ibid._ , pp. 697-698.

46 _Ibid._ , p. 683. "Ex hac ignorantia malorum omnium matre superstitio exoritur ex iniqua matre nequior filia."

47 _Ibid._ , p. 688: "lethalis cancer, quantum ab origine sua longius serpit, tantum saevior magisque incurabili efficitur."

48 _Ibid._ , pp. 683-687.

49 _Ibid._ , pp. 706-707: "in ea enim nulla est adeo frequentata via, in qua non plures meretrices inhabitent. Horret animus cogitare sacratum palatium tuum meretricibus circumdatum ita, ut neque tu e domo pedem effere possis, neque aliquis sedem tuam adire, cui mille meretricum una spectacula non sint intuenda. Eam semitam, qua tu sacratissimum Christi corpus sanctis manibus deferre soles, quinam, nisi turpissimae meretrices inhabitant? Eoque deventum est, ut palam media die per Urbis frequentissima loca Curiales ipsas meretrices in equis suis deferre non erubescant. Audiveramus olim; haec ne credere potuissemus, nisi his oculis et haec vidissemus, et turpiora, quae pudor referre prohibet. Effecta est iam Roma, quae civitas regia sacerdotalisque esse solebat, turpissimum foedissimumque lupanar, ita ut ex sacerdotibus, et iis, qui in majoribus sunt dignitatibus constituti, non unam, sed plurimas concubinas habere, easque ex ecclesiae redditibus deliicatissimis cibis pascere, pretiosisque indumentis vestire nullus fit pudor."

50 _Ibid._ , pp. 695-699.

51 _Ibid._ , p. 689.

52 _Ibid._ , pp. 681-683.

53 _Ibid._ , pp. 689-691 and 699-704.

54 _Ibid._ , p. 708.

55 _Ibid._ , p. 678. More specifically these volumes were the Decree of Gratian, the Decretals of Gregory IX, the Liber Sextus of Boniface VIII and the Clementinae of Clement V. In 1580 those four compilations plus two others (the Extravagantes of John XXII and the Extravagantes Communes) were referred to for the first time as the _Corpus Iuris Canonici_. It was three years later, incidentally, in 1583 that the term _Corpus Iuris Civilis_ was first used to describe the compilation of Roman Law made under the Emperor Justinian in the sixth century.

56 _Ibid._ , p. 678. "Christianus populus quid agere, quid evitare debeat, unico volumine instruatur." G-Q also note, on this same page, that "all Christian teaching is twofold: one part consists in learning about those things which are to be believed in, hoped for and loved (and this part we call theology) while the other part refers to those things which we should be doing or avoiding (and this we call Canon Law)." - "Cum vero omnis Christiana Disciplina duplex sit: alia; in qua ea, quae nos credere, quae sperare, quae amare debeamus, doceri possumus; alia vero in qua quid agere, quid evitare conveniat, unusquisque instituitur et illa quidem Theologia usitato vocabulo, haec vera Canonici Iuris Doctrina appellari consuevit."

57 _Ibid._ , p 713: "sanius certe est nihil statuere, quam statuta permittere, ut minus observentur; et nihil sane prodest ea sapientia, quae recte novit excogitare, si illa iustitia desit, quae excogitata faciat custodiri."

58 _Ibid._ , p. 709. "Sine ruga et sine macula."

59 _Ibid._ , p. 716: "exaltavi electum de plebe mea, inveni Leonem Servum meum, oleo sancto meo unxi eum."

# ARTICLE THREE

## THE SCOPE OF THE CHURCH'S JUDICIAL COMPETENCE

Canon 1401, 2° makes it quite clear that the Church enjoys judicial competence over any case in which the issue is the violation of a church law. That seems fair enough and few would deny the Church that jurisdiction, at least in principle. But what if there is no church law? What if an action or an ongoing series of actions has been posited which, strictly speaking, violates no specific church law but still offends the Church and disturbs its peace? Could the person responsible be sued in a church court?

Imagine, for example, a diocese in the South during the 1960s, in which the local bishop has done everything in his power to educate the people regarding racial equality and to lead them towards a policy of racial integration in the diocesan schools. In general the bishop meets with great success, but a handful of influential Catholics, some of them quite prominent, opposes and resists the policy with no holds barred.

The bishop does his very best to convince the dissenters of the justice of his position but without success. He then resorts to advising the parties that they are considered contumacious and warns them that, if they do not withdraw from their contumacy, they will be subject to ecclesiastical censure. Some members of the group, at that point, retract but others continue to resist the establishment of the bishop's policy. Could the promoter of justice then petition the local tribunal to impose a censure on those people on the grounds that the _ratio peccati_ of canon 1401, 2° is present and that the Church thereby acquires jurisdiction?

The question is not perhaps as simple as it appears. The origins of the phrase _ratio peccati_ date back to the twelfth and thirteenth centuries and need to be examined first.

THE MIDDLE AGES

Throughout the Middle Ages, Church and State were locked in a fierce power struggle. In 1077 Henry IV briefly capitulated to Gregory VII at Canossa. In 1177 Alexander III and Frederick Barbarossa negotiated at Venice. By 1210 it was Innocent III versus King John, and by 1300 Boniface VIII was pitted against Philip the Fair.

It was a long and bitter battle that was fought on several fronts. One of those fronts was the judiciary. It was church courts over against civil courts. Each wanted to extend its own jurisdiction.

In purely civil matters (e.g., the theft by one citizen of goods owned by another) and in purely ecclesiastical matters (e.g., the right of a Christian to receive the Eucharist), jurisdiction was undisputed. But in all areas that might be considered mixed the two rival courts fought tooth and nail to appropriate unto themselves maximum judicial authority.

The Church, for its part, employed three more or less crafty devices in order to expand its judicial empire, three legal justifications for extending its competence. It claimed exclusive jurisdiction _ratione iuramenti_ , _ratione personae_ , and _ratione peccati_.1

The first justification, _ratione iuramenti_ , was so essentially connected to the medieval power struggle that, by the twentieth century, it had long since disappeared and was therefore not, incorporated into the 1917 code. The second, _ratione personae_ , also known as "Benefit of Clergy," was included in the 1917 code but was in fact ignored in most countries and has been deleted from the 1983 code. The third, _ratione peccati_ , is, apparently, still considered to have a basic validity and has been recognized in both modern codes.

1. _Ratione Iuramenti_

In 1204, Innocent III, within the context of a dispute between King John of England and King Philip of France (more about this later), gave as one of his lesser reasons for intervening in the dispute, the fact that an oath had been taken by Philip and had not been fully honored. The idea was that since an oath, by definition, involved the invocation of the Divine Name, the matter thereby took on a religious character and came under the purview of the Church. Innocent wrote:

... how can we fail to take cognizance of the bond of an oath, which unquestionably belongs to the Church's jurisdiction?2

Some one hundred years later Boniface VIII made the same basic judgment in quite a different case. His judgment was:

Since the layman C. (on whose behalf you paid a certain sum of money and acted as surety for him) refused to pay his debt, contrary to the oath he gave, you now have the right to summon him before an ecclesiastical judge, since it is clear that the hearing of such a case belongs, _ratione iuramenti_ , to that forum.3

This position had perhaps a certain ring of logic to it but in fact, of course, it only exacerbated the Church-State conflict. The Church began to claim jurisdiction over all cases in which an oath had been given, while the State, in order to protect its own court system, was then almost forced to outlaw oaths from ordinary business dealings.

Pope Benedict XIV showed a certain appreciation of the secular position when he discussed this matter at some length in his _De Synodo dioecesana_ ,4 while the Wernz-Vidal team was, it seems, extraordinarily benign in its summary of the situation:

All sorts of business transactions such as contracts and wills, even those entered into by lay people, were, whenever an oath was appended to them, brought before the church courts. So the secular rulers, in order that their jurisdiction not be excessively restricted, proscribed the attaching of an oath to a contract, and rather unwisely ordered, contrary to the ecclesiastical law, that an appended oath did not entitle a case to be heard in the ecclesiastical forum ... This extension of ecclesiastical jurisdiction to include cases that were not strictly ecclesiastical and spiritual, although it could in no way be called a usurpation, since it stemmed from needs that were peculiar to the Middle Ages and was directed to the administration of justice in those confusing times ... and especially because of its connection to cases which were legitimately in accord with the purpose and activity of the Church, nevertheless engendered its own set of inconveniences.5

Whether this artifice of the Church did or did not constitute a usurpation during the Middle Ages is perhaps moot; the times were quite different. But one thing is clear and that is that whatever merit the Church's practice might once have had has long since vanished.

2. _Ratione Personae_

The _privilegium fori_ or "Benefit of Clergy" by which clerics enjoyed immunity from the secular courts had been around for a long time before the Middle Ages6 but during the twelfth century it became the major bone of contention between Henry II and Thomas à Becket.

Henry was determined to establish in the land a law that would apply equally to all, to the rich as well as to the poor, to clerics as well as to laypersons. It was an admirable goal. Becket, however, was equally determined to maintain the right of the church courts to hear all cases involving clerics.

On neither side was it simply a matter of principle. Immunity for the clergy would, in those days, have amounted to a sizeable exemption. One out of every six persons at the time was a clerk or cleric,7 and several of them had, in fact, committed crimes. These were the so called "criminous clerks." There were four in particular who brought the matter to a head.

There was a case of manslaughter in the diocese of Salisbury; a rape followed by the murder of the injured girl's father in Worcestershire; the theft of a chalice near London; and the murder of a Knight at Dunstable by a canon of Bedford.8

Henry's position in respect to these criminous clerks was a fairly modest one. He conceded that since they were clerics, they would be heard first in a church court; but if at the conclusion of the ecclesiastical trial the clerics were degraded, then Henry wanted them to be brought before the civil court as well in order to receive the punishment that would be imposed on any other citizen. Becket objected on the grounds that no person should have to stand trial twice for the same crime.

The issue was joined. In 1164 Henry called the Council of Clarendon in which he spelled out his position. Becket at one point submitted but then quickly repented, went into exile, returned, and toward the end of the year 1170, was murdered in his own cathedral.

Had he not been murdered Becket would perhaps have lost this struggle to maintain the perimeters of ecclesiastical jurisdiction vis à vis the secular courts but his violent death was so detestable that his cause took on a kind of borrowed sanctity and prevailed then for many centuries. Benefit of Clergy remained on the statute books in England until 18279 and was still recognized in the 1917 Code of Canon Law "nisi aliter pro locis particularibus legitime provisum fuerit."10

3. _Ratione Peccati_

One of the ways in which the medieval church maintained its position of strength was by claiming exclusive judicial competence not only over clerics and swearers but, in a sense, over all sinners as well, which was the ultimate judicial expression of belief in the supremacy of the spiritual over the temporal.

The classical claim of the Church's judicial competence _ratione peccati_ was made in the year 1204 by Pope Innocent III in the famous decretal _Novit_.

The story actually began twenty-four years earlier, in 1180, when Philip, known as Philip Augustus became King of France. Henry II was still King of England at the time; but besides being King of England, he was also the feudal lord of more than half of France, that vast territory known as the Angevin empire. Philip was only fifteen years old when he became king and within a very few years, as A.L. Poole noted, "the young king of France entered upon his life-work the break up of the Angevin empire and its incorporation in the royal domain."11 For fully two decades, from 1184 to 1204, Philip combated three successive English kings, Henry II, Richard, and John over control of the Angevin empire. In the year 1200, John and Philip agreed to a truce, a treaty in which both sides made certain concessions. In the following year, however, a number of barons within John's fiefdom accused John of unjustly seizing their lands and they appealed to King Philip as their supreme lord. Philip then summoned John to appear at court in Paris which John refused to do, whereupon the French court declared him contumacious and sentenced him to forfeit his feudal lands in France. Philip then set out to execute the sentence militarily and, by 1204, had virtually routed John from France.

It was at this point that Innocent, no doubt at the request of John, intervened. He wrote to the prelates of France saying that John accused Philip of trespassing, and that since sin was allegedly involved, it was a matter to be decided by a church court. The Cheney-Semple translation of that letter follows. The entire letter is relevant but I have italicized two sections that are especially germane:

To the archbishops and bishops of France.

He, To Whom Nothing is unknown, who is the searcher of hearts and diviner of secrets, knows that "out of a pure heart and of a pure conscience and of faith unfeigned" we love our dear son in Christ, Philip illustrious king of the French, and that we greatly desire his honour, success, and increase, regarding the exaltation of the French kingdom as the exaltation of the Apostolic See, because this kingdom, blessed by God, has always remained steadfast in devotion to Him and will never, we believe, depart from that devotion; for, though occasionally wicked angels make incursions from this quarter or that, we who know Satan's wiles will apply ourselves to outwit his artifices, confident that the king will not let himself be deceived by Satan's snares.

Let no man, therefore, imagine that we intend to diminish or disturb the king's jurisdiction and power, when he is obliged not to hinder or curb our jurisdiction and power. When we cannot fully discharge our own jurisdiction, why should we wish to usurp another's? But because the Lord says in the Gospel, "If thy brother shall trespass against thee, go and rebuke him between thee and him alone; if he shall hear thee, thou has gained thy brother. But if he will not hear thee, then take with thee one or two more, that in the mouth of two or three witnesses every word may be established. And if he shall neglect to hear them, tell it unto the church. But if he neglect to hear the church let him be unto thee as an heathen man and a publican"; and because the king of England is ready (as he alleges) to produce ample evidence that the king of the French is trespassing against him and that he has himself proceeded by the Gospel rule in rebuking him; and because, having so far achieved nothing, he is now telling it to the church: how can we, who have been called by divine decree to govern the universal church - how can we obey the Lord's command except by proceeding as it appoints, unless King Philip, appearing before us or our delegate, shews sufficient reason to the contrary? _For we do not intend to judge concerning a fief, judgment on which belongs to him, except where the application of the common law is limited by special privilege or contrary custom - but concerning sin, a judgment which unquestionably belongs to us, and which we can and should exercise against anyone._

His Majesty, therefore, should not think it damaging if he submits in this matter to the apostolic judgment; for we read that the renowned Emperor Valentinian said to the suffragans of the church of Milan: "Take care to place in the episcopal see a man to whom even we who govern the Empire may unfeignedly bow our head, one whose admonishments when as a man we have sinned we may unquestioningly accept like a physician's medicines." There is also the decree of the Emperor Theodosius, reissued by Charles, from whose line King Philip is himself descended: "If any man who has received leave to bring a suit into court shall at any stage in the proceedings (when he is making his plaint either at the beginning of the case or after some lapse of time, or when the case is being closed, or when the judge has already begun to deliver sentence) choose to be tried by the pontiff of the Most Holy See, then immediately, without question, and in spite of objections from the other side, he is to be sent, with the statements of the litigants, to the bishops' court"; but in humility we pass this over, for we depend not on any human decree but on the divine law, our authority being not of man but of God. _There is no man of sound mind but knows that it belongs to our office to rebuke any Christian for any mortal sin and to coerce him by ecclesiastical penalty if he has spurned our reproof_ ; and that we have the duty and power to rebuke is evident from both the Old and New Testaments, for the Lord proclaims by the prophet, "Cry aloud, spare not, lift up thy voice like a trumpet, and shew my people their transgressions," and also in the Old Testament he adds, "If thou speakest not to the wicked man of his wicked way, he shall die in the iniquity which he has wrought, but his blood will I require at thine hand." The Apostle also warns us "to rebuke them that are unruly," and elsewhere he adds, "Reprove, rebuke, exhort with all longsuffering and doctrine." That we have also the power and duty to coerce is evident from what the Lord says to the prophet who was of the priests that were in Anathoth, "See, I have this day set thee over the nations and over the kingdoms, to root out, and to pull down and to destroy, and to throw down, to build and to plant": obviously, all mortal sin must be rooted out, destroyed and thrown down. Furthermore, when the Lord gave the keys of the kingdom of Heaven to St. Peter, he said to him, "Whatsoever thou shalt bind on earth, shall be bound also in heaven: and whatsoever thou shalt loose on earth, shall be loosed also in heaven." Now, no man doubts but that everyone who commits mortal sin is bound before God: therefore, that Peter may copy the divine judgment, he should bind on earth those who are undeniably bound in heaven.

But perhaps it will be said that kings should be treated differently from other men: but we know that it is written in the law of God, "Thou shalt judge the great in the same way as the small: thou shalt not respect persons in judgment." This respect of persons St. James declares to occur if one says to a man clothed in goodly apparel, "Sit thou here in a good place"; but to the poor man, "Stand thou there, or sit here under my footstool."

Though we are empowered to proceed thus in respect of any criminal sin so that we may recall the sinner from error to truth and from vice to virtue, yet we are specially so empowered when it is a sin against peace - peace, which is the bond of love and about which Christ specially directed the apostles, "Into whatsoever house ye enter, first say 'Peace be to this house'; and if the son of peace be there, your peace will rest on him"; and again, "Whosoever will not receive you nor hear your words, when ye depart thence shake off the dust from your feet for a testimony against them." For the apostles to depart from such people, what is it but to deny them apostolic communion? And to shake off the dust from their feet, what is it but to apply ecclesiastical punishment? For this is the dust which, when Moses sprinkled ashes from the furnace, became a plague of ulcers on all the land of Egypt. The heavy sentence and penalty which at the Last Judgment will smite those who do not receive the messengers of peace nor hear their words is shewn immediately afterwards by the Truth when it declares, not simply, but with a forceful emphasis, "Verily, I say unto you, it shall be more tolerable for the land of Sodom and Gomorrha in the day of judgment than for that city" - by city meaning citizens, from whose number it does not exclude kings.

Moreover, since (according to the rules of law) any right which one man has established against another may be used by another man against the first, and since the wise Cato declares, "Submit to the law you have made," and since in time of war the king of the French availed himself of our office and good-will against Richard of renowned memory, formerly king of the English, who was not of inferior status to himself (with all respect to King Philip be it spoken, for we say it not to shame him but to justify ourselves), how will he refuse to allow on King John's behalf against himself what he once allowed on his own behalf against King Richard? Ought there to be in our court "divers weights and divers measures, both of which are alike abomination to the Lord''? And lastly, when a treaty of peace was made between the kings and confirmed on both sides by an oath and yet was not kept for its full duration, how can we fail to take cognizance of a sworn obligation (which unquestionably belongs to the Church's jurisdiction) so that the broken treaty of peace may be remade?

Wherefore, that we may not seem by apathy to encourage so serious a breach, or to ignore the destruction of religious houses, or disregard the slaughter of Christian people, we have ordered our beloved son, the abbot of Casamari, that - unless King Philip either remakes a stable peace with King John, or concludes a suitable truce, or at least humbly allows the said abbot and our venerable brother the archbishop of Bourges informally to ascertain whether the complaint, which the king of the English has lodged against him before the Church, is a just one or whether the exception which King Philip has chosen to state against King John in his letter to us is a lawful one - he is to proceed in accordance with the instructions we have given him. And so, by apostolic letter we command you all and strictly charge you in virtue of your obedience, that, when the abbot has discharged the apostolic mandate in this matter, you should humbly receive his, or rather our, sentence, and observe it yourselves and see that it is observed by others; and know that, if you act otherwise, we will punish your disobedience.

The Lateran, April, 1204.12

Thirty years later, when Gregory IX published the _Decretals_ , this letter, _Novit_ , was selected for inclusion among them. The reason for including it, according to the Carlyles, was "no doubt because it appeared to give the pope all the power he required, while avoiding the appearance of direct intervention in political controversies."13

If _Novit_ alone was not sufficient, certainly all three sources of competence combined, _ratione iuramenti_ , _ratione personae_ and _ratione peccati_ , afforded immense scope, in the Middle Ages, to the Church's judiciary.

_NOVIT_ VIVIT

The main point of _Novit_ (that the Church enjoys competence over any case in which there is the _ratio peccati_ ) lives on in canon 1401, 2° of the 1983 Code of Canon Law. The other two sources of competence which have been discussed here have died a natural death but this one is still alive. First, however, a word about the old code.

1. _The 1917 Code_

In the 1917 code the _ratio peccati_ phrase occurred twice.

_Can. 1553_. §1. By proper and exclusive right the Church adjudicates:

1° cases concerning spiritual matters or connected with the spiritual;

2° the violation of ecclesiastical laws and all those cases in which there is a _ratio peccati_ in respect to the determination of culpability and the imposition of ecclesiastical penalties;

3° all the cases whether contentious or criminal which regard persons enjoying the _privilegium fori_ in accord with canons 120, 614 and 680.

§2. In cases in which both the Church and the civil authority are equally competent, which cases are said to be of mixed forum, the rules of prevention apply.

_Can. 2198_. A crime which violates only the law of the Church is by its nature punishable only by ecclesiastical authority, which may call for the assistance of the secular arm if it deems it necessary or appropriate; a crime which violates only the civil law is, except as provided for in canon 120, punishable by the civil authority in its own right, although the Church might also be competent over it _ratione peccati_ ; a crime which violates the law of both the civil and ecclesiastical society is punishable by both powers.

Perhaps the first thing to note about these two canons is that they are both written within the framework of Church versus State. Both canons are interested in clarifying the ambit of the Church's judicial competence over against that of the State.

But it should be further noted that even at the time these canons were drafted, the wisdom of including the _ratio peccati_ phrase was being questioned. In his pre-code _Ius Decretalium_ , Franciscus Wernz claimed that although the Church certainly has the right to judge sin in the _sacramental_ forum, it has no right whatsoever to do so in the _external_ forum unless the sin also happens "to disturb the social order of the Church."14 This position, according to Wernz, is entirely in accord with _Novit_ where the sin in question was not, after all, a kind of private sin but one rather that involved "a public disturbance of the peace that was to the great detriment of religion."15

Nevertheless the phrase _ratio peccati_ was apparently considered to be a venerable one, worthy of incorporation into the code, and it was in fact included as the second canon on _De Processibus_ , which, needless to say, refers to the _external_ forum.

Following the promulgation of the code Wernz stuck to his guns, insisting that the Church had the right to judge a sin in the external forum only if the sin "injured the spiritual purpose of the Church in its external and social forum."16 Wernz was saying, in other words, that the word "sin" as used in canons 1553 and 2198 does not really mean "sin" in the ordinary sense of the word. Certainly it does not refer to _all_ sins. Rather, it refers only to those sins which also happen to disturb the social order of the Church. Only then, Wernz would say, does the Church have judicial competence over a sin - when it disturbs the social order of the Church.

Cappello agreed with Wernz. Cappello wrote:

The words "in which there is a _ratio peccati_ " ... are not to be understood as sin in the mere theological sense, in which case it would be restricted to the internal forum; rather they should be understood as referring to all those matters which pertain ... to the _good of religion or to the purpose of the Church_.17

This indeed, became the common opinion of the commentators on the old code - that "sin" really meant "a matter that disturbs the social order of the Church."

One might have thought, therefore, that in revising the code, this phrase might have been clarified or made more precise.

2. _The 1983 Code_

In fact, however, the phrase was left exactly as is, which is not to say that there were no changes at all in this area. The truth is that important changes were made.

Most importantly the whole context of the discussion was changed from an adversarial to an internal one, that is to say, from a Church versus State context to a simple statement about the areas in which a Church court enjoys jurisdiction. This was accomplished simply by deleting the three sections in which the adversarial context was established, namely §1,3° and §2 of canon 1553 and the whole of canon 2198. What remains, therefore, are numbers l and 2 of canon 1553, renumbered in the 1983 code to canon 1401. It reads:

_Can. 1401_. By proper and exclusive right the Church adjudicates: 1° cases concerning spiritual matters or connected with the spiritual;

2° the violation of ecclesiastical laws and all those cases in which there is a question of sin in respect to the determination of culpability and the imposition of ecclesiastical penalties.

It may be said, therefore, that according to the present law, the Church claims _exclusive_ competence a) in spiritual matters (e.g. faith and morals, the sacraments, liturgy); b) in those matters connected with the spiritual (e.g. the rights of a pastor to serve in a particular parish); c) in cases involving a violation of a church law; and d) in all those matters in which there is present the _ratio peccati_ and the consequent possibility of imposing a church penalty.18

Presumably the phrase _ratio peccati_ in the new code means exactly what people like Wernz and Cappello said it meant in the _old_ code, namely _an ecclesially disruptive action_.

No other interpretation would make any sense. Certainly the Catholic Church of 1983 would not claim _exclusive_ judicial competence over _every_ sin; and it would be a vacuous tautology, unworthy of a code of law, to say that only the _Church_ can judge a sin with a view towards imposing a _church_ penalty. Naturally! That goes without saying. That surely is not the meaning of the phrase "all those cases in which there is a _ratio peccati_ in respect to the determination of culpability and the imposition of ecclesiastical penalties." Rather the phrase means _those actions that are disruptive of the social order of the Church, which, as such, are then subject to being adjudicated in accord with the penal procedure as outlined in canons 1717 through 1731_.

Arguably, the drafters of the 1983 code would have done well to change the phrase _ratio peccati_ into something more accurate. But a case can also be made for retaining it exactly as is, provided, of course, that it is understood not in its literal but in its proper, legal sense.

CONCLUSION

Let us return to the question of whether the tribunal in the southern diocese of the 1960s could have entertained a petition from its promoter of justice to impose a penalty on the offenders by reason of the phrase _ratio peccati_.

In answering the question it is, of course, to be kept in mind, as noted above, that the word "sin" here does not really mean sin as such, i.e., "theological sin" as Cappello called it. Rather it means an ecclesially disruptive action.

If petitioned, therefore, the court would have to determine first whether the action of the dissenters was or was not ecclesially disruptive. Elements in the determination would be such factors as the publicness of the dissent and the degree to which it was undermining both the internal order and the external voice of the local church. If there was any doubt, the matter, procedurally, would be handled as an incidental case (cc. 1587-1591) and could be introduced either by the judge or by the accused as an exception (cc. 1459-1462).

Whether the promoter _should_ sue in such a case is, of course, a question of prudence and is another matter.19 But _if_ he filed a petition, then the tribunal would, if need be, proceed first to answer the incidental question as indicated. If it was then determined that the action of the dissenters was _not_ ecclesially disruptive then the Church, it would seem, would not be competent to adjudicate the case, whereas if the action _was_ determined to have the _ratio peccati_ , then the tribunal would declare itself competent and proceed to term with the principal case, keeping in mind canon 1399 and "servata aequitate canonica et prae oculis habita salute animarum, quae in Ecclesia suprema semper lex esse debet" (c. 1752).

Return to TOC

1985

ENDNOTES

1 I do not mean to imply here that these three areas were the only ones in which jurisdiction was claimed by both Church and State. There were other "mixed" areas as well, the best known of which is, of course, marriage, which is a story in itself. The present c. 1059 is but a faint hint of a centuries - long dispute between ecclesiastical and secular courts to control this institution. George Duby's _The Knight, The Lady and the Priest: The Making of Modern Marriage in Medieval France_ (New York: Pantheon, 1983) offers fascinating insights into this question. For more on the general relationship of canon and civil law, as well as of secular and ecclesiastical courts, see Harold J. Berman's superb volume _Law and Revolution: The Formation of the Western, Legal Tradition_ (Cambridge: Harvard University Press, 1983).

2 X, ii, i, 13. "numquid non poterimus de iuramenti religione cognoscere, quod ad iudicium ecclesiae non est dubium pertinere."

3 II, ii, 3 in Vl°. "Quum C. laicus, pro quo solvisti certam pecuniae quantitatem, in qua pro eo te fideiussorio nomine obligaveras, te servare recuset indemnem, contra iuramentum a se praestitum ... ipsum coram ecclesiastico iudice, ad cuius forum ratione iuramenti causae huiusmodi cognitio noscitur pertinere, de iure poteris convenire."

4 Benedict XIV, _De Synodo Dioecesana_ , Lib. IX, Cap. IX, n. VIII.

5 Franciscus Wernz and Petrus Vidal, _De Processibus_ (Romae: Universitas Gregoriana, 1949), p. 30.

6 For a history of the institute see John E. Downs, _The Concept of Clerical Immunity_ , Canon Law Studies, 126 (Washington: Catholic University of America Press, 1941).

7 Charles Rembar, _The Law of the Land_ (New York: Simon and Schuster, 1980), p. 73.

8 Austin L. Poole, _From Domesday Book to Magna Carta_ (Oxford: Clarendon Press, 1955), p. 202.

9 John R.H. Moorman, _A History of the Church in England_ (New York: MorehouseGorham Co., 1954), p. 81.

10 Canons 120, 614, 680 and 1553.

11 Poole, p. 341.

12 _Selected Letters of Pope Innocent III Concerning England_ (1198-1216), ed. C.R. Cheney and W.H. Semple (London: Thomas Nelson and Sons, 1953), pp. 63-68. The Latin version of the letter may be found in X, ii, i, 13 and in _PL_ 215: 325-328.

13 R.W. Carlyle and A.J. Carlyle, _A History of Medieval Political Theory in the West_ (London: William Blackwood and Sons, 1928) 5:165.

14 Francis Wernz, _Ius Decretalium_ (Prati: Giachetti, 1913), 6:19: "cum turbat ordinem socialem Ecclesiae."

15 _Ibid._ , p. 19: "de publica pacis perturbatione in magnum detrimentum religionis."

16 Wernz-Vidal, _De Processibus_ , p. 33: "Si autem etiam in foro externo et sociali foro Ecclesiae illud peccatum nocet spirituali fini ipsius, etiam in hoc foro de illo iudicat." Wernz-Vidal, furthermore, on pp. 34-35 of their _Ius Poenale Ecclesiasticum_ , repeated Wernz' pre-code argument given above.

17 Felix Cappello, _Summa Iuris Canonici_ (Romae: Universitas Gregoriana, 1948), 3:12. "Verba 'in quibus inest _ratio peccati_ ' ... non sunt intelligenda de peccato sensu mere theologico, ac propterea coarctanda ad forum dumtaxat internum; sed intelligenda sunt de iis omnibus rebus ... quae ... referuntur ad _bonum religionis_ seu ad _finem Ecclesiae_."

18 _Code of Canon Law: A Text and Commentary_ , ed. James A. Coriden, et al. (New York/Mahwah, NJ: Paulist Press, 1985), p. 950.

19 In practice, according to cc. 1717 and 1718, the bishop himself would initiate the inquiry and decide whether to handle the matter administratively or judicially. If the latter, he would, at that point, turn the case over to the promoter of justice. Even if the case were to be handled administratively, however, the bishop would certainly have no external forum competence in a case such as this (where no ecclesiastical law had been violated) unless the offense were "ecclesially disruptive."

# ARTICLE FOUR

## IN DIEBUS ILLIS - SOME CANONICAL GIANTS IN DAYS OF YORE
Introduction

In pre Vatican II days, when priests would reminisce admiringly, as they often did, about the generation or two of priests that had preceded them, one would frequently hear the expression, "In diebus illis erant gigantes super terram." The phrase was, in fact, a slight reworking of the old Vulgate Latin of the opening phrase of Genesis 6,4. Ronald Knox translated the entire verse like this: "Those were the days when the giants lived on earth; whenever the son of God had commerce with the daughters of men and they bore children, these were the heroes whose fame has come down to us from long ago."

The field of canon law has certainly had its own giants and heroes over the years. These few pages tell of some of them, all of them brilliant scholars and academics who were active fifty years ago and who, in one way or another, handed on the wisdom that lives on in church law today. All of us remain in their debt. It is important that we do not forget them.

Adam C. Ellis, S.J.

In 1950 the sixty-one year old Father Adam C. Ellis, S.J., was teaching canon law at St. Mary's College, the Jesuit theologate in Kansas. Father William L. Mugan, S.J., a former student of Father Ellis, recounted some of his recollections of Father Ellis from those days. He wrote:

I was acquainted with Father Ellis on two different occasions. First, as a student of Theology at St. Mary's College in St. Marys, Kansas, from 1952 to 1955. The second time was as a Tertian Father during the last year of my training as a Jesuit priest at St. Joseph Hall in Decatur, Illinois, from 1956 to 1957.

At St. Mary's College Father Ellis taught canon law during our third year of studies. His classroom manner was very congenial and entertaining. He would cover various sections of canon law in class - teaching in Latin as was the custom at the time. He would read a canon and then explain the meaning to us. Every now and then, after he had explained the meaning of the canon, according to church law, he would raise his voice somewhat and say "NISI" (the Latin word for 'unless'), as he raised his hand and waved his index finger. He would then tell us to remember that the particular canon he had just read was Roman Church Law. He would then explain that there were, sometimes, exceptions or differences between Roman Church Law and American Law. Then he would quote some document from Rome to be the exception. Thus, Father Ellis came to be known among us as 'Father Nisi.'

Father Ellis also attended most of our softball games at St. Mary's College. We had leagues of about ten teams which played in the early fall and spring. Father usually sat on the benches along the sidelines and cheered for his favorite team.

In Decatur, Illinois, Father Ellis was the spiritual father and confessor for the Jesuit community at St. Joseph Hall the year I was a Tertian Father there from 1956 to 1957. I remember him, again, as a kind and congenial man. He was a very popular confessor for the community.

Several years later in 1964 he was appointed Father Minister or Assistant Superior of St. Joseph Hall in Decatur. In my office there was an old IBM typewriter for my use. For a while it worked quite well. But the motor began to slow down, so I called a dealer in town to check it out. When he saw it, he was amazed that it still worked. He said they did not make parts for that model anymore, since it was one of their first machines. I asked one of the older Fathers where the typewriter came from, and he said it belonged to Father Ellis who left it there when he moved to St. Louis a few years before. Needless to say, I purchased a new electric one. When I look back, I think we should have saved the old one for a museum, since it was used for so many years by 'ACE' Ellis as we called him [ACE being the initials of Adam C. Ellis] or Father 'Nisi' of happy memory.

Another side of Father Ellis' personality is seen in the following reflections of Father William B. Flaherty, S.J., the archivist emeritus of the Midwest Jesuit Archives:

Father Adam C. Ellis, S.J. was a pleasant, kind, likeable man. I knew him as a student and as a volunteer office assistant when he handled the business of the _Review for Religious_. He co-edited the magazine with Fathers Augustine Ellard and Gerald Kelly. Father Ellis was extremely cautious. When the first issue of the magazine sold out immediately, he fretted and fretted while all four of us assistants urged a second printing right away, as did his two co-editors. It sold out fast, too.

Father Ellis had been acting rector of the St. Mary's Theologate for a short time before. We understood from upperclassmen that he found decisions difficult and, as a result, his term was not an easy one for him or his community.

In spite of his extreme caution, he gave his frank opinions on church issues of earlier times. I remember he said that when he first went to Rome, Cardinal Merry del Val had Pope Pius X suspicious of everyone as Modernists, including distinguished Cardinals and leaders of religious orders such as the Jesuit Father General Francis X. Wernz.

Father Ellis was serious and tense, rather than relaxed. He was not the kind of man you'd want to have a beer with (if you liked beer), not a scintillating speaker or lecturer and not an inspirational speaker or teacher. He had no noticeable sense of humor. In spite of this, he was always liked. He was just, kind and fair.

The name Adam Ellis was a familiar one to all American seminarians in the late 1940s, the fifties, and even into the sixties because of his coauthorship (along with T. Lincoln Bouscaren) of _Canon Law: A Text and Commentary_. In those days the study of canon law was an extremely important part of a seminarian's education. The typical seminary curriculum would include three hours a week of canon law for the last three years of theology, or perhaps two hours a week for all four years; and that often did not include the canons on the sacraments, which were taught in the course on "moral theology" but which adhered closely to the canons. Generally the official textbook for the courses on canon law was the Code itself but practically every seminarian owned and used extensively "Bouscaren-Ellis." In a letter to a fellow Jesuit, dated August 4, 1957, Father Ellis wrote,

You will be interested to learn that Bruce printed 6500 of the third edition of Bouscaren-Ellis: _Canon Law_ , and 971 copies were sold during June. About 300 of those were orders from last January. The Lord has blessed the use of this book in the big seminaries of the country.

Adam Ellis was born on April 1, 1889 in Buffalo, New York. He graduated from Canisius High School in Buffalo in 1905, shortly after turning sixteen, and entered the Society of Jesus later that summer. He was ordained a priest in Oña, Spain, near Burgos in March of 1921 when he was thirty years old. During academic year 1923-1924 he studied civil law at St. Louis University, and was privately tutored in canon law by Father Linus Lilly. The following academic year (1924-1925) found him teaching canon law at Mundelein, and the academic year after that he studied canon law at the Gregorian, obtaining his doctorate in June of 1926.

Father Ellis then spent the next twenty-nine years teaching canon law, mostly in the United States but including as well a three year stint in Rome (1935-1938) when he taught in the graduate school at the Gregorian University. Even then, however, while he was still in his forties, he was experiencing health problems. During the summer of 1937 he had spent three weeks in a parish in Liverpool. In a letter from Rome to his Father Provincial, dated October 12, 1937, he wrote,

Had two bad kidney attacks, one in Liverpool and one here during my retreat. They are very painful while they last, usually five or six days while the stone is forming, but otherwise I am all right. Shall have a busy year as I have taken on an extra course and a seminar. We are shorthanded in our faculty, and Father Cappello had a sort of breakdown in June. We shall be satisfied if he teaches his regular class. He is in northern Italy at present, resting with his brother, a secular priest.

By 1946 Father Ellis was at St. Mary's, Kansas and reporting once again to his Father Provincial. In a letter dated May 13 of that year he told his Provincial one of his least favorite things to do. He wrote,

Tomorrow the big show starts - four weeks of purgatory for me. I am rounding out my twentieth year in the scholasticate, and each year I dread the examinations more than ever. But one must do penance for one's sins, either in this world or the next, so better do it here.

Besides his teaching duties, however, Father Ellis was, over the years, active in many other areas as well. His principal area of interest and study was the Church's law regarding religious men and women. It was he, rather than Father Bouscaren, who wrote about this area in their famous commentary. He cofounded in 1942 and coedited the _Review for Religious_ , an important journal that is still very much alive today. Father Ellis, besides his editorial duties for the _Review_ , was also a frequent contributor of scholarly articles to the journal. He was, for several years, a consultant to the Sacred Congregation for Religious; and he was editor of the English edition of the Creusen-Ellis book, _Religious Men and Women in Church Law_. In a letter dated August 4, 1957 he wrote,

This will undoubtedly be Father Creusen's last French Edition - he is 78 years old - and most probably my last for him, although I am ten years his junior. However that may be, we wish to make a good job of this English edition.

And always he remained a dear old friend to his Jesuit brother, Timothy Lincoln Bouscaren, who was five years his senior. In a letter dated August 10, 1961, Adam wrote,

Dear Tim,

My _ordo_ says "Write to Tim for his birthday, August 17, (1884)." So I finally got the date straightened out. That is all to your advantage. _Deo volente_ , I shall offer my Holy Mass for you on August 17, to help you celebrate your 77th birthday. And shall also say a pair of beads for you and remember you in my other poor prayers.

Some three months later, on November 25, 1961 Adam Ellis died.

T. Lincoln Bouscaren, S.J.

In 1950 Father Bouscaren was serving in Rome as Procurator General of the Society of Jesus, "the second highest post in the Society." A few days before Christmas of 1947 he had flown from Chicago to Rome to assume that post, and he continued to serve as Procurator for fourteen years, until 1962 (the year after Father Ellis died) when, at the age of seventy-eight he resigned as Procurator and returned to the Jesuit Scholasticate at West Baden in the hills of southern Indiana. In 1950 Father Bouscaren turned sixty-six; he lived to be eighty-six.

Timothy Lincoln Bouscaren was born in Cincinnati, Ohio, on August 17, 1884. Throughout his life he was known by family and friends as Tim but in his adult life he always signed himself as T. Lincoln Bouscaren, his mother, Helen Lincoln, having been, according to reports, related to President Abraham Lincoln. The family (Tim had four siblings) lived in Cincinnati but also spent time at their farm in northern Kentucky where Tim and his older brother, Gus, "ranged the neighboring hills, learned the names of the native trees and wild flowers, the birds and their songs, an interest that lasted all their lives." The quotation is taken from a book that Tim's young sister, Gabrielle, wrote about the family, entitled _My Communion of Saints_. When Tim was fourteen years old he was given a shotgun by his father, and thereafter, in the fall, the "men of the family," while staying at the farm would go hunting for rabbits, squirrels and quail. Hunting also seems to have been an enduring interest in Tim's life; Gabrielle includes in her book a wonderful photograph of Tim the hunter at the age of twenty-nine. He's in a crouched position with his shotgun in his left hand and his hunting dog by his side. Around his neck are strung four or five quail he has bagged. He's wearing an old fedora, a three-day beard, a full mustache, and is smoking a pipe. He could easily be a hillbilly. The reader looks at the hunter incredulously, thinking, "You mean this is the great scholar, T. Lincoln Bouscaren?"

But he _was_ a great scholar. And a great canonist, even though his formal training as a canonist was a bit unusual. In 1902, when he was eighteen, Tim was accepted at Yale University. After graduating from there in 1906 he entered the University of Cincinnati Law School and was admitted to the bar in 1909. He then practiced law for some time, and it was not until March of 1916 that he finally entered the Society of Jesus. He was thirty-one years old at the time while most of his fellow novices were eighteen. Nine years later, in June of 1925 he was ordained a priest. The following year he was sent to study moral theology under Father Vermeersch at the Gregorian and received his S.T.D. in 1928. Gabrielle explains that, at that point

Father Vermeersch requested that he be sent back as his assistant, but this was not granted. And so it was that Providence arranged that Tim should revert to law. He began to study Canon Law, on his own, and was entirely self-taught in the subject for which he was to become well known.

"Well known" is actually an understatement. Among Americans, at least, he was the best known of American canonists, and he soon gained an international reputation as well. Between 1931 and the end of 1947, when he became Procurator General, Father Bouscaren spent most of his years teaching canon law: eight years (1931-1938) at Mundelein, two years (1938-1940) in the graduate department at the Gregorian, which he had to leave because of World War II, and six years (1941-1947) at West Baden College.

Among American seminarians and priests he was best known as co-author with Father Ellis of the highly successful _Canon Law: A Text and Commentary_ , but Father Bouscaren published several other books as well. His doctoral dissertation, which was written in Latin, he translated and enlarged, and then published as _The Ethics of the Entopic Operation_. He also translated Jombart's _Principles of the Religious Life_ and Vermeersch's _What is Marriage?_ , but his most important and lasting contribution has been the _Canon Law Digest_ , the first volume of which was published in 1934 while Father Bouscaren was at Mundelein. Eleven volumes of this invaluable resource have now been published. The last four, covering the years 1968 to 1983, were not the fruit of Father Bouscaren's labors, but it was he who conceived the idea of the Canon Law Digest and he single handedly edited the first three volumes and worked with a collaborator on the next three. In his preface to the first volume dated December 8, 1933 he wrote:

This book is the fruit of a firm persuasion, first, that whatever comes from the Holy See is worthy of study, and secondly, that every priest will be interested in the study of current canon law once he is persuaded that it can be done without too great an expenditure of time and energy.

The Code itself can be carried in one's pocket. But the current decisions on and explanations of the Code are buried in Latin tomes from which it takes infinite pains to extract them.

The idea of this book is to present to the busy priest all the official decisions and explanations in English, in the same order as the canons of the Code themselves, and correspondingly numbered. It is a companion to the Code, and should be used as such.

The documents are almost always reported in full, for this reason: the author realizes from his own experience that he never really knew the contents of these documents until he had read the documents themselves, instead of being content to read merely a summary of them or the brief judgment of some canonist about them. It seems evident that a student of canon law cannot forever take the teachings of the Holy See on vague hearsay. He is entitled to read the documents themselves in their full text and context. A mere summary will too often pass over many questions which only the study of the text can answer.

It was for this reason that, more than ten years ago, the author conceived the plan of collecting these documents and arranging them according to the numerical order of the canons of the Code which they affect. The collection, which at first included only the decisions of the Code Commission, has gradually been enlarged to include all documents officially published which affect the Code in any practical way. It has now been tested by several years of use in connection with the teaching of canon law to seminary classes. The belief that it will be welcomed by priests and students has led to its publication under the name of the _Canon Law Digest_.

Once back in Rome as Procurator General (he had been there two years [1926-1928] as a student and two years [1938-1940] as a professor) Father Bouscaren continued to be a very busy man. Besides his regular duties as Procurator, he had been appointed a Consultor to three Congregations, and as Gabrielle explained,

This entailed quite a lot of work, as they constantly asked him for opinions, which meant research, and a written brief. He went in person to deliver these, often cooling his heels (but not his temper) waiting for interviews in unhurried Italian fashion. Religious from many countries and many Orders came to consult him, including new Institutions or Congregations wishing their constitutions approved.

Father Bouscaren's temper to which Gabrielle alludes was not apparently confined to waiting-room impatience. Elsewhere Gabrielle speaks of his "crusty but short-lived bursts of irritability which Tim recognized and tried unsuccessfully to conquer," and this apparently was a lifelong struggle. He was once described as "a fascinating and sometimes disturbing person, a very unusual synthesis of opposites" and it was said of him that

...he was a man one could both love and hate at the same time. He had a rather minimal sense of humor and comics baffled him. He loved to build fires to burn off dead grass on the hillsides of West Baden, fires which often were difficult to control.

Still, he was every inch a Jesuit. He realized his faults, kept struggling against them, and often openly admitted them and asked the community for forgiveness. For all his talents, he had great humility. If he had said or done something to someone and then realized that this had hurt the person, he was impatient with himself until he had apologized and asked forgiveness. He worked long and hard, and he seemed lost in God when at prayer in chapel before the Blessed Sacrament.

Also a fellow Jesuit once said of him,

I have known him for close to 50 years. Many times I have experienced his charity, and admired his truly Christlike priestly life. His greatness in learning was joined with true humility; his age in years with youthfulness of spirit. Also his little eccentricities contributed, in their way to increase his stature as a truly human person.

In 1953 a malignancy was discovered in his lower intestine and a colostomy was performed, a condition he lived with for his remaining eighteen years. Also by 1961 he had become quite hearing impaired and was in correspondence with his old friend, Father Ellis, regarding it. In August of that year Father Ellis twice wrote to Father Bouscaren on this matter, telling him that his own hearing aid, made by Zenith, cost $145 but would undoubtedly cost a lot more in Italy since it had to be imported. Father Ellis suggested that a hearing aid made in Germany or Holland might be more reasonably priced but that two things should be kept in mind: that the aid should be tailored to the amount and kind of Father Bouscaren's deafness, and that it should allow him to hear a whisper so that he would not have a problem in hearing confessions.

By 1967, when Father Bouscaren was eighty-three years old, he returned to reside at St. Xavier High School in Cincinnati from which he had graduated sixty-five years before. While there, according to Gabrielle, he was eager to be useful to the community at St Xavier's "and tried saying Mass for the students, but proved too slow, and teaching C.C.D., but had become too deaf." He could, however, "still wield a pick-ax and hoe, to transplant trees," (he was broad shouldered and six feet two) "and he dug up and fertilized a large flower bed which he showed off to all comers."

Early in 1971, however, because of his deteriorating health, he was transferred to a nursing home, and died there on February tenth.

Matteo Conte of Coronata, O.F.M., Cap.

Matteo Conte was born and grew up on a little hill on the western outskirts of Genoa called Coronata. In canonical circles he is most often referred to simply as Coronata. He was actually baptized Giacomo (James) Conte but when he entered the Capuchins he took the name Matteo and was thereafter known within the Capuchin community as Matteo a Coronata, or da Coronata. In his writings, however, he retained his family name as well, and went by Matteo Conte a Coronata.

He was born a few weeks before Adam Ellis was born, and he died a few days before Father Ellis died. Father Matteo's exact dates of birth and death were March 7, 1889 and November 21, 1961. He was ordained a priest when he was only twenty-two years old and received his J.C.D. at the Gregorian University when he was twenty-six.

After earning his doctorate he returned from Rome to Genoa and taught Greek for one academic year but World War I was in progress and Father Matteo then spent the next three years (1916-1919) as an Italian Red Cross chaplain, ministering to sick and wounded soldiers.

After the war, however, he returned once again to Genoa, and for the next forty years or so he taught canon law there at San Bernardino, the Capuchin seminary. He was, it has been said many times, a born teacher. He would enter the classroom without a book, not even the recently promulgated Code of Canon Law. He would then proceed to lecture for one hour, citing the canons from memory and explaining them with such clarity and depth that one could hear a pin drop in the classroom filled with enthusiastic students. And once this official lecture was over the students would then pepper him with questions, so the lesson would continue and, in an informal way, be brought to the next level.

Physically he was short of stature, was always dressed in his Capuchin habit, wore eyeglasses and a full, untrimmed beard that went from black to white as he aged. His voice has been described as piercing.

Father Matteo was, above all, a man of vast and profound erudition. He was well grounded in theology, philosophy, psychology, history, Sacred Scripture and civil law. He knew Greek and Latin and in his spare time, instead of reading novels, he learned French, Spanish, English and German, which permitted him to be thoroughly acquainted with everything that was being written in canon law.

As an author he was indefatigable and prolific. Throughout his years at San Bernardino he would spend several hours each day at his writing desk, and he eventually wrote eighteen books on canon law, most of which went through several editions. The most famous of these are his five volumes on the " _Institutiones_ " and his three volumes on the sacraments, but he also wrote on such subjects as sacred times and places, _ius publicum_ , and the authentic interpretation of the Code. It was once estimated that, all told, he wrote more than 10,000 pages. In his writings he would cite every imaginable source, including on occasion, dissertations from The Catholic University of America. Where there were several opinions on an issue he would lay them all out and offer his own as well which did not always agree with the majority. Always he was clear; concise, thorough, detailed, and clear.

And always in his personal life he remained a simple, humble, pastoral religious. In the Capuchin annals, indeed, Father Matteo is described as "the perfect religious" who never lost sight of the fact that _salus animarum suprema lex_. He was by temperament a happy, cordial, serene and deeply spiritual man, and it is reported that when distinguished authors and other celebrated visitors would come to see him, imagining that they would meet some imposing figure, they would instead find "a little brother."

Understandably then he was entirely comfortable with and enjoyed being in the company of little children. For many years he taught the little children of the neighborhood their catechism and would play a game of bocce with them. He was "a little one with the little ones," "a child among children," and it was always a joy for him to be with "his little friends" before returning to his studies.

Another of Father Matteo's favorite ministries was tending to the sick, and for many years he would visit them in two of the local hospitals. By the late 1950s, however, he himself was dealing with illness, and on November 19, 1961, the very day of his fiftieth anniversary as a priest, he was brought to the hospital where he died two days later.

Gummarus Michiels, O.F.M., Cap.

Joseph Michiels was born on May 15, 1890 in Booischot, about seventeen miles southeast of Antwerp in northern Belgium. After entering the Capuchins he was given the name Gummarus and was thereafter known in the community as Gummarus a Booischot. Unlike Coronata, however, who, as an author, used both his family name and his place of origin name (Matteo Conte a Coronata), Michiels used only his family name and went simply by Gummarus (or Gommarus) Michiels.

St. Gummarus, whose feast day is October 11, is a well-known saint in northern Belgium. In the town of Lierre, about half way between Booischot and Antwerp, as a matter of fact, the main church, a beautiful Gothic structure built in the fifteenth and sixteenth centuries, was dedicated to St. Gummarus.

St. Gummarus, unlike Michiels, was no scholar, but his life was, it seems, sufficiently atypical for a canonized saint to warrant the inclusion here of a little hagiography. Alban Butler's entry for him reads as follows:

St. Gummarus, or Gommaire (c. A.D. 774)

Gummarus was a son of the Lord of Emblem, near Lierre in Brabant. He grew up without learning to read or write, but served at the court of Pepin, where from a spirit of religion he was faithful in every duty and liberal in works of mercy. Pepin raised him to a high post, and proposed a match between him and a lady of good birth named Guinimaria, and the marriage was solemnized with their mutual consent. This marriage, which seemed unhappy in the eyes of the world, was directed by God to perfect the virtue of His servant and exalt him to the glory of the saints: for Guinimaria was extravagant and perverse in her ways, cruel, capricious and altogether unteachable. Life became from that time a train of continual trials for Gummarus.

St Gummarus for several years endeavored by all means which prudence and charity could suggest to encourage his wife to ways more agreeable to reason and religion. Then he was called upon by King Pepin to attend him in his wars, and he was absent about eight years. Returning home, he found his wife had thrown all things into disorder, and that few among his servants, vassals or tenants had escaped her oppression. She was so mean that she even refused beer to the reapers at harvest. Gummarus made to every one of them full restitution and satisfaction; and Guinimaria was so far overcome by his patience and kindness as to be ashamed of her past conduct, and seem penitent. This change, however, was only exterior, and her willfulness broke out again worse than ever. Gummarus tried to reclaim her: but at length he gave up the attempt and lived a retired life. With St. Rumold he is said to have founded the abbey at Lierre which afterwards bore his name.

Gummarus Michiels was ordained a priest at the age of twentyfour on June 6, 1914 and on July 16 he was sent to Rome by his Provincial to study canon law at the Gregorian University. On July 28, however, Austria-Hungry declared war on Serbia for presumably harboring the terrorist organization which assassinated Archduke Franz Ferdinand, and suddenly World War I was underway. Germany backed her ally, Austria, and when Russia mobilized to protect Serbia, Germany then declared war not only on Russia but on her ally France as well. Belgium, Michiel's homeland, had declared neutrality but in spite of this Germany overran Belgium as an avenue by which to attack France. Beginning way back in 1859 Antwerp had built a whole series of forts and redoubts to its south and west. These defenses were built several miles outside Antwerp itself, beyond Lierre, for example, but they were no match for the German howitzers. Beginning on September 28, in what became known as the Siege of Antwerp, the German artillery relentlessly pounded the fortifications, until, on October 10, the city finally capitulated.

Throughout all of this and for many months thereafter the newly ordained Father Michiels remained in Rome. One can only imagine his deep concern during this period for his family and friends back home, and it was perhaps with some relief that, during his second year at the Gregorian, he, along with other Belgian students, was called to serve in the Belgian military. From February of 1916 until June of 1919 he served as teacher and chaplain in the Army and then returned to the Gregorian, obtaining his doctorate in canon law in June of 1920.

The following month the Catholic University of Lublin in southeastern Poland was founded and officially recognized by the Holy See, recognized incidentally as the only Catholic university in Eastern Europe. The Capuchins were asked to provide a professor for the canon law faculty there, and they submitted the name of Father Timothy Schafer. Father Schafer, however, was German and since until 1918 much of Poland had been under Austro-German occupation, Father Schafer was deemed unacceptable, and was then replaced by the young Father Gummarus.

Initially this was an extremely difficult assignment for Father Gummarus since he spoke no Polish and was unfamiliar with Polish customs. In time, however, he learned the language and developed a great respect for the Polish culture and came to feel at home with students and faculty members alike. From the beginning, of course, he lectured in Latin, so language was not a problem in the actual classroom; and he taught with such brilliance and authority that he quickly won the esteem of all. He remained in Lublin teaching canon law for fifteen years, until February of 1935 when, because of a serious illness, he had to resign. He was, at that time, forty-four years old and by then was so highly regarded in Poland that he was not only named an honorary professor at the University but was also recognized by the Polish government, in recognition of his service, as an honorary official of the "Order of Restored Poland."

During his years in Lublin Michiels wrote the first editions of his books on General Norms, Principles regarding Persons, and Delicts and Punishments, all volumes that delved into their subjects at a depth far beyond the usual commentary. Michiels had his own original insights into Church law and it was to him that scholars turned when they were searching for the last ounce of meaning that could be squeezed out of a particular law.

But in February of 1935 Michiels was ill and perhaps exhausted, and he returned to the tranquility of the ancient Carthusian monastery in Louvain, occupied at this time by the Capuchins, in an attempt to regain his health. While at Louvain he continued to study, write and to assume responsibilities within the Capuchin community, and by 1938 he was fully recuperated and ready to teach full time again. In September of that year he was named ordinary professor at the Pontifical Lateran University where he taught General Norms, and the following year he agreed to teach "summer school" at Laval University in Québec where he gave fifty lectures in September and October before returning to the Lateran for the fall semester.

In 1940 he was elected Provincial of the Belgian Capuchins and during his three year term resolutely called the community to the true observance of the Franciscan-Capuchin charism. Having fulfilled his term as Provincial he then went to the Capuchin monastery at Herentals, just east of Antwerp where he spent his days in study and prayer until the end of World War II.

From 1945 until 1949 he spent six months of every year teaching at Laval and from 1947 until 1949 he also served as a judge on the Québec Tribunal. In 1949, however, he returned to Herentals and spent the next ten years there studying, publishing new editions of his writings, lecturing throughout Europe, and, incidentally, receiving honorary doctorates from both Lublin and Louvain.

Finally in 1959 he agreed, though in poor health at the time, to spend three months each year at the Lateran University teaching an elective. It was there that students from around the world, among them a few lucky Americans, were privileged to lay eyes on this tall, white bearded, brown robed, sixty-nine year old man, and to hear him expound in crystal clear Latin and with a crystal clear mind on the subject of "Ordinary and Delegated Power." Examinations in those days were generally oral and were in Latin but while there was general agreement about Father Michiels' excellence as a lecturer, opinions differed regarding him as a conductor of oral examinations. Some found him pleasant and deft at eliciting the student's level of knowledge, but others likened him to a surgeon operating on a patient without anesthesia.

After Pope John XXIII called for the Second Vatican Council, Father Michiels served as a Consultor on one of the preparatory commissions and also as a _peritus_ , and in 1964 he was named as one of the seventy Consultors of the Pontifical Commission for the Revision of the Code of Canon Law.

But Herentals was his real home, at least his real home on earth by that time, and it was there at the age of seventy-five that he died on July 28, 1965. Among his final words were, "I never knew it was so easy to die."

Siervo Goyeneche, C.M.F.

The initials, C.M.F. after Father Goyeneche's name stand for _Cordis Mariae Filii_ , Sons of the Heart of Mary, the Congregation to which Father Goyeneche belonged and in which he professed his religious vows in 1904 at the age of seventeen.

The Congregation is more formally known as the Missionary Sons of the Immaculate Heart of Mary but the members are commonly referred to as Claretians after their founder, St. Anthony Mary Claret. The Congregation was founded in northeastern Spain in 1849 when Father Claret recruited five other Catalan diocesan priests to form a community dedicated to catechizing and preaching, with a special emphasis on the Eucharist and the Immaculate Heart of Mary. Over the next twenty years the community grew rapidly and by 1870, the year that Claret, by then an Archbishop, died, the Congregation had received definitive approbation from Pope Pius IX and had opened its first foreign mission in Africa.

Sixteen years later, on December 7, 1886 Siervo Goyeneche was born in the little town of Falces, about thirty miles south of Pamplona in the Province of Navarra. He grew up in a devout home, entered the Claretians in his teens and was ordained a priest on June 23, 1912. Throughout his seminary years he had excelled as a student of both secular and sacred subjects, and in 1915 he was sent to Rome to obtain his J.U.D. at the Pontifical Institute "Utriusque Iuris" (later the Lateran University), which he did in 1918.

From 1920 to 1925 he taught courses in Roman Law and the Philosophy of Law at the International College of San Anselmo on the Aventine. Between 1926 and 1938 he taught Canon Law in the Theological Faculty of the Roman Seminary, and from 1938 to 1964 he taught _De Processibus_ at the Pontifical Lateran University.

His teaching style at the Lateran, while not particularly animated, was nevertheless interesting. He taught in an amphitheatric classroom that seated perhaps a hundred and fifty students from around the world, a few of them lay people but most of them priests. Part of the furniture in the classroom was the Code of Canon Law that sat on the desk throughout the day. When Father Goyeneche entered the classroom he would stand in front of the desk and open the Code to the canons he would be covering that day. He would then turn and face the students, and with his hands folded over his paunch, he would begin his lecture. It is reported that throughout all his years of teaching, right up to the very end, he spent at least two hours preparing his class on the night before each lecture and then another hour on the morning of the lecture itself. In the late 1950s he had published his own two volume commentary on _De Processibus_ , though he never brought it or any other book into class with him, nor did he ever turn to look at the open Code on the desk behind him. Rather he lectured entirely from memory repeating almost verbatim, including exact references to footnotes, what he had written in his commentary. Occasionally he might expand a bit on what was contained in the text or perhaps refer to a decree that had been issued since his book had been printed, but in general it was an extraordinary demonstration not only of memory but also of an absolute mastery of the material.

And procedural law was not his only area of expertise. His other specialization, for which he is perhaps even better known, was the law regarding religious. In 1920 he and two of his Claretian colleagues, Fathers Maroto and Larraona (the latter eventually became a Cardinal) founded the famous _Commentarium pro Religiosis_. Father Goyeneche contributed two articles to the very first issue of _Commentarium_ and besides continuing to write scholarly articles for the journal, he also took over the "Question and Answer" section as well. This latter task involved both a thorough knowledge of the literature and a keen sense of the practical, and Father Goyeneche's responses were so well received and valued that in 1954 they were gathered together and published in two large volumes.

Over the years furthermore Father Goyeneche served as a consultor to four Congregations and, as someone said, practically every Roman dicastery was indebted to him because his _vota_ or opinions were constantly being sought. He also served as a member of the Pontifical Commission for the Codification of Eastern Law, a synodal judge on the Appellate Tribunal for marriage cases, a _peritus_ at the Second Vatican Council and a member of the Preparatory Commission on Religious Law.

It was said that, even as a seminarian, he gave evidence of three special talents, that of writer, counselor and teacher, and that these gifts remained in evidence throughout his entire life. For seventy-six years he enjoyed excellent health but in 1963 he began to experience severe abdominal pain and underwent surgery to remove a cancer, but it was too late. After he died on March 21, 1964, at the age of seventy-seven, the editors of _Commentarium pro Religiosis_ noted that, as a canonist, Father Goyeneche's entire being had been flooded with the spirit of "canonical equity," which led him always to be benign in his judgments and which, over the years, shaped his personality into one that was characterized chiefly by "humanity and goodness of soul." It was also noted by a fellow Claretian that, at his baptism Siervo (or Servus as he was commonly known) had been well named, for all his life he had served the Church with his knowledge and had served souls with his priesthood, and surely his Master would greet him now as the "good and faithful servant" he had always been.

Giacomo Violardo

Giacomo Violardo was a professor for some thirty-five years. He taught canon law and moral theology at the regional seminary at Fano, south of Rimini on the Adriatic from 1928 until 1935, and from 1935 until the mid 1960s he taught at the Lateran. His students have remembered him for his gentle, supportive, encouraging ways, for his sometimes sly smile, for his thin face and large expressive eyes, and especially for his wit and sometimes paradoxical wisdom.

When he was still at Fano, for example, (he was thirty years old when he first went there) he was teaching one day on a chapter entitled "On Not Absolving Penitents." In his remarks, however, Father Violardo turned the chapter heading virtually upside down. He said, "The unworthy, those who are not disposed. I know that objectively speaking such people exist, but subjectively ... the human heart, this great mixture, who can fathom it? We should never resign ourselves to refusing absolution. Every attempt should be made to offer it. We should, I would say, bend over backwards to impart it."

Another story from his days at Fano involved a seminarian who was deeply troubled and anguishing over an extremely difficult and sensitive matter. He went to Don Violardo for advice and later told of the experience. He said of Father Violardo, "He welcomed me like a big brother protecting the vulnerable younger brother. He consoled me with the essential words that only one who truly knows about life could offer, and before we parted he gave me a replica of the crucifix that spoke to St Francis at San Damiano. 'Take this,' he said, 'this is a crucifix that speaks. It will speak to you. Listen to him'."

Then there was the time that Monsignor Violardo was teaching "Temporal Goods" at the Lateran. The subject of the day was how rights to property can be acquired or lost through prescription. During the course of his lecture Professor Violardo, noticing a student fast asleep up in the very back row, rolled those expressive eyes of his, causing the class to burst out laughing, whereupon Monsignor spoke a sentence no one ever forgot, "Rights," he said, "go to the vigilant, not to the sleeping." It was, of course, precisely the lesson that he wanted to drive home: that administrators of ecclesiastical goods must be vigilant in fulfilling their responsibilities.

One of Professor Violardo's typically clever paradoxical observations was this: one year, in the final moments of his final class at the end of the year-long course on marriage, he looked out at his students and proclaimed in rather solemn tones, "If anyone would say that he has understood everything that has been taught in this course on marriage, let him be anathema. But if he confesses that he does not fully understand all that has been said in this class on marriage, he is one who possesses great wisdom."

And finally one of Violardo's former students noted that he was a master at teaching the simple things which, Violardo said, "are the most difficult things to understand."

Giacomo Violardo was a Piedmontese. He was born in the little town of Govone (Cuneo), Italy, about half way between Torino and Nice, on May 10, 1898. As a youth he entered the seminary at Alba, the diocese in which Govone is located, and went on from there to obtain his license in Sacred Theology at the Theological Faculty of Torino, Torino being the Archdiocese of which Alba is a suffragan.

When World War I broke out in 1914, Giacomo was sixteen years old, and before the War ended, Giacomo's studies were interrupted by his being called into the military, where he served as a lieutenant in an artillery unit of the Italian Army. After the War, however, he returned to the seminary and was ordained a priest, at the age of twenty-five on June 29, 1923.

After ordination he was sent by his bishop to the Atheneum of St. Apollonaris (later the Lateran) where he obtained his doctorate in canon law, and from there he went to the Catholic University of the Sacred Heart in Milan where he obtained a second doctorate in jurisprudence, following which he began his lifework as a professor.

After teaching at Fano for seven years he came to the Lateran in 1935. In 1938, however, he was appointed to the Secretariate of State and was sent as an auditor to the Vatican Nunciature in Paris. On December 13, 1937 Giovanni Battista Montini (later Paul VI) was appointed surrogate or _sostituto_ for ordinary affairs (in effect, second in command) at the Secretariate, and Monsignor Montini, who held Violardo in high esteem, wanted Violardo with him at the Secretariate. Monsignor Violardo tried to oblige but soon realized that his personality was not suited for the diplomatic life, and he returned to teach at the Lateran. Monsignor Montini accepted his resignation from the Secretariate with some disappointment but with great understanding, and continued to maintain his affection and respect for Giacomo Violardo.

While Violardo resumed his teaching at the Lateran, he also took on increasingly time consuming and important posts at the Vatican, posts which eventually became full time and necessitated his withdrawing from his professorial role at the Lateran. He served first as a referendary, then as promoter of justice, and finally as undersecretary at the Signatura. In 1963 Pope John XXIII named him secretary of the Pontifical Commission for the Revision of the Code of Canon Law, and in 1965 Pope Paul VI appointed him secretary of the Sacred Congregation for the Discipline of the Sacraments. The following year the Pope elevated him to archiepiscopal dignity and ordained him a bishop at St. Peter's on March 19. The following month Archbishop Violardo was named a Cardinal.

Cardinal Violardo's close friend, Monsignor Francesco Bruno, formerly a Rotal Auditor and now President of the Vatican City State Court of Appeal, notes that throughout his life Cardinal Violardo remained a plain, honest, humble, pious man who lived a life of austerity and poverty, who ate sparingly, and was a good friend who inspired trust but who was always somewhat detached and reserved. He was a man who treated everyone, simple folk as well as bishops, with kindness, understanding and humanity. He loved classical music, especially Mozart and Beethoven. He celebrated Mass with profound devotion, and he faithfully prayed the Rosary. He willingly met with students and friends but always wanted to keep visits brief, and he was always insistent on punctuality. When he himself had to be some place at a particular time he would always set out early, realizing that traffic could sometimes cause delays, and then, if he arrived early, would ride around the block a few times so that he would be punctual.

He always respected the ideas of others but never abdicated his own when he felt them to be morally and scientifically valid. When it came to the revision of the 1917 Code he was remarkably open to "the new juridic reality," especially considering his age and academic background. He made it clear, for example, that in his opinion practically all of the sanctions in the 1917 Code should be abolished.

And always he loved the paradox. In a sense, indeed, he was himself a walking paradox. On a chilly Roman morning in January of 1959, for example, he could be seen walking towards the University briskly but appearing undernourished and chilled to the bone, with his black scarf covering nose and mouth; and one would think, even though he was only sixty years old at the time, that he was not long for this world. His appearance, however, belied his strength. He remained in good health for many more years, until 1977 when, after the death of his beloved sister, Angelina, Giacomo himself began to decline. Then in early March of 1978 he fractured three ribs in a serious fall and died on the seventeenth of that month. He was almost eighty at the time.

Ludoviek Bender, O.P.

In the five years between 1957 and 1961 Ludoviek Bender wrote five full length books: _Potestas Ordinaria et Delegata_ (hereafter _Potestas_ ), _Normae Generales de Personis_ (hereafter _Personis_ ), _De Parochis et Vicariis Paroecialibus_ (hereafter _Parochis_ ), _Forma Iuridica Celebrationis Matrimonii_ (hereafter _Forma_ ), and _Legum Ecclesiasticarum Interpretatio et Suppletio_ (hereafter _Interpretatio_ ).

Father Benders books were far more entertaining than most in the genre. "Entertaining" might seem like the wrong word, but Father Bender's books were, at least relatively speaking, page-turners, not only because he chose interesting and important topics for his in-depth treatments or because of his engaging literary style, which was crisp and always on point, but for two much more important reasons.

The first of these reasons was Bender's deep, almost passionate commitment to promoting canon law as a science based on logic and reason. For him a correct understanding of law should always be based not on _extrinsic_ factors (the authority of other respected canonists) but on _intrinsic_ factors (logical arguments and rational proofs). Unlike most of the authors, therefore, Bender rarely quoted other authorities in defense of his positions; instead he supported his positions with proofs and arguments.

This vision of canon law was so important to Bender that he spoke of it in the prefaces of each of the five books mentioned, and although quoting from each of these entails some repetition, the repetition is necessary if we are to understand how absolutely central and important the issue was in the mind of Father Bender.

In the preface to _Potestas_ , he wrote:

To them [i.e., canonists] I offer my work ... so that they themselves may subject to critical study and critical judgment both the teachings and opinions themselves, and the reasons and arguments I give for proving them (as well as the reasons and arguments by which I have shown other opinions to be erroneous). And whenever they conclude that one of my opinions is not accurate or that the reason I give is not really probative, let them demonstrate this, _giving arguments_. This is our approach; this is the way we do canon law. If all we do is set one opinion over against another, if we pay attention only to the _number_ of authors, so that a given opinion can be accepted as at least probable, and we do not pay attention to the intrinsic value of the reasons which the authors give, then doubts and disagreements are protracted into eternity. And at the same time canon law ceases to be a science and instead is reduced to a collection of opinions.

Bender's preface to _Personis_ contained these words:

Let them (i.e. canonists) subject the teachings proposed herein along with their rationale to a critico-scientific judgment, and if they find something erroneous, let them reject or impugn it, but by giving reasons for doing so, that is to say, by scientific proof. In this way and only in this way will they contribute to promoting canonical science.

In the preface to _Parochis_ we read:

So that readers can judge for themselves the validity of a proposed doctrine we never fail to provide intrinsic reasons on which the proposed opinion or solution is based. Neither do we decide that the opinions of others should be rejected as erroneous without giving reasons, and at the same time by showing that the reasons given by them are deficient. The only situation in which we do not do this is when an author offers an opinion but offers no reason in support of it.

In the preface to _Forma_ he wrote:

[The standard manuals] often look to what other authors teach rather than to the doctrine obtained by a study of the sources, especially the canons .... In [this book] I always prove my assertions with reasons; and I never reject the opinions of others without demonstrating the falsity or insufficiency of the reasons they adduce. By so doing it is my hope that I have contributed to the process of canonical science.

And finally, in the preface to _Interpretatio_ we find the words:

Since a private interpreter enjoys no juridic authority and his assertions therefore are only as valid as his reasons, I have never spoken _ex cathedra_ , as it were, but I have always given the reasons which motivated me either to embrace or to reject a given doctrine or opinion. I have also tried to make a critical judgment about the validity of the reasons I have given. Since, however, no judgment of a private individual is infallible, I freely submit everything to the judgment of other experts so that together, by our critical labors, either approving or correcting, we work together collegially towards the cultivation and progress of our science.

So this was the first major factor that made Bender's writings so engaging: the fact that his entire approach to canon law had quite a different emphasis from that of most of the manualists. The second major factor was that, while most canonical authors of his time tended to be deferential and courteous to their colleagues with whom they disagreed, Bender was not. Rather he tended to be adversarial and contentious, almost arrogant at times, and this, of course, had a certain shock effect. He also appeared to be a supremely self assured, confident scrapper who pulled no punches and who would take on all comers, including Cappello, Oesterle, Van Hove, Coronata, Wernz-Vidal, and especially Michiels.

Once, for example, he accused Oesterle of oversimplifying an issue and using "a defective method." Bender wrote, "It doesn't require great perspicacity to see that the problem is more complicated" than Oesterle makes it out to be. ( _Potestas_ , p.175). In another place Bender wrote, "There are many canonists who facilely consider it necessary to correct the words of the law because they facilely think that the legislator could not possibly have taken a position that does not agree with their own," and Bender then went on to name Coronata as one who belonged to this group. ( _Interpretatio_ , p.35). In one place Bender accused Michiels of "gravely sinning against the norms of sane reasoning," ( _Personis_ , p. 164). Similarly, in another place he characterized a conclusion by Michiels as "evidently erroneous" and said that, by his lack of logic, "Michiels demonstrates that his own teaching is not solid or coherent" ( _Interpretatio_ , pp. 268-269). Commenting on a certain position taken by Michiels, Bender said, "Anyone can see that these words abound in vague and obscure descriptions that are very apt to cause serious and harmful confusion" ( _Interpretatio_ , p. 34). And in another place Bender complained, "We cannot refute the reasons that Michiels gives for his opinion, because he doesn't give any" ( _Parochis_ , p. 16).

These are but a few examples of Father Bender's style. It was an abrasive style but at the same time perhaps just a natural corollary to his vision of canon law as a science based on logic and reason. And he apparently had little tolerance for approaches that he perceived as undermining what he understood to be the true nature of canon law.

Ludoviek Bender was born in Rotterdam on February 11, 1894. When he was nineteen years old he professed his vows as a Dominican, and he was ordained a priest on the Feast of the Assumption, 1919 at the age of twenty-five. Five years later he was awarded a doctorate in canon law at the Angelicum in Rome, and from 1924 to 1932 he taught canon law at the Dominican House of Studies at Huissen in the Netherlands . The following academic year, 1932-33, he taught at nearby Nijmegen, and then in 1933 was appointed a professor of canon law at the Angelicum, where he remained for thirty-two years, until 1965. He was seventy-one years old by that time and returned that year to Huissen and resided there in semiretirement until he died on June 6, 1975.

Dr. Andre Lescaris, O.P., who was the prior at Huissen in Father Bender's last years, described Father Bender as intelligent, kind, modest, self-controlled and thrifty, and as a charming conversationalist and host to both men and women. He loved travelling and talking about his travels and was proud of the fact that he often returned with more money than he had left with, thanks to retreats that he gave to sisters, and to lectures with slides that he gave on Rome, a city that he loved and enjoyed showing off to visitors.

During his years in Rome, Father Bender, as Father Lescaris tells us, would lecture and read the newspapers in the morning, take a walk in the afternoon and spend the rest of the day writing. He wrote several books besides those already mentioned and a number of scholarly articles, and for many years he also wrote a weekly column entitled, _Mag dat?_ for a Dutch publication "Mag dat?" means "Is this allowed?" and because of this column Father Bender earned among some the nickname "The Caliph of Magdat."

Father Bender, however, was extremely scrupulous, worrying, for example, at elections of a new prior, about the distance between the chairs of the electors. And in 1965, when he discovered that he had made a mistake in the complicated Mass stipend system of the Angelicum, he had a kind of nervous breakdown, and that, along with his age, prompted him to retire from the Angelicum and return to Huissen. Also, in his column, _Is this Allowed?_ , Father Bender always responded with great certainty and clarity (Father Lescaris notes that "people seemed to be in need of certainty and no doubt Father Bender himself was in great need of it") but when all was said and done _very little_ was allowed by Father Bender. Throughout all of this, according to Father Lescaris, Father Bender avoided preaching, hearing confessions, and other pastoral work, had no close contacts with people, and remained "very uncertain about pastoral questions of real life."

In late 1974, however, Father Bender experienced a major change, perhaps even a conversion, in his life. Father Lescaris described it this way:

A half year before his death - he was a very healthy man - a confrere said to him at breakfast something like: 'but you are allowed to show your feelings and emotions ... and he started doing this, talked to everybody and a flood of warmth revealed itself. His fears did not disappear completely perhaps but were forced to the background, so to speak. He started taking walks again, made much closer contacts with his confreres and the people working in the adult education center, enjoyed every moment of his life and even enjoyed the new liturgy though it was not completely in accordance with the Roman rules. Probably it was the best time of his life. We would have loved to have him longer in our midst but an inoperable cancer made him ill, and he was taken to a hospital. He was not afraid or sad about dying; he was thankful. He was a man who had made a long journey, a journey from fear and scrupulosity to freedom, a very impressive journey. A lovable man.

William J Doheny, C.S.C

William Doheny was born on May 30, 1898 in Merrill, Wisconsin, which was, at the time, in the Diocese of Green Bay but has been part of the Diocese of Superior since its establishment in 1905. In 1919 William graduated from St. Norbert College in DePere, Wisconsin, which was staffed by the Norbertine or Premonstratension Fathers, but in October of the year he graduated, William entered the novitiate of the Holy Cross Fathers.

On completing his novitiate William was sent to Holy Cross College, Catholic University of America in Washington, DC, for his theological studies, and was ordained a priest on June 24, 1924 at Sacred Heart Church on the campus of the University of Notre Dame. In the fall of that year he returned to Catholic University to study canon law and received his J.U.D. from that institution in 1927.

Since 1925 he had been serving as Assistant Superior and then Acting Superior at the Foreign Mission Seminary of the Holy Cross Fathers in Washington, but in 1929 he was named Superior of the _Collegio di Santa Croce_ where the Holy Cross seminarians studying in Rome resided. This was Father Doheny's first exposure to Rome, and he loved it. He remained there for five years and made good use of his time. While serving as Superior at the _Collegio_ he also took the courses at the _Studium Tribunalis Sacrae Romanae Rotae_ from 1929 to 1932 and at the conclusion of that study was the first American to be named an Advocate at the Rota and the Signatura. During his time in Rome, furthermore, he studied at the Vatican Library Graduate School of Diplomatics and Paleography and the Pontifical School of Archeology, and took special courses as well at the Universities of Salzburg and Münster.

In 1934 Father Doheny left Rome to become the Superior of the Holy Cross seminary in Massachusetts and then, beginning in 1937, the Superior of Holy Cross College in Washington, DC. He was in his late thirties at the time, and it was during these years that he began writing his monumental and extremely influential three volume work on the procedural law to be followed by tribunals in the hearing of marriage cases. At the time there were only a few functioning tribunals in the United States, and even those tribunals functioned only minimally; most dioceses in this country had only paper tribunals. On August 15, 1936 the Congregation of the Sacraments issued the lengthy instruction, _Provida Mater Ecclesia_ which, in effect, adapted the procedural law of the 1917 Code of Canon Law for use in marriage cases. Exactly one year later Father Doheny completed the first of his three volume commentary on _Provida_. It was entitled _Canonical Procedure in Matrimonial Cases_ , Vol. I, _Formal Judicial Procedure_ and was 725 pages long. Father Doheny's friend, Archbishop Filippo Bernardini, the Apostolic Nuncio to Switzerland, wrote the preface to this volume, and called it "the first published book to appear, in any language, incorporating a comprehensive commentary on the Papal Instruction of August 15, 1936." Two months after completing his first volume, Father Doheny published his second, entitled _A Practical Manual for Marriage Cases_ , and finally on May 19, 1943 the third volume, entitled _Canonical Procedure in Matrimonial Cases_ , Volume II, _Informal Procedure_. Archbishop Amleto Cicognani, the Apostolic Delegate to the United States, wrote the preface to this volume and called it "a wise, prudent, and practical commentary on all cases of informal procedure," and said, "There was great need of setting the nature of this process in its proper light and for this reason we owe a debt of gratitude to the illustrious author."

Father Doheny's purpose in writing these volumes was partly to bring a spark of life to the comatose tribunals of America and slowly but surely he succeeded. In 1947, incidentally, Father Doheny put out a second edition of his Volume I on formal procedure. It was now expanded to 1277 pages and became the "Bible" for tribunal personnel who were struggling to give a hearing to those who were petitioning to have their marriage declared invalid. Doheny's volumes gave tribunal personnel in the fifties and sixties a sense of confidence and a realization that procedural law was not quite as mysterious as it appeared. His contribution to the tribunal ministry was inestimable.

Father Doheny spent three years (1937-1940) at Holy Cross College in Washington and it was during that time that he served as the very first president of the Canon Law Society of America. The following year he was named Assistant Superior General of the Congregation of Holy Cross, and in that capacity spent four years (1941-1945) in New York City. Then three years (1945-1948) on the Faculty of Law at the University of Notre Dame, and in November of 1948 he was named an Auditor of the Roman Rota (carrying with it the title of Monsignor) where he served for nineteen years before retiring in 1967.

Edward Cardinal Egan, Archbishop of New York, while he was still the Bishop of Bridgeport, wrote a charming piece about Monsignor Doheny that merits inclusion here. It introduces us to another side of Monsignor Doheny's personality, a human and deeply spiritual side, and a side that showed him to have remained always a true Holy Cross Father. Bishop Egan wrote:

When I first met him, he was seventy-five years of age and retired. I had just arrived in Rome in December of 1972 to begin my new duties as a judge of the Tribunal of the Sacred Roman Rota. The day after my arrival, he telephoned to ask if he might come to see me. I was both delighted and flattered. His name was famous among canon lawyers across the world. Before being named a judge of the Rota in 1948, he had been a celebrated professor at a law school in the Midwest; and while serving on the Rota, he had authored a dozen or more books on legal tribunal procedure, and marriage law as well as scores of judicial decisions that were quoted far and wide.

After retiring, he had continued to live in the Eternal City where, in the judgment of many, he was the most Roman of the Romans. He arrived at my apartment at five-thirty in the evening, the Roman visiting hour. He was wearing a black cassock, a black tasseled sash, and a broad-rimmed Roman hat. In a few minutes I felt as though I had known him all my life.

" _Salve, Reverendissime Pater_ ," he intoned in Latin with a chuckle and an embrace. "I welcome you and I assure you that I am anxious to be of help in any way I can."

With that he sat himself down on the sofa in my study and opened a huge briefcase from which he extracted about one hundred type-written pages containing what he described as "all you need to know, as far as procedure is concerned, to get a case started properly and to bring it to a wise and brisk conclusion." The pages having been consigned to a table next to the sofa, he then produced a shopping bag and drew from it three packages that he had evidently wrapped himself. He beamed as I opened each. The first contained a pair of carpet slippers; the second, a fountain pen; and the third, a two-volume Latin-Italian dictionary.

"Now," he inquired, settling back into the sofa, "how do you feel about your new assignment, and how can I give you a hand?"

The conversation lasted almost two hours. When my guest left, I could hardly believe how relaxed and encouraged I felt. He had given me his private telephone number. He had offered to lend me any of his books I might need. He had even promised to remember me by name each and every day at Mass.

As the years passed, the visits continued. On several occasions I asked if I might not come to his residence, thus sparing him the trip through Roman traffic. He always said "no" and finally one evening explained why.

"I have a list of people whom I visit regularly," he announced. "Some are ill. Some are alone. Some may one day need my help or counsel. All are my very special flock, and my visits to them are my very special prayers."

He paused a moment and went on: "Before I leave my apartment, I make the Sign of the Cross and beg the Lord to lend me His lips and especially His ears during my visit. And when I get back home, I conclude my prayer with another Sign of the Cross."

He paused again. "You wouldn't want to deprive an old man of his very special prayers, would you? He asked with a broad smile. "I never had the privilege of being a pastor who could visit his people week after week, year after year. So now I have put together my own parish with a rather impressive roster of parishioners."

I accompanied him to his car, returned to my apartment, and found on the floor next to where he had been sitting a package on which he had written my name. Evidently he had intended to give it to me but forgot in the course of the explanation of his visits.

The package contained four books, all translations of works on the spiritual life which, I learned from the "Prefaces," he had "revised, adapted, and modernized," and printed at his own expense "for private distribution." I telephoned to inquire about the books:

"Oh, I am glad you found them," he said. "They are my other very special prayers. I will tell you about them the next time we get together."

The next time came very soon. Indeed within a week he telephoned to ask to come to see me and arrived with a package of books under his arm.

"I usually do not tell people about my special prayers," he declared as he sipped an espresso I had prepared for him. "But since you know about the visits, you might just as well know about the books too."

He adjusted in his chair and continued. "Every day for four or five hours I translate or revise the translation of spiritual books that are either not in English or not in very good English. I send them to friends in the United States and Great Britain whom I cannot visit the way I visit you. That makes my parish even bigger than Rome." He motioned for another espresso, interrupting his discourse not at all. "Each day before I begin my translating or revising, I make the Sign of the Cross and beg the Lord for wisdom and patience; and when I finish, I make the Sign of the Cross again and my prayer is over. So now you know all of my special prayers."

In my library there are today to be found seventeen spiritual books received from my guest during his visits. They range from well-known masterpieces by Saint Teresa of Avila, Saint Francis de Sales, and Abbot Joseph Marmion to lesser-known works by Saint Jane Frances de Chantal, Abbot Vital Lehodey and John Eusebius Nieremberg. All of them are treasured for what they are: very special prayers received on the occasion of very special prayers.

Toward the end of April in 1982, my guest's housekeeper telephoned to ask me to come to see him. I found him in bed with a high fever and little strength. He was admitted to the hospital the following day; and a week later, as I stood next to his bed reciting the "Memorare" of Saint Bernard of Clairvaux, he went to His Lord quietly and with the hint of a smile on his face.

The nurse in attendance asked if I were the next of kin. Fighting back tears, I responded "No, just one of his parishioners."

Monsignor Doheny died on May 1, 1982 at Salvator Mundi Hospital in Rome. At the funeral Mass at 7:30 a.m. on May 4 in the hospital chapel, it was Monsignor Edward Egan who gave the homily.

Felice M. Cappello, S.J.

The diminutive, ever-smiling Padre Cappello was a saintly man whose cause for beatification is presently under consideration by the Holy See. Father Navarrete has said that if, one day, Padre Cappello is canonized, he could well be proclaimed, along with St. Raymond of Penafort, as the patron saint of canonists.

In 1920, at the age of forty-one, Padre Cappello came to teach at the Pontifical Gregorian University in Rome and remained there until his retirement at the age of eighty in October of 1959. Over the years he resided at the Church of San Ignazio and regularly heard confessions there, almost until the day he died. He was revered as a confessor. It was said that he could read hearts, that he had the gift of intuiting what was in the heart of the penitent, that even though his confessions were brief, his words always had the power of bringing peace, and when he said to the penitent, "My child, go in peace," the penitent left the confessional in true peace of soul, absolutely certain of having received God's forgiveness.

Padre Cappello's ministry at San Ignazio came to be so essential to that church that it became widely known for many years as "Padre Cappello's Church," and his penitents became so numerous that it became necessary to assign to each of the gathered penitents a number indicating the order they would follow in entering his confessional. Padre Cappello himself, it was said, was unhappy with this solution but understood the need. Many people, indeed, would wait for him at the doors of the Gregorian and accompany him on his walk of several blocks over to San Ignazio, and along the way they would discuss their problems with him; and eventually the number of people wanting to walk along with Padre Cappello became so large that a policeman, who was a friend of Padre Cappello, went along with them to direct traffic.

People came to Padre Cappello's confessional not so much to find a learned man or a famous jurist but rather to find a man of God, a priest, one who was intimately united to God. His words in the confessional were usually few and simple, calling people to faith in God and abandonment to his mercy. And he always dealt with people as individuals; "principles are principles" he used to say, "but the consciences of people are not all the same, and when it comes to applying the principles to individual consciences, one needs prudence, much good sense and much goodness."

He rose each morning at 4:30 and would be in chapel at five o'clock for his meditation and preparation for Mass. After Mass he would make his prayer of thanksgiving. Always he knelt, with his eyes fixed on the tabernacle, and he would not leave chapel until 7:30. He was, in short, a man of prayer. He used to say that prayer was indispensable and that we could do with less of everything in life except for prayer.

Felice Cappello was born on October 8, 1879 in a little town in the Province of Belluno, in the beautiful Dolomites. He entered the seminary at the age of sixteen and on April 20, 1902, at the age of twenty-two, was ordained a priest for the Diocese of Belluno and Feltre. He was a brilliant student and was quickly sent by his bishop for further study, receiving a doctorate in theology from the University of Bologna in 1904, a doctorate in philosophy from the Angelicum in 1905, and a doctorate in "both laws" (Roman law and canon law) from the Pontifical Roman Seminary of St. Apollonaris, the forerunner of the Lateran University, in 1906.

He then spent the next seven years teaching hebrew, biblical exegesis and canon law at the diocesan seminary in Belluno before finally entering the Jesuit novitiate, after eleven years as a diocesan priest, on October 13, 1913. He was thirty-three years old at the time and was already extensively published and well known in canonical circles. His two volume _Institutiones Juris Publici Ecclesiastici_ , comprising more than 1100 pages and published in 1907, when the author was only twenty-seven years old, was reviewed by one of the professors at the Gregorian who noted that it was "written with sound criteria, systematic order, and a scholastic method that is designed for the theological formation of young ecclesiastics and that provides them with a way of defending the rights of the Church." Three years later he published _Chiesa e Stato_ , a 750 page volume that also met with high praise.

It was just the beginning of scores of books and articles that he wrote. In 1959, on the occasion of Padre Cappello's eightieth birthday and of almost forty years at the Gregorian, _Periodica_ printed a listing of the Cappello bibliography; it ran to sixteen pages. But, as someone pointed out, this was, in fact, only a small portion of what Padre Cappello actually wrote since, over the years, he had written literally thousands of opinions and reports for Congregations, Cardinals, bishops and priests.

At any rate, in 1914, after completing his first year of the Jesuit novitiate, Padre Cappello was sent to teach moral theology, canon law and some auxiliary disciplines at the Pontifical Leonine College at Anagni, some thirty-five miles or so southeast of Rome, and there he remained for six years, until he was called to the Gregorian in 1920.

As a teacher Padre Cappello always felt free to offer his own opinions, even when they differed from the official opinion. In a 1983 article that appeared in _L'Osservatore Romano_ it was noted that "even though he was devoted to the decrees of the Holy See and of the Roman Congregations, to which he was for many years a consultor, when he believed that he should think differently from their decisions he did not hesitate to tell his students, reminding them that they should follow what was taught but nevertheless should hope that time would prove _him_ right. The students would laugh but at the same time would admire both the freedom of the researcher and the devotion of the man of faith."

Still another quality of Padre Cappello that students admired was his prodigious, photographic memory. Not only did he know the entire _Code of Canon Law_ by heart, all 2414 canons, but he also knew by heart the entire _Divine Comedy_ of Dante as well as Virgil's _Aeneid_.

In the two and a half years between his retirement from the Gregorian and his death, on March 25, 1962, Padre Cappello devoted even more time than before to his favorite ministry as a confessor. Even on the day before he died he heard the confessions of his confreres at the Gregorian, although by that time he was too weak to raise his hand in absolution. His death came quietly, shortly after midnight on the Feast of the Annunciation. He was buried at San Ignazio where the inscription on his tombstone reads:

In this Church

near his confessional

Padre Felice Cappello S.J.

a most pious and exemplary religious

an esteemed professor of

Canon Law

an enlightened director of the spirit

a tireless servant of the Church

rests in Christ

May all of these giants, these enduring heroes of a former day, rest in peace.

Return to TOC

2001

# ARTICLE FIVE

## CHARLES AUGUSTINE O.S.B. - EXCERPTS FROM A JOURNAL

In his presidential report to the Canon Law Society of America, meeting in St. Louis, Missouri in October of 1978, the Reverend James Provost indicated that he had "asked the Board to explore the possibility of developing an American Commentary to the Code."1 That "American Commentary" on the 1983 code did not actually see the light of day until 1985.2 It was authored by twenty-three American canonists and was, in many ways, regarded as a herculean task.

The commentary, however, reminds us of what truly awesome giants were some of the commentators on the old, 1917 code: men like Cappello and Coronata and our own Charles Augustine, O.S.B., each of whom, single-handedly and without the aid of either computer or word processor, wrote wonderfully detailed, multi-volumed commentaries on the entire Code of Canon Law.

MONSIGNORS, BISHOPS AND CARDINALS

"Our own" Charles Augustine, or "Doctor Augustine" as he was known in the Benedictine community, published his eight volume work, volume by volume, between 1918 and 1922. He published as quickly as he could on the premise, as he said, that "Bis dat qui cito dat."3 His friend, John J. Glennon, Archbishop of St. Louis (the same city where, sixty years later, James Provost would speak of a new and projected "American Commentary") issued the _imprimatur_ for all eight volumes. Volume Two was dedicated to another episcopal friend, Maurice F. Burke, Bishop of St. Joseph, Missouri.

Augustine first met Glennon in 1902 when Augustine was thirty years old and Glennon was forty. Augustine had gone from his abbey in Conception, Missouri to spend the summer at Kansas City, Missouri, where Glennon was then bishop. Augustine gave some lectures on the New Testament at the Cathedral and reported in his diary4 that "the company of the Right Reverend Bishop Glennon is certainly most pleasant."

The following summer the two men met again, this time in St. Louis, where Glennon had recently been appointed coadjutor. Under the August 3, 1903 entry in his diary, Augustine wrote:

Down to St. Louis to be assistant at S. Berhard's Pfarrei (German) under the guidance of Rev. Bremerich and the culinary art of his niece, Theresa. During week days the work did not quite strangle me, but on Sundays it was suffocating sometimes. The church was still in the cradle, or catacomb like, as they call the basement in St. Louis. During my six or seven weeks stay I sometimes paid a visit to Bishop Coadjutor, Glennon, who was then alone at 8810 Lindell Boulevard, the actual Archbishop being absent on account of ill-health at the Baltimore Sanitorium. Otherwise not much of entertainment with the exception of much pool playing.

In September of 1904 Glennon and Augustine visited the World's Fair together and were impressed with the Russian exhibit.5 And so began a long, though apparently not terribly close, friendship. Glennon is mentioned in a personal way only once again in the diary and that almost twenty years later, on July 2, 1923, when Augustine visited him in St. Louis and spoke of him as "very affable and kind."

Augustine was also friendly with Bishop Burke of St. Joseph, Missouri (where Conception Abbey was located) and Augustine certainly admired the bishop. Or at least most things about him, an exception being His Excellency's singing voice. On Laetare Sunday, 1905, Augustine observed:

I was hoarse to-day but nevertheless, as hebdomadarius had to sing Highmass. Fr. Gregory told me afterwards that I had sung the Preface in 4 flats, which is the distinction of Cardinals and of Bishop Burke.6

In 1918, Bishop Burke celebrated "the silver jubilee of his episcopal career" in the Diocese of St. Joseph and it was on that occasion that Augustine dedicated Volume II of his commentary to the "noble-hearted prelate."7 On New Year's Day, 1923 Augustine wrote:

I spent at home, having returned from St. Joseph, Mo. where I had stayed for a few days with Bishop M.F. Burke. He was in a deplorable condition, mentally i.e. in his memory, and physically. I really felt sorry for the dear old gentleman, for such he had ever been and always a friend to me.

On St. Patrick's Day of that same year, Augustine reported the bishop's death.

The Laetare Sunday remark about Bishop Burke calls to mind two other entries in the journal. In one, Augustine suggested that the Code of Canon Law "should insert another canonical impediment, at least for the OSB, viz. the 'defectus auris musicae.'"8 In the other he spoke of a special new privilege of monsignors, namely that they can say four times instead of three "Domine, non sum dignus."9

Augustine, as is clear, enjoyed his humor with a touch of Latin. In 1907, while he was teaching canon law at San Anselmo, he spoke of a dinner that was being held at another monastery. The rector of San Anselmo was invited and consideration was given to inviting two other dignitaries as well. Inviting the others, however, would mean assigning a lower place at the table than was intended for Augustine's rector, so the decision was finally made not to invite the other two. Augustine commented, "O, the primi accubitus!"10

Italian humor also amused him. Augustine was a short man and seemed to enjoy remarks about taller people. He tells of a Roman going up to a lanky fellow and asking "'Fa caldo lasù?' meaning the upper story of his corpus." Another tall person was referred to as "lunga come la quaresima."11 Augustine also thought that one of Cardinal Merry del Val's secretaries, a certain Monsignor Cannali, would more properly be called Monsignor Cannibale.12

In general cardinals did not seem to rate too highly with Augustine. Just before Christmas of 1907, he noted:

To-Day again talk came up about the feast of the centenary of St. John Chrysostome, which seems to find great opposition among the Cardinals, for instance, Cardinal Oreglia objected to the erection of a small throne in the sanctuary of St. Peter's, where the feast is to be held with the Pope's assistance - for the Patriarch who is to celebrate, because, said he, the cardinals are not allowed to have a throne in the presence of the Pope, and that it was never done so far, hence. ... This is a mighty argument for some short-sighted prelates. O the Roman conservatism and ignorance of history, as if the patriarchs did not exist before any Roman prelate knew about the existence of a Cardinal.13

Despite the general complaint, however, Augustine had two good friends who were cardinals. Prior to World War I, Cardinal Gasparri often visited Augustine and the other Benedictines at San Anselmo, and many years later, when someone asked Augustine "whether those black Italian cigars that he was accustomed to smoke did not make him sick [he] smilingly replied 'My good friend Cardinal Gasparri smoked this kind of cigar until his death at the age of 84 - so I guess they won't hurt me.'"14

Cardinal Seredi, the Prince-Primate of Hungary who edited the last three volumes of the _Fontes Juris Canonici_ , was also a great friend of Augustine. As a matter of fact, when Justinian Cardinal Seredi had been simply Frater Justinian, O.S.B., he had been a student of Augustine at San Anselmo and once publicly referred to himself as Augustine's "beloved pupil in Canon Law."15

Seredi himself later became a noted canon lawyer at San Anselmo, and in 1927 was named a cardinal. In the preface to his remarks to the Canon Law Society of America at its 1984 convention in Milwaukee, Archbishop Rembert Weakland, also a Benedictine, told the story of Seredi's appointment to the College of Cardinals.

Three Benedictine canonists worked on the edition of the code of 1917. They were Gerhard Oesterle of Gerleve in Germany, Justinian Seredi of Pannonhalma in Hungary, and a Dom Bastien of Maredsous in Belgium.

It was rumored all over Rome that one of them would be named a cardinal. It was clear to all that the Abbot Primate, Fidelis von Stotzingen, wished that Oesterle receive this honor and somehow Oesterle, although a very simple and almost naive monk, thought he would be chosen.

The legend at San'Anselmo was that one evening during Sunday supper von Stotzingen was called out of the refectory by a messenger from the Pope and told that Seredi had been named a cardinal and that he could announce this to the community.

The next morning, in class, Oesterle began his canon law lecture by praising his confrere and enumerating his great merits in having been named a cardinal. At the end he said: "Nunc prosequimur in lectionem nostram hodiernam: De errore in personis."

Augustine's dealings with other members of the hierarchy were not always as cordial as they were with Gasparri and Seredi, partly because he took up the cause of certain priests in disputes with their bishops. Under date of April 9, 1924, Augustine's diary reads:

Since Feb. 16, I had a case on hand for Rev. J. O'Donnell of St. James' Church, So. S. Joseph who had been commanded to dismiss his house-keeper, Miss Lizzie Daltin, whom he had for 27 years. There was no charge of immorality - but impropriety of conduct towards some parishioners who disliked her, as directrice of the choir. The whole was a make up. Now I tried to get the Bishop to give him a fair hearing, which he had not given him before the paper was issued commanding the dismissal. Two letters I sent to Bishop F. Gilfillan to move him, but in vain. Then I acted as counsel to Fr. O'Donnell. Now the Bishop was up in arms against me, wrote a very sharp letter to our Abbot, summoned Father Sisbert to assist him. But before Fr. Sisbert came here (Apr. 8) I had written to Fr. O'Donnell that I had to disconnect every and any relation to his case, because the small chapter of our Abbey had wished it so. The Bishop even demanded an apology from me through the Abbot - which I flatly refused. This is high handed, sledgehammer-like procedure and that in the Catholic Church which boasts of democracy!16

And on November 2, 1925 Augustine noted:

Arrived in Los Angeles with Fr. W.J. Forde of S. Brendan's Church, Manhattan Place. I was cordially treated ... For Xmas I received the diocesan faculties for 2 months. Bishop Cantwell, whom I had to fight two years ago for Fr. Forde on account of a foolish parish division, is certainly best on building, building, building. But the spiritual part is not so conspicuous in his aims. The priests, mostly Irish, are very congenial and hard workers but more or less tainted with the same spirit as the Bishop. Qualis rex talis grex.

Based on these two cases, Augustine acquired something of a reputation as a bishop-fighter and the then Apostolic Delegate, Archbishop Pietro Fumasoni-Biondi, heard about it. Under October 6, 1930 Augustine wrote:

To-day the Apostolic Delegate was expected here, but did not show up. Some days later I heard from Abbot Bernard that his Excell. asked the Abbot: "Whether Fr. Augustine is still fighting bishops." Well, well, Sig. Biondi-Fumasoni it would be better for religion, if you would fight some bishops. As for myself, my conscience is not disturbed at all. If I did some fighting, if fighting it can be called, it was against Gilfillan and Cantwell, who certainly deserved it. But how many bishops and Vicar Generals I helped and solved their doubts is, of course, buried in silence, and the letters are burned up.

Despite the reputation, however, Father Augustine maintained friendly relations with several bishops. His August 18, 1938 entry, for example, read:

To Baker, Ore. whither I was called by Bishop Jos. F. McGrath, through Abbot Thomas, for some matrimonial cases and formularies ... I was lodged and treated royally. This is a bishop worthy of the name. At supper he told me in a very serious tone: "If you can't win a game of pinochle, I can't give you the faculties." He is not only kind and jovial, but also a greater reader, furnished with a very excellent library.

And the April 20, 1939 observation in the journal was:

This afternoon from 2:45 to 4:15 I had the honor to have Bishop Ed. Kelly, Boise, Ida. in my room to talk canon law, especially the Pauline Privilege and validity of baptism and one case of fear (can. 1087). He seemed to leave satisfied and have enjoyed a glass of wine, in the bishop's room and a lunch.

ABBOTS

Augustine's relations with Benedictine Abbots were much like those he had with bishops. Some he liked; others he did not. Of special interest in Augustine's journal are Abbots Gasquet, Janssens, Molitor, de Hemptinne, von Stotzingen, Frowin, Philip Ruggle and Athanasius.

Aidan Gasquet was born in London of a French father and Scottish mother. In 1900, by which time he had already won renown as an historian and scholar, he was elected abbot-president of the English Benedictine Congregation. In 1907 he was appointed by the pope as the first president of the international commission for the revision of the Vulgate, for which project he raised $10,000 on a United States lecture tour. From then, until his death in 1929, Gasquet spent most of his time in Rome. Pius X named him a cardinal in 1914.17

Augustine told a couple of interesting anecdotes about Gasquet. The first, from December 17, 1909, reads:

Since school has begun nothing specially noteworthy has happened. However, some 3 days ago thus Rt. R. Abbot Gasquet told in recreation, it was that he paid a visit to Card. Rampolla. After long waiting, being yet in the antecamera, the secretary (Mons. Rocchi) and the servant (Giuseppe) rushed out of the door and grasping the poor Abbot pushed him into an armadio a small 4 ft. room for vestiary - and kept him there, till a personage, whose name and sight was to be hidden from mortal eye, had passed. It was rumored that a new minister of the new ministry lately created had called on the cardinal who did not wish that the call should be known to any outsider. Mysterious story ... To-day the king of Belgium died.

And under January 14, 1910, Augustine wrote:

Nothing special happened as far as I know in this New Year. But to-day at 5:00 p.m., in the Palazzo Odescalchi I heard lecture of Rt. R. Abbot Gasquet "The work of revising the Vulgate," illustrated by lantern slides. It was a good lecture, though the illustrious Abbot is not quite a first class orator, but, at any rate, an intelligent one.

Two other interesting entries from 1910 referred not to Gasquet but to Janssens.

Apr 3. Theddy Roosevelt arrived here in Rome and also wished to see the Holy Father but was not received on account of a precedent affair of Fairbanks, whom the petulant Methodist had engulfed in their trickery. Fr. Ambrose of St. Vincent's Abbey, went to see him. Whereupon Abbot Lawrence Janssens, OSB also called upon, leaving his card, which contained sentiments of thanks and gratitude towards the Ex-President for what he had done to the religious Orders in the U.S. This he tendered in the name of the C. Relig. of which he is Secretary.

Apr 18. This was the ruin of poor Abbot Janssens, who was cited to the Secretary of State, Card. Mary de Val and got a solemn reprimand or hauling over for that unqualified manner of acting, for which he had no approval of the Holy See. He tendered his resignation and now this "lis pendet." The papers I have preserved.

Abbot Raphael Molitor, who wrote treatises "De Religiosis" both before and after the 1917 code, was an old schoolmate of Augustine and "very dear" to him.18 Molitor visited San Anselmo in 1907 (he was one of the two uninvited non-guests at the "primi accubitus" dinner) and on March 6 he and Augustine were companions in a perennial tourist experience:

To-day at 9 a.m. I was with Rmus Abbas Raphael Molitor at the Crypt of St. Peter. He celebrated h.mass there and afterwards Msg. De Wall conducted us together with some other (c.25) visitors around the crypt, explaining all the details according to the archaeological historical sides. It was most interesting to me who had never seen it, though four years in Rome, 1894-1898.

Abbot Molitor returned in 1911, and on March 13, Augustine wrote in his journal: "Abbot R. Molitor (who was looked upon as a spy) left here after a month's stay."

Hildebrand de Hemptinne was the Abbot Primate of the Benedictines and was residing at San Anselmo while Augustine was teaching canon law there in the years before World War I. Apparently de Hemptinne did not like Augustine very much. In 1910 he told Augustine that he talked too much, that he was, indeed, a regular chatterbox. Augustine's entry for January 15 of that year reads: "Today at after-dinner recreation Abbot Primate told me: lei vuol' sempre chiacchierare. I now hope to keep my mouth shut, but ..." And six years later, by which time Augustine was back at Conception, Missouri, he wrote:

I preached here & in the afternoon I felt thirsty and drank with the permission of the procurator of cider, for which I was accused. Then they commenced to nag at me, to which I was not accustomed, any more. I was lectured on account of having made a remark on those blooming conferences. In short I had made up my mind to apply to St. Vincent, which was done during the Abbot's absence in Cottonwood. The Abbot would not consent, writing two salty letters to me, from which I learned several things concerning my stay in Europe, as also who had accused me of living freely, or "too highly" at Rome. The accuser had been old Primate, when he was here in 1911. Annoyed the same worthy Hildebrand de Hemptinne had not the courage to tell me of my faults at Rome when I was under his charge!

The feeling between de Hemptinne and Augustine was probably mutual. Augustine did not like de Hemptinne either, partly perhaps because de Hemptinne was from the Belgian abbey of Maredsous19 (he had been abbot there from 1890 to 1909 and was, incidentally, succeeded by the esteemed spiritual writer, Dom Columba Marmion) and Maredsous was a daughterhouse of the Archabbey of Beuron20 (in southwest Germany) and all his life Augustine was opposed to the Beuronese influence on the Benedictine Order.

Before turning to the next selection from the journal, that of February 2, 1911, one should know a bit about another Benedictine, Gerard Van Caloen. Van Caloen had ties with both Maredsous and Beuron. He had initially entered the Benedictines at Beuron and in the 1880s he was prior at Maredsous. From 1895 to 1919 he worked in Brazil attempting to revitalize the Benedictine abbeys there, and he was consecrated a bishop in 1906. As bishop, however, he ran into financial difficulties. It was about those difficulties that Augustine wrote in 1911:

Candlemass day, bright. Afterwards we heard that A. Primate was taken down with a nervous attack, we now learn that it was rheumatism, which brought him to Bad Nauheim. Some of those days I heard some news about Bishop Van Caloen, who, told Abbot Gasquet (who is really a fine gentleman) was excommunicated by Pope (probably on account of the big loan) and had to kneel down before him to be absolved thereof. But A. Pr. had told us the story in a different light, as if the Pope had been exceedingly pleased with that great scheme. A. P. is too ideal and unreal.

Gasquet's account, as it turned out, was closer to the truth than Abbot Primate de Hemptinne's. Bishop Van Caloen, at any rate, was forced to resign his responsibilities in 1915 because of his poor financial administration.21

As is clear from Augustine's entry of February 2, 1911, de Hemptinne's health was already in decline by that time. He would, in fact, die some two years later, on August 13, 1913, and in March of that year a coadjutor was elected to replace him. Augustine describes the election this way:

March 25-27, 1913. Before Easter on Shrove Tuesday we received the _motu proprio_ of Pius X dated 25.2 an 1913 for the election of a "Co-Adjutor" to Abbot Primate whose mind seems to be affected by arterioclosesis from which he suffers for more than a year. 70 Abbots have so far (Apr. 24) promised their personal appearance here in Rome, 40 of whom are to be lodged in the College. Some have already arrived. The Candidate of the Beuronese, who are said to have, among themselves, a preliminary meeting, is Marmion of Maredsous. Non placet.

May 12, 1913. First election. Result: Abbot Thomas Bossart of Einsiedeln, who went to the Holy Father, in order to be released of acceptance. Hence he refuses accepting.

May 13, 1913. After the first scrutiny passed without result, a movement set in, launched by Hugo Springer of Seitenstetten & Bruno Doerfler of St. Peter's, Canada, in favor of Fidelis von Stotzingen, Abbot of Maria Laach, who was elected by 75 votes in the last scrutiny. At 5 o'clock. Hence the Coadjutor was made.

Two other entries about von Stotzingen are of interest, the first from October 19, 1913:

Again in Rome. Retreat as usual given by the new Abbot Primate (the old had died at Beuron Aug. 13). The inaugural address did not please the professors on account of the many decrees made for them, otherwise the whole year 1913-14 went off pretty smoothly except for the mystic liturgical conference of Emus.

The other, from May 5, 1915 reads as follows:

Rome, War. This evening at 7 o'clock, Abbot Primate Fidelis v. Stotzingen stood up after supper telling us I hereby close the College of St. Anselm. All the German & Austrian professors had already left in the evening at 5 o'clock p.m. after a 3 hrs' time for leaving. Now Fr. Ambrose from S. Vincent's U.S. & I were left. We wanted to remain but on May 7th Friday, policemen (carabinieri) came to examine our college whether we had not stored up German bombs in the cellar to throw them on the city. O ye fools! But the whole night the mob was watching the building & every minute we thought the college would be taken by storm. Thus we made up our mind to leave and at 1 o'clock in the morning we were done packing. At 8 a.m. we left S. Anselmo sull'Aventino & the books behind us.

When Augustine returned to Conception, the Abbot there was Frowin Conrad. It was Abbot Frowin who wrote those "two salty letters" to Augustine mentioned above, and it was during Frowin's tenure that the Beuronese once again rankled Augustine. The following entries in the journal, all from 1921, speak for themselves.

August 30. A small chapter was called: Fr. Gregory (Prior) Fr. Paul (Subprior) Fr. Stephen (Rector) & myself. The subject was a loan of $7000.00 to Neresheim (Beuron) which Beuron wished to pay off immediately - i.e. by asking us to send 7,000 Mass (intentions) stipends - the effrontary of those Beuronese is intolerable, whilst we are in a financial pinch.

Fr. Albert Amstad, the treasurer was also called to the meeting, but refused to come, because the small chapter had treated him badly, he said. But the fact is that it only got behind his speculation tricks of more than $14,000.00. Oh boy! The proposition was deservedly turned down. I resigned as consultor, as long as such conditions prevail, and handed in my written resignation on Aug. 31.

December 10, Saturday. After dinner I was called to the Abbot to read the letter from Beuron in which it was stated that they joyfully accept the proposition to pay off their debt with Mass intentions, i.e. sacra. I always resisted: l° because the Abbot has no right to send 7000 Mass intentions to Beuron that the latter may pay off the debt it owes us. In order to do that legitimately he must have the consent of the whole chapter given according to can. 534. But that power was granted in a so-called chapter meeting from which I was purposely absent to the Abbot against every law. 2° because the Masses from the Baker estate were a bequest or last will, which is sacred and yet interpreted by the Abbot at random. Such are the blessings of overly aged prelates. Nesciunt quid faciunt. But it is Beuron, and the Abbot's contemptible hankering after those Pharisees prompts him to go against his conscience which troubles and seeks redress from me to pacify it. Nequaquam.

December 19. On the Beuronese debt again. After a few preliminary remarks ... Fr. Lawrence Villing , our procurator, was asked to give an account which he refused to do. Then he asked the permission to read a statement and it was granted by the presiding officer, P. Prior. It was nothing else but a shameless accusation of the small chapter, a wholesale accusation of everything done by that chapter and an attempt to whitewash the foul tricks of the treasurer over which we should throw the mantle of charity. But this mantle was one-sided; it covered up the procurator and treasurer only, and the other side was a venomous spitting of wrongs. But the shot went off in the wrong direction. Instead of justifying himself and the Abbot for which it was also intended - it only proved that our Abbot has carried tales to these two men perhaps unwittingly - to bamboozle and fondle them. Thus the whole year he has never shown any sign of honest, upright dealing and by tattling has caused a great deal of harm. This proves that a man with 88 years past is no longer able to govern. And yet Rome, i.e. Abbot Primate does not act. He wants a tool. Shame!

In 1923 Abbot Frowin died after a long illness. Augustine's March 24 reads:

At 12:10 a.m. Abbot Frowin died, without any agony. He had lived his span of life. It is difficult to characterize him: He was a well-meaning, pious man with a disciplinarian grasp. His hobby was plenty of ceremonies and devotions, a too one-sided imitation of the Beuronese tendencies, but he lacked to a great extent the organizing talent required of a really great founder. Besides, having been 40 years of age when he came to our country, Abbot Frowin never fully assimilated his mode of thinking and ways of acting to the conditions here prevailing. Despite, however, these shortcomings, he was certainly an earnest and true Benedictine who had the Divine service at heart, and endeavored, as he often said, to build up a genuine Benedictine house and a home of prayer. In building and material business he was less fortunate. I asked him once, how the price of cattle and corn was. To which he smilingly answered: Well, I never troubled myself about the market. This was just his downfall, ever since 1917, the first attack of sickness he had. Had he resigned at that time, he would have descended, humanly speaking, a greater man. But now, his demise seemed natural and the sorrow and sadness greatly diminished. R.I.P.

Frowin was succeeded by Philip Ruggle who liked "a game of cards and a smoke" and "did away with smoking restrictions" in the community22 but was too much of a showman to please Augustine, who wrote:

... the Abbot appears to be strongly bent [towards show] ... But surely the whole and foremost purpose of O.S.B. is not show; otherwise we should change the O.S.B. into O.S.S. - Order of Saintly Show or Showmen.23

There was, finally, one other abbot who came under Augustine's criticism and that was Athanasius Schmitt of St. Meinrad. On one occasion Augustine noted that Abbot Athanasius "did not have much to say, and yet talked too much."24 On another, Augustine noted:

A series of amendments to our constitutions was set up to be sent to Rome. Abbot Athanasius had worked out the change according to Canon Law, but mixed up in bad Latin a scheme which was already handed to the S. Congregation. But he never notified the other abbots of what he had put in and had proceeded in a very arbitrary way - he wants to be Prussian HighMogul - so that there will be some trouble.25

Doctor Augustine, as is clear, was not an easy man to please. In his January 19, 1936 entry, Augustine summarized his feelings towards abbots as follows:

Most of our Abbots - not all - are nothing else but barking dogs at General Chapters and Culpa Chapters and know damned little about the psychology of the men they have to deal with. And we have to tolerate them! Forever!

BIOGRAPHICAL DATA

Earlier I spoke of Augustine as "our own," meaning American. As indeed he was;26 but not by birth. By birth he was Swiss. Geographically his life may be divided as follows:

1872-1892 - Switzerland

1892-1894 - Conception

1894-1898 - Rome

1898-1906 - Conception

1906-1915 - Rome

1915-1925 - Conception

1926-1943 - Mt. Angel

Some brief remarks on each phase seem appropriate.

1872-1892. Charles Bachofen, born January 11, 1872, grew up in Meis, a town of about 4,000 German speaking people in St. Gallen canton of Switzerland. As a young man he entered the Benedictine Order and took the name "Augustine."27 He studied at the great abbeys of Einsiedeln and Engelberg and at the Universities of Freiburg and Innsbruck. It was at Innsbruck that he studied under the illustrious Ludwig von Pastor, the "Historian of the Popes."

1892-1894. At the age of twenty, Augustine came to the United States. He entered the novitiate at the Benedictine abbey of the Immaculate Conception and made his profession there on October 12, 1894.

1894-1898. Shortly after profession Augustine was sent to Rome to study theology. It is here that his diary begins (it was written in German during this period) and in it he tells of his ordination to the priesthood on August 19, 1897 ("Ein Freudentag!") and of completing his doctoral dissertation for the D.D. on March 10, 1898 ("Vormitt 11½ Uhr beendigte ich die schriftliche Dissertatio Doctoralis: Utrum coniunctio Primatus Petri cum Sede Romana sit de Jure Divina").

1898-1906. At the age of twenty-six Augustine returned to Conception where he taught a variety of subjects including apologetics, church history ("The IX & X centuries" he wrote "are baneful for the Church. The Popes are puppies.")28 and canon law. On this latter subject, his entry for February 25, 1905 reads:

Canon Law 9-10. I had some opposition brought against me on account of a scription which I had told my 3 fratres, Leodegar, Innocent and Albert they must write next week because they lacked earnestness in the study of Can. Law. One frater told me that I treat them like schoolboys and was partial as to this one branch. However proofs were not, and could not be brought forward.

Besides teaching he did a variety of other things as well. He helped out in parishes; he painted a porch floor; he repaired a fence; he fell sixteen feet off a scaffold while putting up a new ceiling; he engaged in "study brave and fierce"; he played pool; he smoked a clay pipe; he played football with some children; he argued with a Baptist; he wrote hymns, songs and poems, and he critiqued the music of others. On June 29, 1906 he wrote, after singing Matins with the community, that the "melody of the Invitatorium appears to me a night-cap made of Irish wine and followed by Katzenjammer." He also took a ride with Bishop Burke "in a nice carriage" and noted "Abbiamo parlato Italiano tutte le strade." And, on August 9, 1903, he grieved over the death of his sister:

My dearly beloved sister died. She was the dearest soul on earth to me, a holy and cheerful heart and had been a mother to me since my real mother had left me for the shores of eternity 14. Jul. 1878.

1906-1915. On October 2, 1906 Augustine sailed on the Kronprinz Wilhelm for Bremen. On the way to Rome he stopped off at Mels, Engelberg and Einsiedeln. On arriving in Rome, after an absence of eight years, he found that "the garden of the college di Saint'Anselmo has been wonderfully improved, and the Basilica finished."29

On November 29, 1906 he observed:

Social life is sparing here, the professors being all deeply interested in their own pursuits. Of course, I don't blame them & hence I do the same. Si Romae es, Romano more vives.

A couple of weeks earlier, for example, he had

Walked around the walls of Rome from Porta Ostiensis to Porta Appia (now Porta S. Sebastiano) to study the brickwork according to Lanciani's Ruins and Excavations. It is a marvelous piece of masonry. Outside the walls where no scandal is given or to be feared, I took a glass of Frascati wine.30

For the most part , of course, Augustine's time in Rome was spent in the teaching of canon law but he engaged in the usual extracurricular activities as well. He saw Pope Pius X in public consistory, for example, and noted:

His features are marked, but the beauty to be seen on his pictures is not so marked when seen in reality. However this is of small importance since I was glad and happy to see our common Father.31

By the time von Stotzingen closed San Anselmo in May of 1915, Pius X had died and Giacomo Della Chiesa had been elected Benedict XV. Augustine was forty-three years old. His account of the trip home, though somewhat lengthy, bears repeating:

From 1 Sept. to Oct. 28 I was at Einsiedeln, Luzern where I met M. Lehman from Sargans, who showed me the snowhite promontory of Meggen in nature's greatest grandeur; Engelberg & Stans & Zuerich where I had to go on account of the passport, which I finally received on the 2. Nov. 1915 from Washington D.C. From Zuerich I paid my farewell visit at St. Gall, & Stella Maris and on the 4th Nov. 1915 I left Rorschach for Friedrichshafen, Wuerttemberg, across the Bodensee. It was a dreary morning, fog hovering over the Swabian Sea. It is war time & I am now in warfaring country. The custom officers at Fr. treated me pretty gently after I had signed my name to a paper which contained a whole string of questions: native country, parents, profession, age, male or female sex, & whither etc. Train pulled out before we got through & I had the pleasure to wait 5 hrs. at the Zeppelin Town. Many black-dressed women, elderly men & a hospital with wounded, Brodkarten, & posters in the restaurants: Beware in talking (Achtung in Gesprachen). 1:30 p.m. left for Mayence no conversation in the train with a stranger, all buttoned up. At 9 p.m. at Mainz. Giving up Passport , before I could sit down to supper in the hotel.

Mainz 5. Nov. 1915. At 7:30 a.m. Rapping at the door \- a magistrate stalked into my room with my passport in his hand. A vexed examination why I came to M.; what was my business, why I did not lodge with the Capuch. or a reverend, etc., whither I intend to go, etc. etc. I grew angry at the suspicion of being a spy. Again the same questions as at F. & signing and then I was released - in bed. At 9:20 a.m. I left for Cologne where I had to stop 1½ hr. Then we were shipped to some place called Cranenberg on the Dutch-German boundary. A minute examination followed. Nothing printed, except my citizen papers, passport & shipticket, was allowed to remain on my person. That certainly was a Prussian inspection, but for one thing I was almost grateful - they took the Breviary away. Well, I drank a bottle of Rhinewine to the welfare of Germany and then left for Holland (belated of course). Oh the neutral country felt so well.

At Rotterdam I spent some pleasant days, lodging at Hotel Bellevue on the Spansche Kade. But everything was very high priced. From Rotterdam we sailed on the 10th Nov. 1915. It was on the Ryndam, a pretty old vessel. Still I felt well all the time. A little ticklish was the passage through the channel, because we had to wind through 7 mines, were stopped at Dover and Falmouth and then launched into the high sea where we had storms nearly all the days we spent on board. A young couple was betrothed who had made their acquaintance on board. After 14 days on sea, the promised land again. Deo Gratias!

1915-1925. It was during this period that Augustine wrote his commentary on the code plus two other canonical volumes as well, one on pastors, the other on ordinaries, while once again teaching a multitude of subjects including canon law, patrology, ethics, English, Christian archeology and art. In 1925 he suffered a kind of nervous breakdown and was advised by Doctor Kelly "to go to California," which he did.32 He arrived in Los Angeles on November 2, spent the next several months there, and arrived in Mt. Angel on May 15, 1926.

1926-1943. Augustine was fifty-four when he arrived at Mt. Angel and he remained there for the next seventeen years, until his death on December 3, 1943 at the age of seventy-one. In a personal letter to the author, dated September 27, 1984, Father Martin Pollard, O.S.B. of Mt. Angel, wrote:

He was always referred to here as "Dr. Augustine" partly because we had a local Fr. Augustine and also because he symbolized learning and professorial excellence. He came not long before our disastrous fire of 1926 and when we moved to town and lived in small houses and the like, he found lodging with a good family and continued to teach. In fact for quite some years he was, if not the sole professor, at least the main source of theology training for the clerics. He taught canon law in the morning of the day he died. At that time too his commentaries enjoyed high prestige ...

"The Doc" had always pushed for better theology courses and teaching. Under Abbot Thomas, in 1935, St. Martin's Abbey started sending us their clerics to take theology here along with our own men. This was the occasion for reform. Strict rules, standard procedures in classes and marking, etc. ....

In all this "The Doc" gave his support and was glad indeed to see the theology department made a good one. Today, of course, it is fully accredited on a national scale. So Mount Angel Abbey owes him a debt of gratitude.

CANON LAW

Augustine is principally remembered as the author of the eight volume commentary in English. Before the code, however, he wrote two Latin works on canon law, both under the name of Augustine Bachofen. His _Compendium Iuris Regularium_ appeared in 190333 and seven years later his _Summa Juris Ecclesiastici Publici_. Augustine's entry for February 25, 1911 reads:

Today I was called to Pustet where I was told that my book "Summa Iuris Eccl. Publ." was or is to be denounced to the H. Office. It may be trick of a certain click or some one who wants to be "it." At any rate my conscience is clear as to questions of faith.

Besides being an author, Augustine was, of course, preeminently a teacher of canon law. One journal entry of particular interest in this context is that of September 18, 1917:

This morning at 9 o'clock when I stepped into the class room to teach Canon Law, the fratres sang a hymn & had a catafalque erected on which lay the old Corpus Iuris Can. with a wreath and 2 burning candles, festoons of the papal flag. This was to signify that the Cod. Iur. Can. which I brought along the first time was now taking the place of the old Corpus. I spoke in Latin.

As early as 1905, furthermore, Augustine occasionally helped out in the diocesan tribunal at St. Joseph. The September 28 entry for that year notes:

The court took place in the episcopal residence, and I obstructed the way - as defensor vinculi matrimonialis - for 14 days.

On April 25 of the following year he spoke of a particularly interesting case:

Down at 7:40 to St. Joe where at 10 a.m. the matrimonial court met. Rt. Rev. Linnenkamp as Moderator. Rev. Nieman of St. Patrick's Maryville, as Secretary, and I as Defensor of the Matrimony. But there was neither written or oral evidence brought forward by the plaintiff Rev. B.X. O'Reilly in the name of the woman who claimed to have been deceived by the man whom she had ecclesiastically married, and who, she claimed was a bigamist, perjurer, embezzler (who had sat in the penitentiary for two terms, bigamy and embezzlement) and who therefore deceived her. The only plea was error which claimed to be substantialis [OK! those canonists of modern times!] But the case was thrown out of court by the moderator - most justly & I went home 2:47 p.m.

Canon law was, in many ways, Augustine's life and he took it very seriously. But he could also joke about it. On November 8, 1906 he recorded this playful little verse about some newly created Doctores Juris:

In Institutis comparo vos brutis

In Codice scitis modice

In Digestis nihil potestis

In Novellis aequo vos asellis

Et tamen creamini doctores

O tempora, O mores!

HEALTH

Augustine was, for most of his life, plagued with ill health of one kind or another. The subject is mentioned more than seventy times in his journal. Sometimes it was only "La Grippe," as he called it in the early days, or perhaps he would refer only to his "failing health" (which he did as early as 1905) or to the fact that he felt weak, tired or feeble, or "suffered from troubles of a delicate nature." At other times he was more specific. In 1905, for example, he had a toothache and went to the dentist "who put a golden crown on the suffering tooth and thus made it smile." In 1921 he had three teeth pulled; in 1932 all his upper teeth were "pulled by Dr. Dunlevey, then replenished by Dr. F. Bleig" and in 1940 his last five lower teeth were extracted. In 1905 he saw Doctor Pitts on account of his "weak eyes." The doctor, he said, "gave me medicine and ordered nose pinchers & charged $15.00. But Dr. Pitts is alright." On April 1 of that year he wrote "It is a very quaint phenomenon that nearly all of us have to wear glasses." Over the years, however, Augustine's eye problems became more serious and towards the end "he could read only very little, with the help of a powerful magnifying glass [and] one of the clerics would read to him in the morning what he would teach in the afternoon."34

Augustine also spoke of such things as kidney trouble (1901), typhus (1908 and 1909), bronchitis (1927), low blood pressure (1931), colitis (1932), anemia (1933), stomach trouble (1934), albumen in the kidneys (1935), rheumatic pains in the back (1937), a numb left leg and pain in the sciatic nerve (1939). In 1932, when he was sixty years old, he spoke of "the ailments of age."

Then there was the perennial problem of his delicate nervous system. Even as a seminarian there were times when he could not study. "Sollte studieren" he said "und kann nicht. O das Doctorat, wie viel Peinen es macht."35 In 1910, when he was thirty-eight years old and teaching at Rome, he went to Viterbo "to get better. But my nervous system had suffered."36 Between March 13, 1911 and January 13, 1913 the journal contains no entry. Augustine then begins "After 2 years of silence, which were, on account of sickness, by no means pleasant, I take up my accounts."

In 1925 he suffered "in the evening the nervous breakdown or nervous heart prostration which lasted almost four hours."37 At first he was advised to "go North," which he did; but when by October the problems had persisted and Doctor Kelly found his "nerves weakened," he was then advised, as we saw earlier, to go to California, which he also did. And then on to Mt. Angel.

ATTITUDES

Augustine was touchy, straightforward, feisty and opinionated. One almost always knew exactly where he stood on a variety of issues.

In the area of art and architecture, for example, Augustine noted, back in 1906:

Said mass at Maryville, St. Mary's Church which has lately been adorned with really artistically executed windows made by Frei of St. Louis, Mo. They cost, as Rev. Fr. Anselm, OSB, told me, $1,690.00. The two Sanctuary windows, Annunciation and Nativity, are indeed "jewels" of stained-glass windows, only St. Joseph (in the Nativ) with his carefully parted, reddish beard could not entirely gain my approval. S. John Evangelist, the II. on the righthand side from the front looks too girlish, S. Catherine is somewhat out of shape around the waist; S, Anselm (or S. Augustine) with a book de Trinitate, is an ideal figure, but looks a little young. The combination of the several windows, as to their colors, might be better chosen. But on the whole, the windows are not of the common American tone, but betray artistic taste.38

In 1932 he described a newly constructed convent as the type built by "a hollow-brained architect" with "hallways and rooms like clamshells" and "airspace and elbow room for babies."39

Of modernism he noted, on December 22, 1907, that "that blessed modernism is now seen everywhere and the inquisitors seem to be busy - only the stake is wanting yet of the middle ages."

Within the Benedictine community Augustine was always opposed to "Beuronese formalities"40 and, indeed, of anything that smacked of pharisaism. On February 17, 1903 he noted:

A petition was sent off to Abbot Primate to ask for the Cappa Magna for our Abbot on the occasion of his Golden Jubilee of Profession. I had to compose it - but I do not approve of the humbug.

The practice of reciting Vespers in the morning he found pharisaical41 and, to some extent, liturgy itself was distasteful to him for a somewhat similar reason. In 1930 he wrote:

I stayed here, enjoying a hot wave of weather. For the rest I did some writing on Liturgy, and finished my book "Liturgical Law" or Handbook of Roman Liturgy. It cost me much time, more than two years and self denial. For my personal taste is not for liturgy, much of which is "show" or movie theatre. The divine is very simple and holy, the human is split and wavering and long.42

That same year, Augustine was frustrated and angered by what he saw as a pharisaical reaction to a certain pastoral work he performed:

To-day I buried Ulrich Arnold Siegfrid, born May 31, 1850 in the City of St. Gall, my home canton. Having been a nonCatholic he was buried in the community grave-yard 1 mile from Mt. Angel. It was a simple funeral, only attended by two laymen (John Schallberger & Pete Maier) and 1 lay brother (Br. Isidore) from the Abbey force, and myself. There was also Franz Amgarten & the undertaker, M. Unger, and two young men from the town to do the funeral work. I said 3 Our F. & Hail Marys and a few words to the effect that S. was a laborious, honest man, although not affiliated with any church. He had worked 10 years for the Abbey for almost no pay. Yet at the breakfast table this morning, before I went to the funeral, I had to hear from a Rev. (?) Father (?) a very vulgar, down-right low remark, which provoked me and made me think: what's the use of a religious name, if no mantle of charity covers it? They expect charity, just now, when they are building a seminary (?!) and little charity is done. S. was buried at the county's expense. Sic transit, benefaciendo transiens! O religion.43

The observance of law and tradition44 was, of course, always important to Augustine. In 1918, for example, he observed:

On the same 11 April 1918 the Abbot and Prior permitted Sisters to come into the clausura-tailorshop to teach Br. habit making. Where are the laws of the Church? Excommunication is set aside.

Justice for the lowly, however, was even more important to Augustine than law. This was reflected perhaps in his burial of Mr. Seigfried and also in his vigorous objection to the treatment of certain brothers. On September 13, 1917 he noted:

This morning 3 lay brothers had disappeared. They were good brothers but found the treatment here not as that of religious but of drudging laborers. Slavery won't do in the 20th century. However it is almost impossible to persuade the Abbot of that truth.

It was important, he thought, to treat all people with dignity. Within the community, discipline was, he thought, necessary but not to the point where it impinged on human welfare. He believed, as he said, in "buona cucina, buona disciplina." Meals should be simple but not meagre. People have to have enough to eat.45

In his own spiritual life Augustine often tended to be pious in his expressions. He used, for example, such phrases as "my own nothingness" and "undeserving though I am" and "God have mercy on me, a poor sinner." He spoke of a brother priest who had recently died as an "anima candida." On New Year's Day, 1905 he wrote into his journal the following:

Sweetest name of Jesus, music to my heart, and light and strength to all. Let never one depart from that beloved manger where thou enclosed art.

In 1901, after completing his annual retreat, he wrote:

... through and with the help of God, this holy retirement did me some good, in order to paralyze the bad influences and vapors which during the 3 months' absence from the monastery, I may have heaped up in my immortal storehouse.46

Appropriately, the very last words he wrote in his journal, on January 28, 1943, were that though God was not often mentioned during the terrible World War II, yet, said Augustine, "HE will provide."

Long, long before, on November 1, 1901, he had written:

A beautiful day is this ALL SAINTS day and the procession to the graveyard was real pleasant walk which at the same time gave rise to the idea of earthly grandeur and nothingness. There, one day, we shall lie buried - and most probably forgotten.

He was not always right.

Return to TOC

1985

ENDNOTES

1 _CLSA Proceedings_ 40 (1978) 128.

2 _The Code of Canon Law: A Text and Commentary_ , ed. James A. Coriden, Thomas J. Green, Donald E. Heintschel (New York and Mahwah, NJ: Paulist Press, 1985).

3 Charles Augustine, _A Commentary on the New Code of Canon Law_ , 8 vols. (St. Louis: B. Herder Book Co., 1918-1922), vol. I, Foreword.

4 The original diary appears to be lost. It was no doubt hand written and was probably contained in several notebooks although there were some loose pages as well.

In the 1940s, however, the diary was typewritten by the Very Reverend Jerome Wespe, O.S.B., Prior of Mt. Angel Abbey in St. Benedict, Oregon. It comprises 110 single-spaced pages and covers the years 1895-1943.

This typed version of the diary was graciously provided me by the Reverend Martin Pollard, O.S.B., Ph.D., the archivist at Mt. Angel. Augustine's entry for March 29, 1940, incidentally, reads "Before dinner the abbot announced the appointment of Fr. Martin Pollard as Subprior. Vivat."

5 Diary, September 26-27, 1904.

6 Diary, April 2, 1905.

7 Augustine, _Commentary_ , Vol. II, Foreword.

8 Diary, January 19, 1936.

9 Diary, November 15-18, 1906.

10 Diary, March 14, 1907. The reference is to Luke 14:7.

11 Diary, November 8, 1906.

12 Diary, November 15-18, 1906.

13 Diary, December 23, 1907.

14 Ambrose Zenner, O.S.B., "Death Comes To Father Augustine," _St. Joseph Magazine_ (St. Benedict, Oregon, 1944).

15 "Rev. Dr. Augustine," in _The Pacific Star_ (St. Benedict, Oregon), December 15, 1931.

16 Entry of March 27, 1923 describes Bishop Gilfillan as a "physical giant 6 ft 8 in."

17 New Catholic Encyclopedia 6: 298.

18 Diary, February 8, 1907.

19 New Catholic Encyclopedia 9: 198.

20 _Ibid._ , 2: 377.

21 _Ibid._ , 14: 532.

22 Diary, April 8, 1923.

23 Diary, May 30, 1923.

24 Diary, May 9, 1922.

25 Diary, April 22-23, 1923.

26 Not just legally but psychologically as well, as is clear from his remarks on the occasion of Abbot Frowin's death.

27 Although he wrote his commentary under the name of Charles Augustine, he was always listed in the _Official Catholic Directory_ as Augustine Bachofen.

28 Diary, March 29, 1905.

29 Diary, October 27, 1906.

30 Diary, November 14, 1906.

31 Diary, April 20, 1907.

32 Diary, October 7, 1925.

33 Diary, February 16, 1903 and January 24, 1905.

34 Zenner, see note 14 above.

35 Diary, June 17, 1898.

36 Diary, October 13-18, 1910. A week earlier, incidentally, Augustine visited "Bologna (Stella d'ltalia) to see the house of that venerable father of Canon Law: Gratian."

37 Diary, June 14, 1925.

38 Diary, January 3, 1906.

39 Diary, August 24-29, 1932.

40 Diary, May 25, 1934. Under July 6-8, 1938, he noted, with obvious regret, "a strong leaning" in the community "towards the French-Beuronese spirit."

41 Diary, March 3, 1906 and January 26, 1918.

42 Diary, August 8, 1930.

43 Diary, May 20, 1930.

44 He once called tradition "the backbone of discipline and charity" - Diary, March 4, 1930.

45 Diary, January 12, 1930.

46 Diary, September 6-15, 1901.

# ARTICLE SIX

## LAW AND THE LOCAL CHURCH

## THE CONTRIBUTION OF A PRESBYTERIAN DEBATE

The Presbyterians in Colonial America engaged in a protracted, dramatic debate on two issues that are of keen interest to the contemporary canonist: 1) the question of whether a Christian Church has the right to bind its adherents to man-made laws, and 2) the degree of autonomy enjoyed by a local church; in this case, the presbytery (roughly equivalent to our deanery), vis à-vis the synod (roughly equivalent to our diocese).

The faith and order of Presbyterianism had been classically enshrined in the famous Westminster Confession of Faith which had been composed in England in the 1640s. Once Presbyterianism was transplanted to America, however, with new personnel meeting new circumstances in a new environment, the Westminster Confession seemed, to some, open to new interpretations.

So the debate began. It goes on still, of course, as it does in every living Church, but the Colonial phase of the debate among the Presbyterians in America is especially engaging and instructive: first, because the stage at the time was peopled by a cast of truly colorful, deliciously human characters who were committed to their points of view and superbly able to articulate them; secondly, because the problems that arose at the time involved such fundamental and practical matters that, happily, they made for a highly precise joinder of issues.

The heart of the Colonial phase of the debate lasted roughly a half century, from 1722 to 1774, and may be viewed under the following, half dozen, headings.

THE DICKINSON ARTICLES OF 1722

In 1706, the Irish divine Francis Makemie formally joined with a half dozen other ministers to constitute the first Presbytery in America. By 1716, only ten years later, Presbyterianism in America had flourished to such an extent that the first Synod was formed, comprising three presbyteries: Philadelphia, Long Island, and New Castle.

The following year, 1717, the twenty nine year old Jonathan Dickinson, a Massachusetts native and Yale graduate, joined the Synod. He was to have a distinguished forty year career in the Presbyterian Church as pastor at Elizabethtown, supporter of the Great Awakening of the 1730s and '40s, and finally as the principal founder and first president of the College of New Jersey, later to be called Princeton University. His liberal tendencies, that is to say, his resistance to acts of authority limiting individual freedom, and his preference for decentralized government, became a matter of record in the early '20s.

In 1721, the Reverend Mr. George Gillespie, wishing to strengthen the Synod's hand by explicating its right to pass an "act," a term that traditionally referred to an obligatory rule binding all members, made the following overture:

As we have been for many Years in the Exercise of Presbyterian Government & Chh (Church) Discipline, as exercised by the Presbyterians in the best reformed Churches, as far as the Nature and Constitution of this Countrey will allow, our opinion is yt if any Brother have any Overture to offer to be formed into an Act by the Synod for the better carrying on in the Matters of our Government and Discipline, yt he may bring it in against next Synod.1

Dickinson and five others objected to this overture, not, apparently because of what it said, but because of what it failed to say. The Dickinson party, first of all, wanted it spelled out that no church judicatory had the power to impose acts on people who conscientiously dissented from them - this would be to usurp a power which Christ never gave to his Church and to rob people of their Gospel freedom. And, secondly, the Dickinson party wanted it made clear that not only Synods, but Presbyteries as well, had the right to pass acts that, for the sake of a well ordered community, would oblige all members to honor them except insofar as they were contrary to a person's conscience.

A compromise was therefore reached. The Gillespie overture would stand, and Dickinson and his group would withdraw their protest against it; but also, the following four articles prepared by Dickinson would be recognized and incorporated into the minutes:

1. We freely grant, yt there is full executive Power of Church Government in Presbyrs and Synods, and yt they may authoritavely (sic), in ye Name of Christ, use ye Keys of Church Discipline to all proper Intents and Purposes, and yt the keys of the Church are committed to the Church officers and them only.

2. We also grant, yt the meer Circumstantials of Church Discipline, such as the Time Place and Mode of carrying on in the Government of the Church belong to Ecclesiastical Judicatories to determine as occasions occur conformable to the general Rules in the word of God yt require all things to be done decently and in order. And if these things are called Acts we will taken no offence at the word, provided yt these Acts be not imposed upon such as conscientiously dissent from them.

3. We also grant, yt Synods may compose Directories, and recommend them to all their Members respecting all the Parts of Discipline, provided yt all subordinate Judicatories may decline from such Directories when they conscientiously think they have just Reason so to do.

4. We freely allow yt Appeals may be made from all Inferior to Superior Judicatories, and yt Superior Judicatories have Authority to consider and determine such Appeals.2

Dickenson 's insistence on the legislative limitations of the church were, of course, nothing new to Presbyterianism. The classical statement of this principle had been made years before as part of Chapter XX of the Confession of Faith of the Westminster Assembly:

God alone is the Lord of conscience, and hath left it free from the doctrines and commandments of men which are in any thing contrary to his word, or beside it, in matters of faith or worship.3

But this was, to Dickinson and the others, clearly a sacred truth and they wanted it repeated in the context.

As regards the rights of presbyteries, the customs of busybody synods and General Assembly had arisen in Scotland, with little respect for subsidiarity, and with constant interference by the higher judicatories in the affairs of the lower, largely over the patronage issue. Dickinson, it appears, was intent on snipping in the bud any such tendency in America.

From its earliest days, therefore, the Presbyterian Church in America, unhampered by the patronage issue and unindentured to Scottish practices, began to shape its own governmental policies.

THE ADOPTING ACT OF 1729

The principle that no church judicatory has the power to impose laws on people who, for reasons of conscience, dissent from them, is an extremely delicate, fragile principle. "Practical" men are always finding exceptions to it, and suggesting that, at certain periods of history, because of "special circumstances," the principle should be suspended altogether. In 1643, for example, the Solemn League and Covenant had called for the abolishment of prelacy. Obviously, the committed Anglicans of the time could not, in conscience, agree to such a policy; but, for "higher reason," their scruples were disregarded and several thousand of them were deprived of their benefices.4 Later, in 1690, when Presbyterianism became the National Church of Scotland, the several judicatories of the country were allowed, in order to effect a unified, orthodox Church in Scotland, to require all ministers to subscribe to the Westminster Confession of Faith. At the time, most of the people in the northeast of Scotland, and perhaps a third or more of the entire population were Anglican; but after 1690, those Anglican priests who could not in conscience subscribe to the Westminster standard were no longer permitted to minister to their people.5

A still more pertinent example occurred in Ireland in 1726. The conservative Presbyterian clergy there had, for some time, been alarmed at the unorthodox views of some of the younger clergy. Eventually, it was recommended that all the clergy be required to subscribe to the Westminster Confession of Faith. The matter was fiercely debated for several years. Interim solutions were reached and abandoned. Finally in 1726, the General Synod, meeting in Dungannon, ruled in favor of subscription, whereupon a whole bloc of ministers withdrew from the Synod and formed their own presbytery.

Not all of the unorthodox Irish clergy were remaining in Ireland. Some of them were emigrating to America. Almost simultaneously with Ireland, therefore, America came face to face with the same problem. Shortly thereafter, the conservative clergy in America, like their counterparts in Ireland, began to favor and promote the idea of subscription to the Westminster Confession as a test of orthodoxy. If it seemed to infringe on individual liberty, it had the very great advantage of keeping pure and undefiled the Presbyterian well.

Jonathan Dickinson, of course, objected. For him, being required to subscribe to each and every article of the Westminster Confession would be an even greater infringement on his personal freedom then would the right of a Synod to enact an obligatory law. It was not the Confession itself he objected to; overall he found it a noble document. It was being obliged to subscribe to a mere human standard of religious truth that bothered him. Such reverence, he thought, was due only to the Word of God.

In 1727 an overture was presented to the Synod recommending subscription. For a couple of years no action was taken on the overture, but by 1729 it was clear that the matter could be postponed no longer. A well balanced, eight man committee, including Dickinson, was appointed to deal with the problem and, as in the previous matter of seven years before, a compromise was reached. The committee recommended modified subscription according to the terms of the following Adopting Act:

Altho' the Synod do not claim or pretend to any Authority of imposing our faith upon other men's Consciences, but do profess our just Dissatisfaction with and Abhorrence of such Impositions, and do utterly disclaim all Legislative Power and Authority in the Church, being willing to receive one another, as Christ has received us to the Glory of God, and admit to fellowship in sacred ordinances all such as we have Grounds to believe Christ will at last admit to the Kingdom of Heaven; yet we are undoubtedly obliged to take Care that the faith once delivered to the Saints be kept pure and uncorrupt among Us, and so handed down to our Posterity. And do therefore agree, yt all the Ministers of this Synod, or that shall hereafter be admitted into this Synod, shall declare their agreement in and approbation of the Confession of Faith with the larger and shorter Catechisms of the assembly of Divines at Westminster, as being in all the essential and necessary Articles, good Forms of sound words and systems of Christian Doctrine; and do also adopt the said Confession and Cathechisms as the Confession of our Faith. And we do also agree, yt all the Presbyteries within our Bounds shall always take Care not to admit any Candidate of the Ministry into the Exercise of the Sacred Functions, but what declares his Agreement in opinion with all the Essential and Necessary Articles of said Confession, either by subscribing the said Confession of Faith and Catechisms, or by a verbal Declaration of their assent thereto, as such Minister or Candidate shall think best. And in Case any Minister of this Synod or any Candidate for the Ministry shall have any Scruple with respect to any Article or Articles of sd. Confession or Catechisms, he shall at the Time of his making sd. Declaration declare his Sentiments to the Presbytery or Synod, who shall notwithstanding admit him to ye Exercise of the Ministry within our Bounds and to Ministerial Communion if the Synod or Presbytery shall judge his scruple or mistake to be only about articles not Essential and necessary in Doctrine, Worship or Government. But if the Synod or Presbytery shall judge such Ministers or Candidates erronious in Essential and necessary Articles of Faith, the Synod or Presbytery shall declare them uncapable of Communion with them. And the Synod do solemnly agree, that none or us will traduce or use any opprobrious Terms of thos yt differ from us in these extra-essential and not-necessary points of Doctrine, but treat them with the same friendship, kindness and brotherly Love, as if they had not differed from us in such Sentiments.6

To this statement, the Synod of 1729 unanimously agreed, and then gave thanks to God.

Apparently, the determination was made that the essential and necessary articles of the Confession were so thoroughly founded in Sacred Scripture that a statement of agreement with them, either by subscription or verbally, was tantamount to an approval of the Word of God, and nothing more. So that to require a Christian to do that, imposed no new obligation.

It was a neat solution. The liberals felt that personal freedom had been guaranteed. The conservatives felt that orthodoxy would be preserved. Everyone seemed satisfied, at least for the moment.

GILBERT TENNENT'S APOLOGY OF 1739

Gilbert Tennent's Apology, or apologia, of 1739 concerned two issues, the more important of which was the examination of candidates for the ministry. On this subject, Westminster had said:

It being manifest by the word of God, that no man ought to take upon him the office of a minister of the gospel, until he be lawfully called and ordained thereunto; and that the work of ordination is to be performed with all due care, wisdom, gravity, and solemnity, we humble tender these directions, as requisite to be observed.

1. He that is to be ordained, being either nominated by the people, or otherwise commended to the presbytery, for any place, must address himself to the presbytery, and bring with him a testimonial of his taking the Covenant of the three kingdoms; of his diligence and proficiency in his studies; what degrees he hath taken in the university, and what hath been the time of his abode there; and withal of his age, which is to be twenty-four years; but especially of his life and conversation.

2. Which being considered by the presbytery, they are to proceed to inquire touching the grace of God in him, and whether he be of such holiness of life as is requisite in a minister of the gospel; and to examine him touching his learning and sufficiency and touching the evidences of his calling to the holy ministry, and, in particular, his fair and direct calling to that place.7

Westminster had quite clearly left the examination of candidates up to the presbytery. In 1739, however, when the matter came up for discussion in the "Synod of Philadelphia," as it now called itself,8 the following act was passed:

It being the first article in our excellt. Directory for ye Examinatn. of ye Candidates of ye Sacred Ministry yt they be enquired of, what Degrees they have taken in ye University &c; And it being oftentimes impracticable for us in these remote Parts of ye Earth to obtain an Answr. to these Questions of those who propose themselves to Examination, many of our Candidates not having enjoyed the Advantage of an University Education, and it being our Desire to come to ye nearest Conformity to ye incomparable Prescriptions of ye Directory yt our Circumstances will admit of and after long Deliberation of the most proper Expedients to comply wth. ye Intentions of ye Directory where we cannot exactly fulfil the Lettr. of it, The Synod agree and determine, yt every Person who proposes himself to Trial as a Candidate for the Ministry, and who has not a Diploma or ye usual Cirtificates from an European or New-England University, shall be examined by ye whole Synod or its Commission as to these Preparatory Studies wch. we generally pass thro' at the College, and if they find him qualified, they shall give him a Certificate wch. shall be received by our respective Presbyteries as equivalent to a Diploma or Certificate from the College. This we trust will have a happy Tendency to prevent unqualified Men from creeping in among us, and answer, in the best Manner our present Circumstances are capable of, the Design wch. our Directory has in view, and to wch. by Inclinatn. and Duty we are all bound to comply to our utmost ability.9

By this act, the Synod of Philadelphia required all prospective ministers who had not graduated from either a European or a New-England university, to be examined not by the presbytery, but by the Synod. To this act, Gilbert Tennent, with five other ministers (including Gilbert's father and two brothers) and four elders, protested.

Gilbert's father, William Tennent Sr., was born in Ireland or Scotland in about 1673 and was reared as a Presbyterian. In 1704, however, he took Anglican orders, and he remained an Anglican for the next fourteen years, until 1718 when, at the age of forty-five, he sailed for America and, immediately after landing at Philadelphia, applied for membership in the newly established presbytery. After acceptance into the presbytery, William served for several years in parishes in New York State and then settled in Neshaminy, north of Philadelphia where, in 1736, he began a small college to train Presbyterian ministers. He was a man of great piety and erudition, and in his small cabin, which came to be called somewhat derisively the "Log College," some of the most able Presbyterian ministers of the time, including his own sons, were educated.

William's eldest son, Gilbert, was born in 1703 and, as a boy of fifteen, came to America with his father. Seven years later he entered the ministry and became a rousing, evangelical preacher and the acknowledged leader of the liberal wing of the Presbyterian Church. He was, by all accounts, aggressive and extremely abrasive. E.H. Gillett said of him:

in the history of the period under review, no other name is more frequently mentioned. With a nature incapable of fear, burning zeal in defense of what he deemed to be the truth, a commanding person and powerful delivery, he was destined to exercise, wherever he went, a deep and extensive influence. Yet his charity was sometimes overborne by his zeal. His defense of vital truth assumed, unconsciously, a defiant tone. In dealing with his equals he was betrayed into adopting the tone of a superior, and the model which he seemed to favor was far more that which presented to view the sternness of one of the old prophets, than the gentleness of the beloved apostle.10

The Tennent party took umbrage at the 1739 act for two very obvious reasons: first, that it snubbed the Log College by requiring that prospective ministers be educated either in a European or a New England university, and secondly because it seemed to award excessive authority to the synod.

The "Apology," presented in behalf of the ten dissenters, but undoubtedly composed chiefly by Gilbert Tennent, laid down the following as their principles of church government: 1) that there is a parity of power among ministers: 2) that a presbytery is empowered by Christ to ordain; and 3) that a presbytery is therefore likewise empowered to judge the qualifications of ordinands.

More specifically, the "Apology" went on to say 1) that it is the duty of the presbytery to examine, and then either to admit or refuse, candidates for ordination; 2) that the presbytery is empowered to deny communion to the unqualified; 3) that it is the duty of the presbytery to give its best and most enlightened judgment on cases of conscience presented to it from particular congregations; 4) that the presbytery can promote such activity as seems conducive to the advancement of religion, providing always that such activity does not encroach upon the liberties of people who may dissent; and 5) that it is useful for a synod to offer its best advice on matters brought to it by particular presbyteries, "but we think that they should not proceed with any further authority, except in such cases wherein God has given particular obvious directions in his word, which are to be exactly followed; and even then they do no more than show from Scripture what are the mind and direction of God in such cases, and declare their own resolution to act according thereto, as far as they are concerned."11

As regards the Synod's act requiring Synods to examine candidates, the "Apology" regarded it not only as unscriptural but as antiscriptural, uncharitable, unjust, unnecessary, and of course, antipresbyterial.

In general, said the "Apology,"

We humbly conceive that the aforesaid acts, in their present form, are founded upon a false hypothesis namely, that a majority of Synods or other church judicatories have a power committed to them from Christ to make new rules, acts, or canons about religious matters, on this ground, viz.: That they judge them to be either not against or agreeable to the general directions of the word, and serviceable to religion, which shall be binding on those who conscientiously dissent therefrom, on certain penalties, which are to be inflicted on those who judge the acts they enforce to be contrary to the mind of Christ, and prejudicial to the interests of his kingdom. That is, in brief, a legislative, or law-making power in religious matters, and this we do utterly disclaim and renounce.12

When all was said and done, however, the 1739 overture was passed in the Synod by a large majority with only "The Tennent Ten" dissenting. Even Jonathan Dickinson voted in favor of the act.13 The "Apology" nevertheless made some valid points that would not be forgotten altogether, and that would eventually have their day. Even in the interim, the matter would not be entirely academic. At the synod of the previous year, 1738, Gilbert Tennent and a few other ministers had obtained the right to erect a new presbytery called the New Brunswick Presbytery, and so they were now in a position, on the basis of a conscientious dissent, to ignore the ruling of the Synod regarding ministerial candidates. As a Presbytery they could now, they felt, examine and license their own candidates and conduct their own apostolate in the territory assigned to them.

THE SYNOD OF NEW YORK'S FOUNDATION ARTICLES OF 1745

One could almost predict that a schism was in the making. The insistence of one party on a strong synod and a well ordered society, and of the other party on a strong presbytery and individual freedom, made for a potentially explosive situation. If all that was needed now was a spark, one could almost count on Gilbert Tennent's caustic tongue to provide it.

At this point, however, there was added to the mix a whole new exacerbating element, the Great Awakening, that made schism among the Presbyterians all but inevitable.

In the early part of the eighteenth century religion in America, and in Europe as well, had become to a large extent, a cold, lifeless, impersonal, uninspired affair, a matter of laws and conventions, and of sterile, theological doctrines that meant little to the people. It was the skeleton of religion, the bones of religion, with no soul, no heart, no emotion. But in the 1730s and '40s, there rose up a generation of preachers who could convince great masses of people, at one moment, that they were teetering on the very brink of hell, so close to it that they could feel the heat of the eternal flames and become nauseated by the stench of burning flesh; and the next moment, that they were caught up in the passionate, ecstatic embrace of the all-loving God; saved, redeemed, by the blood of Christ.

William Tennent was one of the first revivalist preachers in America. Another was Jonathan Edwards, "the last and the greatest of the royal line of Puritan mystics."14 In 1727, as a young minister, Jonathan Edwards was called to the church in Northampton, Massachusetts, where his grandfather had served before him. Jonathan was a profound, fervent, godly man, and always a faithful inspiring pastor to his people; but nothing really spectacular happened until 1735. Early that year a young man and woman died suddenly. Edwards took the occasion to remind the young people of his parish that the young as well as the old must be ready at every moment to meet their Judge. Some weeks later a young woman of loose morals underwent a surprising conversion; and suddenly, literally without warning, the floodgates opened and all of Northampton and beyond was swept up in the tide of religious ecstasy.

That was just the harbinger of the great tidal wave of religious revival that would sweep virtually the entire country, spearheaded in large measure by one of the most dramatic preachers of all time, the gifted young Englishman, George Whitefield. Evidently Whitefield's voice was magic, a phenomenal musical instrument that could cast a spell over twenty or thirty thousand people in the open air, sometimes for hours at a time. The actor, David Garrick, once said that Whitefield could make audiences weep or tremble merely by pronouncing Mesopotamia; and Garrick said, too, that he would give a hundred guineas if only he could say 'O!' like Mr. Whitefield.15

Even Benjamin Franklin found Whitefield irresistible. He wrote in his _Autobiography_ :

In 1739 arrived among us from Ireland the Reverend Mr. (George) Whitefield, who had made himself remarkable there as an itinerant preacher. He was at first permitted to preach in some of our churches; but the clergy, taking a dislike to him, soon refus'd him their pulpits, and he was oblig'd to preach in the fields. The multitudes of all sects and denominations that attended his sermons were enormous, and it was a matter of speculation to me, who was one of the number, to observe the extraordinary influence of his oratory on his hearers, and how much they admir'd and respected him, notwithstanding his common abuse of them, by assuring them they were naturally 'half beasts and half devils.' It was wonderful to see the change soon made in the manners of our inhabitants. From being thoughtless or indifferent about religion, it seem'd as if all the world were growing religious, so that one could not walk thro' the town in an evening without hearing psalms sung in different families of every street. ...

Mr. Whitefield, in leaving us, went preaching all the way thro' the colonies to Georgia. The settlement of that province had lately been begun, but, instead of being made with hardy, industrious husband men, accustomed to labor, the only people fit for such an enterprise, it was with families of broken shopkeepers and other insolvent debtors, many of indolent and idle habits, taken out of the jails, who, being set down in the woods, unqualified for clearing land, and unable to endure the hardships of a new settlement, perished in numbers, leaving many helpless children unprovided for. The sight of their miserable situation inspir'd the benevolent heart of Mr. Whitefield with the idea of building an Orphan House there, in which they might be supported and educated. Returning northward, he preach'd up this charity, and made large collections, for his eloquence had a wonderful power over the hearts and purses of his hearers, of which I myself was an instance.

I did not disapprove of the design, but, as Georgia was then destitute of materials and workmen, and it was proposed to send them from Philadelphia at a great expense, I thought it would have been better to have built the house there, and brought the children to it. This I advis'd; but he was resolute in his first project, rejected my counsel, and I therefor refus'd to contribute. I happened soon after to attend one of his sermons, in the course of which I perceived he intended to finish with a collection, and I silently resolved he should get nothing from me. I had in my pocket a handful of copper money, three or four silver dollars, and five pistoles in gold. As he proceeded I began to soften, and concluded to give him the coppers. Another stroke of his oratory made me asham'd of that, and determin'd me to give the silver; and he finished so admirable, that I empty'd my pocket wholly into the collector's dish, gold and all ...

He had a loud and clear voice, and articulated his words and sentences so perfectly, that he might be heard and understood at a great distance, especially as his auditories, however numerous, observ'd the most exact silence. He preach'd one evening from the top of the Court-house steps, which are in the middle of Market-street, and on the west side of Second-street, which crossed it at right angles. Both streets were fill'd with his hearers to a considerable distance. Being among the hindmost in Market-street, I had the curiosity to learn how far he could be heard, by retiring backwards down the street towards the river; and I found his voice distinct till I came near Front-street, when some noise in that street obscur'd it. Imagining then a semi circle, of which my distance should be the radius, and that it were fill'd with auditors, to each of whom I allow'd two square feet, I computed that he might well be heard by more than thirty thousand.16

George Whitefield first came to America in 1739, and returned again the following year. Though easily the most brilliant of the evangelical preachers, there was a host of others, and all over America religion was being awakened as from a deep sleep. There were, of course, abuses. There was much trembling and quaking and swooning and moaning and shrieking, some of which was certainly pathological; but on balance, it was surely a timely, much needed movement that breathed new life into a moribund religion. As E.H. Gillett said, "If it sometimes burnt the standing corn, it consumed an immense mass of stubble."17

As one might imagine, the two parties within Presbyterianism took quite opposite views of the Great Awakening. The conservatives found all this emotionalism dangerous and undermining of good order, while the liberals found the revival refreshing and altogether healthy. The conservatives began to refer to the liberals as the "New Lights," a term which suggested that their views were not genuinely Presbyterian; and the two parties came to be known as the "Old Side" and the "New Side." Gilbert Tennent began to refer to the Old Siders as "graceless" and as "pharisee shepherds," and by the time of the 1741 Synod, tempers had reached the boiling point.

Not only that, but the issues themselves had become more complicated. On the question of the examination of candidates for the ministry, the Old Siders were insisting on intellectual training and adherence to the doctrinal standards of the Westminster Confession, while the New Siders were emphasizing the spiritual preparation of the candidates and whether they were "gracious." For the Old Siders the enemy was heresy, for the New Siders it was man's selfishness and indifference. For the Old Siders the "calling" to ordination was the external call of the Church, whereas for the New Siders it was the inner call from God. The Old Siders were of the opinion that a legitimate motive for a virtuous life was that virtue was, by God's good design, conducive to personal happiness while the New Siders held that everything must be done solely for the glory of God. The preaching styles of the Old and New Siders were, of course, drastically different. On top of it all, the old question of subscription had once again become an issue. At the Synod of '36, with practically all of the liberals absent, the conservatives passed an act once again requiring strict, or _ipsissima verba_ , subscription to the Westminster Confession, Catechisms and Directory as a condition for ministerial membership in the Presbyterian Church of America.

Given all this, the outcome of the 1741 Synod was practically a foregone conclusion. The meeting itself did turn out to be a donnybrook that ended in schism. During the course of the meeting, the conservatives brought in a _Protestation_ in which they claimed that the Tennent brethren were the direct cause of the confused state of the Church

... by their unwearied, unscriptural, antipresbyterial, uncharitable divisive Practices, which they have been pursuing, with all the Industry they were capable of, with any Probability of Success, for above these twelve Months past especially; besides too much of the like practices for some years before, tho' not with such barefaced Arrogance and Boldness.18

The Old Siders gave seven specific reasons for their objections to the Tennent group, the first being:

Their heterodox and anarchial Principles expressed in their Apology pages 28 & 39, where they expressly deny that Presbyteries have Authority to oblige their dissenting Members, and yt Synod should go any further, in Judging of Appeals or References &c. than to give their best Advice; which is plainly to divest the officers and Judicatories of Christ's Kingdom of all authority (and plainly contradicts the 31st Article of our Confession of Faith, Sect. 3,19 which these Brethren pretend to adopt) agreeable to which is the whole Superstructure of Arguments which they advance and maintain against not only our Synodical Acts, but also all Authority to make any Acts or orders, yt shall bind their dissenting Members, throughout their whole Apology.20

The other six reasons offered by the conservatives for protesting the Tennent party were that they were licensing and ordaining men in contempt of the Synod, that they were engaging in itinerant preaching in conservative parishes, thereby sowing the seeds of division among the people, that they were going about rash judging their conservative brethren and calling them carnal and graceless, that their theology regarding the call to the ministry was incorrect, that their emotionally charged preaching was disruptive of the worship services and generally hideous and finally that it was improper to inquire into a person's conversion experience.

Of the forty-seven standing members of the Synod, only twenty-six were present at the 1741 meeting, and only twenty-two voted. Of those twenty-two, twelve were apparently in favor of the _Protestation_ and, as unjust as it may seem on the basis of those few votes, the Tennent group was declared unwelcome in the Synod and summarily ejected. As Charles Hodge, himself an Old Sider Champion, said

It is plain ... that not even the forms of an ecclesiastical, much less of a judicial proceeding, were observed at this crisis. There was no motion, no vote, not even a presiding officer in the chair. It was a disorderly rupture. A number of the Synod rise and declare they will no longer sit with certain of their brethren, unless they satisfy their complaints. The members complain of, answer, You are dissatisfied and are the minority, Therefore you must go out; and then a confused rush is made to the roll to see which was the stronger party. Such was the schism of 1741.21

Among the twenty-one men absent from the 1741 Synod were practically all the moderates, including Jonathan Dickinson (who, two years before, had voted against the Tennents on the question of examining candidates for the ministry) and the entire New York Presbytery. At the 1742 Synod, however, Dickinson and several members of the New York Presbytery were present, and Dickinson was even chosen as Moderator. At that meeting, Dickinson and a few others presented an overture to the Synod requesting that the 1742 Synod come to some judgment on the legality of the previous Synod's expulsion of the Tennent group. The request was denied. Whereupon Dickinson and nine others protested the decision and went on to state that, until a fair trial was held, the New Siders should be considered members in good standing of the Synod. Several other efforts were made to effect a reconciliation and when all failed, the New York Presbytery announced at the Synod held the following year that they would give serious consideration to joining the New Side and forming a synod of their own. Negotiations dragged on for another couple of years, but the Old Side was, in general, extremely resistant to any modification of the basic points made in the _Protestation_ , and, finally, in 1745 the New York Presbytery joined the Tennent group in what became known as the Synod of New York.

For the next many years the Synod of New York would be New Side and the Synod of Philadelphia Old Side.

On forming the new synod, the members declared the following points to be the plan and foundation of their union:

1. They agree that the Westminster Confession of Faith, with the larger & shorter Catechisms be the publick Confession of their Faith in such Manner as was agreed unto by the Synod of Philadelphia in the Year 1729 & to be Inserted in the latter End of this Book. And they declare their Approbation of the Directory of the Assembly of Divines at Westminster as the general Plan of Worship & Discipline.

2. They agree that in Matters of Discipline & those things, that related to the Peace & good Order of our Churches, they shall be determined according to the major Vote of Ministers, & Elders, with which Vote every Member Shall actively concur or pacifically acquiesce: but If any Member cannot in Conscience agree to the Determination of the Majority but supposes himself obliged to act contrary therunto & the Synod think themselves obliged to insist upon it as essentially necessary to the well-being of our Churches; in that Case Such dissenting Member promises peaceably to withdraw from the Body, without endeavouring to raise any Dispute or Contention upon the debated Point or any unjust Alienation of Affection from them.

3. If any Member of their Body supposes that he hath any thing to object against any of his Brethren with Respect to Error in Doctrine, Immorality in Life or Negligence in his Ministry, he shall not on any Account propagate the Scandal, until the Person objected against is dealt with according to the Rules of the Gospel & the known Methods of their Discipline.

4. They agree that all who have a competent Degree of Ministerial Knowledge, are orthodox in their Doctrine, regular in their Lives, & diligent in their Endeavours to promote the important Designs of vital Godliness & that will submit to their Discipline shall be chearfully admitted into their Communion.

And they do also agree, that in Order to avoid all divisive Methods among their Ministers and Congregations & to strengthen the Discipline of Christ in the Churches in these Parts, they will maintain a Correspondence with the Synod of Philadelphia in this their first Meeting, by appointing two of their Members to meet with the sd. Synod of Philada. at their next convention & to concert with them such Measures as may best promote the precious Interests of Christ's Kingdom in these Parts.

And that they may in no Respect encourage any factious separating Practices or Principles, they agree that they will not intermeddle with Judicially Hearing the Complaints, or with Supplying with Ministers & Candidates such Parties of Men, as shall Separate from any Presbyterian, or congregational Churches, that are not within their Bounds, unless the Matters of Controversie be submitted to their Jurisdiction or Advice by both Parties.22

Such were the guiding general principles that would rule the Synod of New York for the next thirteen years, until 1758, when the two synods would finally be united again.

THE PLAN OF UNION OF 1758

The year after the Synod of New York was formed, 1746, William Tennent died, and with him the Log College. The following year, however, the New Side obtained a charter for the College of New Jersey, and Jonathan Dickinson, who, incidentally, was fifteen years younger than William Tennent and fifteen years older than Gilbert, became its first president. But before the year was out, he too died.

Despite the untimely deaths of its early presidents, Princeton itself flourished and became an embarrassment to the Old Side, which had nothing really to match it. As Princeton went, so went the entire struggle. The New Side flourished and flourished while the Old Side withered and withered, until 1758, when the two sides were ready at last for reconciliation.

Five years before that, in 1753, the New Side had stated, with remarkable clarity, its continued, indispensable conviction about Christian liberty vis à vis the legislative powers of the Church:

Difference in Judgment Should not oblige a dissenting Member to withdraw from our Communion, unless the Matter were Judged by the Body, to be essential in Doctrine or Discipline. And this we must own is an important Article with us, which we cannot any way dispense with. And it appears to us to be Strictly Christian & Scriptural, as well as presbyterian. Otherwise we must make every thing, that appears plain Duty to us, a Term of Communion; which we apprehend the Scripture prohibits. And it appears plain to us, that there may be many Opinions relating to the great Truths of Religion, that are not great themselves, nor of Sufficient Importance to be made Terms of Communion. Nor can these Sentiments "open a Door to an unjustifiable Latitude in Principles & Practices," any more than the apostolick Prohibition of receiving those that are week(sic) to doubtful Disputations. What is plain sin & plain Duty in ones Account, is not so in another's. And the Synod has still in their Power to Judge what is essential & what is not. In Order to prevent an unjustifiable Latitude we must not make Terms of Communion, which Christ has not made, & we are convinced, that he hath not made every truth & every Duty a Term.23

When it came time for the reconciliation, this issue remained one of those that had to be resolved. According to Charles Augustus Briggs, there were four such issues: 1) this business of Christian liberty, 2) the question of subscription to the Westminster standards, 3) the validity of the 1741 ejection of the Log College men, and 4) the proper attitude towards the Great Awakening.24

The entire "Plan of Union" runs several pages and need not be quoted in full, but insofar as it touches on these four issues, the Plan certainly deserves attention.

As regards the issue of Christian liberty, the Plan virtually restated Article 2 of the Synod of New York's principles:

That when any Matter is determined by a Major Vote, every Member shall either actively concur with or passively submit to, such Determination; or, if his Conscience permit him to do neither, he shall, after sufficient Liberty modestly to reason & remonstrate, peaceably withdraw from our Communion, without Attempting to make any Schism: Provided Always that this shall be understood to extend only to Such Determinations, as the Body shall Judge indispensable in Doctrine or Presbyterian Government.

On the matter of subscription, which was always seen as a specific instance of the general freedom issue, the Plan said this:

Both Synods having always approved and Received the Westminster Confession of Faith, larger & shorter Catechisms, as an orthodox & excellent System of Christian Doctrine, founded on the Word of God; we do Still receive the same as the Confession of our Faith, and also adhere to the Plan of Worship Government & Discipline contained in the Westminster Directory, strictly enjoyning it on all our Members & probationers for the Ministry, that they preach & teach according to the form of Sound Words in sd. Confession & Catechisms, & avoid & oppose all Errors contrary thereto.

On the same subject, the Plan went on to say:

That no Presbytery25 shall license or ordain to the work of the Ministry, any Candidate, until he give them competent Satisfaction as to his Learning and experimental Acquaintance with Religion & Skill in Divinity & Cases of Conscience; & declare his Acceptance of the Westminster Confession & Catechisms, as the Confession of his Faith, & promise Subjection to the Presbyterian Plan of Government in the Westminster Directory.

This article would seem to be some sort of compromise. There is no explicit mention in it of the 1729 act or of the 1736 interpretation but, in general, it appears to reproduce the substance of the original Adopting Act of 1729 and to incorporate all of its merits as well as its demerits.

In respect to the validity of the 1741 expulsion, the Plan of Union awarded a much clearer victory to the New Side:

As the Protestation, entered in the Synod of Philadelphia, Ann. Dom. 1741 has been apprehended to have been approved & received by an Act of sd. Synod, & on that Account was Judged a Sufficient Obstacle to an Union; the sd. Synod declare, that they never Judicially adopted the sd. Protestation nor do account it a Synodical Act; but that is to be considered as the Act of those only who subscribed it; And therefore cannot in its Nature be a valid Objection to the Union of the two Synods; especially, considering that a very great Majority of both Synods have become Members, Since the sd. Protestation was entered.

On the final point, the question of the proper attitude towards the Great Awakening, the Plan of Union, while rejecting abuses, made a favorable judgment of the movement itself:

As the late religious Appearances occasioned much Speculation & Debate, the Members of the New York Synod, in Order to prevent any misapprehensions, declare their Adherence to their former Sentiments in favour of them, that a blessed work of God's holy Spirit in the Conversion of Numbers, was then carried on: And for the Satisfaction of all concerned, this United Synod agree in declaring, that as all Mankind are naturally dead in trespasses & sins, an entire Change of heart & Life is necessary, to make them meet for the Service & Enjoyment of God; that Such a Change can be only effected by the powerful Operations of the divine Spirit; that when Sinners are made sensible of their lost Condition, & absolute Inability to recover themselves; are enlightened in the knowledge of Christ & convinced of his Ability & willingness to save; and, upon Gospel Encouragements do choose him for their Saviour; and renouncing their own Righteousness in Point of Merit, depend upon his imputed Righteousness for their Justification before God, and on his Wisdom & Strength for Guidance & Support: When upon these Apprehensions & Exercises, their Souls are comforted, notwithstanding all their past Guilt, & rejoyce in God, thro Jesus Christ; when they hate & bewail their Sins of Heart and Life; delight in the Laws of God, without Exception; Reverently & diligently attended his Ordinances; become humble and self denied; and make it the business of their Lives to please & glorify God and to do good to their fellow-Men: This is to be acknowledged as a gracious Work of God, even tho it Should be attended with unusual bodily Commotions, or some more exceptionable Circumstances, by means of Infirmity, temptations, or remaining Corruptions. And wherever religious Appearances are attended with the good Effects above-mentioned, we desire to rejoice in, & thank God for them.

But on the other hand, when Persons seeming to be under a religious Concern, Imagine that they have Visions of the humane Nature of Jesus Christ, or hear Voices, or see external Lights, or have fainting or Convulsion-like fits, and on the Account of these, Judge themselves to be truly converted, though they have not the Scriptural Characters of a Work of God above described, we believe such Persons are under a dangerous Delusion. And we Testfy our utter Disapprobation of Such a Delusion, wherever it attends any religious Appearances, in any Church, or Time.26

It was in such a manner that the 1758 Plan of Union settled what were probably the four major barriers to reunion. In general, the New Side, by this time the far stronger side, was vindicated; the two Synods became one under the title "The Synod of New York and Philadelphia." Significantly, the Synod of New York, though the younger of the two, got top billing.

THE ACT OF 1774 ON ADMITTING FOREIGN MINISTERS

Without making a major issue of it, the Plan of Union endorsed Gilbert Tennent's position of almost twenty years before, that it was the right of the presbytery rather than the synod to examine candidates for the ministry. Some few years later, in 1764 (the year Gilbert Tennent died), and again in 1765, some concern was voiced on the related matter of receiving probationers and ministers from foreign countries, especially from places where discipline and piety tended to be lax. When asked to comment on this matter, the Synod of New York and Philadelphia, with admirable consistency, never even hinted that perhaps such problems could be handled on the synodal level, but instead simply recommended that the presbyteries utilize careful scrutiny and caution.27

At that point, however, something altogether bewildering happened. It was as though the two teams left the field for a respite, and when they returned, they had switched uniforms. Yale was wearing the orange and black and Princeton the blue. Henceforth it would be very difficult to tell the players even _with_ a program.

Circumstances, of course, had changed. The New Side was now in control of the Synod, and suddenly it dawned on them that the rights of presbyteries were not quite as inviolable as they had always maintained. The Old Siders, on the other hand, were firmly in control of a few presbyteries and, in a complete flip-flop, they began to champion what yesterday they had denounced - the sacred and fundamental autonomy of the presbytery. Expedience, it seems, had vanquished principle.28

It began at the 1773 Synod when the following overture was made by the New Side minister, John Roan:

Whereas there have been repeated Complaints from serious Persons of the Degeneracy of many of the Presbyterian Denomination in Great Britain and Ireland and their falling off from the great Doctrines of the Reformation so that it is very possible there may be Presbyteries the Majority of which would not be unwilling to license or recommend Ministers unsound in the Faith. It seems to be of Moment to guard against the Admission of Strangers into this Body before their Principles and Character are thoroughly ascertained. Therefore it is Overtured that no Presbytery be permitted to receive any Stranger under the Character of Minister or Candidate or to give him Appointments in the Congregations under our Care until the Synod that shall meet next after their Arrival that the whole Testimonials and Credentials offered by such Persons be laid before the Synod to be by them considered and Judged of in Order to their Admission or Rejection.29

The Second Presbytery of Philadelphia, the Old Side stronghold, then unanimously dissented from this overture, offering as its first reason:

Because it takes away from the Presbyteries some of their essential Rights, restraining them from performing the Duties of ordaining and admitting Ministers agreeable to the Scriptures and the Constitution and Practice of the Presbyterian Churches. Christ has vested his Ministers with certain Powers for the Edification of his Church which they may not surrender nor deliver up to the Dominion of any Man or any Body of Men what ever: If they Err in the Exercise of their Powers they are accountable to the higher Judicatories of the Church but they are not to be deprived of them merely because they may err in the Exercise of them.30

Gilbert Tennent could not have said it better, but here were his very sentiments being eloquently stated by his former opponents. Presumably, in doing so, they were able to keep a straight face.

Despite the opposition, John Roan's overture passed by a small majority in 1773 and was enacted. The following year, however, the Old Side requested a review of the matter and this time they succeeded in having the act of 1773 reversed. A committee was then appointed to draft a new regulation which, after some discussion and amendment, was passed unanimously. The new act somehow managed to affect a neat compromise, at once saving the right of the presbytery to make the judgment, but awarding the Synod the right to review. The act read:

Whereas it is of the highest importance to the interest of the Redeemer's Kingdom that the greatest care be observed by church judicatures to maintain orthodoxy in doctrine and purity in practice in all their members, this Synod, in addition to the agreement upon this head of the year 1764 and farther explained in the year 1765, do most earnestly recommended it to all their Presbyteries to be very strict and careful respecting these matters, especially in examining the certificates and testimonials of ministers or probationers who come from foreign churches; and that they be very cautious about receiving them, unless the authenticity of their certificates and testimonials be supported by private letters or other credible and sufficient evidence; and in order the more effectually to preserve this Synod, our Presbyteries, and congregations from imposition and abuse every year when any Presbytery may report that they have received any ministers or probationers from foreign churches, that Presbytery shall lay before the Synod the testimonials and all other certifications upon which they received such ministers or probationers, for the satisfaction of the Synod before such foreign ministers or probationers shall be enrolled as members of our body; and if the Synod shall find the said testimonial false or insufficient, the whole proceedings had by the Presbytery in the admission shall be held to be void. And the Presbytery shall not from that time receive or acknowledge him as a member of this body, or in ministerial communion with us. And on the other hand, whensoever any gentlemen from abroad shall come duly recommended as above we will gladly receive them as brethren and give them every encouragement in our power.31

Despite all the temporizing, therefore, the final solution seems to have come out right side up, with all the precious powers of both synod and presbytery still intact, and with no reversal in the development of the American style of governing.

Despite the temporizing, there had undoubtedly been a development, a refinement, a growing appreciation of the issues. It is probably true that, over the years, a consensus developed regarding the practical meaning of the phrase, "God alone is the Lord of conscience," that it meant that only the very essentials should constitute terms of union, that a modified subscription to the Westminster standards was sufficient, that no judicatory was empowered to add new doctrines or new commandments beyond those that Jesus had taught, that busybody synods should be resisted, and that both the good order of the community and the rights of individual persons must be diligently protected.

CONCLUSION

During this grand debate, which lasted a half century or so, the Presbyterian position was sharpened regarding several issues, many of which are still vital today, not only among Presbyterians but among Catholics as well. The principle issues, as noted, were 1) the right to legislate and 2) local autonomy; but other important matters touched on were 3) the legitimacy of what we would call the charismatic movement, 4) keeping terms of church membership to an absolute minimum, 5) the prevailing right of individual conscience, 6) the Gospel as touchstone of all faith and order directives, and 7) the voting rights of laypersons.32

Even more important than the individual issues, however, was the general approach by the Colonial Presbyterians to the search for truth. It was a direct, unfettered, uninhibited approach, which was probably quite typical of the general spirit of independence that characterized America at that time. People spoke their minds without worrying about what their "superiors" might think. It was a time when people could be honest with themselves, and a time, therefore, when truth had at least a fighting chance.

One cannot read of this debate, however, without realizing that truth is never available simply for the asking, even by an honest man. Truth is, above all, a gift from the Spirit. Left to ourselves we remain prisoners of our vested interests and prejudices. This, indeed, is precisely what happened to the Colonial Presbyterians. Fortunately, however, they trusted in the promise of Jesus that "the Advocate, the Holy Spirit, whom the Father will send in my name, will teach you everything and remind you of all I have said to you."33 And the Spirit set them straight.

Return to TOC

1982

ENDNOTES

1 _Minutes of the Presbyterian Church in America 1706-1788_ , ed. Guy S. Klett (Philadelphia: Presbyterian Historical Society, 1976), p. 51. Hereafter cited as _Minutes_.

2 _Minutes_ , pp. 57-58.

3 The Confession of Faith, Agreed Upon by the Assembly of Divines at Westminster, with the Larger Catechism, The Shorter Catechism, The Directory for Publick Worship, and the Form of Presbyterial Church Government (Edinburgh: William Blackwood and Sons, 1969), p. 31. Article II of Chapter XX, Of Christian Liberty, and Liberty of Conscience. Hereafter cited as "The Westminster Confession of Faith."

4 John R.H. Moorman, _A History of the Church of England_ (New York: Morehouse-Gorham Co., 1954), pp. 238-239.

5 Leonard J. Trinterud, _The Forming of An American Tradition_ (Freeport, NY: Books for Libraries, 1970; first published in 1949), p. 39.

6 _Minutes_ , pp. 103-104.

7 _The Westminster Confession of Faith_ , pp. 182-183. From "The Form of Presbyterial Church Government" under the title "The Directory for the Ordination of Ministers."

8 Trinterud, p. 110.

9 _Minutes_ , p. 162.

10 E.H. Gillet, _History of the Presbyterian Church in the United States of America_ , 2 volumes (Philadelphia: Presbyterian Board of Publication, 1864), vol. I, p. 59.

11 Charles Hodge, _The Constitutional History of the Presbyterian Church in the United States of America_ , 2 volumes (Philadelphia: Presbyterian Board of Education, 1851), vol. II, pp. 104-105.

12 _Ibid._ , vol. II, pp. 106-107.

13 _Minutes_ , pp. 162-163, and Hodge, vol. II, p. 111.

14 Vernon Louis Parrington, _The Colonial Mind 1620-1800_ (New York: Harcourt, Brace and Co., 1927), p. 152.

15 Richard Hofstadter, _America of 1750, A Social Portrait_ (New York: Vintage Books, 1973), p. 245.

16 Benjamin Franklin, _The Autobiography and Other Writings of Benjamin Franklin_ (New York: Dodd, Mead and Co., 1963), pp. 114-117.

17 Gillett, vol I, p. 87.

18 _Minutes_ , p. 187.

19 This section reads, "It belongeth to synods and councils ministerially to determine controversies of faith and cases of conscience; to set down rules and directions for the better ordering of the publick worship of God, and government of his church; to receive complaints in cases of mal-administration, and authoritatively to determine the same; which decrees and determinations, if consonant to the word of God, are to be received with reverence and submission, not only for their agreement with its word, but also for the power whereby they are made, as being an ordinance of God, appointed thereunto in his word." _The Westminster Confession of Faith_ , p. 46.

20 _Minutes_ , p. 188.

21 Hodge, vol. II, p. 158.

22 _Minutes_ , pp. 263-264.

23 _Minutes_ , p. 287.

24 Charles Augustus Briggs, _American Presbyterianism, Its Origin and Early History_ (New York: Charles Schribner's Sons, 1885), p. 317.

25 It is noteworthy that it is to the Presbytery, and not to the Synod, that the Plan assigns the right to examine candidates.

26 _Minutes_ , pp. 334-336.

27 _Minutes_ , pp. 398-399 and 405.

28 Hodge, vol. II, pp. 312 and 331.

29 _Minutes_ , pp. 516-517.

30 _Minutes_ , p. 517.

31 _Minutes_ , p. 531.

32 This last point was never disputed by Presbyterians but is, of course, by Catholics. Article 2, for example, of the 1745 Foundation Articles of the Synod of New York noted that "Matters of Discipline and those things, that relate to the Peace and good Order of our Churches ... shall be determined according to the major Vote of _Ministers, and Elders_ " (italics mine) whereas canon 536, §2 of the revised Code awards only a consultative vote to the laypeople on a parish council.

33 John 14:26.

# ARTICLE SEVEN

## SOME NOTES ON THE PETRINE PRIVILEGE

The chairman of the Department of History at Yale wrote recently that "in all history writing the scholar is faced with the nagging knowledge that he is omitting almost everything."1 In the writing of this present article that "nagging" was acute. This is a paper on the Petrine Privilege but the fact is that "almost everything" on that subject has been omitted.

Perhaps, however, what has been included will be of some help. The article attempts only to gather under one roof a few more or less widely circulated but salient bits of information about the Petrine Privilege. We begin with the term itself.

THE TERM

The earliest demonstrable use of the term "Petrine Privilege" was by Franz Hürth, S.J. in his unpublished 1946 class notes for use at the Gregorian University.2 It was by reason of these notes that Hürth has been credited with having _coined_ the term.3

A decade later Hürth went public with the term in an article published in _Periodica_ entitled "Notae Quaedam Ad Privilegium Petrinum"4 and, in so doing, he _popularized_ the term. As Navarrete noted:

Before this article few authors used the term; after it, many did and all of them cited Hürth, even if they disagreed with him in his definition of a Petrine Privilege.5

Among the "many" authors who used the term in the 1950s and 1960s were Abate, Alonso, Bánk, Bender, Bride, Buijs, Coronata, Fanfani, Gortebecke-Beyer, Iorio, Monserrat, Mörsdorf, Wenner and Zalba.6 Not all of them, as Navarrete observed, took kindly to the term.7

But despite the considerable opposition to the term, and despite the fact that there has never been any official recognition of it, the term nevertheless has caught on and held on. It did so because it was reasonably accurate and extremely useful.

It was reasonably accurate. The only marriage that _cannot_ "be dissolved by any human power or for any reason other than death" is the marriage between two baptized people that is consummated.8 One may conclude from this that, as far as the baptismal status of the parties is concerned, the following marriages _can_ be dissolved: a) the marriage of two unbaptized people, one of whom converts; b) the marriage of two unbaptized people, neither of whom converts; c) the marriage of two people, one of whom is unbaptized and the other baptized. The _Pauline_ Privilege is applicable, as c. 1143, §1 indicates, only in situation a. If, therefore, the marriages described under b. and c. are to be dissolved (and, as c. 1141 suggests, they are dissoluble), it is done by what is known as the _Petrine_ Privilege. By making that observation one does not, of course, magically and automatically create a highly precise definition of the Petrine Privilege. At the same time, however, the observation does describe the general ambit of the Petrine Privilege, and many canonists have found that description as well as the term itself reasonably accurate.

The term is also an extremely useful one. The marriage described above under situation a. can be handled by the diocesan bishop as a Pauline Privilege. The marriages described under b. and c. must be sent to the Holy See. In effect, therefore, there are two different types of cases, two types of cases that differ significantly from one another, not just in that one stays home while the other goes to Rome but also in that the Pauline case is less expensive and less time consuming than the other type of case.9 In discussing these two types of cases and the differences between them, parish priests and practitioners of the law need a term that is direct, descriptive and juxtapositive. The term "Petrine Privilege" has fit the bill nicely. It has the right ring to it and makes certain notions immediately clear. "Petrine" shows that, in some ways, it is different from its Pauline cousin. "Privilege" shows that, in other ways, it is like it. It has, in short, proved an extremely useful term and, while not perfect, is simply too good to give up.

THE MOMENT OF DISSOLUTION

When Hürth wrote his article in 1956 he saw as a chief difference between the two privileges that in the Pauline it is the second marriage that dissolves the first, whereas in the Petrine, it is the Holy Father who directly dissolves the first marriage "by a positive act of dispensation."10 This distinction became widely accepted and found its way into much of the literature on the subject. In the _New Catholic Encyclopedia_ , for example, the author of the article on "Favor of the Faith Cases" noted that "In cases of Pauline privilege the dissolution takes place at the time when the party who is converted and baptized contracts a second marriage. In cases of privilege of the faith, on the other hand, the marriage bond is dissolved at the moment the pope exercises his apostolic power."11

As early as 1959, however, the Hungarian canonist, Joseph Bánk, in his manual on the canon law of marriage, expressed a different opinion. He wrote:

_When does the Petrine Privilege take effect?_ The question arises whether the dispensation granted by the privilege of the faith dissolves the bond _ipso facto_ or whether it merely grants the right to dissolve it when and if the dispensed party enters another marriage. As already noted, in the case of the Pauline Privilege the bond of the natural law is dissolved _at the moment_ the new marriage is entered. The same might be said of the privilege of the faith; indeed, the analogy of the two cases suggests this is so ( _analogia iuris_ ).

For in both cases the juridic basis is the same, namely the favor of the faith ...

But what is the point of the dispensation except that the parties enter another marriage? And if the baptized parties do not wish to enter another marriage, then the previous bond involves neither a danger to the faith nor any sort of servitude. Therefore, the previous bond is only dissolved by the new marriage of the person for whom the dispensation was granted. The dispensation of the Roman Pontiff, therefore, only affords the _right_ to dissolve the marriage, in the same way that a negative response to the interpellations does in the case of the Pauline Privilege.12

Within a few years of the term's epiphany, therefore, at least one author had already taken the position that the moment of dissolution was a source not of dissimilarity, but rather of similarity between the two privileges. For many years this position of Bánk remained only one opinion and a minority opinion at that, but beginning in 1977 the Congregation for the Doctrine of the Faith began issuing a series of private responses indicating that Bánk's position was the approved one.

In 1977 the Hartford tribunal forwarded to the Congregation a case in which the nonbaptism of the respondent was quite clearly proved but in which the petitioner had no immediate plans or prospects for a second marriage. The Congregation wrote asking for specific information regarding a future marriage of the petitioner. Hartford replied that the petitioner had no specific plans but simply wanted to be free to remarry. Then, on January 17, 1978 under protocol number 1260/77M Archbishop Hamer wrote that the privilege could not be granted at that time. "According to recent grants of the Supreme Pontiff," he wrote, "a dissolution of marriage in favor of the faith is only obtained from contracting a new marriage - _tantum obtineri ex novo matrimonio contrahendo_ \- regarding the celebration of which marriage the Church should have certain knowledge."13

So Bánk's 1959 opinion may now be regarded at the "official" position.

A CHRONOLOGY OF THE GRANTS

Prior to the 1917 code, the Petrine Privilege was unnecessary since, in those days, the impediment of disparity of cult bound not just Catholics but other baptized people as well.14 In practice, therefore, whenever a baptized non-Catholic married a nonbaptized person, the Church considered that marriage null by reason of the undispensed diriment impediment of disparity of cult.

Canon 1070 of the 1917 code restricted the impediment of disparity of cult to Catholics alone, and this created a "new" situation. When the marriage between, say, a Protestant and a Jew broke down, and one of those parties then wished to marry a Catholic, would the validity of the first marriage have to be investigated with a view towards declaring it null or could that marriage perhaps be dissolved?

In less than a decade Rome, in effect, answered "in the affirmative to the second part" and the Petrine Privilege was launched. Briefly15 the Petrine grants over the years may be summarized as follows:

1924 - Pius XI, only seven years after the code, which recognized no such power, dissolved a marriage between a baptized Protestant and an unbaptized person, with the Protestant becoming a Catholic.

1946 - Pius XII dissolved a marriage between a Catholic and an unbaptized person which had taken place before a priest, with a dispensation from disparity of worship. The nonbaptized person had become a Catholic.

1953 - Pius XII dissolved a marriage between a Catholic and an unbaptized person which had taken place before a priest, with a dispensation from disparity of worship. The Catholic wished to remarry. No conversion was considered necessary.

1960s - John XXIII and Paul VI granted thousands of Petrine Privileges in which no conversion was involved.

1970 - Requests for Petrine Privileges in which no conversion was involved were returned ungranted with a note that a conversion was considered a necessary condition for the Privilege.16

1973 - The practice of granting Privileges without conversion was reinstituted by the new Instruction and Norms of December 6, 1973.17

THE NORMS

The first norms regarding the procedures to be followed in a Petrine Privilege case were issued by the Holy Office on May 1, 1934, with the notation that they were not to be considered public law but should be observed as internal norms for use in tribunals. They were sent privately to the ordinaries of the world and may still be found in many tribunal libraries. The norms, or articles, were eighteen in number and discussed the roles of the pontiff and of the Holy Office, the conditions required, the types of proof, the role of the defender, and observations about the motives for conversion, causes of marriage failure, religious education of the children, if any, hope of reconciliation, if any, the possibility of scandal, and reasons favoring the granting of the privilege.

On December 6, 1973 the Congregation for the Doctrine of the Faith issued "privately" a new instruction along with new norms. The instruction lists the conditions necessary for the granting of the privilege. The norms, sixteen in number, cover, in general, the same areas as the 1934 norms.

NORM V

Norm V of the 1973 norms reads as follows:

Dissolution of a valid, nonsacramental marriage entered into with a dispensation from the impediment of disparity of cult is not granted to a Catholic party who petitions to enter a new marriage with a nonbaptized person who is not a convert.

The norm clearly speaks of a _Catholic_ petitioner. Within a year or so of the instruction, the Dubuque Tribunal requested a dissolution of a marriage that had taken place in the Church but in which the petitioner for the dissolution was the _unbaptized_ party who now wished to marry another Catholic.

On March 8, 1975 the Congregation replied that the marriage cannot be dissolved. Dubuque pressed the Congregation noting that Norm V did not exclude such a request. On April 12, 1975 the Congregation reiterated its stance saying, in effect, that Norm V should have included this reverse situation as well, namely the situation where the nonbaptized person who is not a convert petitions to enter a new marriage with a Catholic, because, said the Congregation, "in order that a dissolution of the marriage in the instance can be granted, the bond which is established in the second marriage must be at least _intrinsically indissoluble_."18

It is, however, clear from other sections of the instruction (see, for example, the introductory paragraphs and I, c) that this intrinsic indissolubility of the second marriage is a condition only when the first marriage is "in the Church," i.e., entered into with a dispensation from the impediment of disparity of cult.

THE PETRINE PRIVILEGE AND THE CODE

When Padre Hürth wrote his 1956 article, he said:

Having researched, studied and considered the entire matter it seems that those authors are correct who say that the Petrine Privilege ... _is not included in the Code of Canon Law_ ... and that it is therefore desirable that a canon be added to the Code in which the unique character of this Privilege be described and its use regulated.19

Hürth then drafted a model canon in which he actually incorporated the term "Petrine Privilege." When Navarrete wrote his article in 1964, he discussed Hürth's proposed canon and that of another canonist as well, and then went on to propose his own.20 The stage was then set for the upcoming official revision of the code.

The 1975 schema on the sacraments included a canon (346) on the Petrine Privilege and the 1977 schema on procedural law included four short canons (373-376) outlining the process to be followed in instructing and forwarding a case to Rome. The 1980 _Schema Codicis_ substantially retained those canons as follows.

a. The canon regarding the Petrine Privilege itself was numbered 1104 in the schema. It followed the present canon 1150 (which follows the section on the Pauline Privilege) so that, had it been retained in the 1983 code, it would have been c. 1151. It read:

Can. 1104, §1. A marriage entered by parties, at least one of whom was unbaptized, can be dissolved by the Roman Pontiff in favor of the faith providing the marriage had not been consummated after both spouses were baptized.

§2. That a marriage dissolution of this kind be validly granted, it is also required that if a new marriage is contracted with an unbaptized person or with a baptized non-Catholic, this person leaves the Catholic party free to profess the Catholic religion and to baptize and educate the children in that religion; which condition ought to be guaranteed in the form of a promise.21

b. The procedural canons (numbered 1659-1662 in the 1980 schema) constituted a chapter of their own between the _Super Rato_ process and the presumed death process, i.e., between cc. 1706 and 1707 of the present code. They read as follows:

Can. 1659 - The Apostolic See alone has cognizance on dissolution of marriage in favor of the faith mentioned in canon 1104, §1.

Can. 1660 - The spouse must present to the diocesan bishop the petition by which he asks for dissolution of marriage in favor of the faith mentioned in canon 1651, observing the other prescriptions of this same canon.

Can. 1661 - The instruction to prove the existence of the conditions required to concede the dissolution and the other circumstances which can usefully be known is committed to the tribunal or to a priest in accord with canon 1652.

Can. 1662 - In the procedure for dissolution of marriage in favor of the faith the prescriptions of canons 1653-1658 shall be observed making congruous adjustments.22

In preparation for the October 1981 plenary session of the Code Commission, Cardinal König proposed that c. 1104 clarify whether the dissolution of the first marriage is effected by the papal rescript itself or by the second marriage. The secretariate felt that section one of the canon made it quite clear that it was the Holy Father who dissolved the marriage and that to be more specific than that was to enter into the area of doctrine. The secretariate, however, did agree to drop the opening phrase of section two, "That a marriage dissolution of this kind be validly granted." This change, it should be noted, seemed to favor the position that it is the rescript that dissolves the marriage (which position König also seemed to favor).23 At the October 1981 meeting itself the matter did not come up. It was then assumed that the canon, as amended, would be incorporated into the code.

But when the code finally appeared in January of 1983, c. 1104 as well as the four procedural canons were missing.

THE LETTER OF ARCHBISHOP HAMER

The absence of the canons from the code created something of a stir. Canonists were wondering whether it meant that Petrine Privileges would no longer be granted, and on August 17, Archbishop Laghi asked for a clarification from the Congregation for the Doctrine of the Faith. On September 6, 1983, Archbishop Hamer replied as follows:

Your Excellency:

Your Report of August 17th (Prot. N. 644/83/2) asked this Congregation for some clarifications concerning the norms in dissolution cases "in favorem fidei."

In this regard, I wish to inform you as follows:

The fact that the canons on the Favor of the Faith, foreseen in the preparatory edition of the Code, are not found in the Revised Code does not mean that the pertinent norms of the Sacred Congregation are to be considered lapsed. They maintain their force entirely.

The competency of this Congregation is sanctioned by the Constitution "Regimini Ecclesiae Universae." On the other hand, not even in the Old Code was there mention of the above norm.

s/ J. Hamer24

So for the present it seems we are back to square one. The practice goes on, more or less as it has since 1924, but the code contains no mention of it. Perhaps next time - in the _Codex Recognitus et iterum Recognitus_.25

Return to TOC

1983

ENDNOTES

1 Jonathan Spence, "Ricci," _The Yale Review_ 73 ( 1983) 47.

2 Franz Hürth, _De Statibus. Notae ad Praelectiones Theologiae Moralis_ , Ad usum Auditorum (Romae, 1945), n. 280, p. 164.

3 John T. Noonan, _Power To Dissolve_ (Cambridge: Belknap Press, 1 972), p. 459, n. 69.

4 _Periodica_ 44 (1956) 3-22, 371-391.

5 Urbanus Navarrete, S.J., "De Termino 'Privilegium Petrinum' Non Adhibendo," _Periodica_ 53 (1964) 336. "Ante hunc articulum pauci scriptores terminum adhibent; post vero plures et omnes quidem citando F. Hürth, etsi ab eo dissentiant in definitione danda priv. petrino."

6 For specific citations for each author, see the Navarrete article cited above.

7 Navarrete himself is a dissenter from the term, as the title of his article indicates. For more recent opposition to the term see Henri Grenier, "Can We Still Speak of the Petrine Privilege?" _The Jurist_ 39 (1979) 158-162.

8 Canon 1141.

9 Most American tribunals request either no fee at all or only a minimal fee for the processing of a Pauline Privilege whereas Rome currently assigns a $200 tax for the Petrine. The Roman process, furthermore, adds an extra six to twelve months to the time required for handling the case locally.

10 Hürth, "Notae Quaedam," p. 4: "Privilegium Petrinum ... designat potestatem Summi Pontificis solvendi hoc vinculum per actum positivum dispensationis."

11 _NCE_ 9: 289.

12 Joseph Bánk, _Connubia Canonica_ (Romae: Herder, 1959), pp. 560-561. " _Quando privilegium effectum sortiatur?_ Quaeritur, utrum dispensatio ope privilegii fidei data vinculum _ipso facto_ solvat, an ius tantum tribuat illud solvendi, at tunc tantum, quando pars dispensata aliud matrimonium iniverit. Uti notum est, in casu Privilegii Paulini hoc contingit, seu vinculum iuris naturalis _momento_ novarum nuptiarum initarum solvitur. Idem dici possit etiam de privilegio fidei, ad quod analogia casuum quoque inducit. (Analogia iuris).

" Fundamentum iuridicum etiam hic est favor fidei....

"Sed quidnam dispensatione intendatur, nisi aliud partes ineant matrimonium? Quodsi partes baptizatae nolint aliud inire matrimonium, vinculum prius periculum fidei nullum secum ferat, neque de servitute adversus vinculum existens agatur. Vinculum prius matrimonio tantum solvitur ab ilia persona inito, cui dispensatio favorabilis est. Dispensatio Romani Pontificis ergo _ius_ tantummodo praebet ad solvendum, prout responsio negativa ad interpellationem in casu Privilegii Paulini."

13 For similar replies, see _Canon Law Digest_ 8: 1186 and 9: 678-679.

14 Stephanus Sipos, Enchiridion Iuris Canonici (Romae: Herder, 1954), p. 473.

15 For a thorough and interesting history of the Pauline and Petrine Privileges, see Noonan, pp. 341-392. See also Francis Donnelly, "The Helena Decision of 1924," _The Jurist_ 36 (1976) 442-449.

16 For a copy of several replies, see _Canon Law Digest_ 7: 771-776.

17 For a copy of the Instruction see _Canon Law Digest_ 8: 1177-1184, or Lawrence G. Wrenn, _Annulments_ , 4th edition (Washington: CLSA, 1983), pp. 136-140.

18 _Canon Law Digest_ 8: 841-843.

19 Hürth, "Notae Quaedam," p. 21: "Omnibus hucusque expositis diligenter examinatis et ponderatis, concedendum videtur: non errare qui censeant: _Privilegium Petrinum ... versari extra C.J.C._ , ... ideo rationabiliter desiderari, ut Codici adiciatur canon, quo huius Privilegii character typicus describatur simulque regula usus statuatur."

20 Navarrete, pp. 361-368.

21 Can. 1104 §1. "Matrimonium initum a partibus, quarum una saltem baptizata non fuit, a Romano Pontifice dissolvi potest in favorem fidei, dummodo matrimonium non fuerit consummatum postquam ambo coniuges baptizati sunt."

§2. "Ut huiusmodi matrimonii solutio valide concedatur requiritur quoque ut, si novum matrimonium contrahatur cum persona non baptizata vel baptizata non catholica, haec parti catholicae libertatem relinquat propriam religionem profitendi atque facultatem catholice baptizandi educandique filios; quae conditio, cautionis forma, in tuto ponenda est."

22 Can. 1659 - "De dissolvendo in favorem fidei matrimonio de quo in can. 1104, §1 una Apostolica Sedes cognoscit."

Can. 1660 - "Coniux libellum quo petit dissolutionem matrimonii in favorem fidei exhibere debet Episcopo dioecesano, de quo in can. 1651, servatis ceteris eiusdem canonis praescriptis."

Can. 1661 - "Instructio ad probandam existentiam condicionum, quae ad dissolutionem concedendam requiruntur, aliarumque circumstantiarum quae utiliter cognosci possunt, committatur tribunali vel sacerdoti ad norman can. 1652."

Can. 1662 - "ln procedura ad dissolutionem matrimonii in favorem fidei serventur praescripta cann. 1653-1658. congrua congruis referendo."

23 _Relatio_ , p. 265. Two points deserve mention here. First it is unclear why the question about the moment of dissolution is considered "doctrinal" in regard to the _Petrine_ Privilege and so be excluded from the canon, but not so considered in regard to the _Pauline_ Privilege and so be included in c. 1143, §1. And secondly, the dropping of the opening phrase of section two by the secretariate seemed to favor a position that was disfavored by the Congregation for the Doctrine of the Faith. Clearly, therefore, even after all these years, the matter remained unsettled.

24 "Eccellenza Reverendissima,

"Con pregiato Foglio, Pro. N. 644/83/2, del 17 agosto c.a. Vostra Eccellenza chiedeva a questa Congregazione alcuni chiarimenti riguardanti le norme per le cause di scioglimento in favorem Fidei.

"In merito mi reco a premura communicarLe quanto seque:

"II fatto che nel nuovo Codice di diritto canonico non abbiano trovato collocazione i canoni previsti nella edizione preparatoria sul 'Favor Fidei' non costituisce motivo per considerare decadute le relative Norme di questa Congregazione, che conservano invece interamente il loro vigore.

"La competenza di questa Congregazione in materia é sancita dalla Costituzione 'Regimini Ecclesiae Universae. D'altra parte neppure nel vecchio Codice vi era menzione della suddetta normativa.

s/ J. Hamer"

25 Finally, in 2001, some eight years after the publication of "Some Notes on the Petrine Privilege", a third Instruction (following those of 1934 and 1973) was issued by the Congregation for the Doctrine of the Faith.

# ARTICLE EIGHT

## AUTHENTIC INTERPRETATIONS ON THE 1983 CODE *

A. SOME PRELIMINARY NOTIONS

1. The Pontifical Commission for the Authentic Interpretation of the Code of Canon Law (the "Code Commission") was established by Pope John Paul II on January 2, 1984 and given the exclusive right to render authentic interpretation of the canons of the _Code of Canon Law_ and of other universal laws of the Latin Church. On June 28, 1988, Pope John Paul II, by the Apostolic Constitution _Pastor bonus_ , which took effect on March 1, 1989, renamed the commission the Pontifical Council for the Interpretation of Legislative Texts (the "Law Council") and he broadened its competence to include the authentic interpretation of all the universal laws of the Church, including, as later became clear, the then soon to be promulgated _Code of Canons of the Eastern Churches_.2

2. The interpretation of law may be defined as _a declaration or an explanation of the true sense already contained, at least obscurely, in a law_.

3. A couple of points may be made regarding this definition. Perhaps the more obvious of the two is that an interpretation is not a reworking or manipulation or distortion of a law in order to impose upon the law a meaning that is really alien to it.

Rather it has always been understood that once a law has been drafted and promulgated (often after years of painstaking research, dialogue and consultation), it then enjoys an intrinsic meaning, intended by the legislator and expressed in certain words. Every canon of the Code, therefore, enjoys an innate, true sense. The work of interpretation is not to change that true sense into something else; rather it is to clarify and to draw out that true meaning when, for one reason or another, it is not perfectly clear.

Having said that, however, the fact is that canonists, even expert canonists, "approved authors" and esteemed professors of pontifical faculties of canon law around the world, are interpreting law all the time, and oftentimes those "interpretations" are not, in fact, in accord with what has later been declared to be the true sense of the law. Canon 1099, §2 of the 1917 Code, for example, said that children who were "born of non-Catholics" ( _ab acatholicis nati_ ) and who were raised from infancy in heresy, were not bound to the form of marriage. In a commentary published in 1919, the great Swiss-American canonist, Charles Augustine, O.S.B. "interpreted" that phrase "born of non-Catholics" to mean _two_ non-Catholics; the term, as found in the canon, was, after all, in the plural. Nevertheless, some ten years later the Code Commission ruled that the phrase "born of non-Catholics" includes those born of parents only _one_ of whom is non-Catholic. This was an authentic interpretation by the Code Commission which declared the true sense contained in the law. In retrospect, therefore, it must be concluded that Augustine's contrary opinion did not capture the true sense of the law and that, by definition therefore, it was not an interpretation in the _proper_ sense of that word. Augustine's opinion, in other words, was just that: it was an opinion. Or, if you wish (and there is, I think, merit in so wishing) it was an interpretation in the _improper_ sense of the term. It was an "interpretation" that did not catch the true sense of the canon.

4. The second point to be made regarding the definition of interpretation is this: when the definition says that an interpretation can be either a declaration or an explanation, it is talking about two different types of interpretation.

The first type is called a _declarative_ interpretation. A declarative interpretation is made when the meaning of the law is not really doubtful in the first place, at least not objectively doubtful. Individual canonists may have some subjective doubt about the meaning, perhaps because they have not thought it through sufficiently, or paid enough attention to the usual methods of resolving doubt, such as text, context, parallel passages, the purpose and circumstances of the law and the mind of the legislator, all of which are mentioned in canon 17. But what is involved here is a law that is not _objectively_ doubtful. The meaning indeed is intrinsically certain, _in se certa_ as canon 16 says. The purpose of a declarative interpretation, therefore, is simply to make clear or clearer what is already certain. The declarative interpretation is then the simplest, the most elementary kind of interpretation. Indeed, at a point in history, it was called simply a "declaration," to distinguish it from a genuine interpretation, though even before the 1917 Code, it had come to be accepted as a genuine interpretation but in the broad sense of that term. Examples of each type of interpretation will be offered presently, and though it will be clear from those examples that a declarative interpretation is not always as simple as it might seem, nevertheless the principle remains operative: a declarative interpretation is a statement that clarifies a law about which there was never any objective doubt. Once an authentic declarative interpretation is made, therefore, it has retroactive force, since it merely restates a meaning that was always intrinsically certain.

The second type of interpretation, an interpretation in the strict sense of the term, is called an _explanatory_ interpretation. An explanatory interpretation explains a law, the true meaning of which is objectively doubtful; and since a doubtful law is not binding, the law in question would have no binding force until an authentic interpretation resolved the objective doubt. Unlike the declarative interpretation, therefore, an explanatory interpretation does not have retroactive force.

5. The special mandate of the Code Commission/Law Council is to interpret. This refers both to interpretation in the ordinary or _strict_ sense of that word (namely an explanatory interpretation), and to interpretation in the _broad_ sense (that is, a declarative interpretation). In principle, however, it would not extend to interpretation in the _improper_ sense of the word. It is not, in other words, within the ordinary competence of the Commission/Council to issue an "interpretation" that does not reflect the true sense contained in the law. Nevertheless, "to err is human," as Alexander Pope said, and it is not, therefore, inconceivable that the Commission/Council might, on occasion, issue such an interpretation.

When the Commission/Council issues a response, whether it be explanatory or merely declarative (or even, indeed, were it an improper interpretation) it frequently, though not always, either restricts or extends the number of cases that would seem warranted by a literal reading of the canon. This might suggest that besides the two types of interpretation already mentioned (declarative and explanatory) there are two other types as well (restrictive and extensive). Indeed most commentators on both the 1917 and the 1983 Codes have taken precisely that position and the wording of the pertinent canon (c. 17, §2 in the 1917 Code and c. 16, §2 in the 1983 Code) seems to corroborate their view. My own sense, however, is that, just as there are basically only two kinds of law (the objectively certain and the objectively doubtful), so there are basically only two kinds of interpretation (declarative and explanatory). Extensive and restrictive interpretation are not, therefore, types but _sub_ types of interpretation.

This matter of types and subtypes requires further explanation. The first type of interpretation is a _declarative_ interpretation. A declarative interpretation can extend or restrict the obvious meaning of a canon, but when it does so, it should be called not an extensive or restrictive interpretation, but rather a quasi-extensive or quasi-restrictive interpretation, since in a declarative interpretation there is no _real_ extension or restriction but only an apparent one, because the practical limits of the law were, in fact, objectively certain all along (and thus, a declarative interpretation that is quasi-extensive or quasi-restrictive is retroactive). The second type of interpretation is an _explanatory_ interpretation, and this too can extend or restrict the obvious meaning of a canon, but in this case it is genuinely extensive or restrictive since it is solving an objective doubt in one direction or the other (so the interpretation, as c. 16, §2 indicates, is not retroactive). And finally it should be noted that an _improper_ interpretation can likewise extend or restrict, but again should not be called simply extensive or restrictive but rather ultra-extensive or ultra-restrictive since an improper interpretation (which might also be called an ultra-explanatory interpretation) goes beyond the true sense of the law.

6. Schematically, the various types and subtypes of interpretation may be diagrammed as follows:

B. EXAMPLES

According to this schema there are eight subtypes of interpretation. Which seems a lot. So many, indeed, that one wonders whether the entire matter is not being artificially bloated. What would the man of Surrey, William of Occam, think of all this? There was, after all, much wisdom in his famous dictum: _Entia non sunt multiplicanda sine necessitate_. Is that what is happening here? Are categories being needlessly multiplied? I think not. In fact, the following examples, all taken from the 1917 Code, will demonstrate that _fewer_ categories would not handle the traffic; they would not adequately describe the full range of responses that have been given and are still being given by the Code Commission/Law Council.

1. _Simple Declarative_. Canon 1254, §2 said that "all those" ( _omnes_ ) between the ages of twenty-one and fifty-nine were bound to fast. Shortly after the Code was promulgated, the Commission was asked the following, seemingly preposterous question "Whether the word _omnes_ ... applies in the same way to women as to men." On January 13, 1918 the President of the Commission replied "In the affirmative." This clearly is a simple, declarative interpretation.

2. _Quasi-extensive_. It has already been noted (under A.3) that in 1929 the Commission interpreted the phrase "born of non-Catholics" in canon 1099, §2 to include those who were born of parents only _one_ of whom was non-Catholic. Given the fact that most of the commentators on the 1917 Code had, prior to the 1929 response, held the opposite opinion, it would appear that the canon contained an objective doubt, and that the 1929 response was therefore, an explanatory interpretation, or more specifically an extensive interpretation (since it extended the number of people who would be excused from the form of marriage). Several years later, however, the Commission was asked "Whether the interpretation of canon 1099, §2, given on July 20, 1929 is declarative or extensive?". The Commission responded on July 25, 1931 "In the affirmative to the first part; in the negative to the second."

Already, therefore, it is clear that not everything is clear, neither the interpretation itself nor how that interpretation is to be classified. Sometimes what seems to be the obvious interpretation is not the correct one, and what seems to constitute objective doubt is really only subjective. Two observations, however, may be made in defense of the Commission's responses. First, the reasoning behind the 1929 decision, according to Cardinal Gasparri, was that those born of parents only _one_ of whom is non-Catholic are, _if they were raised in heresy from infancy_ , in the same basic position in terms of marriage as those born of two non-Catholic parents. Thus there is no apparent reason why those who have one non-Catholic parent would be _held_ to the form of marriage while those who had two non-Catholic parents would be _excused_ from it. Secondly, as early as 1919, the Commission had already declared that the phrase "children of non-Catholics" ( _filii acatholicorum_ ) in canon 987 (regarding those impeded from ordination) should be interpreted to include those born of parents only one of whom was non-Catholic.

Despite, therefore, the many outstanding canonists who were undoubtedly taken aback at the time, both the 1929 response of the Commission and the later response stating that the 1929 interpretation was only declarative and not extensive, were, nevertheless broadly and firmly grounded.

While it is true, however, that the 1929 response was not extensive, it is nevertheless accurate, (and this really is the whole point here) to describe it as quasi-extensive, since the interpretation _seems_ or _appears_ to extend the number of people who are excused from the form of marriage beyond those indicated by a strict reading of the letter of the law.

3. _Quasi-restrictive_. Canon 542 had said that "those who had adhered to a non-Catholic sect" ( _qui sectae acatholicae adhaeserunt_ ) would not be validly admitted into a novitiate. On October 16, 1919 the Commission said that, in effect, this phrase should not be read too literally. The canon did not really mean everybody who had adhered to a non-Catholic sect but only those who had once been Catholic but then "fell away" ( _defecerunt_ ) and adhered to a non-Catholic sect.

Clearly this is at least quasi-restrictive. The question is, was it more than that? Was it truly restrictive? Or to put the question in another way, was the doubt that prompted the question just subjective so that the response was merely declarative, or was it an objective doubt, making the response explanatory? The answer, it seems, is that there was no really objective doubt here since it can be assumed that a reasonable legislator would certainly not have wanted to penalize a person who grew up as a non-Catholic (and therefore "had adhered to a non-Catholic sect") but then became a Catholic and wanted to enter a religious community. All along, in other words, the _true_ sense of the law referred only to those who were raised as Catholics, then "fell away" and finally returned. Vermeersch-Creusen aptly referred to the Commission's response as a "declaration."

4. _Simple Explanatory_. Canon 1098 had said that a couple could contract marriage before two witnesses only, and without the presence of a priest, if a competent priest "could neither be had nor reached without grave inconvenience" ( _si haberi vel adiri nequeat sine gravi incommodo_ ). Did this mean that the couple could marry validly before two witnesses only if the priest was _physically_ absent, or could they do so even if the priest was just _morally_ absent, i.e., unable to perform the ceremony for some reason? On March 10, 1928 the Commission issued the following question and answer: Whether Canon 1098 is to be understood as referring only to the physical absence of the pastor or Ordinary of the place? Reply: In the affirmative.

At first blush the Commission's response seems fairly straightforward and does not seem to involve the solution of an objective doubt, so classifying the response as explanatory seems questionable at best. Nevertheless the fact is that a few years later the Commission issued a second response on the same question (a response which will be examined presently since it serves as the example for the next category, i.e., extensive interpretation). This second response was so at odds with the first response that it seems proper to conclude, given the fact that the Commission itself apparently could not make up its mind on the subject, that there must have been an objective doubt present.

5. _Extensive_. On July 25, 1931 the Commission issued the following question and answer: Whether the "physical absence of the pastor or Ordinary," mentioned in the reply of March 10, 1928, includes also a case where the pastor or Ordinary, although materially present in the place, is unable by reason of grave inconvenience to assist at the marriage asking and receiving the consent of the contracting parties. Reply: In the affirmative.

Given these two responses of 1928 and 1931, and assuming that the first is not dead wrong, the logical conclusions seem to be: 1) that the first response requiring physical absence was a simple explanatory interpretation; and 2) that the second response, extending the meaning of physical absence to include a kind of moral absence, was an extensive interpretation.

It is entirely possible, of course, that the first response, that of 1928, was, in fact, dead wrong, as Amleto Cardinal Cicognani suggested when he said that the second response "apparently revises" the first. But classifying the first response as simple explanatory and the second as extensive would seem, first of all, to reflect more faithfully the actual wording of the two responses, and secondly to be the position, at least by extrapolation, of most of the authors.

6. _Restrictive_. Canon 423 noted that the college of consultors in a diocese is to be composed of "priests" ( _sacerdotes_ ). Beyond noting that a consultor should be endowed with holiness, good morals, sound doctrine and prudence, the Code itself put no further restrictions on those priests who might be eligible for the office of consultor. In 1931, however, the Commission ruled that, in fact, not all priests were eligible, that not only were religious priests excluded but so also were diocesan priests who had formerly been religious. This seems to be a truly restrictive interpretation, explaining a law about which there was some objective doubt.

7. _Ultra-extensive_. Presumably the Commission/Council has never, in fact, given an ultra-extensive interpretation. Cardinal Castillo Lara, indeed, in his 1988 address in Vienna to the Canon Law Society of Austria, specifically noted that the Commission does not indulge in any sort of interpretation which would, in effect, establish a materially new law, and that any "interpretation" of that sort would be beyond the ordinary competence of the Commission.

Nevertheless an example of an ultra-extensive interpretation might be this: given the Commission's ruling on canon 542, mentioned under B.3, that restricted the application of the phrase "those who had adhered to a non-Catholic sect" to "fallen away" Catholics, the opinion that would extend that phrase to include those who had been born and raised as Protestants would clearly be an ultra-extensive interpretation, since it would extend the meaning of the canon beyond what has been authentically declared to be the true sense of the law.

8. _Ultra-restrictive_. Although Cardinal Cicognani seemed to imply that the Commission did, in fact, issue an ultra-restrictive interpretation when it ruled that canon 1098 allowed a couple to marry before witnesses alone only when the priest was _physically_ absent, nevertheless Cardinal Castillo Lara's remarks about any such interpretation being beyond the powers of the Commission certainly apply here. In general, it is assumed that the Commission/Council never issues an "interpretation" that goes beyond the true sense of the law.

As for an example of an ultra-restrictive interpretation, we have already seen one. When Charles Augustine and most of the commentators on canon 1099, §2 interpreted the phrase "born of non-Catholics" to mean _two_ non-Catholics, they were, given the authentic and broader interpretation of 1929, engaging in an ultra-restrictive interpretation. Such an interpretation was more restrictive than the true sense of the law as later defined by the Commission.

C. CLASSIFYING THE RESPONSES OF THE COMMISSION/COUNCIL ON THE 1983 CODE

Let us examine now the first twenty-four Responses on the 1983 Code (twenty-six actually, since numbers 3 and 8 each contain a double question and answer) and attempt to classify them. They are treated in the order in which they were published in the _Acta Apostolicae Sedis_.

1. Holy Communion Permitted Only Twice on the Same Day

The Doubt: Whether, according to canon 917, one who has already received the Most Holy Eucharist may receive it on the same day only a second time, or as often as one participates in the celebration of the Eucharist.

_The Response: Affirmative to the first; negative to the second._ 26

The CLSA translation of Canon 917 reads as follows: "A person who has received the Most Holy Eucharist may receive it again ( _iterum_ ) on the same day only during the celebration of the Eucharist in which the person participates..." The CLSGBI translation is substantially the same. In both translations the ambiguous word " _iterum_ " is rendered as "again", though it might also, of course, be translated more restrictively to mean "a second time".

Though this first response of the Code Commission indicates that the more restrictive interpretation is, in fact, the correct one, nevertheless the two English versions as published were certainly well founded and seemed even to reflect the majority opinion at the time.

When the coetus working on this section of the Code met in 1978 to discuss this matter, it had before it the earlier draft of this canon that had been circulated among the organs of consultation (conferences of bishops etc.) back in 1975. That earlier draft read as follows: "A person may not receive Holy Communion again the same day outside the celebration of the Eucharist; nor may a person receive it during the celebration except when participating in a Mass carried out with some solemnity".

When the various organs of consultation commented on that draft canon, there was general agreement that the canon should be reworked in such a way as to permit any properly disposed person to receive Communion as often as he or she participates at Mass. The theological reason offered for this position was basically this: in the celebration of the Eucharist, the sacrifice of Christ is re-presented in the memorial supper; full participation in the celebration consists, therefore, in eating the food of this supper, and to deny that food to a properly disposed person participating in the supper is not in harmony with the spirit of the celebration.

At the 1978 meeting of the coetus, two of the consultors, despite the overwhelming opinion of the organs of consultation, seemed to favor retaining the earlier draft of the canon, and they engaged the group in a discussion of the possible dangers of excessive liberalization. It appears, however, that the rest of the group was of a mind to restrict the reception of the Eucharist only to those not participating at mass.

At the end of the discussion "it was considered opportune to receive the idea" mentioned in the 1967 Instruction " _Eucharisticum Mysterium_ " that "it is necessary to accustom the faithful to receive Communion during the actual celebration of the Eucharist", and the entire coetus approved a new draft canon. It was this draft canon that was eventually promulgated as canon 917.

It is significant, of course, that the canon used the word " _iterum_ " and not the word " _bis_ " or the phrase " _altera vice_ ," both of which had been used in the 1973 Instruction " _Immensae Caritatis_." Given the legislative history of the canon as outlined above and as described in the _Communicationes_ account, it seems fairly clear that the coetus used the word " _iterum_ " rather than the expressions " _bis_ " or " _altera vice_ " precisely in order to convey the idea that a properly disposed person was free to receive the Eucharist as often as he or she participates at Mass. It seems clear, in other words, that in the mind of the coetus the word " _iterum_ " in the canon meant not just "a second time" but "again".

This mind of the coetus would presumably constitute, at the very least, a solidly probable opinion. When, therefore, the Commission ruled in favor of the narrower sense of the word, it was, it seems, solving an objective doubt. This interpretation of the Commission was, therefore, a truly RESTRICTIVE interpretation, and so was not retroactive. Prior to the ruling, people were free to receive the Eucharist as often as they participated at Mass; after the ruling they were permitted to receive only twice on the same day.

2. The Nonnecessity of Using the Documentary Process for Simple Lack of Form Cases

The Doubt: Whether, in order to prove the state of freedom of those who, although bound to the canonical form, attempted marriage before a civil official or a non-Catholic minister, the documentary process mentioned in canon 1686 is necessarily required, or the pre-nuptial investigation dealt with in canons 1066-1067 suffices.

_The Response: Negative to the first; affirmative to the second._ 30

There are basically two types of lack of form cases: the simple and the more complicated. The simple type is the one in which a Catholic, without obtaining a dispensation from the form, marries before a civil official or non-Catholic minister. The more complicated type occurs when the form is observed to some degree but invalidly, as, for example, when the priest is not properly delegated or when only one witness is present.

Under the old law, i.e., the law prior to _Causas matrimoniales_ , Article 231 §1 of the 1936 Instruction _Provida_ made it clear that the simple lack of form case could be handled administratively and did not require a judicial process of any kind. The more complicated type, however, required the full judicial process since canon 1990 of the 1917 Code allowed the documentary or informal process only for certain selected impediments.

With the promulgation of _Causas matrimoniales_ in 1971, however, the availability of the documentary process was extended, by Norm XI, to include cases based "on defect of canonical form." Given the fact that the express purpose of Pope Paul VI in promulgating those norms was to expedite the matrimonial process, and not to slow it down or make it more cumbersome, it was widely assumed that Norm XI applied only to the more complicated type of lack of form case. If such a case, in other words, met the usual requirements of a documentary procedure, it could, after March 28, 1971, be handled by the informal rather than the formal judicial process. But the sense was, at least in the United States, that the simple type of lack of form case could continue to be handled by a simple administrative procedure.

Some commentators on _Causas matrimoniales_ , however, were of the opinion, for reasons that we need not get into here, that Norm XI was saying that the simple type of lack of form case could no longer be handled by an administrative procedure but now required the informal judicial process.

Although the opinion of these commentators was not without merit, the practice of handling simple lack of form cases by an administrative procedure continued, and when the coetus for the revision of procedural law met in 1979 to discuss the documentary process, they changed the phrase "lack of form" to "lack of legitimate form" precisely so that it would be clear that a simple lack of form case did not require any process at all but that a simple administrative procedure sufficed.

It would seem, therefore, that by the time the 1983 Code was promulgated, there was little if any doubt about this matter, certainly no objective doubt. The response of the Code Commission was therefore declarative and not explanatory. But the next question is this: is it a simple declarative response or is it quasi-extensive or quasi-restrictive? It is not quasi-restrictive since the response does not say that the documentary process _may_ not be applied to a simple lack of form case but merely that it _need_ not be. Nor is it quasi-extensive since the response does not necessarily extend the number of cases beyond those clearly intended by the law. The law, in other words, at least by implication, allows the administrative procedure for the simple lack of form case, which is precisely what the response of the Commission says, no more and no less. The response, therefore, is a SIMPLE DECLARATIVE one.

3. The Stability and Replacement of A Consultor

I. The Doubt: Whether, according to canon 502, §1, a member of the college of consultors who ceases to be a member of the presbyteral council remains in office as consultor.

The Response: Affirmative.

II. The Doubt: Whether during the five year term, if a consultor ceases from office, the diocesan bishop must appoint another to replace him.

_The Response: Negative and "ad mentem." The mind of the legislator is that an obligation to appoint another consultor exists only when the minimum number required by canon 502, §1 was lacking._ 36

Canon 502, §1 states "some priests are to be freely selected by the diocesan bishop from among the members of the presbyteral council to constitute a college of consultors."

At the October 1981 plenary session of the Commission, two of the Fathers recommended that the words "from among the members of the presbyteral council" be dropped since there was no valid reason for that requirement. The position of the Commission, however, was that the text should remain as is because the college of consultors is seen as a specific group, a " _coetus restrictus_ " of the presbyteral council. Having this " _coetus restrictus_ " of the council is useful, said the Commission, first, because it would be inconvenient, especially in large dioceses, to conduct frequent meetings of the entire presbyteral council; and secondly, because there are some highly delicate questions that are better discussed with a smaller group.

This characterization of the college as a kind of inner circle of the presbyteral council led to considerable confusion and was no doubt the principal factor that gave rise to the doubt on the part of some about whether a consultor who ceased to be a council member would remain in office as a consultor. Obviously, if the college were really an inner circle of the council, then if one ceased to be a member of the whole council, one would automatically cease to be a member of the inner circle of that council as well.

In fact, however, it has been generally understood that the council and the college are canonically independent entities, each having its own distinct functions. And it has been further understood that, while it makes good sense to use the presbyteral council as the exclusive pool from which the consultors are initially selected (since the council represents in a special way the entire presbyterate), nevertheless, once chosen as a consultor, a priest then becomes a member of an entirely distinct body and enjoys a term of office as a consultor that is quite independent of his term of office as a member of the presbyteral council.

There has never been an objective doubt about this matter. Nor has there been an objective doubt about the fact that the bishop is only obliged to replace a consultor when his failure to do so would result in there being fewer than six consultors in the college. Both of these responses are SIMPLE DECLARATIVE responses.

4. A Conference of Bishops Need for Authorization in order to Issue a General Executory Decree

The Doubt: Whether the expression ''general decrees" in canon 455, §1 also includes general executory decrees of the sort in canons 31-33.

_The Response: Affirmative._ 40

Canon 455, §1 says that: "a conference of bishops can issue general decrees only in those cases in which either the common law prescribes it or a special mandate of the Apostolic See determines it."

Prior to the response from the Code Commission a doubt existed as to whether this authorization (either by law or mandate) was required only for general _legislative_ decrees or for general _executory_ decrees as well. A general _legislative_ decree may be defined as a common prescription issued by a competent legislator for a community capable of receiving a law, whereas a general _executory_ decree is a decree that either determines more precisely the methods to be observed in applying the law, or urges the observance of a law.

Why the doubt? The doubt comes from the fact that the Code never refers to general legislative decrees as general legislative decrees. Rather it always calls them simply "general decrees." As a result, the term "general decree" becomes ambiguous. One is not sure whether it is a generic term that includes both legislative and executory decrees, or whether it is a specific term that refers only to legislative decrees.

When, therefore, canon 455, §1 said that a conference needed authorization in order to issue a general decree, it was unclear whether the phrase "general decree" was being used in its generic sense to include both legislative and executory decrees or in its specific sense to refer only to legislative decrees.

Prior to the response from the Code Commission, those who were of the opinion that a conference needed authorization only for the issuance of general legislative decrees, offered the following reasons for their position: a) Since the term "general decree" is defined or described in canon 29 as referring only to general legislative decrees, it must mean the same thing in canon 455, §1; b) Issuing a general executory decree (which simply urges the observance of some law or determines more precisely the ways or circumstances in which that law is to be applied) would seem to be within the proper pastoral competence of a conference of bishops, and should not therefore need any special authorization; and c) Since canon 455, §1 "restricts the free exercise of rights" on the part of a conference, it is, according to canon 18, subject to a strict interpretation, and applies, therefore, only to general legislative decrees.

As weighty and impressive as these arguments are, they are probably not sufficient to constitute an objective doubt. I say this for two reasons: a) A general executory decree is a general decree; and b) Given the general wariness with which Rome has viewed conferences of bishops, it is probably to be expected that the legislator wished to issue authorizations even for general executory decrees.

Since, therefore, we are dealing with only subjective doubt, and since, according to the response, canon 455, §1 would include not just legislative but also executory decrees, I would consider this response to be QUASI EXTENSIVE.

5. The Non Voting Status of A Superior

The Doubt: Whether, when the law requires that the superior must have the consent of the council or of a body of persons in order to act, in keeping with canon 127, §1, the superior has the right of voting with the others, at least to break a tie.

_The Response: Negative._ 44

It is generally understood in law that a superior cannot give advice or consent to him or herself. When, therefore, the law states that a superior may place a certain act only after he or she has obtained the consent of some group, there are then two separate entities involved: the group and the superior; and there are two separate acts involved: first the consent of the group and then the placing of the act by the superior.

A diocesan bishop, for example, although he presides over his college of consultors, is nevertheless distinct from it, and is not a voting member of it. The following case illustrates the principle: a bishop wishes to alienate church property whose value is between the minimum and maximum limits determined by the conference of bishops. In order to do that he needs, in accord with canon 1292, §1, the consent of the college of consultors. This means that more than half the voting members of that group must vote in favor of the alienation in order for the bishop to proceed. The bishop himself does not enjoy a vote in that body, even to break a tie, since he is not a member of the body.

All this is clear and beyond question. But if it is so clear, why then was the question posed to the Code Commission? The question was posed, it seems, because there are, in fact, occasions in the law where the superior acts not as a person _separate from_ the council but rather collegially, _along with_ the council. There is only one instance of this in the Code itself, and that has to do with the dismissal of a religious from an institute, where canon 699, §1 specifically directs the supreme moderator "to proceed collegially" with the council. But there are other examples in constitutions of particular institutes, which have been approved by the Holy See, where the superior and the council are allowed to act collegially.

This procedure muddies the waters somewhat in that it appears to expand the council to include the superior. In fact, however, the doubt as posed to the Code Commission envisions a specific case that is quite different from that of canon 699, §1 and other similar arrangements found in particular constitutions. The doubt posed to the Commission deals only with those cases where the superior needs the consent of some group in order to act. And within that context, the principle remains crystal clear: the superior is not a member, certainly not a voting member of the group whose prior consent is needed in order for the superior to act.

The response of the Commission is, therefore, a SIMPLE DECLARATIVE one.

6. The Inability of a Diocesan Bishop to Dispense Outside the Danger of Death from Canonical Form in the Marriage of Two Catholics

The Doubt: Whether outside the case of urgent danger of death the diocesan bishop can dispense according to canon 87, §1 from the canonical form for the marriage of two Catholics.

_The Response: Negative._ 46

Canon 1127, §2 allows a local ordinary to dispense from the form of marriage where one party is non-Catholic; canon 1079, §1 allows the local ordinary to dispense from the form of marriage even where both parties are Catholic but only in danger of death; and canon 1165, §2 (with cc. 1161, §1 and 1163, §1) allows the diocesan bishop, after the fact, to sanate a marriage of two Catholics which was invalid because of lack of form.

None of these canons, however, allows the diocesan bishop to dispense two Catholics from the form before the fact and outside the danger of death. The question posed to the Commission was whether he could do that by reason of canon 87, §1, which reads as follows: "As often as he judges that a dispensation will contribute to the spiritual good of the faithful, the diocesan bishop can dispense from both universal and particular disciplinary laws established for his territory or for his subjects by the supreme authority of the Church. He cannot dispense, however, from procedural or penal laws or from those laws whose dispensation is especially reserved to the Apostolic See or to another authority."

Since the form of marriage is not a procedural or penal law but a disciplinary one, there is no problem with the bishop dispensing from it as far as the nature of the law is concerned. The only question then is whether the form of marriage is one of "those laws whose dispensation is especially reserved to the Apostolic See."

Prior to the Code Commission's response, the answer, it would seem, was that the form of marriage is not one of those laws. The Code of Canon Law, at least, does not explicitly list the form of marriage as a law that is reserved to the Apostolic See. The Code lists many other laws that are reserved, among them being mergers and unions of institutes of consecrated life, approving new forms of consecrated life, the granting of an indult to a professed member of an institute of pontifical right to leave the institute, dispensing from the age requirement for the ordination to the presbyterate of one under the age of twenty-four, several irregularities and impediments to receiving orders, certain marriage impediments, the reduction of Mass obligations, and certain excommunications. But nowhere does the Code explicitly indicate that a dispensation from the form of marriage for two Catholics, before the fact and outside the danger of death, is reserved to the Holy See.

Nevertheless the Code Commission has, in effect, ruled that such a dispensation is, in fact, so reserved. The reason for the Commission's ruling, furthermore, seems to be a fairly compelling one. It is this: that throughout the process of drafting the new Code, it was always _understood_ by the drafting Commission that such a dispensation was reserved to the Apostolic See. Indeed, the matter, it seems, was settled once and for all in early 1971. At a meeting of the _de matrimonio_ coetus held on February 12, 1971, while the group was discussing the present canon 1127, §2, one of the consultors wished the canon to allow the local ordinary to dispense from the form not just in mixed marriages but for the marriages of two Catholics as well. The secretary, however, pointed out that the Holy Father had reserved that dispensation to himself when he issued _De Episcoporum muneribus_ in 1966, and that was the end of it. The matter was never discussed again.

It is clear, therefore, that as far as the drafters of the law were concerned, it was accepted that this dispensation was indeed reserved to the Apostolic See. It was never a matter of objective doubt, and the response of the Commission, therefore, is not really restrictive but rather QUASI-RESTRICTIVE.

7. The Consent for Competence is to be Given by the Judicial Vicar of the Diocese where the Respondent has a Domicile

The Doubt: Whether the judicial vicar whose consent is required according to the norm of canon 1673, 3° is the judicial vicar of the diocese in which the respondent has a domicile, or the judicial vicar of the interdiocesan tribunal.

_The Response: Affirmative to the first and "ad mentem." The mind of the legislator is that if in a particular case there is no diocesan judicial vicar, the consent of the bishop is required._ 56

Canon 1673, 3° reads as follows: "In cases regarding the nullity of marriage which are not reserved to the Apostolic See the following are competent: 3° the tribunal of the place in which the petitioner has a domicile, provided that both parties live in the territory of the same conference of bishops and the judicial vicar of the domicile of the respondent agrees, after hearing the respondent."

The question is, what does the phrase "the judicial vicar of the domicile of the respondent" mean? Let us suppose that in a certain province consisting of five dioceses, each of the five dioceses has its own tribunal for nonmatrimonial cases but that, besides those, there is also a provincial tribunal which is exclusively competent to hear in first instance all the matrimonial cases in the entire province. Canon 1673, of course, deals only with marriage cases. When, in the situation described, the consent of the judicial vicar of the domicile of the respondent is required, which judicial vicar is it - the one in charge of all matrimonial cases for the province, or the one who has no jurisdiction over marriage cases but who is the judicial vicar of the diocese where the respondent has a domicile?

Clearly it is the latter, since, according to canon 102, §1, a respondent may have a diocesan but not an interdiocesan domicile. The words of the law are _in se certa_ \- "certain in themselves." The response is a SIMPLE DECLARATIVE one.

8. The Need for Confirmation Prior to Notification of Dismissal. Recourse against Dismissal is to the Congregation for Religious

I. The Doubt: Whether a dismissed member should be notified of the decree of dismissal, issued in accord with canon 700 by the supreme moderator, before confirmation by the Holy See or only after confirmation.

The Response: Negative to the first part; affirmative to the second.

II. The Doubt: Whether the authority competent to receive the suspensive recourse against the dismissal of a member is the Congregation for Religious and Secular Institutes, which confirmed the decree, or the Supreme Tribunal of the Apostolic Signatura.

_The Response: Affirmative to the first part; negative to the second._ 57

In the three years or so before the promulgation of the 1983 Code, canon 700 underwent several changes, not just in its wording but in its very meaning and substance. While it is no doubt true that those changes created the confusion that prompted the first of the doubts stated above, it is also true that a careful reading of the changes holds the key to understanding both the problem and the response to it by the Commission.

Between April 1980 and January 1983 the present canon 700 went through five stages:

_Stage 1_. When the coetus working on the revision of religious law met to discuss this canon on April 28-29, 1980, the question was not so much whether confirmation by the Holy See should come before or after notifying a member of an institute of pontifical right of his or her dismissal; at that point, the question was a more basic one, namely whether there had to be a confirmation by Rome at all. And even on that point the consultors could not agree. Accordingly they wrote alternative canons. Alternative A did not require confirmation, so once the decree of dismissal was issued, the member was so notified and at the same time was apprised of the right to have recourse against the decree to the Holy See. Alternative B, on the other hand, did require confirmation by the Holy See but also noted that, prior to the confirmation, the member should be apprised of the decision to dismiss and be provided the opportunity to present a defense. Each alternative had its adherents. When the matter came to a vote on April 28, five consultors voted in favor of Alternative A, and five voted in favor of Alternative B. It was a deadlock.

_Stage 2_. Only two months later, on June 29, 1980, the draft of the Code appeared as a schema reserved for the Fathers of the Commission. Canon 626 of that draft, the forerunner to our canon 700, rejected Alternative B and settled on Alternative A. No mention was made of any confirmation by Rome, only the right to recourse.

_Stage 3_. The _Relatio_ of July 16, 1981, that synthesis of animadversions on the 1980 draft of the Code prepared for the Fathers of the Commission who were to meet in plenary session in October 1981, noted that one of the Fathers felt that, in order to protect adequately the rights of the member being dismissed, a confirmation by Rome was essential. He was, in other words, favoring Alternative B. The response was that from the point of view of both procedure and protection of rights, Alternative A was the better approach; nevertheless, the matter would be presented to the Fathers at their plenary meeting in October.

_Stage 4_. At the plenary meeting, the Fathers voted 36-19 in favor of Alternative B.

_Stage 5_. Finally the 1983 Code itself retained Alternative B, requiring a confirmation, but with a major difference. Whereas the original Alternative B ordered notification prior to confirmation, the new Alternative B, i.e., canon 700, dropped that requirement and spoke instead of the member's right to recourse.

To those who had followed closely the whole process, it was clear at that point what canon 700 had done: it had accepted the need for confirmation but rejected the idea of prior notification. Henceforth, according to the canon, the chronology would be: first the issuance of the decree, then the confirmation process, next the notification and finally recourse.

So much for the first doubt. The second flows from it. The question basically is whether recourse against a dismissal is to the Congregation or to the Signatura. The traditional practice as we know, based on canon 1601 of the 1917 Code and canon 1400, §2 of the 1983 Code, is that recourse against an administrative act at this level is to the Congregation. In this particular case, however, there appears to be a problem with that procedure in that it expects the Congregation for Religious to sit in impartial judgment on the legality, merits and justice of a decree which it has itself only recently confirmed.

In its response, the Code Commission, presuming apparently that the Congregation is quite capable of solving the problem, perhaps by making some internal adjustments, has ruled in favor of using the standard procedure in this as in other matters.

Both responses of the Commission are, quite clearly, SIMPLE DECLARATIVE ones.

9. A Religious Bishop Lacks Active and Passive Voice in His Own Institute

The Doubt: Whether a religious bishop enjoys active and passive voice in his own institute.

_The Response: Negative._ 62

Canon 629, §2 of the 1917 Code specifically noted that a religious bishop who had _retired_ as bishop could reside at any of his institute's houses he chose but that he would lack both active voice (the right to vote) and passive voice (eligibility for office). The old Code, however, did not say whether religious bishops while still _active_ as bishops, also lacked active and passive voice, and this always remained a disputed question. Woywood-Smith offered the following comment on this question:

Commentators discuss the question whether the religious who are cardinals and bishops, vicars or prefects apostolic, etc., can have active or passive vote while they are outside the religious organization. On the one hand, they remain religious, as canon 627 states, and there is no express prohibition in the Code against their voting; on the other hand, it seems illogical to say that they can have this power while they are outside the organization, when the Code states that those who return to the community cannot have active or passive vote.

While the former Code was still in effect, the Code Commission never settled the question. There were good arguments and distinguished authorities on both sides. It was probably a matter of objective doubt, so if the Commission had addressed the question, the response would have been either extensive or restrictive, depending on how the Commission ruled, and not just quasi-extensive or quasi-restrictive.

At any rate, when on April 30, 1980 the coetus working on religious law turned its attention to the revision of canon 629 regarding retired religious bishops, it was decided to drop altogether the phrase _sed caret voce activa et passiva_. Instead, said the Commission, the matter would be left up to the law of particular communities. This signified a relaxation from the old law, but more important, it was a clear statement by the Commission that it did not intend to issue universal legislation on this matter. The directive, furthermore, was observed. Neither the comparable canon in the June 1980 draft of the Code (c. 633) nor the one in the 1983 Code (c. 707) said anything at all about active or passive voice for _retired_ religious bishops. Nor was anything said in either the 1980 draft or the 1983 Code about active or passive voice for _active_ religious bishops. The Code, in other words, is silent on the matter. There is no law whatsoever in the 1983 Code that says anything at all about the right to a voice by a religious bishop.

Indeed, based on the April 30, 1980 directive of the Commission, this appears to be precisely what was intended, namely that nothing be said on the matter in the universal law but that it be left entirely to particular law.

But then along comes the Code Commission and rules that no religious bishop, either retired or active, enjoys a voice. On May 17, 1986, Pope John Paul II ordered the response published but not with any specific approbation, and yet the response does not appear to be an interpretation of a law at all because there is no law. The response rather seems to be a new law, and therefore an ULTRA-RESTRICTIVE "interpretation."

10. The Possibility, after Peremption or Renunciation, of Opening a Case in a Different Court

The Doubt: Whether, when an instance is finished through peremption or by renunciation, if someone wishes to introduce or pursue the cause again, it must be resumed in the form where it was first treated, or whether it may be introduced before another tribunal which is competent in law at the time of the resumption.

_The Response: Negative to the first part; affirmative to the second._ 68

Canon 1741 of the 1917 Code and canon 1525 of the 1983 Code note that renunciation has the same effects regarding the acts as peremption.

Regarding peremption, canon 1522 of the 1983 Code, which repeats virtually verbatim canon 1738 of the former Code, reads as follows: "Peremption extinguishes the acts of the process, but not the acts of the case, which in fact may be operative in another instance provided that the case involves the same persons and the same issue; as regards outsiders the acts of the case have no other value than that of documents."

Both Codes, in other words, say that the fact that an instance has been either perempted or renounced, does not mean that the case can never be heard again. On the contrary, they specifically indicate that, in effect, the action _may_ be pursued "provided that ( _dummodo_ ) the case involves the same persons and the same issue." It is significant, of course, that neither the old canon nor the new canon added to that _dummodo_ clause the words "and that it be brought before the same tribunal."

A few commentators on the 1917 Code held the position that those words _should_ have been added. Sipos, for example, wrote "Even though the instance has been perempted, the action remains and the parties can begin a new instance before the same judge," but he gave no reasons whatsoever for requiring that it be before the same judge. Most of the commentators, meanwhile, seem to have ignored the question, probably for two reasons: first, that the Code did not require that a perempted or renounced case be reopened before the same tribunal, and secondly because, from a practical point of view, it often makes good sense to reopen a perempted or renounced case before a _new_ tribunal. Take, for example, the following case: Two young people from Great Britain, while working in New York, fall in love and decide to marry. They return home for the wedding and are married in London. They honeymoon in Italy and from there fly directly back to New York where they continue to work and reside. After a few years they divorce. The woman petitions the New York tribunal to declare the marriage null on the ground of the respondent's intention _contra bonum sacramenti_. She had heard that, prior to marriage, the respondent had told his two closest friends, who are also British citizens living in New York, that he intended to obtain a divorce if the marriage didn't work out. When, however, the New York tribunal cites the respondent and the two witnesses, they all decline to participate in the proceedings, and the case ends by peremption.

Over the next five years the two parties as well as the two witnesses all leave New York and return to live in England. The respondent and witnesses, moreover, indicate that they would now be willing to testify before a church tribunal, so the woman decides to reopen the case. It would obviously make little sense for her to reopen the case in New York which not only lacks any present competence to hear the case but also lacks any real facility to hear the testimony of the respondent and witnesses. It clearly makes much more sense to reopen the case in a competent tribunal in England.

This common sense solution is, indeed, the approach taken by the Code Commission whose response on the issue is a SIMPLE DECLARATIVE one.

11. The Applicability of Canon 1103 on Force and Fear to Non-Catholics

The Doubt: Whether the defect of consent referred to in canon 1103 can be applied to marriages of non-Catholics.

_The Response: Affirmative._ 70

Since the Middle Ages it has been debated among canonists and theologians whether force and fear is a matrimonial "impediment" of the natural law or only of ecclesiastical law. If it were of the natural law then it would apply to the marriages of non-Catholics, but if it were of only ecclesiastical law it would not.

Following the ruling of the Code Commission that canon 1103 can be applied to the marriages of non-Catholics, Urban Navarrete, S.J. published a fourteen page commentary on the Commission's response. Navarrete's position was, in effect, that the response was ultra-extensive. Navarrete took this position, it seems, for two basic reasons. First, because, as a question that had been debated for several hundred years and never definitively settled, the matter was a doctrinal, not a canonical one. Any response, therefore, was within the competence of the Congregation for the Doctrine of the Faith, and beyond the competence of the Code Commission. Secondly, the fact is, according to Navarrete, that the wording of canon 1103 contains elements of both the natural law and ecclesiastical law, so it is an oversimplification on the Commission's part to say that the canon can be applied as is to the marriages of non-Catholics. In point of fact, says Navarrete, judges must, in individual cases, exercise extreme diligence to make sure that they apply to the marriages of non-Catholics only those elements of canon 1103 which are truly of the natural law.

My own position regarding this response of the Commission is quite different. It seems to me that the Second Vatican Council did, in fact, definitively settle the question in favor of the Thomistic position that fear invalidates marriage by reason of the natural law itself. Several citations from the Council could be made, but suffice it to note here that number 29 of _Gaudium et spes_ refers to the faculty of freely choosing a spouse as a "fundamental right" of both women and men. Now a fundamental right comes from the natural law, so it seems clear that, by those words, the Council was endorsing the position that force and fear is of the natural law.

The response of the Code Commission was, therefore, a simple and rather obvious canonical application of a theoretical position which, by the close of Vatican II, had become certain doctrine. I see the response, therefore, as a SIMPLE DECLARATIVE one.

12. The Right of Different Ordinaries to Prescribe the Purposes for Which Stipends Offered for Binated and Trinated Masses May Be Used

The Doubt: Whether the ordinary referred to in canon 951, §1 ought to be understood as the ordinary of the place where the Mass is celebrated or as the proper ordinary of the celebrant.

_The Response: Negative to the first part; affirmative to the second, except for a pastor or parochial vicar in which case the ordinary of the place shall be understood._ 73

Canon 951, §1 reads as follows: "A priest who celebrates Mass more than once on the same day may apply the individual Mass for the intention for which the offering is made, but with the law that, except on Christmas, he may retain the offering for only one Mass, giving the other offerings to purposes prescribed by the ordinary, except for some recompense by reason of an extrinsic title."

The question posed to the Commission regarding this canon is of practical importance for religious institutes or societies of apostolic life of pontifical right. The major superiors of such institutes and societies are, in accord with canon 134, §1, ordinaries. Imagine, for example, a diocese in which Dominican priests not only staff a parish but also administer and teach at a college. When those Dominican priests binate or trinate, who has the right of determining the ultimate recipient of the offering for the second and third Masses? Is it the ordinary of the place (in practice, the diocesan bishop) or is it their own ordinary (i.e., the Dominican provincial or Master General)?

The response of the Commission was clear. For the pastor and the parochial vicars, it is the ordinary of the place, but for all others it is their own ordinary who makes the determination .

The only question then is whether, prior to the response, the meaning of canon 951, §1 was certain in itself or whether it was objectively doubtful. A brief history of the canon answers that question:

_1917_ \- Canon 824, §2 did not allow a priest to accept more than one stipend a day.

_1974_ \- On June 13, 1974, Pope Paul VI issued the motu proprio _Firma in traditione_ in which, under III.a, he allowed that a priest could accept more than one stipend a day, but noted that the stipend for the second and third Mass "must be expended on needs specified by the diocesan bishop." At that point, therefore, it was only the diocesan bishop who could make the determination.

_1975_ \- Canon 111, §2 of the 1975 schema on the sacraments (an early version of the present c. 951, §2) said that the stipends offered for the second and third Masses could not be retained by the priest but should "accrue to the good of the Church, according to the prescriptions of the ordinary of the place." So it is still not the ordinary but the ordinary of the place who makes the determination.

_1975_ \- On November 4, 1975, the Congregation for Religious granted a rescript to the Dominican Master General, extending for two years a faculty originally granted in 1970, allowing Dominican priests "to accept stipends for binated and trinated Masses to meet the needs of the provinces and missions." For the Dominicans, therefore, it was no longer the ordinary of the place but their own ordinary who by special rescript, would make the determination.

_1977_ \- On October 17, 1977, the Congregation for Religious renewed for three years the 1975 rescript to the Dominicans but now added the following restriction: "excluded are pastors and vice pastors in the strict sense, if the ordinary of the place so requires."

_1978_ \- When the coetus working on sacramental law met in October of 1978 to discuss, among other subjects, the matter of stipends, it was decided, no doubt in light of these and other similar rescripts, to change the wording of the canon from "ordinary of the place" to simply "ordinary." And so the canon remained from then until the final promulgation of the Code.

It is clear, therefore, that the choice of the term "ordinary" was no accident but rather the final step in an evolutionary process. It is clear, furthermore, that the drafters of the Code understood the term "ordinary" to mean the presider's ordinary unless, in accord with the 1977 rescript, the priest was a pastor or parochial vicar, in which case it would be the ordinary of the place. The response, therefore, was a SIMPLE DECLARATIVE one.

13. Religious in Both Perpetual and Temporary Vows May Transfer from One Monastery to Another within the Same Institute

The Doubt: Whether by the term "religious" in canon 684, §3 is to be understood only religious in perpetual vows or also religious in temporary vows.

_The Response: Negative to the first, affirmative to the second._ 78

The first three paragraphs of canon 684 read as follows:

§1. A member in perpetual vows cannot transfer from one religious institute to another without the permission of the supreme moderator of each institute given with the consent of their respective councils.

§2. After completing a probationary period which is to last at least three years, the member can be admitted to perpetual profession in the new institute. However, if the member refuses to make this profession or is not admitted to making it by competent superiors, the member is to return to the former institute, unless an indult of secularization has been obtained.

§3. For a religious to transfer from an autonomous monastery to another of the same institute or federation or confederation, it is required and is sufficient to have the consent of the major superior of both monasteries and the chapter of the receiving monastery, with due regard for other requirements determined in proper law; a new profession is not required.

The basic question here is whether a religious in temporary vows should be permitted to transfer from one monastery to another within the same institute, e.g., from one Benedictine monastery to another.

There is one rather obvious problem with permitting one in temporary vows to transfer. As Elizabeth McDonough puts it:

... the requirements of probation coupled with the ordinary requirements for temporary profession (cc. 655 and 657) make it very likely that temporary profession would expire during the time of probation. In such a case it is not very reasonable to expect to be admitted to renewal of vows in a community from which one is seeking transfer, and it is not legally possible to pronounce vows before completion of probation in the community to which one is seeking transfer.

With this and other difficulties in mind, the coetus which was putting this canon into its final form in 1980 voted overwhelmingly to disallow temporary professed from any transfer and to permit transfer only for those in perpetual vows. This is absolutely clear from the minutes of the coetus' meeting on March 3, 1980. The task of the coetus that day was, in terms of this canon, to revise the emended text of the 1977 draft canon. In this canon's paragraph 3, members in temporary vows were allowed to transfer provided that they repeated the novitiate and then made a temporary profession of at least three years. When the coetus finished its work on the canon and, in effect, produced a draft canon (which the present c. 684 repeats virtually verbatim), it was no doubt satisfied that it had succeeded in expressing clearly that only those in perpetual vows would be permitted to transfer from institute to institute or from monastery to monastery.

In order to accomplish that, the coetus took the following actions: a) for the explicit purpose of "restricting transfer only to the perpetual professed," it suppressed the old paragraph 3 altogether; b) where paragraph 1 of the 1977 draft had spoken only of a "member," the coetus added the words "in perpetual vows"; and c) it added the notion that when transferring from one monastery to another a new profession would not be required.

The mind of the coetus was, therefore, clear: all transfers would be restricted to those in perpetual vows. Nevertheless, the actual wording of canon 684, §3, which speaks only of "a religious" and not of "a religious in perpetual vows" amounts to a kind of loophole, and it was this _lacuna_ that gave rise to the doubt posed to the Code Commission.

Given the drafting history of this canon, one would have expected the Commission to have responded in a manner diametrically opposed to the way it in fact did. Presumably, after all, the mind of the coetus is the mind of the legislator, but now we have an authentic interpretation which states, in effect, that, in this particular case, the mind of the legislator is exactly the opposite of the mind of the coetus.

How then should the interpretation be classified? Since the very coetus that drafted the law was in agreement that only those in perpetual vows could transfer, that position was surely a solidly probable one at the very least, and enjoyed the status of constituting, again at the very least, an objective doubt. The response of the Commission, therefore, is explanatory and not declarative. But is it simple explanatory or extensive? An argument could certainly be made, based on the drafting history and the sense of the entire canon, that the interpretation is extensive. But, on the other hand, the term "religious" is a generic one which, in general, includes all religious, i.e., those in both perpetual and temporary vows. Thus it would be difficult to say that the Commission's response is really extending the term beyond its ordinary meaning. I would therefore classify the response as a SIMPLE EXPLANATORY one.

14. An Imprimatur Is To Be Printed in the Book Itself

The Doubt: Whether the permission which is mentioned in canon 830, §3 is to be printed in published books, indicating the name of the one giving the permission, the date and place of the grant of permission.

_The Response: Affirmative._ 84

Canon 830 reads as follows:

§1. The conference of bishops can compile a list of censors known for their knowledge, correct doctrine and prudence who could aid diocesan curias, or it can establish a commission of censors which local ordinaries can consult; however, the right of each local ordinary to entrust the judging of books to persons approved by him still remains intact.

§2. In undertaking the office, the censor, laying aside any respect for persons, is to consider only the teaching of the Church concerning faith and morals as it is proposed by the ecclesiastical magisterium.

§3. The censor's opinion must be given in writing; if it is favorable, the ordinary, in his own prudent judgment, is to grant the permission to publish, giving his own name and the time and place of the granting of the permission; if, however, he does not grant the permission, the ordinary is to communicate the reasons for his refusal to the author of the work.

The meaning of the phrase "giving his own name and the time and place of the granting of the permission" in §3 is unclear. Does it mean that the ordinary gives his name, etc., in the decree granting the permission or does it mean that it should be printed in the book itself?

The parallel canon in the 1917 Code, canon 1394, §1, stated explicitly that the imprimatur should be printed "in the beginning or end of the book." Canon 830, §3, however, is not so much an updating of the former canon 1394, §1 as it is an almost (but not quite) verbatim repetition of Article 6, n. 3 of _Ecclesiae pastorum_ , the 1975 decree issued by the Congregation for the Doctrine of the Faith on "the vigilance of the Church's pastors regarding books."

Although the differences between _Ecclesiae pastorum_ and canon 830, §3 are slight, the former was clearer on this point. Instead of saying, as the canon does, that the ordinary "is to grant the permission to publish, giving his own name", etc., _Ecclesiae pastorum_ said that the ordinary "is to grant the permission to publish with his approbation, giving his own name", etc. By omitting the words "with his approbation" the canon lost some clarity and left the reader wondering whether the imprimatur had to be printed in the book itself.

Nevertheless it seems reasonable to conclude that, when the canon requires the ordinary to give his name as well as the time and place of the grant, it is talking about including those items not just in the decree but in the book itself. Two reasons in particular support this conclusion: a) it goes without saying that the permission should be given in writing and not just orally, and it likewise goes without saying that the document would include the name of the ordinary along with the date and place. Otherwise the author and publisher would have no proof that the imprimatur had ever been granted. It is highly unlikely, therefore, that the Code is merely asking that such obvious information be included in the decree; and b) it is, on the contrary, very likely that the Code is asking that this information be printed in the book itself, since the whole point of the law is to provide a means by which people will be able to identify which books are published with ecclesiastical permission and which are not.

The response of the Code Commission is, therefore, a SIMPLE DECLARATIVE one.

15. The Inability of the Diocesan Bishop to Allow a Layperson To Give a Homily

The Doubt: Whether the diocesan bishop is able to dispense from the prescription of canon 767, §1, by which the homily is reserved to priests and deacons.

_The Response: Negative._ 86

Like the sixth response of the Commission (on the inability of the diocesan bishop to dispense from the form of marriage for two Catholics), this response also deals with the dispensing power of the diocesan bishop.

Since canon 87 recognizes the ability of a diocesan bishop to dispense from disciplinary laws that are not specially reserved to the Holy See, and since canon 767, §1 (which reserves the giving of a homily to a priest or deacon) is a disciplinary law and one that is not known by anyone to be specially reserved to the Holy See, one wonders why the Code Commission responds to this doubt in the negative rather than in the affirmative. Is it that the Commission is hereby advising us that henceforth a dispensation from this law will be regarded as one that is specially reserved? Perhaps, but if so, this would seem to be the establishment of an entirely new law. Establishing a new law, however, is beyond the ordinary competence of the Commission, and such an "interpretation," therefore, would be ultra-restrictive.

Perhaps then the response of the Commission is based on a source other than canon 87. If so, that other source can only be canon 86, which states that a constitutive law, i.e., a law which defines those elements which essentially constitute an action, is not subject to dispensation. The question then is this: is canon 767, §1 a constitutive law? According to James Provost, one school of thought holds that a homily is not a homily unless it is given by a priest or deacon. According to this school, therefore, canon 767, §1 is a constitutive law in that it identifies delivery by one in holy orders as at least one of the essential elements that constitutes a homily.

Presumably, however, this is not the reason why the Code Commission has ruled that a diocesan bishop cannot dispense from this canon. Because if it were, the Commission would be saying implicitly that a diocesan bishop can indeed permit laypersons to preach, after the Gospel at Mass, about the mysteries of faith and the norms of Christian life, basing their preaching on the liturgical texts of the day; but what a bishop cannot do is to call that preaching a "homily." This, however, would amount to a kind of semantic legerdemain and is presumably not what the Code Commission was saying.

What then was the Commission's rationale for this response? Perhaps the best clue to that rationale is found in a private response on this question from the President of the Commission, a response which predated by several months the official response here under discussion. In that private response, the President first noted that the matter "will require further research and study following the established procedures of this Commission," but then he went on to offer a personal opinion. He wrote "My own personal opinion about the case you present is that the bishop does not have the power to dispense from the law. This particular canon is not simply a disciplinary law but also a liturgical law. It states that the homily, reserved to a priest or deacon, is some kind of constitutive part of the liturgical celebration."

Although this personal opinion of the Cardinal President is interesting, its meaning is not entirely clear. Presumably the President is not saying that canon 767, §1 is a constitutive law in the sense that a homily is not a homily unless preached by a cleric; nor is he saying that the liturgy of the Eucharist would not be the liturgy of the Eucharist without a homily preached by a cleric, since that is patently untrue. Perhaps then, the sense is this: that just as a diocesan bishop could not permit a layperson to offer the opening prayer at Mass or the prayer over the gifts, so neither could a diocesan bishop permit a layperson to give the homily. It would seem, however, that the _reason_ why a bishop cannot dispense from the liturgical law that requires the priest to offer the prayers at Mass is that the bishop would not have the "just and reasonable cause" which canon 90, §1 requires in order for such a dispensation to be granted validly. This, however, would not necessarily be the case as regards the homily

Given, therefore, the absence of any clear justification for restricting the right of the diocesan bishop in this matter, I am inclined, pending further enlightenment, to agree with the esteemed F.J. Urrutia and conclude that this response of the Code Commission is an ULTRA-RESTRICTIVE one.

16. The Inability of Extraordinary Ministers of Holy Communion to Exercise Their Office When Ordinary Ministers are Present and Unimpeded

The Doubt: Whether the extraordinary minister of Holy Communion, deputed in accordance with canons 910, §2 and 230, §3, can exercise his or her supplementary function even when ordinary ministers, who are not in any way impeded, are present in the church, though not taking part in the Eucharistic celebration.

_The Response: Negative._ 90

Canon 910, §2 says that "the extraordinary minister of Holy Communion is an acolyte or other member of the Christian faithful deputed in accord with canon 230, §3"

Canon 230, §3 reads as follows:

When the necessity of the Church warrants it and when ministers are lacking, lay persons, even if they are not lectors or acolytes, can also supply for certain of their offices, namely, to exercise the ministry of the word, to preside over liturgical prayers, to confer baptism, and to distribute Holy Communion in accord with the prescriptions of law.

The doubt presented to the Code Commission is this: when canon 230, §3 says that lay persons can distribute Holy Communion only "when ministers are lacking" ( _deficientibus ministris_ ), what does that mean? Can ministers be said to be lacking when, though present in the church, they are not actually taking part in the Eucharistic celebration?

The doubt was, it seems, prompted at least in part by a phrase that appeared in _Inaestimabile donum_ , the 1980 instruction from the Congregation for the Sacraments and Divine Worship. After noting that extraordinary ministers are permitted to distribute communion only when either there is no priest, deacon or acolyte, or the priest is impeded by illness or advanced age, or the number of the faithful going to communion is so large as to make the celebration of Mass excessively long, the instruction then concluded: "To be reprobated therefore is the practice of those priests who, although they are themselves taking part in the celebration ( _licet celebrationi ipsi intersint_ ) nevertheless abstain from distributing communion, leaving that task to lay persons."

Since the only practice that was being criticized by the Congregation (if my translation of the word _intersint_ is correct) involved priests who were actually taking part in the celebration.(though not necessarily celebrating) the implication seemed to be that priests present in the church but not participating in the Eucharist could legitimately leave the distribution of communion up to the extraordinary ministers. Hence the doubt posed to the Code Commission.

Nevertheless, canon 230, §3 is clear: extraordinary ministers may distribute only when ordinary ministers are "lacking," and according to the standard method of interpreting such phrases, a minister may be either _physically_ "lacking" (when absent) or _morally_ "lacking" (when impeded). When, therefore, the Commission rules, by this response, that an extraordinary minister may not distribute Holy Communion when an ordinary minister is present and unimpeded, it is giving a SIMPLE DECLARATIVE interpretation.

17. The Right of Aggrieved Faithful to Hierarchical Recourse Against a Decree of Their Bishop

The Doubt: Whether a group of faithful, lacking juridical personality and even the recognition envisaged in canon 299, §3, can legitimately make hierarchical recourse against a decree of its own diocesan bishop.

_The Response: Negative, as a group; in the affirmative, as individual members of the faithful acting either singly or together, provided that they really have a grievance. However, in estimating the grievance, the judge must be allowed suitable discretion._ 92

The nucleus of this response by the Commission seems fairly obvious. It says basically that while a group of faithful lacking juridical personality cannot, precisely as a _group_ , make recourse against a decree of their bishop, nevertheless as _individuals_ , acting either singly or together, they can. This, however, is but a simple application of canon 310 which reads as follows:

A private association which has not been constituted a juridic person cannot as such be a subject of obligations and rights; however, the Christian faithful associated together in it can jointly contract obligations and acquire rights and possess goods as co-owners and co-possessors; they can exercise their rights and obligations through an agent or proxy.

The nucleus of the response, therefore, is a simple declarative one. The coda of the response, however, beginning with the words "provided that they really have a grievance" is another matter. Requiring people to show grievance and awarding the judge discretion in estimating the grievance before the right to recourse is recognized, seems to go beyond the requirements of canon 1737, §1, which simply says that "one who claims to have been injured by a decree can make recourse for any just reason to the hierarchic superior of the one who issued the decree."

The obvious difference between canon 1737, §1 and the Commission's response is that the canon only requires that a person _claim_ to have been injured or aggrieved in order to make recourse, whereas the response requires that the person _really_ have a grievance.

While it may be presumed that the Commission certainly does not intend that the matter be judged before the case is accepted, nevertheless the Commission does seem to be endorsing a kind of preliminary screening process in order to determine whether the decree in question injured the person in some way.

Even this preliminary process, however, must be judged to be demanding more than the law itself demands, namely, a) a _claim_ of being aggrieved by the decree; and b) a just reason. While it is true that the term "a just reason," when read in light of Article 123, §1 of _Pastor bonus_ ," would necessarily include a claim that the decree violated some law, nevertheless it is, again, only a _claim_ at this point and nothing more.

When, therefore, the response demands a real grievance and not just a claim of grievance, it is not, as I understand it, merely interpreting canon 1737, §1 but going beyond it, and it must therefore be considered ULTRARESTRICTIVE.

18. Those Who Procure an Abortion, either by Ejecting an Immature Fetus or by Killing a Fetus, are Excommunicated

The Doubt: Whether abortion, mentioned in canon 1398, is to be understood only as the ejection of an immature fetus, or also as the killing of the fetus in whatever way it may be procured or at whatever time from the moment of conception.

_The Response: Negative to the first part; affirmative to the second._ 94

Traditionally an abortion has been defined as the ejection of a live, immature, i.e., nonviable fetus from the mother's womb. Canon 1398, repeating in substance canon 2350, §1 of the 1917 Code, says that "a person who procures a successful abortion incurs an automatic excommunication."

Feticide is, strictly speaking, different from abortion. Feticide involves the killing of the fetus while it is still in the womb, whereas in abortion the fetus is alive when it is ejected from the womb.

Feticide is a species of homicide, and homicide is not punished by automatic excommunication either in the 1917 Code or in the 1983 Code.

Morally, abortion and feticide would seem to be equally wrong. But there is a canonical question here, and it is this: considering the principle that "laws which establish a penalty are subject to strict interpretation," are those who commit feticide subject to the same canonical penalty as those who commit abortion?

Traditionally most authors were of the opinion that they are not. Coronata, for example, wrote "Practically all authors, both ancient and more modern, teach that craniotomy and embryotomy do not come under the name of abortion and that those who perform or procure those operations are not subject to the penalties stated in this canon." Nevertheless a few authors, including Coronata himself, were of the opinion that, since feticide is tantamount to abortion, those who commit feticide would be subject to the same penalty as those who procure an abortion.

When canon 1398 was being considered by the revising coetus in its meeting of April 22, 1977, some asked that a definition of abortion be given. The consultors, however, saw no reason to define abortion because, they said, "Catholic doctrine is clear on this point." One can only conclude that, in making this statement, the consultors were endorsing the traditional definition of abortion as the ejection of a live, immature fetus from the womb, and that very likely, therefore, they were also endorsing the more common opinion that those who commit feticide do not incur automatic excommunication.

Nevertheless, in recent years, most "abortions" have been procured either by suction or by a dilation and curettage or by a prostaglandin drug, often in conjunction with the RU 486 pill, or by saline poisoning. Since, however, in all of these procedures the fetus is usually killed in the womb, such methods are not, strictly speaking, abortions as that term has been traditionally defined.

The Code Commission's decision, therefore, to broaden the definition of abortion (which is, in effect, what this response does) makes eminent sense. Nevertheless, given the history of canon 1398 and the fact that the more common opinion has always held that those who commit feticide do not incur automatic excommunication, this ruling by the Commission, which extends the penalty attached to canon 1398 to include those who have committed feticide, is an EXTENSIVE one, and is not, therefore, retroactive.

19. Religious Judges on the Roman Rota Are Not Exempt from Their Own Religious Ordinaries or Their Obligations as Religious

The Doubt: Whether religious, appointed judges of the Roman Rota, are to be considered exempt from the religious ordinary and from the obligation deriving from religious profession as in the case of religious raised to the episcopate.

_The Response: Negative to both, except in what concerns the exercise of their office._ 100

A long tradition in the Church recognized that religious priests who were named as Rotal auditors were exempt from the jurisdiction of their own religious superiors and also from the obligation of common life and from the vow of poverty to the extent that they judged those obligations to be incompatible with their office as auditor. The historical highlights of that tradition are the following:

a) On July 26, 1913, Pope Pius X recognized as a privilege originally granted to Rotal auditors in 1349 that "they are exempt, by personal immunity, from the jurisdiction of their Ordinaries." This privilege clearly referred not just to diocesan priests but to religious priests as well.

b) The 1917 Code contained a chapter entitled "On the Obligations and Privileges of Religious Promoted to an Ecclesiastical Dignity or in Charge of Parishes." This chapter specifically noted in canon 627 that religious bishops and cardinals were exempt from the jurisdiction of their religious superiors and could make their own prudent judgment about the extent to which they should adhere to the obligations stemming from their religious profession. Although the canon dealt explicitly only with religious bishops and cardinals, nevertheless partly because of the long-standing tradition mentioned by Pius X a few years earlier, partly because of the chapter heading, which referred to religious promoted not just to the episcopate but to any "ecclesiastical dignity," and partly by reason of analogical application, it was generally understood that the same exemptions applied to religious Rotal auditors as well.

When the drafting coetus met on April 29, 1980 and discussed this canon, the secretary noted that "it might be necessary to broaden the sense of canon 627 so that it refers to vicars, prefects apostolic and others mentioned in canon 628," i.e., those raised to an ecclesiastical dignity outside their own institute.

Shortly thereafter, however, it appears that the tide began to turn. When the draft of the whole Code appeared a few months later in June 1980, the chapter heading comparable to the one mentioned above read simply: "On Religious Raised to the Episcopate" with no mention at all of religious raised to other ecclesiastical dignities; and the canon comparable to the old canon 627 (numbered 631) likewise spoke only of religious raised to the episcopate.

Finally the 1983 Code itself retained the same chapter heading as the 1980 draft and the same wording of the canon, now numbered 705.

Two factors in particular seem to lie behind the fact that the 1983 Code no longer extends the exemption to religious Rotal auditors but restricts it to religious bishops. First, that it is fitting that religious bishops, by reason of their special bond of communion with the Roman Pontiff, Head of the College of Bishops, should be subject only to him; and secondly that religious Rotal auditors should follow the directive of _Christus Dominus_ 35, 2, which reads: "Religious engaged in the active apostolate, however, should be imbued with the spirit of their religious community, and remain faithful to the observance of their rule and to submissiveness toward their own superiors."

The response of the Commission is a SIMPLE DECLARATIVE one.

20. The Impossibility of an Auxiliary Bishop Being President or Pro-President of a Conference of Bishops or of a Regional Gathering of Bishops

The Doubt: Whether an auxiliary bishop is able to undertake the office of president (or pro-president) of an episcopal conference. Whether he can undertake such a position in gatherings of the bishops of ecclesiastical regions mentioned in canon 434.

_The Response: Negative to both._ 104

On March 10, 1989, the President of the Law Council, Cardinal Castillo Lara himself issued a commentary on this response in which he noted that the negative response by the Commission might create some wonderment. First, because in point of fact more than one auxiliary bishop had already been elected as president of a conference (and as the ancient axiom says "Against a fact there is no argument"), and secondly, because the Code does not explicitly forbid an auxiliary bishop from being elected as president of a conference. The pertinent canon, canon 452, reads simply:

Canon 452, §1. Each conference of bishops is to elect a president for itself; it is also to determine who is to serve in the role of pro-president when the president is legitimately impeded; and it is also to appoint general secretary of the conference, according to the norm of the statutes.

§2. The president of the conference, and the pro-president when the former is legitimately impeded, preside not only at the general meetings of the conference of bishops but also over its permanent council.

Nevertheless in his commentary, Cardinal Castillo Lara offers several compelling reasons for the Commission's ruling. His position may be summarized as follows:

a. _The Nature of the Presidency of a Conference_ : The presidency is not an honorary title but a position of great importance. The president, for example presides over the meetings of the conference and of its permanent council; he acts in the person of the conference, expresses opinions about the mind of the conference, prepares, along with the permanent council, the agenda for the meeting and sees to the implementation of the conference's decisions.

b. _The Nature of a Conference of Bishops_ : Canon 447, which is based on Christus Dominus 38, 1, notes that the whole point of a conference of bishops is to allow the bishops of a given nation or territory to exercise jointly certain pastoral functions. It is, therefore, the exercise of the pastoral office that is at the heart of a conference.

c. _The Nature of a Diocesan Bishop_ : Canon 369 defines a diocese as a portion of the People of God which is entrusted for pastoral care to a bishop with the cooperation of the presbyterate so that, adhering to its pastor and gathered by him in the Holy Spirit through the gospel and the Eucharist, it constitutes a particular church in which the one, holy, catholic and apostolic Church of Christ is truly present and operative.

It is clear from this canon that the special competence of the diocesan bishop is his pastoral office, that there is only one diocesan bishop in a diocese and that collegial leadership in the strict sense is inconceivable.

d. _The Relationship of a Diocesan Bishop to a Conference_ : Canon 448, §1 says that "generally the conference of bishops encompasses all who preside over particular churches of the same nation." The natural and proper members of a conference, therefore, are diocesan bishops and those equivalent to them, for only they have a direct, immediate and personal responsibility for a portion of the People of God. The special title, in other words, by which one is a member of a conference is not the episcopal character but the condition of being pastor of a particular church.

e. _The Nature of an Auxiliary Bishop_ : The duty of the auxiliary bishop, as the name implies, is to assist and to cooperate with the diocesan bishop. An auxiliary bishop does not enjoy any autonomous pastoral responsibility in a diocese or any jurisdiction except what the diocesan bishop delegates (although as vicar general or vicar episcopal he enjoys ordinary, vicarious jurisdiction).

f. _The Relationship of an Auxiliary Bishop to a Conference_ : Canon 454 says that an auxiliary bishop does not, by the law itself, enjoy a deliberative vote in the conference (though he might by the statutes of a particular conference). Since, however, a deliberative vote is the primary right of any member of any collegial group, it is clear that an auxiliary bishop is not a member of a conference by full right but is rather a kind of second grade member.

g. _A Comparison of a Conference with a Plenary Council_ : In a plenary council an auxiliary bishop enjoys a deliberative vote (c. 443, §1, 2°) and is therefore a full member, but is still not eligible to be elected as president (c. 441, 3°). This legislation clearly tends to confirm the conclusion that an auxiliary bishop is likewise ineligible for election as president of a conference.

Given Cardinal Castillo Lara's persuasive reasoning in support of the Commission's response, the response, it appears, is not truly restrictive but only QUASI-RESTRICTIVE.

21. The Right of the Diocesan Bishop to Appoint the President of a Chapter of Canons

The Doubt: Whether canon 509, §1 requires that a chapter of canons elect its president.

_The Response: Negative._ 106

The issue here is whether the diocesan bishop can freely confer on a priest the presidency of a chapter of canons, or whether one must be elected to that office.

Canon 157 states the general rule that "Unless otherwise explicitly determined by law, it is within the competence of the diocesan bishop to provide for ecclesiastical offices in his own particular church by free conferral." The question then is whether canon 509, §1, which deals specifically with the conferral of a canonry, explicitly determines that free conferral of the presidency of a chapter by the diocesan bishop is _not_ permitted but rather that the president of a chapter must be elected. Canon 509, §1 reads as follows:

It is for the diocesan bishop, having listened to the chapter, but not for the diocesan administrator, to confer each and every individual canonry whether in the cathedral church or in the collegial church, every contrary privilege being revoked; it is for the same bishop to confirm the election by the chapter of the one who shall preside over it.

At first glance it might seem that the first part of this paragraph ("It is for the diocesan bishop ...") deals with the _ordinary canonry_ , while the second part of the paragraph ("It is for the same bishop ...") deals with the _presidency_. Read in this way, the paragraph seems to be saying that the bishop can _appoint_ a canon but that the president of the chapter must be _elected_ , with the bishop confirming the election.

This reading of the 1983 law might seem, at least at a certain level, to tie in nicely with the 1917 law which definitely recognized a distinction in terms of conferral between an ordinary canonry and the presidency (or, for that matter, any "dignity''). In fact, however, the 1917 law on this point was quite different from that of the 1983 Code. The 1917 Code allowed, in canon 403, that a bishop could appoint a priest to an ordinary canonry but noted, in canon 396, §1, that the conferral of the presidency or of any other dignity was reserved to the Holy See.

By the time of the Second Vatican Council, however, the reservation of dignities to the Holy See was seen as an undue restriction on the diocesan bishop in the pastoring of his church, and _Christus Dominus_ 28 said:

In order to distribute the sacred ministries more equitably and properly among his priests, the bishop should possess a necessary freedom in assigning offices and benefices. Therefore, rights or privileges which in any way limit this freedom are to be suppressed.

_Ecclesiae sanctae_ , the 1966 _motu proprio_ on the implementation of certain Vatican II decrees, then went on to spell it out more explicitly. Norm 18. §1 said:

The good of souls demands that the Bishop have proper freedom in conferring offices and benefices, even those to which the care of souls is not attached, fittingly and fairly upon the clerics who are best suited for them. The Apostolic See no longer reserves to itself the conferring of offices and benefices, whether connected with the care of souls or not, unless they are consistorial.

In effect, therefore, the Second Vatican Council abolished any distinction between an ordinary canonry and the presidency insofar as their conferral is concerned. This was reflected in canon 157 of the 1983 Code which, as we have seen, provided that unless otherwise explicitly determined by law, a diocesan bishop could freely confer any ecclesiastical office in his own particular church.

When, therefore, canon 509, §1 is read in light of _Christus Dominus_ 28, _Ecclesiae sanctae_ 18. §1 and canon 157, it is clear that a diocesan bishop is free, in general, to appoint a priest to the presidency of a chapter of canons but that, if the statutes of a given chapter (which have, in accord with canon 505, been approved by the diocesan bishop) provide for the president to be elected, then it is for the diocesan bishop to confirm that election.

This response of the Commission is a SIMPLE DECLARATIVE one.

22. The Inability of the Diocesan Bishop to Tax the External Schools of Religious Institutes of Pontifical Right

The Doubt: Whether external schools of religious institutes of pontifical right are included under the words of canon 1263, ''public juridic persons subject to his authority."

_The Response: Negative._ 108

Canon 1263, one of the better known canons in the Code, deals with the taxing authority of the diocesan bishop. The opening words of this canon (which is the section that pertains to this response by the Commission) are: "The diocesan bishop has the right to impose a moderate tax on public juridic persons subject to his authority."

The question posed to the Commission has to do with the meaning or application of the phrase "public juridic persons subject to his authority." The Latin is _personis iuridicis publicis suo_ _regimini_ _subiectis._ 109 The Latin word _regimini_ , which both the CLSA and the CLSGBI versions translate as "authority" in this context, can also be translated as "governance" or even "jurisdiction," as in canon 129, §1. The specific question before the Commission, then, is whether external schools of religious institutes of pontifical right are or are not subject to the authority, governance or jurisdiction of the diocesan bishop.

Perhaps it should be noted, first of all, that most schools of religious institutes are not, in fact, established as public juridic persons in their own right but are rather _apostolates_ of the public juridic person which is the institute. Since, however, canon 1263 permits the diocesan bishop to impose this ordinary tax only on public juridic persons, most schools of religious institutes are, in practice, exempt from this tax anyway, simply because they are not public juridic persons.

That having been said, however, what about external schools of religious institutes of pontifical right: are they or are they not subject to the authority of the diocesan bishop? It goes without saying, of course, that the institutes of pontifical right themselves are, by reason of canon 593, exclusively subject to the authority of the Holy See and are _not_ subject to the authority of the diocesan bishop. But what of the schools sponsored by those institutes?

Clearly external schools (but not internal schools) are subject to _visitation_ by the diocesan bishop. Both _Ecclesiae sanctae_ 39, 2 and canon 683, §1 state this explicitly. Thus canon 683 §1, says" ... the diocesan bishop ... can make a visitation of ... schools ... entrusted to religious; however he may not visit schools which are open only to students belonging to the institute."

It is equally clear that such schools are subject not just to visitation by the diocesan bishop but to his _vigilance_ as well. Canon 806, §1 reads:

The diocesan bishop has the right of vigilance over and visitation of the Catholic schools located in his territory, even those schools which have been established or are being directed by members of religious institutes; he is likewise competent to issue prescriptions dealing with the general regulation of Catholic schools; such prescriptions are also operative for those schools which are directed by religious, with due regard for their autonomy regarding the internal management of their schools.

To be subject to one's visitation and vigilance, however, is not necessarily to be subject to one's governance. Indeed, the final phrase of canon 806, §1 ("with due regard for their autonomy regarding the internal management of their schools") makes it clear that while the diocesan bishop, in his role as chief pastor in the diocese, has the right to oversee religious education in the diocese, nevertheless religious institutes, at least those of pontifical right, enjoy autonomy in the general governance of their schools. The schools of religious institutes of pontifical right, therefore, are subject to the governance of the institute itself and not to the governance of the diocesan bishop.

The Commission's response is a SIMPLE DECLARATIVE one.

23. The Sufficiency of a Relative Majority on the Third Ballot of an Election in accord with Canon 119, 1°

The Doubt: Whether, during elections held according to the norm of canon 119, 1° an absolute majority of votes of those present is required even on the third ballot, or whether, except in the case of a tie, a relative majority suffices.

_The Response: Negative to the first part; affirmative to the second._ 116

Canon 119, 1 °, which deals with elections, reads as follows:

If it is a question of elections, that action has the force of law which when a majority of those who must be convoked are present, receives the approval of an absolute majority of those who are present; after two indecisive ballots, the choice is between the two candidates who have obtained the greater number of the votes, or, if there are several (with the same numbers), upon the two who are senior in age; after a third ballot, if the tie remains, the one who is the senior in age is considered elected.

Canon 119, 1° differs in many ways from its parallel canon in the 1917 Code, canon 101, §1, 1°, but in terms of this response by the Law Council, the most _notable_ difference is that the old canon 101, §1, 1° stated explicitly that a _relative_ majority was sufficient on the third ballot whereas that phrase has not been retained in the present canon 119, 1°. The omission of the phrase, which must certainly have been intentional, has led some to wonder whether, for an election, an absolute majority is now required, even on the third ballot.

An absolute majority, incidentally, means more than half the votes, whereas a relative majority means more votes than those received by any other candidate.

Despite the solid foundation for the doubt, however, the response of the Law Council is both logical and practical. First of all, it is important to note that both the former and new Codes make it quite clear that the maximum number of ballots allowed is three. After three ballots, according to our law, the matter must, in some way, be settled.

Imagine, then, the following, not untypical, scenario. A diocesan bishop dies. The diocesan consultors in that diocese number twelve, the maximum number allowed by canon 502, §1. In accord with canons 421, §1 and 176, all twelve consultors meet and elect the diocesan administrator as follows. On the first ballot, four priests: Matthew, the 55 year old fiscal officer; Mark, the 50 year old chancellor; Luke the 45 year old auxiliary bishop; and John, a 40 year old pastor, receive three votes each.

Since in this scenario of twelve consultors, an absolute majority would be seven, it is obvious that no one candidate is even close to an absolute majority. A discussion then follows during which it is made clear that, should the second ballot be a repeat of the first, then according to canon 119, 1°, Luke and John, as the two candidates junior in age, would be automatically eliminated from the third ballot. Nevertheless, on the second ballot, Matthew, Mark, Luke and John again receive three votes each.

On the third ballot it is between Matthew and Mark. There are now two basic possibilities. The first possibility is that all twelve consultors vote either for Matthew or Mark. This can result in one candidate receiving more votes than the other and thus winning by an absolute majority, i.e., by at least a seven to five vote; or it could result in a six to six tie, in which case Matthew, as the senior in age, is considered elected but by less than the seven votes needed for an absolute majority. The second possibility is that one or more of the consultors who had originally backed either Luke or John are now reluctant to vote for either Matthew or Mark, and so they abstain. Even if there were only three abstentions, and therefore only nine effective votes, then the most likely result is that one of the candidates will win by either a five to four or a six to three vote (with the other candidate retaining the three votes he enjoyed from the beginning). So in this case we truly have a candidate elected by only a relative majority.

Since a scenario of this sort is not at all untypical, and since it may be presumed that the drafters of this canon had such scenarios in mind, it seems clear that this response of the Law Council is not an explanatory one. Since, however, canon 119, 1° does not in itself clearly allow a relative majority on the third ballot, especially when canon 119, 1° is read in light of the old canon 101, §1, 1°, the response should be considered QUASI-EXTENSIVE.

24. The Possibility of Bishops Emeriti Being Elected by Their Conference as Members of the Synod of Bishops

The Doubt: Whether bishops emeriti, as mentioned in canon 402, §1, can be elected by the conference of bishops as members of synods of bishops according to the prescriptions of canon 346, §1.

_The Response: Affirmative._ 120

_Christus Dominus_ 38, 2, Vatican II's Decree on the Bishops' Pastoral Office in the Church, notes the following regarding membership in a conference of bishops:

Members of the episcopal conferences are all local Ordinaries of every rite, coadjutors, auxiliaries, and other titular bishops who perform a special work entrusted to them by the Apostolic See or the episcopal conferences. Vicars general are not members. _De jure_ membership belongs neither to other titular bishops nor, in view of their particular assignment in the area, to legates of the Roman Pontiff.

Article II.b of the 1972 statutes of the National Conference of Catholic Bishops of the United States applies this explicitly to retired bishops by noting that bishops emeriti,

... while not considered _de iure_ members according to the norms of _Christus Dominus_ , retain membership in the Conference. This shall include the right to speak on all issues. The right to vote, however, shall extend to all matters except those which by law are binding when approved by two-thirds of the membership (cf. Article XIV) and those involving the acceptance of financial obligations (cf. Article XV).

The NCCB statutes, which were, of course, approved by the Holy See, then go on in Article V, to restrict eligibility for office in the Conference only to _de iure_ members. According to the NCCB statutes, therefore, it would seem that bishops emeriti cannot be elected by the Conference to any office, including that of representing the Conference at a synod of bishops.

Nevertheless there is nothing, either in _Apostolica sollicitudo_ , the 1965 _motu proprio_ by which Pope Paul VI established the Synod of Bishops, or in the Order of the Celebration of the Synod of Bishops or in the _Code of Canon Law_ , that would restrict a conference of bishops from electing a bishop emeritus to membership in the synod.

_Apostolica sollicitudo_ , Article V, speaks only of: "the bishops elected by each of the national episcopal conferences as provided in n. VIII." And Article VIII likewise speaks only of "the bishops who represent each of the national conferences," without suggesting in any way that bishops emeriti might be excluded.

The 1969 _Ordo Synodi_ , in Articles 5, §1, 1°, b and 6, §1 again speaks only of "bishops" without a restriction of any kind.

Finally, canon 346, §1 of the _Code of Canon Law_ begins:

The membership of a synod of bishops gathered in ordinary general session consists of the following: for the most part, bishops elected to represent their individual groups by the conferences of bishops in accord with the special law of the synod.

Since, furthermore, synods are called in order to pool the wisdom of the universal episcopate on particular topics, e.g., evangelization, catechetics, the role of the family, the sacrament of reconciliation, the laity, it makes excellent sense to allow a conference of bishops the freedom to elect as its representative to a particular synod a bishop emeritus who might happen to be the member of the conference (even though not a _de iure_ member) who is most knowledgeable on the topic; under discussion at that synod. The response of the Council is a SIMPLE DECLARATIVE one.

D. CONCLUDING OBSERVATIONS

1. The classifications assigned to each of the twenty-four responses are, of course, only my own personal opinion. Other canonists, better informed than I and of keener mind, might analyze and thus classify many of the responses differently.
The classifications as given, however, may be summarized schematically as follows. In order to save space I have used simple abbreviations (SD for Simple Declarative, QE for Quasi-Extensive etc.) for the eight categories:

Class | Total | Response # | Summary

---|---|---|---

SD | 14 | 2, 3, 5, 7, 8, 10, 11, 12, 14, 16, 19, 21, 22, 24 |

QE | 2 | 4, 23 |

QR | 2 | 6, 20 | 18 Declarative

SE | 1 | 13 |

E | 1 | 18 |

R | 1 | 1 | 3 Explanatory

UE | 0 | (though Navarrete considers 11 to be such) |

UR | 3 | 9, 15, 17 | 3 Ultra-explanatory

2. Gommar Michiels, in commenting on the authentic interpretation of law, made three rather general observations that bear repeating here: a) objectively doubtful laws are quite rare ( _rariores_ ); b) authentic interpretations by the Code Commission are presumably declarative rather than explanatory; and c) the ultimate and decisive criterion which determines whether a law may be considered objectively doubtful is not the probable opinion of authors but the authentic judgment of the competent authority.

3. Allow me to make a few comments applying Michiels' observations to the twenty-four responses as here classified:

a. _The rarity of objectively doubtful laws_. Between January 1984, when the Code Commission was established, and January 1988, when Cardinal Castillo Lara gave his address to the Canon Law Society of Austria, more than 400 questions had been submitted to the Commission; of these, 32 were submitted to plenary examination; and of those 32, 15 had been published as authentic responses.

Since that time, nine more responses have been published and it might be assumed that perhaps another 200 questions or so have been received by the Commission. It seems likely, in other words, that at least 600 questions have been submitted to the Commission/Council since January 1984.

It is, of course, precisely here, in this pool of some 600 or more questions, that any objectively doubtful laws that might exist in the new Code are likely to surface. According to my own examination of the twenty-four responses published to date, only six laws have been found to involve more than subjective doubt (as found in the three explanatory and three ultra-explanatory interpretations). This is a total of six out of perhaps 600 or more questions.

To say that something is "rare" or "quite rare" is, of course, to use a subjective form of measurement. What is rare to one person might not be to another; and what is rare in one situation might not be in another. Nevertheless when, after nine or ten years of fairly intense scrutiny by canonical scholars from all over the world, the meanings of only six laws have been found to involve more than subjective doubt, those six laws may, it seems, be safely described as "rare."

b. _The presumptive declarativeness of interpretations_. The principle that an authentic interpretation, especially of a canon in the Code, is presumably declarative rather than explanatory, is a sensible one. Each canon of the Code was, after all, drafted and redrafted, studied and restudied over a period of many years. Advice was sought from far and wide, and taken seriously. Each canon, in other words, was exquisitely crafted before being promulgated, so one is perfectly justified in presuming that once a canon is promulgated its meaning is intrinsically certain. Should, therefore, a doubt arise about the meaning of a particular canon, that doubt is presumably only a subjective doubt, and an authentic interpretation of that law is presumably only a declarative one.

Anyone engaged in the examination and classification of authentic interpretations would be well advised to keep this principle in mind. At the same time, however, one must also keep in mind the principle that "a presumption cedes to the truth." Always, therefore, the search must be for the _truth_ , which is usually but not always coterminous with the _presumed truth_. While it would, on the one hand, be rash to dismiss a recognized presumption as devoid of all wisdom, it would, on the other hand, be irresponsible and unscholarly to accept every presumption as the final Word, and to allow that presumption to cut off all further inquiry.

The sensible approach, it would seem, to the classification of authentic interpretations, is to presume initially that a given interpretation is declarative, but then to examine the matter thoroughly. When the results of that examination dictate that, in fact, or in truth, this particular interpretation is not declarative but rather explanatory (or even ultra-explanatory) the usual presumption must then be at least tentatively set aside in favor of the truth as best the examiner understands it.

c. _The competent authority as final arbiter_. In theory there is no question but that the Code Commission/Law Council is the ultimate judge of whether a given interpretation is declarative or explanatory. In practice, however, the fact is that the Commission has almost never offered any specific directive on how a particular response is to be classified. We saw under B.2 that, in 1931, the Commission ruled that an earlier response declaring, despite the opposite opinion of most authors, that the phrase "born of non-Catholics" in canon 1099 §2 includes those born of parents only _one_ of whom was non-Catholic, was a declarative and not an extensive one. But this was an extremely rare instance of a foray by the Commission into the realm of authentically classifying its own interpretations.

There was also the commentary issued by the President of the Law Council on Response Number 20 about the impossibility of an auxiliary bishop being elected to the presidency of a conference of bishops. At the conclusion of that commentary the Cardinal President noted that the Commission itself simply _issued_ the response and did not deem it necessary to get into the business of _classifying_ it, since such distinctions are, as he put it, usually left to "doctrine." The Cardinal did, however, suggest that most authors would probably see that interpretation as a declarative one.

An unofficial commentary by the President of the Council, however, is, like the 1931 response mentioned above, extremely rare. Cardinal Castillo Lara probably saw this commentary on the relationship between an auxiliary bishop and the conference of bishops as a kind of experiment. If so, most canonists, I would think, would consider it to have been a highly successful one, and one which the President should perhaps utilize more often, especially in the more complex and subtle cases. Among the twenty-four responses given thus far, for example, a commentary by the President might have been particularly helpful regarding responses 9, 15 and 17, all of which I have reluctantly and tentatively classified as ultra-explanatory.

At any rate, while it is true in theory that the Commission/Council is the ultimate judge of such matters, in practice this dicastery tends to leave classification to the authors. There is always, of course, the general presumption that every authentic interpretation is declarative, and there is an even stronger presumption that, unless approved by the Pope with "specific approbation," no authentic interpretation is ultra-explanatory. Beyond that, however, specific directives regarding classification are uncommon.

There is an old story about three baseball umpires who were asked how they distinguished balls from strikes. The first umpire said "Well, there are balls and there are strikes, and I calls 'em as I sees 'em." The second umpire said "There are balls and there are strikes, and I calls 'em as they is." And the third said "There are balls and there are strikes but they ain't nothin' till I calls 'em."

The mandate of the Code Commission/Law Council, as I understand it, is "to call 'em as they is," that is to say, to declare the true sense of the law. In general, the Commission/Council has admirably carried out that mandate. There have, however, been a few occasions, it seems, when the Commission has issued an interpretation that "wasn't nothin till it called it." It seems, in other words, that a few interpretations over the years have amounted to a materially new law that was nonexistent prior to the response by the Commission.

For my part, however, I just "calls 'em as I sees 'em," _salvo semper meliore iudicio Sanctae Sedis_.

Return to TOC

1983

ENDNOTES

* Presentation given in part to the Canon Law Society of Great Britain and Ireland on May 11, 1993, London Colney, St. Albans, Hertfordshire.

 _Communicationes_ XVI (1984) 1, 3-4.

 _Communicationes_ XX (1988) 1, 3, 52-53, 61 and XXIII (1991) 130. For more on the competence of the Law Council see Francisco Javier Urrutia, "De Pontificio Consilio de legum textibus interpretandis," _Periodica_ 78 (1989) 503-521.

 Charles Augustine, _A Commentary on the New Code of Canon Law_ (St. Louis: B. Herder, 1919) v, 302.

 _AAS_ 21 (1929) 573; _Canon Law Digest_ (hereafter _CLD_ ) 1, 543.

 Ludovicus Bender, _Legum Ecclesiasticarum Interpretatio et Suppletio_ (Roma: Desclée, 1961) 116 and 305.

 Francisco Wernz, _Ius Decretalium_ (Romae: Propaganda Fide, 1908) I, 132, para. 127. For an older usage of the word "declaration,'' see John Rogg Schmidt, _The Principles of Authentic Interpretation in Canon 17 of the Code of Canon Law_ (Washington: CUA Press, 1941) 169-177.

 Canon 16, §2.

 Canon 14.

 Canon 16, §2.

 For example, the 1929 response mentioned above, where the Code Commission ruled that the phrase "born of non-Catholics" included those born of parents only one of whom was non-Catholic, seemed to extend the number of cases beyond those indicated by a literal reading of the canon. After the ruling, in other words, it was clear that more people would be excused from the form of marriage than might previously have been thought.

 The present canon 16, §2, for example, reads "An authentic interpretation communicated in the form of law has the same force as the law itself and must be promulgated. Furthermore, if such an interpretation merely declares what was certain in the words of the law in themselves, it has retroactive force; if it restricts or extends the law or if it explains a doubtful law, it is not retroactive."

 _CLD_ 1, 593.

 Charles Augustine was, in fact, only one of many. See Petrus Card. Gasparri, _Tractatus Canonicus de Matrimonio_ (Città del Vaticano: Typis Polyglottis Vaticanis, 1932) II, 145, n. 1025.

 _AAS_ 23 (1931) 388; _CLD_ 1: 544.

 Gasparri, op. cit., II, 146, n. 1027.

 _AAS_ 11 (1919) 478; _CLD_ 1: 487.

 _AAS_ 11 (1919) 477; _CLD_ 1: 298.

 A. Vermeersch and J. Creusen, _Epitome Iuris Canonici_ (Romae: Dessain, 1932) I, 483, n. 673.

 _AAS_ 20 (1928) 120; _CLD_ 1: 542.

 _AAS_ 23 (1931) 388; _CLD_ 1: 542. For still another response on the same subject, see _AAS_ 37 (1945) 149; CLD 3: 454.

 Amleto Cicognani, _Canon Law_ , 2nd rev. ed. (Westminster: Newman Bookshop, 1934) 615.

 See, for example, Gasparri, op. cit., II, 142, n. 1017 and Franciscus Wernz and Petrus Vidal, _Ius Canonicum_ , V, _Ius Matrimoniale_ (Romae: Gregorian University, 1946) 697, n. 73*. The position of Gasparri and Wernz-Vidal seems to differ only marginally from my own. Theirs is that physical absence means physical inability to officiate on account of a grave inconvenience; mine is that physical absence includes moral inability to officiate.

 _AAS_ 23 (1931) 110; _CLD_ 1:241-242.

 _Communicationes_ XX (1988) 281.

 See B 4 and footnote 21. See also Cicognani, op. cit., 434.

 _AAS_ 76 (1984) 746; _Periodica_ 73 (1984) 285-287.

 _AAS_ 59 (1967) 559 under 33a; _CLD_ 6, 536.

 _AAS_ 65 (1973) 267; _CLD_ 8, 480

 _Communicationes_ XIII (1988) 414-416.

 _AAS_ 76 (1984) 747; _Periodica_ 73 (1984) 287-290.

 _AAS_ 28 (1936) 359.

 _AAS_ 63 (1971) 445 - _ex defectu formae canonicae_.

 _AAS_ 63 (1971) 442 - _expeditior fiat ipse matrimonialis processus_.

 See, for example, Orlando DiJorio, "Annotationes in M. Causas Matrimoniales," _Periodica_ 65 (1976) 359-361.

 _Communicationes_ XI (1979) 269.

 _AAS_ 76 (1984) 747; _Periodica_ 73 (1984) 290-292.

 _Communicationes_ XIV (1982) 217-218.

 For the functions of the presbyteral council see canons 461 §1; 495 §1; 500 §2; 515 §2; 531; 536 §1; 1215 §2; 1222 §2 and 1263. For the functions of the college of consultors see canons 272; 377 §3; 382 §3; 404 §§1 and 3; 413 §2; 419; 421 §1; 422; 485; 494 §§1 and 2; 501 §2; 833, 4°; 1018 §1, 2°; 1277 and 1292 §1.

 Canon 495, §I.

 _AAS_ 77 (1985) 771; _Periodica_ 74 (1985) 609-616.

 As, for example, in canon 538, §3 where a conference is expected to issue norms regarding suitable support and housing for a retired pastor; or as in canon 1126 where a conference is expected to establish the way in which the promises in a mixed marriage are to be made, how they are to be established in the external forum and how the non-Catholic party is to be informed of them.

 In terms of the examples given in footnote 41, when a conference issues norms in accord with canon 538, §3, that constitutes a general _legislative_ decree, whereas when a conference issues norms in accord with canon 1126, that constitutes a general _executory_ decree.

 See canon 29. The adjective _legislativa_ is used in the Code of Canon Law only to modify the noun _potestas_. See Xaverius Ochoa, _Index Verborum ac Locutionum Codicis Iuris Canonici_ , (Roma: Commentarium pro Religiosis, 1983) 236.

 _AAS_ 77 (1985) 771; _Periodica_ 74 (1985) 617-623.

 Canon 502, §2.

 _AAS_ 77 (1985) 771; _Periodica_ 74 (1985) 624-628.

 Canon 582.

 Canon 605.

 Canon 691.

 Canon 1031, §4.

 Canon 1047, §2.

 Canon 1078, §2.

 Canon 1308.

 Canons 1367; 1370; 1378; 1382 and 1388.

 _Communicationes_ VIII (1976) 65.

 _AAS_ 78 (1986) 1323; _Periodica_ 77 (1988) 162-167.

 _AAS_ 78 (1986) 1323; _Periodica_ 77 (1988) 149-158.

 _Communicationes_ XIII (1981) 356-358.

 _Communicationes_ XV (1983) 79.

 _Congregatio Plenaria_ , Pontificium Consilium De Legum Textibus Interpretandis (Città del Vaticano: Typis Polyglottis Vaticanis, 1991) 286-287.

 Canon 700 reads as follows: A decree of dismissal does not take effect unless it has been confirmed by the Holy See to whom the decree and all the acts are to be transmitted; if it is a question of an institute of diocesan right, the confirmation belongs to the bishop of the diocese where the house to which the religious is assigned is situated. The decree, for validity, must indicate the right which the dismissed religious enjoys to have recourse to competent authority within ten days from receiving the notification. The recourse has a suspensive effect.

 _AAS_ 78 (1986) 1324; _Periodica_ 77 (1988) 158-162.

 It bears noting, incidentally, that in 1975, at the request of the Minister General of the O.F.M. Conventual, the Congregation for Religious and Secular Institutes granted for six years to the retired bishops and prelates of the Order the right to active and passive voice in derogation of canon 629, §2. See _CLD_ 9: 453.

 Stanislaus Woywood and Callistus Smith, _A Practical Commentary on the Code of Canon Law_ (New York: Wagner, 1946) I, 275.

 _Communicationes_ XIII (1981) 364.

 In the spirit, perhaps, of the 1975 grant mentioned in footnote 63.

 Perhaps an argument could be made that the Commission's response is in some way based on the phrase in canon 705 which says that a religious bishop "is, in virtue of his vow of obedience, subject to the Roman Pontiff alone," but it is hard to imagine that that phrase could be interpreted to mean that a retired religious bishop, for example, who is back living in the community, does not have a right to vote in the community.

 _AAS_ 78 (1986) 1324; _Periodica_ 77 (1988) 168-173.

 Stephanus Sipos, _Enchiridion Iuris Canonici_ (Romae: Herder, 1954) n. 196.

 _AAS_ 79 (1987) 1132.

 _Periodica_ 77 (1988) 497-510. For an English translation of Navarrete's commentary plus some concluding observations of my own, see "Urban Navarrete, S.J. and the Response of the Code Commission on Force and Fear," _The Jurist_ 51 (1991) 119-137.

 According to Navarrete, for example, indirect fear, that is to say, fear that is not inflicted for the purpose of extorting consent, does not easily appear to be an element of the natural law.

 _AAS_ 79 (1987) 1132; _Periodica_ 77 (1988) 511-518.

 _CLD_ 8, 532.

 _Communicationes_ XIII (1981) 433.

 _CLD_ 9, 588-589.

 _Ibid._

 _AAS_ 79 (1987) 1249; _Periodica_ 78 (1989) 143-153.

 Elizabeth McDonough, O.P., "Separation of Members from the Institute: Canons 684-709," in _A Handbook on Canons_ 573-746, edited by Jordan Hite, Sharon Holland, and Daniel Ward (Collegeville: The Liturgical Press, 1985) 230.

 _Communicationes_ XIII (1981) 328 under proposition 6.

 _Ibid._

 _Ibid._ Under proposition 11. Obviously, if those in temporary vows were permitted to transfer, then a new profession _would_ be required in order for the person to continue to be a religious.

 When all is said and done, does this response raise the further question as to whether temporary professed may transfer not only from monastery to monastery within the same institute, but even from institute to institute?

 _AAS_ 79 (1987) 1249; _Periodica_ 17 (1988) 625-628.

 _AAS_ 67 (1975) 281, 284; _CLD_ 8: 991-996.

 _AAS_ 79 (1987) 1249; _Periodica_ 77 (1988) 613-624.

 _Roman Replies and CLSA Advisory Opinions_ 1986 (Washington: CLSA, 1986) 72. See also Joseph Fox, "The Homily and the Authentic Interpretation of Canon 767, §1," _Apollinaris_ 62 (1989) 123-169.

 _Roman Replies and CLSA Advisory Opinions_ 1987 (Washington: CLSA, 1987) 6-7. A copy of the original letter in the files of the CLSA shows that the letter was indeed signed by the President and not by the Pro-President as indicated on p. 7 of the 1987 _Roman Replies_.

 _Periodica_ 77 (1988) 624.

 _AAS_ 80 (1988) 1373; _Periodica_ 78 (1989) 269-277.

 _AAS_ 72 (1980) 336.

 _AAS_ 80 (1988) 1818; _Periodica_ 78 (1989) 261-268.

 Article 123 §1, speaking of the competence of the Signatura, reads "It also hears recourses filed within the peremptory term of thirty available days against individual administrative acts either handed down or approved by Dicasteries of the Roman Curia, as often as it is claimed that the impugned act violated some law either in deciding or in proceeding." _Communicationes_ XX (1988) 44.

For more on this matter see E. Labandeira, "Il Ricorso Gerarchico Canonico: _Petitum e Causa Petendi_ ," _Ius Ecclesiae_ (1991) 103-118 and Joaquin Llobell Tuset, "Il _Petitum e la Causa Petendi_ nel Contenzioso - Amministrativo Canonico. Profili Sostanziali Ricostruttivi alla Luce della Cost. Ap. _Pastor Bonus_ ," _Ius Ecclesiae_ (1991) 119-150.

One wonders in the end whether the Code Commission's requirement "that they really have a grievance" applies to all petitioners or only to those members of a group who are petitioning as individual members of the faithful.

 _AAS_ 80 (1988) 1818; _Periodica_ 78 (1989) 278-286.

 Canon 2354.

 Canon 1397.

 Canon 18 in the new Code; canon 19 in the old.

 Matthaeus Conte a Coronata, _Institutiones Iuris Canonici_ (Romae: Marietti, 1955) IV, n. 2015.

 _Communicationes_ IX (1977) 317.

 _AAS_ 80 (1988) 1819; _Periodica_ 78 (1989) 361-379.

 F. X. Wernz, _Ius Decretalium_ , (Prati: Propaganda, 1914) V, 75, n. 53, num. 2.

 Bk. 2, Part 2, Title 13, Ch. 3 - which includes canons 626-631.

 _Communicationes_ XIII (1981) 363. It must be noted, however, that when the Secretary went on to suggest a revised version of the canon, it included vicars and prefects apostolic but did not include those raised to any other ecclesiastical dignity outside their own institute, like, for example, a Rotal auditor. The Secretary's revised version read as follows: "A religious raised to the episcopate or promoted to the leadership of some particular Church, remains a member of his own institute but in virtue of his vow of obedience is subject to the Roman Pontiff alone and is not bound by obligations which he himself prudently judges cannot be reconciled with his position."

 _AAS_ 81 (1989) 388; _Periodica_ 80 (1991) 107.

 _Communicationes_ XXI (1989) 94-98. The dicastry is referred to as a _Council_ in line one of this paragraph because the Cardinal's commentary was made after March 1, 1989 (A 1) but as a _Commission_ in line three because the response itself was issued before March 1.

 _AAS_ 81 (1989) 991; _Periodica_ 80 (1991) 127-130.

 _AAS_ 58 (1966) 757; _CLD_ 6: 275.

 _AAS_ 81 (1989) 991; _Periodica_ 80 (1991) 108-127.

 Emphasis mine.

 That is to say ordinary Catholic schools open to all the faithful - as opposed to "internal" schools which are reserved for the training of candidates for religious life in a particular institute.

 See also canons 312, 315 and 586.

 _AAS_ 58 (1966) 773; _CLD_ 6: 282.

 Both CLSA and the CLSGBI versions translate the Latin word _moderamen_ as "management." It can, however, also be translated as "governance". See also _Ecclesiae sanctae_ 39, §1 which uses the same word in recognizing the right of religious institutes to govern their own schools. _AAS_ 58 (1966) 773; _CLD_ 6: 282.

 And probably those of diocesan right as well, or so it would seem from the wording of canon 806, §1.

 The threefold distinction between visitation, vigilance and governance is also seen, though in a different context, in canon 305, §1.

 _AAS_ 82 (1990) 845; _Periodica_ 80 (1991) 130-142.

 _Pastor bonus_ , by which the name of the Code Commission was officially changed to "The Pontifical Council for the Interpretation of the Texts of Laws" (or "of Legislative Texts ") took effect on March 1, 1989. This response, which was decided in a plenary meeting of May 8, 1990, was the first response of the dicastery under its new title. The previous response, n. 22, though published after March 1, 1989, had been decided before that date.

 It would, of course, be incorrect to speak of Matthew being elected by a relative majority because, since it is a tie, it is, by definition not a majority at all. This explains the inclusion in the Doubt of the phrase "except in the case of a tie." Matthew is not actually elected but is considered elected by the law, so as to avoid a fourth ballot.
 It is interesting to note that this scenario would have been played out differently under the old Code. Under canon 101, §1, 1° of that Code, Matthew, Mark, Luke and John would all have been eligible as candidates for the third ballot. If, after that ballot, all were still tied with three votes each, Luke, the auxiliary bishop, as the "senior in order" would be considered elected. See Charles Augustine, op. cit. II, 27, and Matthaeus Conte a Coronata, op. cit. I, 171. Without going into any detail perhaps the following outline of the differences between the Codes on this point will be of some help:

Item | 1917 | 1983

---|---|---

Need for "quorum" | Not explicit | A majority of those who must be convoked

Measure of Majority | Of those who voted (validly) | Of those present

Invalid votes | Not to be counted | Irrelevant

Third ballot candidates | Indefinite number | Only two

Third ballot majority | Relative | Not mentioned

Presidential tie-breaker | President may break | President may not break

Non-presidential tie-breaker | Senior by order | Senior in age

 _AAS_ 83 (1991) 1093; _Periodica_ 81 (1992) 347-350.

 _CLD_ 7: 294.

 _CLD_ 7: 295.

 _AAS_ 57 (1965) 775-780; _CLD_ 6: 388-393.

 The first _Ordo synodi_ was published in 1966 ( _AAS_ 59 (1967) 91-103; _CLD_ 6: 400-411). This was revised in 1969 ( _AAS_ 61 (1969) 525-539; _CLD_ 7: 322-337). And there was a further emendation in 1971 ( _AAS_ 63 (1971) 702-704; _CLD_ 7: 338-341).

 _CLD_ 6: 390-391.

 _CLD_ 7: 325-326.

 Indeed, on October 31, 1988, some three years before this response, the Congregation for Bishops issued _Norms concerning Bishops Ceasing from Office_ in which, under n. 3, it specifically recommended that conferences of bishops consider electing to a synod of bishops those bishops emeriti "who are endowed with special competence and experience." _Communicationes_ XX (1988) 168.

 Gommarus Michiels, _Normae Generales Iuris Canonici_ (Roma: Desclée, 1949) 490.

 _Communicationes_ XX (1988) 276.

 See A4 above.

 _Communicationes_ XXI (1989) 98. This Response number 20 was issued _before_ March 1, 1989 (when the Commission became a Council), whereas the Cardinal's commentary on it was issued after that date.

 The second paragraph of Article 18 of the Apostolic Constitution _Pastor bonus_ reads as follows: "Dicasteries are not able to pass laws or general decrees having the force of law nor are they able to derogate from prescripts of extant universal law except in individual cases and with the specific approbation of the Supreme Pontiff." _Communicationes_ XX (1988) 22. For more on the meaning of the phrase "specific approbation" see Francisco J. Urrutia, "Quandonam Habeatur Approbatio 'In Forma Specifica'," _Periodica_ 80 (1991) 3-17.

In his Vienna talk, Cardinal Castillo Lara made it clear that, as of that time (which included the first fifteen responses), no "specific approbation" had been issued. _Communicaliones_ XX (1988) 281.

Nor was there any mention of such approbation in the promulgation of response n. 17. AAS 80 (1988) 1818.

# ARTICLE NINE

## LAW AND THE BROTHERS GRIMM

Being a collection of fairy tales with commentary offered on the occasion of my 50th and my mother's 80th birthday, when the funny thought occurred to me that most of the wisdom, including the legal wisdom, I have heard in my lifetime is but a repetition, usually a dry, technical, boring repetition of what I had learned before the "age of reason" at my mother's knee as she told me about Jesus and read me the fairy tales.

Once upon a time there was an aged count who had an only son who was stupid and could learn nothing. Since the father could get nothing into the boy's head, he said one day "Hark you, my son. You must go from hence. I will give you into the care of a celebrated master". So the youth went off to a strange town and spent a whole year with the master. When he returned the father asked him what he had learned and the son said "Father, I have learned what the dogs say when they bark". The father was furious at this and decided to send the boy to another town and another master. After spending a year with the second master, the boy returned home, and when the father asked what he had learned now, the son answered, "Father, I have learned what the birds say". Then the father fell into a rage and said, "Oh, you lost man, you have spent the precious time and learned nothing; are you not ashamed to appear before my eyes? I will send you to a third master but if you learn nothing this time also, I will no longer be your father." The youth remained a whole year with the third master also, and when he came home again, and his father inquired, "My son, what have you learned?" he answered "Dear Father, I have this year learned what the frogs croak." Then the father fell into a most terrifying anger, called his servants together and said "This man is no longer my son. I command you to take him out into the forest and kill him". The servants took the young man into the forest but, out of pity, could not kill him. Instead they let him go, and they cut the eyes and the tongue out of a deer that they might carry them to the old man as proof that the youth had indeed been killed.

I should interrupt the story at this point to note that this is the beginning of a story called "The Three Languages" as found in the collection of fairy tales or "märchen" gathered together in the early 1800s by Jacob and Wilhelm Grimm.1 Already the story seems to be saying that humble folk (the servants) tend to have more pity and mercy than the proud and powerful, perhaps because power corrupts. We should take courage, furthermore, because power is often thwarted and frustrated. In the story, the son is not killed as the father had ordered; the "old man" is tricked by those he presumes to be less learned and educated than himself.2 The story, as you can see, is off to a good and wise start.

It continues: The youth wandered on, and after some time came to a fortress where he begged for a night's lodging. "Yes," said the lord of the castle, "if you will pass the night down there in the old tower, go thither; but I warn you, it is at the peril of your life, for it is full of wild dogs, which bark and howl without stopping, and at certain hours a man has to be given to them, whom they at once devour." The whole district was in sorrow and dismay because of them, and yet no one could do anything to stop this. The youth, however, was without fear, and said: "Just let me go down to the barking dogs and give me something that I can throw to them; they will do nothing to harm me." As he himself would have it so, they gave him some food for the wild animals, and led him down to the tower. When he went inside, the dogs did not bark at him, but wagged their tails quite amicably around him, ate what he set before them, and did not hurt one hair on his head. Next morning, to the astonishment of everyone, he came out again safe and unharmed, and said to the lord of the castle: "The dogs have revealed to me, in their own language, why they dwell there, and bring evil on the land. They are bewitched, and are obliged to watch over a great treasure which is below in the tower, and they can have no rest until it is taken away, and I have likewise learned from their discourse, how that is to be done." Then all who heard this rejoiced, and the lord of the castle said he would adopt him as a son if he accomplished it successfully. He went down again, and as he knew what he had to do, he did it thoroughly, and brought a chest full of gold out with him. The howling of the wild dogs was henceforth heard no more; they had disappeared, and the country was freed from the trouble.

After some time he took it into his head that he would travel to Rome. On the way he passed by a marsh, in which a number of frogs were sitting croaking. He listened to them, and when he became aware of what they were saying, he grew very thoughtful and sad. At last he arrived in Rome, where the Pope had just died, and there was great doubt among the Cardinals as to whom they should appoint as his successor. They at length agreed that the person should be chosen as pope who should be distinguished by some divine and miraculous token. And just as that was decided on the young count entered into the church, and suddenly two snow-white doves flew on his shoulders and remained sitting there. The ecclesiastics recognized therein the token from above, and asked him on the spot if he would be pope. He was undecided, and knew not if he were worthy of this, but the doves counselled him to do it, and at length he said yes. Then was he anointed and consecrated, and thus was fulfilled what he had heard from the frogs on his way, which had so affected him, that he was to be his Holiness the Pope. Then he had to sing a mass, and did not know one word of it, but the two doves sat continually on his shoulders, and said it all in his ear.

THE QUALITIES OF LEADERSHIP

The closing line of this story is the fairy tale's way of saying that the young man had a highly successful papacy. Singing the Mass was undoubtedly seen as the highest function of the pope, and since the young man did that well, he presumably did all other things well too.

The young man's secret of success was, of course, his knowledge of "the three languages". True, he had not profited from a conventional education. He had not been awarded a degree by a prestigious university. He was not an expert in any of the sciences. He had not even learned the skills necessary to prepare him for a socially acceptable career. All of which made his father furious. But what the son did have was a knowledge of the three languages. That is to say, he was thoroughly in touch with the whisperings, of the kingdom. He was conversant with the secrets of the _earth_ (represented by the dogs), the _water_ (the frogs) and the _air_ (the birds). He understood the mysteries of nature. Perhaps he was not very intellectual. Certainly he was not political. But he enjoyed a kind of primal wisdom which others found irresistible. And so they elected him Pope.

To the child this is as it should be. But to grownups it all seems dreadfully unprofessional, unscientific, charismatic and chancy. And this lesson that is so obvious to children, as often as not goes unheeded by adults.

The idea that the good leader must be the friend of all is a recurring theme in the fairy tales. The man who becomes King and lives happily ever after is the one who respects and loves the humble creatures of this world, not just some of the humble creatures of this world but all of them, sometimes represented by animals from the three spheres of land, sea and sky, sometimes by a little grey man or a hoary little man in icy clothes.3

Actually, the good leader in the fairy tale must do more than respect and befriend the humble. He must be able to orchestrate their forces and to inspire their participation in the grand effort. He does this not necessarily by political savvy, certainly not by shrewd manipulation but simply by realizing that without the humble he is powerless. He may even sit down on a rock and weep, overwhelmed by the magnitude of the task before him, but always his secret source of power is his trust of the little people. Listen, for example, to the wonderful story entitled "The Queen Bee":4 Two kings' sons once went out in search of adventures, and fell into a wild, disorderly way of living, so that they never came home again. The youngest, who was called Simpleton, set out to seek his brothers, but when at length he found them they mocked him for thinking that he with his simplicity could get through the world, when they two could not make their way, and yet were so much cleverer. They all three traveled away together, and came to an ant-hill. The two elder wanted to destroy it, to see the little ants creeping about in their terror, and carrying their eggs away, but Simpleton said: "Leave the creatures in peace; I will not allow you to disturb them." Then they went onwards and came to a lake, on which a great number of ducks were swimming. The two brothers wanted to catch a couple and roast them, but Simpleton would not permit it, and said: "Leave the creatures in peace, I will not suffer you to kill them." At length they came to a bee's nest, in which there was so much honey that it ran out of the trunk of the tree where it was. The two wanted to make a fire beneath the tree, and suffocate the bees in order to take away the honey, but Simpleton again stopped them and said: "Leave the creatures in peace, I will not allow you to burn them." At length the two brothers arrived at a castle where stone horses were standing in the stables, and no human being was to be seen, and they went through all the halls until, quite at the end, they came to a door in which were three locks. In the middle of the door, however, there was a little pane, through which they could see into the room. There they saw a little grey man, who was sitting at a table. They called him, once, twice, but he did not hear; at last they called him for the third time, when he got up, opened the locks, and came out. He said nothing, however, but conducted them to a handsomely-spread table, and when they had eaten and drunk, he took each of them to a bedroom. Next morning the little grey man came to the eldest, beckoned to him, and conducted him to a stone table, on which were inscribed three tasks, by the performance of which the castle could be delivered from enchantment. The first was that in the forest, beneath the moss, lay the princess's pearls, a thousand in number, which must be picked up, and if by sunset one single pearl was missing, he who had looked for them would be turned to stone. The eldest went thither, and sought the whole day, but when it came to an end, he had only found one hundred, and what was written on the table came true, and he was turned into stone. Next day, the second brother undertook the adventure; but it did not fare much better with him than with the eldest; he did not find more than two hundred pearls, and was changed to stone. At last it was Simpleton's turn to seek in the moss; but it was so difficult for him to find the pearls, and he got on so slowly, that he seated himself on a stone, and wept. And while he was thus sitting, the King of the ants whose life he had once saved, came with five thousand ants, and before long the little creatures had got all the pearls together, and laid them in a heap. The second task, however, was to fetch out of the lake the key of the King's daughter's bedchamber. When Simpleton came to the lake, the ducks which he had saved, swam up to him, dived down, and brought the key out of the water. But the third task was the most difficult; from amongst the three sleeping daughters of the King was the youngest and dearest to be sought out. They, however, resembled each other exactly, and were only to be distinguished by their having eaten different sweetmeats before they fell asleep; the eldest a bit of sugar; the second a little syrup; and the youngest a spoonful of honey. Then the Queen of the bees, whom Simpleton had protected from the fire, came and tasted the lips of all three, and at last she remained sitting on the mouth which had eaten honey, and thus the King's son recognized the right princess. Then the enchantment was at an end; everything was delivered from sleep, and those who had been turned to stone received once more their natural forms. Simpleton married the youngest and sweetest princess, and after her father's death became King, and his two brothers received the two other sisters.

THE LIMITATIONS OF LAW

This business of creatures being turned into stone is another recurring phenomenon in the fairy tales.5 It is apparently meant to symbolize all of those people who for one reason or another have become immobilized. Perhaps they have lost hope. Perhaps they have no love in their lives. Or no faith. Perhaps they have grown weary of trying to resist the pressures of conformity, and have simply let their imagination go to seed. Perhaps, through lack of exercise they have allowed their physical and spiritual muscles to turn to flab. Or to stone. Perhaps they live too much in the past and have thus become petrified. Perhaps they have made the machine their best friend and have thus become more enamored of non life than of life. The märchen represent all such people as calcified or lapidified.

A somewhat similar phenomenon which is found repeatedly in the fairy tales is metamorphosis, or, more specifically, a human person being turned into an animal:6 a frog or a raven,7 a swan, or maybe a hedgehog. This figure suggests that the person has been not so much immobilized or paralyzed or petrified as alienated and cut off from the rest of society. This could refer to the outcasts of society or second class citizens or minorities or any object of discrimination. It would include the non conformist, the prophet, the simpleton and the black sheep. In short, anyone who is deprived of his rightful place in the community.

Both of these phenomena, petrification and metamorphosis, are symbols of the fact that the society has lost its integrity. Its wholeness and oneness have been wounded. One of its members is sick or lonely or cut off from the rest, and it craves to be restored.

Interestingly, the fairy tales, which have profound respect for the law, never suggest that the law is in any way capable of this challenge. The tales never in any way imply that the law by itself could possibly restore lost unity to the body. Part of the wisdom of the tales is that they do not give to the law more than its due. The law, it must be acknowledged, has certain legitimate functions in society. But it is not the Creator and it is not the Spirit. The law cannot give life. The tales have very much taken to heart the words of St. Paul, "we could have been justified by the law if the law we were given had been capable of giving life, but it is not".8

Always in the tales, when a person has been turned into a stone or into an animal, he or she is restored to health by love. Never by the law, always by love. Not by skin deep infatuation but by genuine love, sturdy, sacrificial, even blood letting love. In the story of "The Seven Ravens", for example, it is the love of the sister for her seven brothers that restores their humanity to them and reconciles them to their family. As told by the Brothers Grimm the story goes like this: There was once a man who had seven sons, and still he had no daughter, however much he wished for one. At length his wife again gave him hope of a child, and when it came into the world it was a girl. The joy was great, but the child was sickly and small, and had to be privately baptized on account of its weakness. The father sent one of the boys in haste to the spring to fetch water for the baptism. The other six went with him, and as each of them wanted to be first to fill it, the jug fell into the well. There they stood and did not know what to do, and none of them dared to go home. As they still did not return, the father grew impatient, and said: "They have, certainly forgotten it while playing some game, the wicked boys!" He became afraid that the girl would have to die without being baptized, and in his anger cried: "I wish the boys were all turned into ravens." Hardly was the word spoken before he heard a whirring of wings over his head, looked up and saw seven coal-black ravens flying away.

The parents could not withdraw the curse, and however sad they were at the loss of their seven sons, they still to some extent comforted themselves with their dear little daughter, who soon grew strong and every day became more beautiful. For a long time she did not know that she had had brothers, for her parents were careful not to mention them before her, but one day she accidentally heard some people saying of herself, that the girl was certainly beautiful, but that in reality she was to blame for the misfortune which had befallen her seven brothers. Then she was much troubled, and went to her father and mother and asked if it was true that she had had brothers, and what had become of them. The parents now dared keep the secret no longer, but said that what had befallen her brothers was the will of Heaven, and that her birth had only been the innocent cause. But the maiden took it to heart daily, and thought she must save her brothers. She had no rest or peace until she set out secretly, and went forth into the wide world to search for her brothers and set them free, let it cost what it might. She took nothing with her but a little ring belonging to her parents as a keepsake, a loaf of bread against hunger, a little pitcher of water against thirst, and a little chair as a provision against weariness.

And now she went continually onwards, far, far, to the very end of the world. Then she came to the sun, but it was too hot and terrible, and devoured little children. Hastily she ran away, and ran to the moon, but it was far too cold, and also awful and malicious, and when it saw the child, it said: "I smell, I smell the flesh of men." At this she ran swiftly away, and came to the stars, which were kind and good to her, and each of them sat on its particular chair. But the morning star arose, and gave her the drumstick of a chicken, and said: "If you have not that drumstick you can not open the Glass Mountain,9 and in the Glass Mountain are your brothers."

The maiden took the drumstick, wrapped it carefully in a cloth, and went onwards again until she came to the Glass Mountain. The door was shut, and she thought she would take out the drumstick; but when she undid the cloth, it was empty, and she had lost the good star's present. What was she now to do? She wished to rescue her brothers, and had no key to the Glass Mountain. The good sister took a knife, cut off one of her little fingers, put it in the door, and succeeded in opening it. When she had gone inside, a little dwarf came to meet her, who said: "My child, what are you looking for?, "I am looking for my brothers, the seven ravens," she replied. The dwarf said: "The lord ravens are not at home, but if you will wait here until they come, step in." Thereupon the little dwarf carried the raven's dinner in, on seven little plates, and in seven little glasses, and the little sister ate a morsel from each plate, and from each little glass she took a sip, but in the last little glass she dropped the ring which she had brought away with her.

Suddenly she heard a whirring of wings and a rushing through the air, and then the little dwarf said: "Now the lord ravens are flying home." Then they came, and wanted to eat and drink, and looked for their little plates and glasses. Then said one after the other: "Who has eaten something from my plate? Who has drunk out of my little glass? It was a human mouth." And when the seventh came to the bottom of the glass, the ring rolled against his mouth. Then he looked at it, and saw that it was a ring belonging to his father and mother, and said: "God grant that our sister may be here, and then we shall be free." When the maiden, who was standing behind the door watching, heard that wish, she came forth, and on this all the ravens were restored to their human form again. And they embraced and kissed each other, and went joyfully home.

In this story it is clear that redemption is won by the love in the heart of the nameless maiden who is determined to set her dear brothers free, "let it cost what it might". The cost, as it turned out, was the sacrificial spilling of her own blood; and this, it seems, is always the price that must be paid in order that we all may be one. As Christians we believe that we are justified, that is to say, made just, saved from stoniness of heart10 and from our lower, animal nature and thereby incorporated into the Kingdom by the blood of Jesus. We also believe that drinking His blood and eating His body is still the "basis and center" of our Christian community.11

This is something the law can never be. Because the law is not life-giving.12

THE FUNCTIONS OF LAW

This is not to say, of course, that law is useless in community, or that it serves no function. Quite the contrary is true. And the tales contain several images that may be, and probably should be, regarded as referring to the legitimate uses of law in society.

_First_ , even though the law is not portrayed as life-giving in itself, still several of the fairy tales suggest that fulfilling the law, or fulfilling the terms of a contract or promise, create an environment in which love and goodness are free to be themselves and to be effective in society.13

There is, for example, a story called, "The Frog-King, or Iron Henry".14 The title of the story is significant because, even though Henry does not appear until the very end of the story, one gets the impression that it was his love all along that was redemptive. And this no doubt accounts for his inclusion in the very title of the tale. But the rest of the story is about the importance of keeping a promise. It begins like this (the part about Iron Henry you must read for yourself): in olden times when wishing still helped one, there lived a king whose daughters were all beautiful, but the youngest was so beautiful that the sun itself, which has seen so much, was astonished whenever it shone in her face. Close by the King's castle lay a great dark forest, and under an old lime tree in the forest was a well, and when the day was very warm, the King's child went out into the forest and sat down by the side of the cool fountain; and when she was bored she took a gold ball, and threw it up on high and caught it; and this ball was her favorite plaything.

Now it so happened that on one occasion the princess's golden ball did not fall into the little hand which she was holding up for it, but on the ground beyond, and rolled straight into the water. The King's daughter followed it with her eyes, but it vanished, and the well was deep, so deep that the bottom could not be seen. At this she began to cry, and cried louder and louder, and could not be comforted. And as she thus lamented, someone said to her: "What ails you, King's daughter? You weep so that even a stone would show pity." She looked round to the side from whence the voice came, and saw a frog stretching forth its big, ugly head from the water. "Ah! old water-splasher, is it you?" said she; "I am weeping for my golden ball, which has fallen into the well."

"Be quiet, and do not weep," answered the frog, "I can help you, but what will you give me if I bring your plaything up again?" "Whatever you will have, dear frog," said she \- "my clothes, my pearls and jewels, and even the golden crown which I am wearing."

The frog answered: "I do not care for your clothes, your pearls and jewels, nor for your golden crown; but if you will love me and let me be your companion and play-fellow, and sit by you at your little table, and eat off your little golden plate, and drink out of your little cup, and sleep in your little bed - if you will promise me this I will go down below, and bring you your golden, ball up again."

"Oh, yes," said she, "I promise you all you wish, if you will but bring me my ball back again." But she thought: "How the silly frog does talk! All he does is to sit in the water with the other frogs, and croak! He can be no companion to any human being!"

But the frog when he had received this promise, put his head into the water and sank down, and in a short while came swimming up again with the ball in his mouth, and threw it on the grass. The King's daughter was delighted to see her pretty plaything once more, and picked it up, and ran away with it. "Wait, wait," said the frog. "Take me with you. I can't run as you can." But what did it avail him to scream his croak, croak, after her, as loudly as he could? She did not listen to it, but ran home and soon forgot the poor frog, who was forced to go back into his well again.

The next day when she had seated herself at table with the King and all the courtiers, and was eating from her little golden plate, something came creeping splish splash, splish splash, up the marble staircase, and when it got to the top, it knocked at the door and cried: "Princess, youngest princess, open the door for me." She ran to see who was outside, but when she opened the door, there sat the frog in front of it. Then she slammed the door to, in great haste, sat down to dinner again, and was quite frightened. The King saw plainly that her heart was beating violently, and said: "My child, what are you so afraid of? Is there perchance a giant outside who wants to carry you away?" "Ah, no," replied she, "it is no giant, but a disgusting frog."

What does the frog want with you?" "Ah, dear father, yesterday as I was in the forest sitting by the well, playing, my golden ball fell into the water. And because I cried so, the frog brought it out again for me; and because he so insisted, I promised him he should be my companion, but I never thought he would be able to come out of his water! And now he is outside there, and wants to come in to me."

In the meantime it knocked a second time, and cried:

"Princess! youngest princess!

Open the door for me!

Do you know what you said to me

Yesterday by the cool water of the well?

Princess, youngest princess!

Open the door for me!"

Then said the King: "That which you have promised must you perform. Go and let him in." She went and opened the door, and the frog hopped in and followed her, step by step, to her chair. There he sat and cried "Lift me up beside you." She delayed, until at last the King commanded her to do it. Once the frog was on the chair he wanted to be on the table, and when he was on the table he said: "Now, push your little golden plate nearer to me that we may eat together." She did this, but it was easy to see that she did not do it willingly. The frog enjoyed what he ate, but almost every mouthful she took choked her. At length he said: "I have eaten and am satisfied; now I am tired, carry me into your little room and make your little silken bed ready, and we will both lie down and go to sleep."

The King's daughter began to cry, for she was afraid of the cold frog which she did not like to touch, and which was now to sleep in her pretty clean little bed. But the King grew angry and said: "He who helped you when you were in trouble ought not afterwards to be despised by you." So she took hold of the frog with two fingers, carried him upstairs, and put him in a corner But when she was in bed he crept to her and said: "I am tired, I want to sleep as well as you, lift me up or I will tell your father." At this she was terribly angry, and took him up and threw him with all her might against the wall. "Now, will you be quiet, odious frog," said she. But when he fell down he was no frog but a king's son with kind and beautiful eyes. He by her father's will was now her dear companion and husband. Then he told her how be had been bewitched by a wicked witch, and how no one could have delivered him from the well but herself, and that tomorrow they would go together into his kingdom.

This famous old story is, I think, clearly alluding to an important function of law in society, namely that by fulfilling the law, or by fulfilling our commitment, we create an atmosphere where love can breathe.

A _second_ function of law alluded to in the tales is that law should contribute to directing society to its goals. Several of the tales go out of their way to stress the critical importance of having guide posts to lead people to their destination. It seems entirely legitimate, even obvious, to suggest that in our society those guide posts would be the law.

In the story "The Hut in the Forest"15 a poor and not too bright woodcutter lived with his wife and three daughters in a little hut on the edge of a lonely forest. One morning as he was about to go to his work, he said to his wife "let our eldest daughter bring me my dinner into the forest, or I shall never get my work done, and in order that she may not miss her way" he added, "I will take a bag of millet with me and strew the seeds on the path". When, therefore, the sun was just above the center of the forest, the girl set out on her way with a bowl of soup, but the field-sparrows and wood-sparrows, larks and finches, blackbirds and siskins had picked up the millet long before, and the girl could not find the track, and not only did the father not get his dinner that day but the first daughter all but lost her life.

The next day the father asked the second daughter to bring him his dinner in the forest but clever fellow that he was, he used lentils rather that millet because they were larger than millet and the girl could see them better and couldn't possibly lose her way, but of course the birds ate the lentils as well and the second daughter likewise met with near disaster.

On the third day the father guided his youngest daughter with peas because they were still larger than lentils, but the wood-pigeons ate up all the peas before the little girl even set out, and she too lost her way.

One would have to assume that the story teller is saying here that guideposts (laws) are a good idea but, if they are to be truly serviceable, they must be tailored to the terrain and environment, and, above all, they must be durable.

This seems even more apparent when "The Hut in the Forest" is read in conjunction with "The Robber Bridegroom".16 In this story the miller's daughter is engaged to a man whom she loathes and who is really quite a vicious fellow. He lives in a dark forest and insists that she come to visit him. To guide her there she strews ashes along the path. Not long after her arrival the maiden realizes that she is in a den of iniquity and she manages to escape, but when she tries to find her way home the wind has blown the ashes away. Fortunately, however, the maiden had been suspicious from the very beginning and so before she left home she filled both her pockets with peas and lentils, and at every step threw a couple on the ground. On escaping from the house that night the maiden finds, much to her relief, that the peas and lentils have sprouted and grown up and, in the moonlight, they lead her safely to the mill.

So in one story peas and lentils serve the purpose whereas in another story they do not. Clearly good law must be tailored to fit the circumstances.17

A _third_ function of the law suggested in the tales is that it can serve to protect the unity already possessed by the community. In "The Seven Ravens", already recounted, the father sent only one of the sons to the spring to fetch water for the baptism of their sick sister. Had the other six brothers obeyed the father's order and not selfishly tried to fill the jug themselves they would never have been turned into ravens. Obeying the law, in other words, would have preserved the unity of the family. The same lesson is inherent in "Little Red-Cap".18 Little Red-Cap's mother, who obviously knew her daughter's weaknesses, specifically warned her to walk nicely and quietly and not to run off the path. After meeting the wolf, however, and telling him where grandmother lived, Little Red-Cap saw the sunbeams dancing here and there through the trees, and pretty flowers growing everywhere, and she thought "Suppose I take grandmother a fresh nosegay; that would please her, and it is still early in the day so I shall arrive in ample time". And so she ran from the path into the wood to look for flowers, and whenever she had picked one, she fancied that she saw a little prettier one farther on, and ran after it, and so got deeper and deeper into the wood. And by the time she got to grandmother's house, poor grandmother, as you know, had been devoured by the wolf. Here again the clear implication is that disaster would have been averted had Little Red-Cap only obeyed the mother's wise and legitimate directive.

A _fourth_ function of law implied in the fairy tales is that law may serve as a kind of minimal standard for testing identity or worthiness, in somewhat the same way that regular attendance at Sunday Mass identifies a person as a Catholic. It seems to me, at any rate, that this is a legitimate reading of certain of the fairy tales. In the story of Cinderella,19 for example, the Prince falls in love with Cinderella obviously not because of her shoe size but rather because of her beauty and goodness. The shoe size, nevertheless becomes the test of her identity. In the Brothers Grimm's version, incidentally, the slipper is golden rather than glass, and each of Cinderella's step sisters manages to accommodate her foot to the golden slipper, but only by mutilating themselves (at their mother's bidding, one cuts off her big toe, another a part of her heel). But this, of course, fulfills, as it were, only the letter of the law, and, as a consequence, both sisters are soon found out. Two little pigeons friendly to Cinderella call out to the prince:

Turn and peep turn and peep

There's blood within the shoe

The shoe is too small for her

The true bride waits for you.

TRIALS AND PUNISHMENTS

Besides these many symbolic references to the functions of law, the fairy tales also frequently and quite explicitly discuss the art of weighing evidence in an effort to distinguish between truth and falsehood, between the innocent and the guilty. In the tale of "The Three Languages", as we have seen, the servants tricked the old man, whose judicial discretion was clouded by his anger, by convincing him with counterfeit evidence (the eyes and tongue of a deer) that they had followed his orders and killed his son. In the story called "The Skillful Huntsman",20 the King is portrayed as a much wiser judge. In this story the huntsman saves the King's daughter from three evil giants. First the huntsman steals into the castle at night when everyone is asleep. When he opens the door of the first room, a sword made of pure silver and bearing the name of the King, hangs on the wall. The huntsman takes the sword and enters the bedroom of the sleeping maiden. From her room he takes one of the slippers from under her bed. He also cuts off a corner of the scarf she is wearing and likewise a piece of her nightdress, without awakening the maiden, and all these objects he places in his knapsack. Then the huntsman leaves the castle and, at the entrance to it, slays the three giants with the silver sword, cuts out their tongues and places them too in his knapsack.

The following morning the King finds the three slain giants. He calls his court together and asks who had succeeded in killing these awful giants. Now it happened that he had a captain, who was one-eyed and a hideous man, and he said that he had done it. Then the King said that, as he had accomplished this, he should marry his daughter.

The King's daughter, however, could not bear to marry the captain so she went off into the forest and lived in a hut where she would cook for every passer-by and take no money for it.

When the hut was ready, a sign was hung on the door whereon was written: "To-day given, to-morrow sold." There she remained a long time, and it was rumored about the world that a maiden was there who cooked without asking for payment, and that this was set forth on a sign outside her door. The huntsman heard it likewise, and thought to himself: "That would suit you. You are poor, and have no money." So he took his knapsack, wherein all the things which he had formerly carried away with him from the castle as tokens of his truthfulness were still lying, and went into the forest, and found the hut with the sign: "To-day given, tomorrow sold." He had put on the sword with which he had cut off the heads of the three giants, and thus entered the hut, and ordered something to eat to be given to him. He was charmed with the beautiful maiden, who was indeed as lovely as any picture. She asked him whence he came and whither he was going, and he said "I am roaming about the world." Then she asked him where he had got the sword, for that truly her father's name was on it. He asked her if she were the King's daughter. "Yes," answered she. "With this sword," said he, "did I cut off the heads of the three giants." And he took their tongues out of his knapsack in proof. Then he also showed her the slipper, and the corner of the scarf and the piece of the night-dress. Hereupon she was overjoyed, and said that he was the one who had delivered her. On this they went together to the old King, and fetched him to the hut and she led him into her room, and told him that the huntsman was the man who had really set her free from the giants. And when the aged King saw all the proofs of this, he could no longer doubt, and said that he was very glad he knew how everything had happened, and that the huntsman should have her to wife, on which the maiden was glad at heart. Then she dressed the huntsman as if he were a foreign lord, and the King ordered a feast to be prepared. When they went to table, the captain sat on the left side of the King's daughter, but the huntsman was on the right, and the captain thought he was a foreign lord who had come on a visit. When they had eaten and drunk, the old King said to the captain that he would set before him something which he must guess. "Supposing someone said that he had killed the three giants and he were asked where the giants' tongues were, and he were forced to go and look, and there were none in their heads. How could that have happened?" The captain said: "Then they cannot have had any." "Not so," said the King. "Every animal has a tongue," and then he likewise asked what punishment should be meted out to anyone who made such an answer. The captain replied: "He ought to be torn in pieces." Then the King said he had pronounced his own sentence, and the captain was put in prison and then torn in four pieces; but the King's daughter was married to the huntsman. After this he brought his father and mother, and they lived with their son in happiness, and after the death of the old King he received the kingdom.

Pronouncing one's own sentence is a fairly common occurrence in the fairy tales, and it has, of course, a special sting to it, but whether self determined or not, a punishment, in the fairy tales, is always found to fit the crime.21 The märchen possess, throughout, an exquisite sense of justice.

AN ALLEGORY

One of the tales in which the villain pronounces her own punishment for her crimes is called "The Goose Girl". It may be read, whether intended as such or not, as a full-blown allegory on the Church (with the princess playing the part of the true Church of Christ, the waiting-maid as the triumphalist church, and Falada as the crucified Jesus who reveals and confirms His Church) and I should like to close with that tale: There was once upon a time an old Queen whose husband had been dead for many years, and she had a beautiful daughter. When the princess grew up she was betrothed to a prince who lived at a great distance. When the time came for her to be married, and she had to journey forth into the distant kingdom, the aged Queen packed up for her many costly vessels of silver and gold, and trinkets also of gold and silver; and cups and jewels, in short, everything which appertained to a royal dowry, for she loved her child with all her heart. She likewise sent her maid-in-waiting, who was to ride with her, and hand her over to the bridegroom, and each had a horse for the journey, but the horse of the King's daughter was called Falada, and could speak. So when the hour of parting had come, the aged mother went into her bedroom, took a small knife and cut her finger with it until it bled. Then she held a white handkerchief to it into which she let three drops of blood fall, gave it to her daughter and said: "Dear child, preserve this carefully, it will be of service to you on your way."

So they took a sorrowful leave of each other; the princess put the piece of cloth in her bosom, mounted her horse, and then went away to her bridegroom. After she had ridden for a while she felt a burning thirst, and said to her waiting-maid: "Dismount, and take my cup which you have brought with you for me, and get me some water from the stream, for I should like to drink." "If you are thirsty," said the waiting-maid, "get off your horse yourself, and lie down and drink out of the water, I don't choose to be your servant." So in her great thirst the princess alighted, bent down over the water in the stream and drank, and was not allowed to drink out of the golden cup. Then she said: "Ah, Heaven!" and the three drops of blood answered: "If this your mother knew, her heart would break in two." But the King's daughter was humble, said nothing, and mounted her horse again. She rode some miles further, but the day was warm, the sun scorched her, and she was thirsty once more, and when they came to a stream of water, she again cried to her waiting-maid: "Dismount, and give me some water in my golden cup," for she had long ago forgotten the girl's ill words. But the waiting-maid said still more haughtily: "If you wish to drink, get it yourself, I don't choose to be your maid." Then in her great thirst the King's daughter alighted, bent over the flowing stream, wept and said: "Ah, Heaven!" and the drops of blood again replied: "If this your mother knew, her heart would break in two." And as she was thus drinking and leaning right over the stream, the handkerchief with the three drops of blood fell out of her bosom, and floated away with the water without her observing it, so great was her trouble. The waiting-maid, however, had seen it, and she rejoiced to think that she now had power over the bride, for since the princess had lost the drops of blood, she had become weak and powerless. So now when she wanted to mount her horse again, the one that was called Falada, the waiting-maid said: "Falada is more suitable for me, and my nag will do for you," and the princess had to be content with that. Then the waiting-maid, with many hard words, bade the princess exchange her royal apparel for her own shabby clothes; and at length she was compelled to swear by the clear sky above her, that she would not say a word of this to anyone at the royal court, and if she had not taken this oath she would have been killed on the spot. But Falada saw this, and observed it well.

The waiting-maid now mounted Falada, and the true bride the bad horse, and thus they traveled onwards, until at length they entered the royal palace. There were great rejoicings over her arrival, and the prince sprang forward to meet her, lifted the waiting-maid from her horse, and thought she was his consort. She was conducted upstairs, but the real princess was left standing below. Then the old King looked out of the window and saw her standing in the courtyard, and noticed how dainty and delicate and beautiful she was, and instantly went to the royal apartment and asked the bride about the girl she had with her who was standing down below in the courtyard, and who she was. "I picked her up on my way for a companion; give the girl something to work at, that she may not stand idle. But the old King had no work for her, and knew of none, so he said: "I have a little boy who tends the geese, she may help him." the boy was called Conrad, and the true bride had to help him to tend the geese. Soon afterwards the false bride said to the young King: "Dearest husband, I beg you to do me a favor." He answered: "I will do so most willingly." "Then send for the knacker, and have the head of the horse on which I rode here cut off, for it vexed me on the way." In reality, she was afraid that the horse might tell how she had behaved to the Kings' daughter. Then she succeeded in making the King promise that it should be done, and the faithful Falada was to die; this came to the ears of the real princess, and she secretly promised to pay the knacker a piece of gold if he would perform a small service for her. There was a great dark looking gateway in the town, through which morning and evening she had to pass with the geese: would he be so good as to nail up Falada's head on it, so that she might see him again, more than once. The knacker's man promised to do that, and cut off the head, and nailed it fast beneath the dark gateway.

Early in the morning, when she and Conrad drove out the flock beneath this gateway, she said in passing:

"Alas, Falada, hanging there!"

Then the head answered:

"Alas, young Queen, how ill you fare!

If this your mother knew,

Her heart would break in two."

Then they went still further out of the town, and drove their geese into the country. And when they had come to the meadow, she sat down and unbound her hair which was like pure gold, and Conrad saw it and delighted in its brightness, and wanted to pluck out a few hairs. Then she said:

"Blow, blow, thou gentle wind, I say,

Blow Conrad's little hat away,

And make him chase it here and there,

Until I have braided all my hair,

And bound it up again."

And there came such a violent wind that it blew Conrad's hat far away across country, and he was forced to run after it. When he came back she had finished combing her hair and was putting it up again, and he could not get any of it. Then Conrad was angry, and would not speak to her, and thus they watched the geese until the evening, and then they went home.

Next day when they were driving the geese out through the gateway, the maiden said:

"Alas, Falada, hanging there!"

Falada answered:

"Alas, young Queen, how ill you fare!

If this your mother knew,

Her heart would break in two."

And she sat down again in the field and began to comb out her hair, and Conrad ran and tried to clutch it, so she said in haste:

"Blow, blow, thou gentle wind, I say,

Blow Conrad's little hat away,

And make him chase it here and there,

Until I have braided all my hair,

And bound it up again."

Then the wind blew, and blew his little hat off his head and far away, and Conrad was forced to run after it, and when he came back, her hair had been put up a long time, and he could get none of it, and so they looked after their geese till evening came.

But in the evening after they had got home, Conrad went to the old King, and said: "I won't tend the geese with that girl any longer!" "Why not?" inquired the aged King. "Oh, because she vexes me the whole day long." Then the aged King commanded him to relate what it was that she did to him. And Conrad said "In the morning when we pass beneath the dark gateway with the flock, there is a horse's head on the wall, and she says to it:

"Alas, Falada, hanging there!"

And the head replies:

"Alas, young Queen how ill you fare!

If this your mother knew,

Her heart would break in two."

And Conrad went on to relate what happened on the goose pasture, and how when there he had to chase his hat.

The aged King commanded him to drive his flock out again next day, and as soon as morning came, he placed himself behind the dark gateway, and heard how the maiden spoke to the head of Falada, and then he too went into the country, and hid himself in the thicket in the meadow. There he soon saw with his own eyes the goose-girl and the goose-boy bringing their flock, and how after a while she sat down and unplaited her hair, which shone with radiance. And soon she said:

"Blow, blow, thou gentle wind, I say,

Blow Conrad's little hat away,

And make him chase it here and there,

Until I have braided all my hair,

And bound it up again."

Then came a blast of wind and carried off Conrad's hat, so that he had to run far away, while the maiden quietly went on combing and plaiting her hair, all of which the King observed Then, quite unseen, he went away, and when the goose-girl came home in the evening, he called her aside, and asked why she did all these things. "I may not tell that, and I dare not lament my sorrows to any human being, for I have sworn not to do so by the heaven which is above me; if I had not done that, I should have lost my life." He urged her and left her no peace, but he could draw nothing from her. Then said he: "If you will not tell me anything, tell your sorrows to the iron-stove there," and he went away. Then she crept into the iron-stove, and began to weep and lament, and emptied her whole heart, and said: "Here am I deserted by the whole world, and yet I am a King's daughter, and a false waiting-maid has by force brought me to such a pass that I have been compelled to put off my royal apparel, and she has taken my place with my bridegroom, and I have to perform menial service as a goose-girl. If this my mother knew, her heart would break in two."

The aged King, however, was standing outside by the pipe of the stove, and was listening to what she said, and heard it. Then he came back again, and bade her come out of the stove. And royal garments were placed on her, and it was marvelous how beautiful she was! The aged King summoned his son, and revealed to him that he had got the false bride who was only a waiting-maid, but that the true one was standing there, as the former goose-girl. The young King rejoiced with all his heart when he saw her beauty and youth, and a great feast was made ready to which all the people and all good friends were invited. At the head of the table sat the bridegroom with the King's daughter at one side of him, and the waiting-maid on the other, but the waiting-maid was blinded, and did not recognize the princess in her dazzling array. When they had eaten and drunk, and were merry, the aged King asked the waiting-maid as a riddle, what punishment a person deserved who had behaved in such and such a way to her master, and at the same time related the whole story, and asked what sentence such a person merited. Then the false bride said: "She deserves no better fate than to be stripped entirely naked, and put in a barrel which is studded inside with pointed nails, and two white horses should be harnessed to it, which will drag her along through one street after another, till she is dead." "It is you," said the aged King, "and you have pronounced your own sentence, and thus shall it be done unto you." And when the sentence had been carried out, the young King married his true bride, and both of them reigned over their kingdom in peace and happiness.

Return to TOC

1979

ENDNOTES

1 _The Complete Grimm's Fairy Tales_ , Introduction by Padraic Colum, Folkloristic Commentary by Joseph Campbell, Illustrations by Joseph Scharl, New York, Pantheon Books, 1944, renewed and released in paperback in 1972, pp. 169-171. Both of the Grimm boys, incidentally, studied law at the renowned Protestant University of Marburg, the same University where Aemilius Richter was a professor when he published his edition of the _Corpus Iuris Canonici_ in 1839.

2 For other tales that extol ordinary, humble folk, see "The Strange Musician", pp. 56-58; "The Peasant's Wise Daughter", pp. 437-440; and "One-Eye. Two-Eyes, and Three-Eyes", pp. 585-592.

3 For tales that illustrate this theme see "The White Snake", pp. 98-101; "The Two Travellers", pp. 486-496; "Ferdinand", pp. 566-571; "The Six Servants", pp. 600-609; and "The Griffin", pp. 681-688.

4 _Ibid._ , pp. 317-319.

5 See, for example, "Faithful John", pp. 43-51; "The Two Brothers", pp. 290-311; and "The Gold Children", pp. 388-393.

6 See "The Frog King, or Iron Henry", pp. 17-20; "The Twelve Brothers", pp. 59-64; "Brother and Sister", pp. 67-73; "The Seven Ravens", pp. 137-139; "The Six Swans", pp. 232-237; "Hans the Hedgehog", pp. 497-502; and "The Old Woman in the Wood", pp. 558-560.

7 See 1 Kings 17, 2-6 and Isaiah 34, 11 for a possible biblical root.

8 Letter to the Galatians, 3, 21.

9 In many of the tales the Glass Mountain represents the epitome of the insuperable obstacle. It is undoubtedly an alpine allusion (the Grimms were, course, German) inspired by an icy mountain peak whose face is like a sheet of glass, See pp. 434, 575, 781 and 796.

10 Ezechiel, 36, 26.

11 _Presbyterorum Ordinis, Decree on the Ministry and Life of Priests_ , article 6.

12 The motto of the Canon Law Society of America, taken from St. Paul's Letter to the Romans, 8: 2: "in Christ Jesus the life-giving law of the Spirit has set you free from the law of sin and death" should be understood to refer to law in the broad sense. The phrase, "the life-giving law of the Spirit" really means and refers to love. One might say that it is a "law" of nature that all love is unitive and redemptive. Certainly this is true of Christ's love; and this is the love that has set us free.

True love, it should also be noted, is positively ingenious in discovering new and imaginative ways to preserve unity. In the tale "Fundevogel", for example, Lina and Fundevogel are very much in love. Lina says to Fundevogel "Never leave me and I will never leave you", and Fundevogel responds, "Neither now, nor ever". Wicked people, however, are in pursuit of them to destroy their love, and soon Fundevogel and Lina are called upon to conceal themselves without leaving or abandoning each other. So one becomes a rose tree and the other a rose on it, then one becomes a church and the other a chandelier in it, and finally one becomes a fishpond and the other a duck upon it, and they successfully outwit their pursuers, pp. 241-244. For another foxy pair of lovers, see "The Two Kings' Children", pp. 515-524.

13 See, for example, "The Singing, Soaring Lark", pp. 399-404; and ''Hans the Hedgedog", pp. 497-502. For other stories that involve contracts, see "The Riddle", pp. 128-131; and "The Four Skillful Brothers", pp. 580-584. For a couple of tales that center around sinister, unfortunate contracts, see "The Girl Without Hands", pp. 160-166; and "The Nixie of the Mill-Pond", pp. 736-742.

14 _Ibid._ , pp. 17-20.

15 _Ibid._ , pp. 698-704.

16 _Ibid._ , pp. 200-204.

17 Other stories that involve spooring are "Hansel and Gretel", (pp. 86-94) in which Hansel used white pebbles to find his way back home the first time he was left in the forest, but crumbs of bread the second time, and the bread was, of course, eaten up by the birds; and "The Six Swans", (pp. 232-237) in which the King had a ball of yarn with wonderful properties that had been given him by a wise woman - when the King threw the ball of yarn before him, it unrolled itself and showed him his path.

18 _Ibid._ , pp. 139-143. This is the Brothers Grimm's version of the story more popularly known as "Little Red Riding Hood".

19 _Ibid._ , pp. 121-128.

20 _Ibid._ , pp. 508-514. For other tales dealing with the collection and discernment of evidence, see "The Robber Bridegroom", pp. 200-204 "The Two Brothers", pp. 290-311; "The Shoes That Were Danced to Pieces", 596-600; and "Maid Maleen", pp. 801-807.

21 See "The Goose Girl", pp. 404-411; "The White Bride and the Black Bride", pp. 608-612; and also "The Twelve Brothers", pp. 59-64; "Brother and Sister", pp. 67-73; and "The Pink", pp. 355-360.

