The Catholic Lawyer

Volume 17 Number 2 Volume 17, Spring 1971, Number 2 Article 8

Some Problems Regarding Episcopal Faculties

Rev. Anthony J. Bevilacqua

Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl

Part of the Catholic Studies Commons

This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. SOME PROBLEMS REGARDING EPISCOPAL FACULTIES

REV. ANTHONY J. BEVILACQUA*

INCE Vatican Council II, bishops of have been granted many faculties to ease and expedite functions falling within their role as pastors of their flock. For many bishops and their chanceries the result of the issuance of these faculties at different times and from various sources was almost an overwhelming frustration. This frustration was due to an understandable ignorance of what faculties the bishops actually enjoy. An attempt to alleviate the lack of knowledge of the existing facul- ties was made by a publication of the Law Society in 1968 of a list of the powers of bishops. In preparation for a paper on faculties of bishops given at the Eastern Regional Convention in May 1971, this writer revised and updated this list of powers of bishops. The presentation of a compilation of faculties may lessen the frus- tration of bishops and chanceries but it will not resolve the doubts about the proper interpretation of some of the faculties. It is the purpose of this paper to consider a number of the recurring problems besetting chanceries in regard to the faculties and offer practical solutions. Many of the topics in the first twelve sections of this article as well as all of the "Supplementary Questions" were selected from suggestions submitted by twenty-eight Chanceries throughout the country.

I. Additional Masses on Holy Thursday This past Holy Week, a certain amount of confusion arose over the number of Masses permitted on Holy Thursday in addition to the prin-

* M.A., History from Columbia University in 1962; J.C.D., from Gregorian University, Rome, in 1956. Vice Chancellor of of Brooklyn; Director of Brooklyn Diocesan Migration Office. 156 EPISCOPAL FACULTIES cipal evening Mass. The confusion was II. Alienation created by the English translation of that Pastorale Munus, in N. 32, section of the Missale Romanum which grants to bishops the faculty "to grant appeared as the: "Revised Rites of Holy permission, for a legitimate reason, to Week." The rubrics for Holy Thursday alienate, pledge, mortgage, rent out, or read: "For pastoral reasons the local Or- perpetually lease ecclesiastical property dinary may permit another Mass to be and to authorize ecclesiastical moral per- celebrated in the evening or, in the case sons to contract debts to the sum of money of genuine necessity, even in the morning." determined by the National or Regional Some considered the "or" in a disjunc- Conference of Bishops and approved by tive sense so that only one additional Mass the Apostolic See." could be said and a choice had to be At the April 1967 general meeting of made between either the morning or the the bishops of the United States, the fol- evening. But the "or" can also be under- lowing proposals were made as the norm stood in a conjunctive sense so that two for alienation, that is, below which no re- additional Masses may be said, that is, one course to the was necessary. in the morning and another in the evening. This is the proper understanding of the 1. $300,000. Motion defeated. faculty. This meaning is confirmed by the 2. Figures should be based on a per- Latin text which has the word "et" as the centage of the income of each original of the translation "or." Thus the diocese. Motion defeated. translation should be that the local Or- dinary "can permit another Mass to be 3. Figures should be established by celebrated in the evening and, in case of each Ordinary in consultation with genuine necessity, also in the morning." his and his council of ad- minstration. Motion defeated. In 1968, the Holy See granted to United 4. The Ordinary should have no limits States Bishops the faculty for an additional placed on him but should consult Mass on Holy Thursday morning. This with the consultors before incurring faculty was given for five years. On March a substantial indebtedness. Action 10, 1970, the Sacred Congregation for the still pending. Sacraments granted to all bishops the faculty for an additional Mass in the morn- The legislation of Canon 1532 and ing and in the evening. All these faculties Canon 534 of the Code is, therefore, still are superseded and cancelled by the fac- in effect in the United States on this norm ulty of the Missale Romanum permitting of alienation. In these canons, the ceiling only two extra Masses, one in the morning below which the authorization from the and one in the evening. The of the Holy See is not required is 30,000 francs. Missale Romanum is dated March 26, In 1963, the Sacred Consistorial Congre- 1970 and revokes all contrary norms. gation decreed that the 30,000 francs men- 17 CATHOLIC LAWYER, SPRING 1971 tioned in the two canons should be under- Congregation of Seminaries and Uni- stood as 66,000 Swiss francs. A safe norm versities in 1967 stated that, in spite for the United States equivalent of 66,000 of De Episcoporum Muneribus, Or- Swiss francs would be a 1962 notification dinaries are still obliged to have of the Sacred Congregation for Religious recourse to the Holy See in cases that 65,000 Swiss francs were equivalent of re-admission of ex-religious and to 15,000 United States dollars. On this ex-seminarians into the seminary. In basis, 66,000 Swiss francs are equal to other words, the prescriptions of the $15,230.1 decree, Consiliis Initis of July 25, 1941, and the decree, Sollemne One should recall that in cases of aliena- Habet of July 12, 1957, are still in tion by religious, the Apostolic Delegate force. has faculties to permit such transactions up to $500,000.2 IV. Deacons III. Seminarians Since the issuance of the Apostolic 1. The Ordinary may, by virtue of De Letter, Sacrum Diaconatus Ordinem, on Episcoporum Muneribus, allow ad- the permanent diaconate and because of mission to the seminary of candi- the extended service of deacons preparing dates who are illegitimate. This for the priesthood, several canonical prob- includes adulterine or sacrilegious lems have arisen regarding the ministry of illegitimates. For the latter, how- deacons. These problems have been the ever, recourse to the Holy See will subject of a series of replies from the Pon- be necessary for the reception of tifical Commission on the Interpretation of Orders. the Decree of the . The following are the interpretations given 2. Among the impediments for Orders, in these replies: the more common would be that of non-Catholic parentage. This can 1. A deacon can officiate at a marriage now be dispensed by the local Ordi- when a priest is not present. This nary. For the dispensation from the absence of a priest is not necessary remaining impediments for Orders for the validity of the delegation of and from the various irregularities, 4 the deacon. consult De Episcoporum Muneri- bus: IX, 9, 10. 2. The functions listed in Number 29 of the Constitution, Lumen Gentium, 3. A special response from the Sacred and Number 22, of the Apostolic

I S.C. Consist., 13 July 1963 (AAS 55-656); S.C. Rel., 30 June 1962 (Private-V CANON 3 S. Congregation for Seminaries and Univer- LAW DIGEST 376-77). sities, Undated (Private-VI CANON LAW Di- 2 U.S. Apostolic Delegate, 6 January 1965 (Pri- GEST 765-66). vate-VI CANON LAW DIGEST 364). 4 4 April 1969 (AAS 61-348). EPISCOPAL FACULTIES

Letter, Sacrum Diaconatus Ordinem, reply of the Chargd d'Affaires. Cleveland for permanent deacons belong also wrote to the Delegation: "You indicated to deacons advancing to the priest- in a paragraph of your letter that if Sister hood.5 requires a decree of , Bishop Issenmann, will be able to provide this by 3. The faculty of De Episcoporun virtue of N. 34 of Pastorale Munus." May Muneribus allowing the Ordinary to I interpret this remark to mean that the dispense a deacon from defect of faculties of Pastorale Munus allow the age up to one year holds also for bishop to grant an exclaustration beyond the ordination of permanent dea- 6 the period allowed by Canon 606, § 2 of cons. the Code, that is, beyond six months? May 4. When a deacon has been given le- the Faculty N. 34 be used for pontifical gitimately a stable assignment in a institutes and may the same faculty be , he can be considered equiva- used for cloistered communities? May they lent to a vicarius cooperator as be permitted to leave for a period of one regards marriage and, therefore, year or two years without permission from general delegation for marriages can Rome?" The Charg6 d'Affaires replied: "I be given to him.' believe that the Most Reverend Apostolic Administrator may now provide for the case in virtue of his faculties from V. Exclaustration and Faculty 34 of the Pastorale Munus Apostolic Letter, Pastorale Munus. From this you will also gather that I believe that Faculty 34 of PastoraleMunus grants to all your questions may be answered affir- residential bishops the faculty: "To enter matively." for a just reason within the papal enclosure of nuns' monasteries which are located in The communications referred to fail to his diocese and to permit, for a just and distinguish, in my opinion, between ex- claustration and absence from a serious reason, that others may be ad- religious mitted within the enclosure and that nuns house. As a result, this reply is widely but may leave it. The permission is only for wrongly used as a basis for Ordinaries the amount of time truly necessary." granting exclaustration to religious of pon- tifical communities. This faculty, which seems rather easy to understand, has engendered a great deal Canon 606, § 2 states that Superiors of confusion. This is due largely to a series may allow their subjects to remain outside of questions proposed by the Vicar Gen- a house of their own institute for a just eral for Religious in Cleveland to the and grave cause, and for as brief a period Apostolic Delegate and the April 26, 1965 as possible according to the constitutions; but for an absence of more than six

5 26 March 1968 (AAS 60-363). 6 19 July 1970 (AAS 62-571). 8 U.S. Apostolic Delegate, 26 April 1965 (Pri- 7 Id. vate-VI CANON LAW DIGEST 387-88). 17 CATHOLIC LAWYER, SPRING 1971 months, except by reason of studies, tne munities have special faculties per- permission of the Holy See is required. mitting a leave to one year. 5. The Instruction, Venite Seorsum, on In neither Faculty N. 34 nor in Canon Contemplative Life and Enclosure 606 is there any reference to exclaustration of Nuns, states clearly that a bishop which is a permission to remain outside the may allow a nun to leave the papal institute for a temporary though usually enclosure for a period not exceed- extended period of time. The legal effects ing three months. Beyond that re- of exclaustration highlight its difference quires authorization of the Holy from absence from a religious house. Ac- SeeY cording to Canon 639, by an of ex- claustration, a religious must lay aside the 6. A letter from the Sacred Congrega- religious habit, is deprived of active and tion for Religious addressed to the passive voice, and is subject to the local United States Apostolic Delegate on Ordinary of residence and not to the Re- January 2, 1970, clarified certain ligious Superior. None of these effects doubts on the Instruction, Venite follow permission for absence from a re- Seorsum. In this letter, it explained ligious house. that Faculty N. 34 of Pastorale Munus was not derogated from by For a proper interpretation of Faculty the new Instruction and then it gave N. 34, the following observations should an interpretation of the faculty. It be considered: observed that in accord with the faculty, the bishop could permit 1. Faculty N. 34 refers only to clois- nuns to leave the cloister but he tered communities of nuns and not could not oblige them. It then em- to any other religious. phasized that the serious reasons justifying the bishop's permission 2. It refers only to a brief absence are the reasons that existed before from the cloister for a special reason Pastorale Munus gave this faculty and not to exclaustration. and are found in N. 24 of the In- 3. If this faculty allows a bishop to struction, Inter Cetera, of March 25, grant exclaustration of women re- 1956.10 ligious of pontifical law, why is there N. 34 no similar provision for men re- It must be concluded that Faculty a bishop ligious? Yet, it is clear that Faculty of PastoraleMunus does not allow N. 34 refers solely to women. to grant an indult of exclaustration to any religious. All of exclaustration for 4. Canon 606, § 2 is restricted to ab- sences from a religious house and not to exclaustration. In practice, 9 S.C. for Religious, 15 August 1969 (AAS 61- this canon is relevant only to Su- 674). 10 S.C. for Religious and Secular Institutes, 2 periors of diocesan congregations January 1970 (Private-N.C.C.B. CANONICAL since Superiors of pontifical com- REFERENCE MANUAL 9a-9b). EPISCOPAL FACULTIES religious of pontifical law must be ob- so that he "may, at the request of Su- tained from the Holy See. perior General with the consent of General Council, permit professed of simple vows in diocesan congregations to cede their VI. Faculty N. 36 of Pastorale Munus on Illegitimacy patrimonial property for a just cause and without prejudice to the norms of pru- According to Faculty N. 36 of Pastorale dence, and provided said religious peti- Munus, the bishop "may dispense from the 2 tion for it."' impediment of illegitimacy those to be ad- mitted into religious life except those who This wording of this faculty is evolved are adulterously or sacrilegiously illegiti- from the original faculty similar to this mate." which was given to Superiors of Pontifical Cur Admotae and Religionum Laical- Clerical Institutes. The rescript of the 6, ium grant this same faculty to Superiors Secretary of State, dated November Cum of pontifical communities. Since Pastorale 1964 and entitled, Admotae, gave Munus does not restrict the bishop's the following faculty in N. 16: "With the faculty to diocesan congregations, it would consent of their council, to grant their subjects who reasonably seem his faculty in this area is concomi- simply professed tant with the Superiors mentioned above. request it, the faculty to cede the property Cum Admotae, in fact, adds the following of their patrimony for a just cause with exception of property necessary for the sentence after the faculty on illegitimacy: in case of depar- "Nevertheless, if a conflict on this matter support of the religious the ."' 3 arises between the bishop and the Su- ture from perior General, the former's decision is to Sometime in 1965, in an undated letter prevail." This phrase is not included in reported in the Commentariun Pro Re- the later document, Religionum Laicalium. ligiosis, Cardinal Antoniutti, Prefect of the On this point of illegitimacy, it is worth Sacred Congregation of Religious, com- noting that the Sacred Congregation for municated to the President of the Roman Religious suspended the prohibition of Union of Superiors General the interpreta- Canon 504 which prevented illegitimates tion of Paul on this faculty. The from being elected Major Superiors except letter decreed that the text of the faculty for adulterous or sacrilegious illegitimates should be interpreted as follows: "With in public cases. In occult cases, recourse the consent of their council, to grant their is to be made to the Holy See."' subjects professed of simple perpetual vows, who request it, the faculty to cede for a just cause VII. Faculty to Permit Diocesan Religious their patrimonial property to Cede Patrimony and without prejudice to the norms of justice."14 The latest Quinquennial Faculties (1968) grant to the bishop the faculty

12 Quinquennial Faculties II, 1, a. (1968). 11 S.C. for Religious, 17 March 1967 (Private- 12 AAS 59-374. VI CANON LAW DIGEST 478). 14 CPR 44 (1965) 300-01. 17 CATHOLIC LAWYER, SPRING 1971

VIII. Parishes 1. The decree on bishops and refer to parishes without A. National Parishes specifying types, that is, without The , Ecclesiae Sanctae, any limitations. Where the law does which went into effect on October 11, not distinguish, we should not dis- 1966, gave diocesan bishops the faculty "to tinguish. A national parish is a erect or suppress parishes or change them parish and therefore can be erected, in any way, after hearing from the Council changed, or suppressed by the of Priests; but if there are agreements in bishop. effect between the Apostolic See and the 2. Canon 216, § 4 was the basis of civil government, or any extant acquired rights of any other physical or moral per- reserving national parishes to the Holy See. It states: "Without spe- sons, the matter must be settled properly cial apostolic indult parishes can- with them through the competent au- not be established in the same city thority." (N. 21 § 3). or territory for the faithful of di- The question is asked if this faculty verse language or nationality, or refers also to national parishes. It is the merely family or personal parishes; in opinion of this writer that it does. regard to such parishes already es- tablished, nothing is to be changed The Decree on Bishops of the Vatican without consultation of the Holy Council urges that "provision should be See." made for the faithful of different language groups, either through priests or parishes This norm was repeated in N. 4 of of the same language." (N. 23). the Constitution, Exsul Familia, when speaking of establishment of The same decree states that "concern parishes for the different language for souls should be the basis for determin- or nationalities of emigrants. ing or reconsidering the erection or sup- pression of parishes and any other changes However, in the 1969 Instruction, of this kind, which the bishop will be able Cura Pastoralis Migratorum (On to bring about on his own authority." the Pastoral Care of Migrants), the (N. 32). It is true that no special mention norm of Canon 216, § 4 is not re- is made here of the national parishes re- peated when it speaks of establish- ferred to in Canon 216, § 4. ing parishes for immigrants. Instead it directs: "Where there are great The section of the Decree on Bishops numbers of immigrants of the same was implemented in Ecclesiae Sanctae language living either stably or in given above. As in the Decree on Bishops, continuous movement, the erection so also in Ecclesiae Sanctae, no special of a personal parish can be advis- mention is made of national parishes. Yet able. It is to be appropriately set up it seems they are included within this au- by the Ordinary of the place." (N. thority of the bishop. 33). To this directive is added a EPISCOPAL FACULTIES

footnote in which the source given the case of the Diocese of Cleveland, it is the Decree on Bishops, N. 32, and was clearly stated that two men were ap- also N. 21, § 3 of Ecclesiae Sanctae pointed simultaneous canonical pastors. including the full text of this section Canon 460, § 2 states: "In the same on the erection and suppression of parish there must be only one pastor who parishes. carries out the cura animarum and any Though this article in Cura Pas- contrary custom is rejected as unreason- toralis Migratorum refers to a per- able and any contrary privilege is re- sonal parish instead of a national voked." parish, it is clear that the concept is The only possible authority used by the same. Furthermore, personal Cleveland for appointing two pastors in parishes are reserved by Canon 216, the face of such a strong prohibition of the § 4 to the Holy See. Since N. 33 of Code must be a dispensation in virtue of Cura Pastoralis Migratorum states De Episcoporum Muneribus. It is the au- that personal parishes are to be set thor's opinion that such a dispensation is up by the bishop and quotes N. 21, not possible from De Episcoporum Mu- § 3 of Ecclesiae Sanctae as the au- neribus. thority, it follows that Canon 216, § 4 is considered abrogated. That there be only one pastor in a parish seems to be part of the constitutive law or 3. Any canonical studies referring to at least is not disciplinary law and hence national parishes take for granted not dispensable in virtue of De Episcopo- that Ecclesiae Sanctae, N. 21, gives rum Muneribus. Canon 451 defines a pastor complete authority to the bishop as a priest or moral person to whom a over the erection, change or sup- parish is entrusted with the care of souls. pression of national parishes.1 5 Canon 216 attempts to give a definition of a parish when it states that it is a part of B. Two Canonical Pastorsin Same Parish a diocese to which shall be assigned its The January 29, 1971 issue of Crux own Church, with a definite group of faith- announced that the Diocese of Cleveland ful and its own particular rector as its had inaugurated co-pastorates in one of its proper pastor for the requisite care of parishes. Most dioceses that have initiated souls. the co-pastorate or team ministry concept have, for canonical purposes, appointed one man as pastor or administrator. In IX. Inter-ritual Marriages By virtue of De Episcoporum Muneri- bus, diocesan bishops may dispense from 15 Theoret, The Post-Conciliar Parish, STUDIA the prescription of Canon 1097, § 2 so CANONICA 1 (1967) 191-203; Nessel, The Na- that in a mixed rite marriage, the cere- tional Parish Revisited, , 28 (Jan. 1968) 89-92; Robleda, Innovationes Concilii mony may be in the rite of the bride. Vaticani 11, in Theoria de Officiis et Beneficiis Ecclesiasticis, PERIODICA 59 (1970) 277-314. The usual case is that of an Oriental 17 CATHOLIC LAWYER, SPRING 1971

Catholic boy and Latin Catholic girl who The National Conference of Bishops, in wish to marry in the Latin Rite. Less fre- its November 1967 general meeting, di- quent but falling clearly within the faculty rected that the two dubia given above be is the case of a Latin Catholic boy and referred to the Sacred Congregation for the Oriental Catholic girl wishing to marry in Doctrine of the Faith. The author was able her rite. to determine that the dubia were sent to the Congregation. In turn, they were pre- Beyond these two cases, we are in the sented to the Oriental Congregation. No area of confusion and doubt. It is im- responses have been received and, there- portant to remember that Canon 1097 fore, the action is still pending. from which the bishop can dispense refers only to the marriage of two Catholics who In the meanwhile, Chanceries must act happen to be of different rites. in the cases falling within these dubia. What is given here is the policy followed in It can be asked if the faculty of the the Chancery of Brooklyn: bishop will allow: 1. In the cases of a marriage between 1. A marriage between two Catholics two Catholics who wish to marry in in a rite to which neither belongs. a rite to which neither belongs, we Examples: request the dispensation from the a) Two Oriental Catholics wish to Apostolic Delegation. marry in the Latin Rite. 2. In the cases of mixed marriages b) Two Latin Catholics wish to when the parties wish to marry in a marry in an Oriental Rite. rite different from the rite of the Catholic party, we grant the dispen- c) A Latin Catholic and a Ukrai- sation if the Catholic party is of the nian Catholic wish to marry in Latin Rite or of an Oriental Rite the Melkite Rite. which has no Ordinary in the United 2. A mixed marriage in a rite to which States. (In granting the dispensation the Catholic party does not belong. we invoke Canon 15 and Canon 81 Examples: because of the dubium.) If the Cath- olic party belongs to an Oriental a) Latin Catholic and a non-Cath- Rite which has an American Ordi- olic wish to marry in the Ukrai- nary, we request the dispensation nian Rite. from that Oriental Ordinary. b) An Oriental Catholic under the jurisdiction of a Latin Bishop X. Mixed Religion and and a non-Catholic wish to marry in the Ukrainian Rite. A. Cases When Dispensation can be c) A Ukrainian Catholic and a Granted non-Catholic wish to marry in By virtue of Pastorale Munus and De the Latin Rite. Episcoporum Muneribus these two imped- EPISCOPAL FACULTIES iments can be dispensed from by the a person can, in virtue of an indult, dis- Ordinary in all cases except when the re- pense, there should concur another impedi- quirements of Nos. 4 and 5 of Matrimonia ment from which one has no power to dispense, he should have recourse to the Mixta are not fulfilled.", These require- Holy See in regard to them all. ments refer to the promises to be made by the Catholic party and the notification of This norm does not affect the validity of these promises to the non-Catholic party. a dispensation granted contrary to the 2 Therefore, the Ordinary may dispense from rule. '- these impediments even: De Episcoporum Muneribus does not 1. In cases involving a Mohamme- expressly or implicitly reserve to the Holy dan.' 7 See the dispensation from Mixed Religion or Disparity of Cult in such cases. There- 2. In cases of the : fore, it is within the power of the local This would happen if the convert Ordinary to grant it. who has received the Pauline Privi- lege wishes to marry a baptized or B. Are the Promises Required by Matri- unbaptized non-Catholic.' 8 monia Mixta Necessary for the Valid- 22 ity of Dispensation? 3. In cases of dissolution because of non-consummation, if the subse- 1. Formal Promises. From a study of quent marriage is to be a mixed the text, it would seem that formal marriage. 19 promises would not be required for the validity of either a dispensation 4. In cases of "In Favor of the Faith" from Mixed Religion or from Dis- dissolutions, if the subsequent mar- riage is to be a mixed marriage.2 0 parity of Cult. a. There is no phrase in the text The practice of obtaining dispensations which even remotely hints that from Mixed Religion and Disparity of Cult the giving of the promises is an from the Holy See whenever it involved a essential condition for validity non-consummation, In Favor of the Faith, of the dispensation. or a document of liberty case was based b. MatrimoniaMixta has completely on Canon 1050. This canon states:

If with a public impediment from which 21 T. Lincoln Bouscaren, Adam C. Ellis, Francis N. Korth, CANON LAW 511 (4th rev. ed. 1963); John A. Abbo, Jerome D. Hannan, The Sacred 16 Motu Proprio, 31 March 1970 (AAS 62-257). Canons, (1957), p. 226; Eduardus F. Regatillo, 17 De Episcoporum Muneribus: IX, 10. lus Sacramentarium 685 (Santander 1960). 18 Pastorale Munus: I, 20. 22 For a complete study of the observations 19 De Episcoporum Muneribus: IX, 16; VI made in this section, consult Urbanus Navar- Pastorale Munus: I, 20; Cf. also CANON LAW rete, Commentarium Canonicum ad Litt. AP. DIGEST, 393-94. Motu Proprio Datas Matrimonia Mixta, PERI- 20 De Episcoporum Muneribus: IX, 16. ODICA 59 (1970) 422-69. 17 CATHOLIC LAWYER, SPRING 1971

revised the whole subject matter a. Moral certitude of the fulfillment of the former law on Mixed of the promises over the years Marriage and therefore, accord- has diminished to the degree ing to Canon 22, has abrogated that all that is required is a the former law. This abrogation "well-founded hope." Neither in includes the abrogation of the Matrimonii Sacrarnentum nor in necessity of the promises for the Matrirnonia Mixta is there a validity of the dispensation. mention of the necessity of c. The general trend in legislation moral certitude or well-founded since the Council on Mixed Mar- hope as required by positive law. riage has been toward leniency b. The nature of mixed marriages and flexibility. This general ten- does not require moral certitude dency would not be in agreement nor a well-founded hope of the with the severity of a legislation fulfillment of the promises. The making the dispensation invalid divine law on the preservation if the promises are not made of the Catholic faith and on the and in the case of Disparity of baptism and education of chil- Cult, making the marriage in- dren in the Catholic faith need valid. not be protected solely by the d. There is a serious doubt of law positive laws establishing and about the necessity of the formal regulating the impediments of promises for validity of the dis- Mixed Religion and Disparity of pensation. Therefore, by virtue Cult. The divine law can be pro- of Canon 15 it cannot have an tected through other pastoral invalidating effect. measures. Therefore, the Church 2. Implicit or Equivalent Promises. can change or even abolish the Even though formal promises are institution of promises if there is not required for validity, it can be some other way of protecting asked if, because of the require- the divine law in question. ments of the divine law, the nature c. Since neither positive law nor of the mixed marriage complexus the nature of the mixed marriage demands for validity that moral cer- complexus requires moral certi- titude of the promises be obtained. tude or a well-founded hope of There seems to be sufficient evi- the fulfillment of the promises, dence to state that not even implicit it seems that neither is a neces- or equivalent promises are required sity for the validity of the dis- for validity of the dispensation and pensation. therefore it is no longer necessary to have any certitude or even well- d. Because of the doubt of law, in founded hope that the promises will virtue of Canon 15, the invali- be fulfilled. dating effects do not bind. EPISCOPAL FACULTIES

Dispensation from the Form This exclusion, however, would not re- fer to marriages between a Catholic and an A. Place of the Marriage Orthodox Christian before a sacred min- The first two drafts of the American ister of the Orthodox Church. In clarifying Bishops' directives on the decree, Matri- several difficulties of the decree, Crescens monia Mixta, recommended in case of a Matrimoniorum, on marriages between dispensation from the form that the non- Latin Catholics and Orthodox Christians, Catholic minister officiate at the marriage the Oriental Congregation stated that for in a . The final and a sufficient reason the Ordinary could per- directives omitted this suggestion. mit in cases of dispensation from the form that the marriage take place in the Cath- In spite of publicity several years ago olic Church with the Orthodox sacred min- given to three marriages before a non- ister witnessing the marriage. This would Catholic minister in a Catholic Church, the 24 not be considered participatio in sacris. Holy See has never permitted this. We checked the three dioceses in which these B. Competent Ordinary marriages had occurred and learned that The directives of the United States the rescript from Rome had only granted Bishops implementing Matrimonia Mixta a dispensation from the form. The rescript make it clear that in mixed marriages the did not grant any permission for the mar- competent Ordinary to grant the dispensa- riage in the Catholic Church. tion from the form is the local Ordinary of the Catholic party or the Ordinary of The Diocese of Brooklyn, three years the place of the marriage. ago, petitioned for this permission. We did so only after having read that it had oc- In regard to mixed marriages between curred in two other dioceses. The Sacred Latin Catholics and Orthodox Christians, Congregation for the Doctrine of the Faith the decree, Crescens Matrimoniorum,states refused in no uncertain terms, informing that the Ordinary who grants the Mixed us that it had never granted the favor and Religion dispensation can grant the dis- that there were no exceptions to this. The pensation from the form. However, in a dispensation from form was granted, but response to a query from Italian bishops, only in order that the parties could con- the Oriental Congregation designated the tract marriage in a non-Catholic religious competent Ordinary as the Ordinary of the 23 edifice before the non-Catholic minister. Catholic party or the Ordinary where the 25 When, therefore, the Ordinary grants a marriage is to take place. dispensation from the form, he cannot al- My problem with the norm enunciated low the marriage before the non-Catholic by the United States Bishops and the minister to take place in a Catholic Church.

24 Undated Reply, N.C.C.B. CANONICAL REFER- 23 A similar letter addressed to the Archdiocese ENCE MANUAL 24. of St. Paul-Minneapolis can be found in the 25 Undated Reply, N.C.C.B. CANONICAL REFER- N.C.C.B. CANONICAL REFERENCE MANUAL 26. ENCE MANUAL 23. 17 CATHOLIC LAWYER, SPRING 1971

Oriental Congregation is that both seem as a query and not as an opinion or mode to go beyond the well-known rules of juris- of action. diction. In a dispensation from the form, a person, the Catholic party, is dispensed C. Deacons Assisting at Marriages from the obligation of the form. To be The Decree, Sacrum Diaconatus Ordi- dispensed, a person must be in some way nem, allows a deacon to assist at a mar- a subject of the one dispensing. If then riage when a priest is absent. A response neither party in a mixed marriage is domi- from the Holy See stated that the condition ciled or actually present in the diocese of the absence of a priest is not necessary where the marriage is to take place, it can for the validity of the delegation of the be asked, where is the jurisdiction of the deacon. Ordinary of the place of marriage so that he can dispense the Catholic party from In many cases of a deacon assisting at the obligation to the form? The only ex- a marriage, a priest is present and avail- planation seems to be that the Ordinary able. This often happens when a deacon acquires jurisdiction over a Catholic party is permitted to officiate at a marriage of not resident or physically in his diocese by a relative. It would seem, therefore, that in the fact that the marriage is scheduled to such instances, a dispensation from the take place in his diocese. form should be granted for the liceity of the delegation, by virtue of De Episcopo- If this be so, why do we deny the Ordi- rum Muneribus. This dispensation would nary of the place of marriage the power not be required if the condition of the to dispense from Disparity of Cult or absence of the priest is present. Mixed Religion unless the Catholic party is domiciled in the diocese or actually present in the diocese? Or can we say here Sanation also that by the fact that a marriage is to A. When Sanation can be Granted take place in a diocese, the Ordinary ac- quires jurisdiction to grant any dispensa- By virtue of the faculties granted to him, tion relating to that marriage even though the Ordinary may grant a sanatio in radice neither party is in any way domiciled or of all marriages except in the following present in the diocese? De Episcoporum cases: Muneribus, possibly allows this when it says: "The faithful upon whom the power 1. When a dispensation is required for of dispensing is exercised according to law an impediment reserved to the Holy are all those who are subject to the bishop See. by reason of domicile or on some other 6 ground."2 2. When there is a question of an im- pediment of the natural or divine The above comments are presented only law which has ceased.

3. In Mixed Marriages, when the re- 26 DE EPISCOPORUM MUNERIBUS, VII. quirements for the promises in Nos. EPISCOPAL FACULTIES

4 and 5 of the Decree, Matrimonia latest Quinquennial Faculties omit all ref- 2 7 Mixta, are not fulfilled. erence to sanations because of the ample faculties of De Episcoporum Muneribus. What are the impediments reserved to B. Retroactive Eflects the Holy See? Buijs, in his article on the faculties of 1. Age when it exceeds one year. bishops, makes a distinction between sana- 2. Diaconate, priesthood, solemn reli- tion ex nunc (partial or imperfect) and gious profession. sanation ex tunc (complete or perfect). Radical sanation ex nunc involves a dis- 3. Crime of the second and third de- pensation from the renewal of consent for gree. the convalidation but does grant retro- 4. in the direct line and active effects. This, according to Buijs, is in the collateral line to the second the type of sanation which De Episcopo- degree mixed with first. rum Muneribus permits Ordinaries to grant. 5. Affinity in the direct line. Radical sanation ex tunc involves a dis- Putting it positively, the Ordinary can pensation from the renewal of consent and grant a sanation as often as the marriage also grants retroactive effects. This, ac- is invalid: cording to Buijs, is the type of sanation which Pastorale Munus permits Ordinaries 2 8 1. because of an impediment from to grant in its limited cases. which he can dispense; Buijs' interpretation is based on the 2. because of an impediment of ecclesi- wording of De Episcoporum Muneribus astical law which has ceased; which states that reserved to the Holy See is the dispensation "from the law requiring 3. because of defect of form of any renewal of consent in a sanatio in radice, kind. whenever etc. ..." The Ordinary can grant the sanation By this reservation, I do not feel that even when both parties are unaware of the De Episcoporum Muneribus is reserving invalidity of the marriage and even when also the concession of the retroactive ef- both parties are Catholics. The faculties of fects. The Motu Proprio is dealing only De Episcoporum Muneribus include and with reservations of dispensations. Retro- go beyond those in Pastorale Munus in re- activity of effects is not a disciplinary law gard to sanations. Hence, there is no rea- from which a dispensation can be obtained. son to resort to Pastorale Munus. The It is a concession through a fiction of law of certain effects retroactively. It is prac-

27 DE EPIscoPoRUM MUNERIBUS: IX, 18; MA- TRIMONIA MIXTA, N. 16; Cf. PASTORALE MUNUS: 28 Buijs, De Potestate Episcoporun Dispensandi, 1, 21, 22. PERIODICA 56 (1967), 628-34. 17 CATHOLIC LAWYER, SPRING 1971 tically equivalent to a favor or privilege. The phrase used in Matrimonia Mixta Since De Episcoporum Muneribus speaks on sanations seems to require the fulfill- of a sanatio in radice, it seems to me that ment of Nos. 4 and 5 of the document for it is including the retroactivity of effects validity. It states that the sanation can be contained in the notion of sanation. granted "when the conditions spoken of If the retroactive effects are not pro- in Nos. 4 and 5 of these norms have been duced, there really is no sanatio in radice fulfilled." (Impletis condicionibus . . .) in the authentic sense of the term. If to This clause is very similar to the clauses of produce the retroactive effects, a pontifical Quinquennial Faculties, Pastorale Munus indult is needed, of what value is the dis- and De Episcoporum Muneribus, which pensation of the bishop in sanation cases? determined the validity of the granting of If retroactive effects were not to be in- the sanation. cluded, then the Motu Proprio should In spite of this, it seems that the phrase instead have reserved to the Holy See in in Matrimonia Mixta is not for validity of certain cases the dispensation from re- the sanation. It does not seem possible that newal of consent required in simple con- the legislation would want the validity of validation. (C. 1133, § 1) a sanation dependent on norms that are Furthermore, most authorities writing on so mild and indefinite. Recall that norm this subject consider that by virtue of De N. 4 states that the Catholic party shall Episcoporum Muneribus Ordinaries can declare he is ready to remove dangers to grant the sanatio in radice in the full sense the faith and shall promise to do all in his of the term, that is, with retroactive ef- power to have children baptized and raised 2 9 fects. in the Catholic Church. Norm 5 states that the non-Catholic party is to be informed C. Promises in Sanation of Mixed Mar- of these promises. riages In this instance, we have at least a doubt Is the requirement of the promises in of law and by virtue of Canon 15, the in- Nos. 4 and 5 of Matrimonia Mixta neces- validating effects do not bind. A sanation sary for the validity of a sanation of a granted by a bishop in such a situation mixed marriage? would be valid at least by Canon 209.20

29 T.P. Cunningham, De Episcoporum Muneri- Supplementary Questions bus, THE IRISH ECCLESIASTICAL RECORD 107 1. Q. Which of the faculties may be (1967), 58-59; Ch. Berutti, De Episcopornin Muneribus, MONITOR ECCLESIASTICUS 97 (1967) delegated and to whom? 577-78; Villarino, Los Obispos y La Sede Apos- tolica, III REVISTA ESPANOLA DE DERECHO A. Unless otherwise stated, all of CANONICo 455-57 (1966). Regatillo, Facultad de the faculties of Pastorale Mu- los Obispos par Dispensar de las Leyes Generales de la Iglesia, 55 SAL TERRAE 776 (1967); James Madden, The Dispensing Power of the Bishops, 44 AUSTRALASIAN CATHOLIC RECORD 140-43 .0 Navarrete, Commentarius Canonicum ad ... (1967). Matrimonia Mixta, PERIODICA 465-68. EPISCOPAL FACULTIES

nus and De Episcoporum Mu- Bishop can permit it in theory neribus may be delegated. but the Holy See has expressly 3 1 Pastorale Munus may be dele- reserved it to itself. gated to Coadjutors, Auxiliary 4. Q. In cases where Uniate parishes Bishops, Vicars General and are far removed from their Chancellors. De Episcoporum Ordinaries here in the United Muneribus may be delegated States, does the local Latin to any priest. Ordinary have secondary juris- 2. Q. Can these faculties be subdel- diction? egated? A. The Latin Ordinary has con- A. In virtue of Canon 199, § 3 comitant jurisdiction with the the faculties of De Episcopo- Melkite and Maronite Ordi- rum Muneribus may be sub- naries, not with the United delegated in individual cases States Ordinary of the other provided the power of the del- Oriental rites no matter how egate was ad universitatem distant they are from their negotiorum. This would be the parishes. situation if the Ordinary del- 5. Q. What faculties can be dele- egated these faculties to his gated to Deans? Chancellor. If the Ordinary delegated one of these facul- A. All of De Episcoporum Muner- ties to a priest for a particular ibus. None of Pastorale Munus case, then it could not be sub- (consult reply to Q. 1 above). delegated unless the Ordinary 6. Q. Can the Ordinary grant a dis- stipulated that it could be (C. pensation from Disparity of 199, § 4). Since the faculties Cult when the Catholic party of Pastorale Munus can be is not domiciled and not yet in delegated only to certain per- the diocese? sons, it would follow that those who had been delegated A. To be safe, the answer is nega- ad universitatem negotiorum tive. Consult text under "Dis- could subdelegate in single pensation from the Form." cases only those certain per- 7. Q. Can the Ordinary authorize sons capable of being dele- Chancery , without gated. naming them Vicars General, 3. Q. Does the Bishop have the to delegate a priest for mar- faculty to delegate for serious riage? reasons a priest to confer ton- sure and minor orders? 31 FELIX M. CAPPELLO, IV DE SACRAMENTIS A. No. Cappello feels that the 193-94 (1951). 17 CATHOLIC LAWYER, SPRING 1971

A. No. Canon 1066, § 6 excludes l1. Q. In the absence of the Bishop general delegation for mar- or can the riages except to a vicarius co- Chancellor be empowered to operator. By virtue of Canon execute rescripts? 199, §§ 3 and 4, without gen- A. Yes, in accordance with the eral delegation, a Chancery limitations of Canon 57, that official cannot subdelegate. is, unless a substitute executor 8. Q. Since De Episcoporun Muner- is forbidden or the executor ibus, is the delegation of Pas- was chosen industria personae. torale Munus still limited to the Vicar General and Chan- 12. Q. Which Ordinary can or should cellor? grant the dispensation from form and impediments when A. Yes, except that it also can be the Catholic party resides out- given to Coadjutors and Aux- side the diocese of place of iliary Bishops (consult reply marriage? to Q. 1). 9. Q. Can you discuss the limitation A. Consult text under "Dispensa- on delegating authority to dis- tion from the Form." From a pense from marriage impedi- practical point of view, in ments? ordinary circumstances, the Bishop of the Catholic party A. De Episcoporum Muneribus should grant all the required gives the Ordinary ample fac- dispensations. ulties to dispense from mar- riage impediments. All of the 13. Q. Can the Ordinary permit more faculties of the Ordinary in than one Mass on the eve of regard to marriage impedi- Sundays and Holy Days of ments can be delegated to all Obligation in order that the priests. faithful may fulfill the precept? 10. Q. Clarify the extent of the fac- A. Yes. The faculty of the Sacred ulties of Vicar General and Congregation for the Clergy Episcopal Vicar? granted to Bishops of the A. Within the express limitations United States in this matter stated in the law, the Bishop puts no limit on the number of can grant all his powers to the Masses. The faculty granted Vicar General. The Episcopal reads: "permitting that the Vicar enjoys the same powers faithful, whenever the Ordi- as the Vicar General except nary judges it to be pastorally that they are limited for a par- necessary or useful, may sat- ticular territory or over a par- isfy their Mass attendance ticular group of persons. obligation in the afternoon EPISCOPAL FACULTIES

hours preceding Sundays and of a case which went Holy Days of Obligation." It into solemn process. When it should be noted that the fac- did, the tribunal of first in- ulty granted does not limit stance did not obtain a stand- Masses to the evening as was ing in court for the non- true when the faculty was Catholic plaintiff. The court of granted to individual Bishops. second instance questioned This faculty to all the United the validity of the process in States Bishops uses the phrase first instance. The matter was horis postmeridianis. The Bish- sent to the Sacred Congrega- ops may, therefore, permit such tion for Doctrine of the Faith. Masses at any time after This Congregation stated it 12:00 P.M. lacked the faculties to resolve the question. The question 14. Q. Can the Bishop permit a non- was referred to the Holy Catholic or a person who was Father. It was then sent to the cause of the nullity of a mar- Secretary of State and then to riage jus standi in judicio? the Rota. The final resolution A. Yes. Consult The Jurist (July was a sanation of the process 1970) at 373-74; Canon Law and decision of first instance. Digest, VI, at 827-28. In the This reply in fact does not same volume of the Canon contradict the faculty. It seems Law Digest, at 839 under from the text that the court of Canon 1892, there is a reply first instance never used its which seems to contradict this faculty to grant the jus standi affirmative answer. It speaks in judicio.