The Lawyer

Volume 4 Number 3 Volume 4, Summer 1958, Number 3 Article 10

The Case of the Bishop of Prato

Pio Ciprotti

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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]. THE CASE OF THE BISHOP OF PRATO t

Pro CIPROTTI*

T HE TRIAL OF THE BISHOP OF PRATO is the first criminal proceeding brought in since 1870 against a bishop upon the basis of an act performed by him in exercise of his functions. Accusations of "abuse of electoral propaganda" have been made on several occasions, but in each case the instructing magistrate dismissed the information upon the grounds that it failed to charge a crime. The accused bishops, therefore, were not brought to trial. It is for this reason that public opinion in Italy has been so disturbed by the trial of Bishop Fiordelli.

The Facts The Bishop of Prato had been pursuing for some time a vigorous pastoral campaign to make his people mindful of the grave sin and the canonical sanctions incurred by Catholics who attempt civil marriage.' The first pastoral letter issued by Bishop Fiordelli as Ordinary of Prato, in Lent of 1955, set out the Catholic doctrine on marriage and the family

tTranslation by Rev. William F. Cahill, Professor of Law, St. John's University School of Law. *J.S.D. (1934), University of ; J.C.D. (1935), Pontifical Lateran University; admitted to practice before the Sacred Roman , the Italian Courts and the Supreme Court of Cassation. Professor of Law, University of Rome (1940- 43, 1948-55); Professor of Comparative Law and of Italian Ecclesiastical Law, Pontifical Lateran University. 1 In view of the fact that Italian law gives full civil effect to a religious marriage registered with the civil authorities, the Sacred Congregation of the Sacraments has, since 1929, forbidden Catholics in Italy to celebrate civil marriages. Where the civil law does not recognize the religious marriage, Catholics are permitted to have a civil ceremony in addition to the ecclesiastical one. By applying for a "notification" of civil marriage instead of giving notification at the town hall that they would be married before a priest, these young people publicly declared that they considered the civil marriage a valid one. The "noti- fication" in Italy is similar to the marriage license in America except that the former indicates whether the parties intend to have a civil or a religious ceremony. BISHOP OF PRATO as a countermeasure to a communist propa- effort to prevent this most serious sin. This ganda campaign directed to discourage gesture of open and contempuous repudia- tion of religion is an occasion of deep sorrow church marriages. 2 In response to that for the priests and for the faithful. pastoral, a communist periodical published For two baptized persons "so-called civil at Prato offered an article entitled The marriage" is no marriage at all, but only the Bishop is the Enemy of Motherhood and inception of a scandalous concubinage. Humanity. Therefore, you the Provost shall character- A Catholic ize these two persons as public concubi- young woman of naries, in the light of Christian morality and of the laws of the Church, and, in accord- in spite of Prato, ance with Canons 855 and 2357 of the Code the repeated ad- of , you shall consider for all monitions of the purposes Mr. MB and Miss LN as public Bishop, publicly sinners.3 declared her inten- a The pertinent sections of the Canons cited in tion to contract a the Bishop's letter are the following: civil marriage with Can. 855, §1: Publicly unworthy persons are to be barred from the Eucharist; such are the a young commu- excommunicated, the interdicted, and the no- nist. Thereupon toriously infamous; unless their penitence and the Bishop sent to amendment be established, and until they have PIO Cn'ROTTI the priest repaired any public scandal. of the Can. 2357, §2: Persons who have committed a young woman's a pastoral letter to be public crime of adultery, or who have been read to the faithful in church on the 12th living publicly in concubinage, or who have been lawfully convicted of other crimes against of August, 1956, the day on which the civil the sixth commandment of the decalogue are marriage was to take place. The civil cere- to be barred from legitimate ecclesiastical acts, mony was celebrated on that day with much until they shall have given signs of true repentance. publicity. Those who attended were invited The following portions of other Canons have to a restaurant on the Cathedral square, and reference to the penalties set out in the letter: the newlyweds stood before the Cathedral Can. 2195, §1: The term crime, in ecclesiastical to receive the congratulations of their law, signifies an external and morally imputable violation of law to which is attached a canonical friends. The text of the Bishop's letter sanction, at least an indeterminate one. follows: Can. 2197: A crime is: 1. Public, if it is already a matter of common knowledge, or if the cir- To the Very Reverend Provost of cumstances in which it was committed or those St. Mary of Help, Prato: which now bear upon it are such that prudence Today, the 12th of August, two of your warrants and urges the judgment that the crime parishioners who have refused a religious will easily become commonly known; 2. No- torious in law, after the sentence of a competent marriage will marry at the Town Hall. The judge has become res judicata, or after the ecclesiastical authorities have made every offender's judicial confession made in accord- 2 Pius XI, in his Letter on Chris- ance with Can. 1750; 3. Notorious in fact, if tian Marriage, Casti Conubii, Dec. 31, 1930, the crime is publicly known and was committed attributed to the "destroyers of society" this in such circumstances that guilt can neither be proposition: ". . . that the civil act (which they concealed nor legally excused; 4. Occult, when call civil marriage) is to be regarded as the true it is not public; materially occult, if the crime nuptial contract; while the religious act is some- itself is not known; formally occult, if the legal thing superfluous or, at most, an to responsibility is not known. superstitious people." Can. 1240, §1: The following persons are to be 4 CATHOLIC LAWYER, SUMMER 1958

All the sacraments shall be denied them, the trial, the submissions of the Public their house shall not be blessed, they shall Prosecutor were not accepted by the judges. not be accepted as sponsors in Baptism or Arguing that the Bishop and the pastor had Confirmation, religious funeral services shall acted in fulfillment of a duty, though in be denied them. But prayers shall be offered for them, that they may repair this most excess of the limits thereof, he had asked grievous scandal. that both be discharged, for want of malice. Finally, since the ecclesiastical authori- The complaining parties were represented ties find that the parents of these persons by three lawyers, none of whom are prac- have failed gravely in their duty as Christian The Public Prosecutor parents, by permitting this enormously sin- ticing Catholics. ful and scandalous proceeding, at Easter you and three of the four defense attorneys shall deny the Holy Water to the B family practice the Catholic religion. and to the parents of LN. This letter is to Before the trial began, the Bishop and the to the faithful. be read pastor had sent to the President of the (Signed) Peter letters in which they explained Bishop of Prato the reasons which prevented their atten- As by the letter itself he was directed to dance at the trial. The following is the text do, the pastor read the letter to the faithful of the Bishop's letter to the President: during the Masses on the 12th of August, and later he published it in the parish With all respect, I wish to explain to you bulletin. the reasons why I believe I cannot attend the hearings in the action brought against Upon the basis of these facts the parties me. to the civil marriage, the groom's mother, Although I am so determined, let me say and the bride's father lodged a complaint of immediately that nothing could be farther defamation. Later, the bride's father with- from my intention than to be lacking in my drew from the case. regard for the Tribunal over which you preside. Having myself a place in the Magis- The instructing magistrate bound over the tracy of the Church, I am well aware of the Bishop and the pastor for trial, although the dignity and the high office of a judge. I Public Prosecutor had requested dismissal beg you, therefore, to credit my profound "... because the facts alleged do not consti- esteem and appreciation. tute a crime." My conscience as Bishop, however, obliges me not to present myself, for the The Tribunal of , after a six-day fact upon which I am to be tried is nothing trial (February 24-March 1, 1958), gave else than an act done in exercise of my sentence. The court fined the Bishop 40,000 spiritual power; a determination made by lire, finding him guilty of defamation with me in exercise of my episcopal jurisdiction, the extenuation of having acted from for the purpose of fulfilling a duty imposed by the pastoral ministry. motives of particular moral and social signi- upon-me You, Mr. President, are aware of the ficance, and with general extenuating cir- facts. Being advised that two persons, bap- cumstances. The court discharged the tized in the and belonging pastor, finding that he acted in the belief to my and for whose souls, there- that he was performing his duty. Again at fore, I am answerable to God, intended to become joined to each other by a civil cere- denied ecclesiastical burial, unless before death mony only, I was obliged as Bishop to call they gave some sign of penitence: in one of them, who was still a practicing 6. Other public and manifest sinners. Catholic, and to put before her, with the BISHOP OF PRATO

anguished affection of a father, what a grave Italian Constitution: "The State and the sin it is for a Catholic to repudiate religious Catholic Church are, each in its own order, marriage; a sin so much more inexcusable independent and sovereign." in view of the fact that in Italy all the civil For my conduct in the "spiritual govern- effects are secured by religious marriage. I ment of the faithful" I must answer to my exhorted and entreated her to abandon her conscience as Bishop, to the Supreme intention, and not to reject wilfully the Pontiff, and to God. I would not wish ever blessing of God for herself and the home to bear the grave responsibility of not having she thought to found. so comported myself as to prevent, as far as To my profound sorrow I was not listened in me, that the liberty of the Church should to. be prejudiced or that the should Confronted with the wide publicity which suffer a breach. had been thrown purposefully around the I am confident that you, Mr. President, deplorable fact; considering the grave scan- in the evenness and clarity of your mind, dal which this publicity had provoked among will evaluate justly my anxieties and my the Christian people of my diocese, and not resolve. having been able to overcome the obstinacy The Tribunal did not embrace the thesis of the persons to be married, I saw myself constrained to explain publicly the lament- set forth by the Bishop in his letter and able conditions in which their deed would therefore held that they had jurisdiction to place them before the Church, and the adjudicate the Bishop's action. canonical sanctions which would be thus Now that the Tribunal has given its incurred. And yet, not even then was I judgment one sees that the magistrates have prepared to abandon hope that those to explored various lines of argument which whom my exhortation had given no pause might turn back when confronted with the pointed to different conclusions in each grievous consequences of their offense. stage of the proceeding. Permit me, Mr. President, to explain with Indeed, in the first inquiry the Public what bitterness I have been obliged to Prosecutor maintained that the letter was observe how the children of darkness busy not defamatory, because it contained purely themselves, by any and every means, to take away from my diocesans the light of the religious evaluations of the conduct of the Faith and the comfort of religious practice. complainants - comments which could not While these persons try to urge my people have injured anyone's reputation, and be- into merely civil unions, I, as Bishop, have cause the letter was written by the Bishop esteemed and do still esteem it my duty to in exercise of his functions of Church defend the dignity of the Sacrament, the sanctity of the domestic hearth, being per- government. suaded that in the Christian holiness and At the trial, the Public Prosecutor argued integrity of the family lies the foundation of that the letter was defamatory, yet that in the true weal of the Church and of the view of Article I of the Concordat 4 the Nation. Bishop had committed no crime provided For all these reasons, you will understand he acted in accordance with Canon Law, but why I must prevent my position from ap- pearing or being construed as an admission that he was guilty of defamation if his that an act having to do with "the spiritual conduct did not conform to Canon Law; government of the faithful" may be sub- therefore the Public Prosecutor argued that jected to the adjudication of a civil magi- the Tribunal was competent to adjudicate strate, for the liberty of that government is guaranteed by the Lateran Pacts and upon the Bishop's act, to determine whether solemnly proclaimed by Article VII of the 4 See text, infra, p. 250. 4 CATHOLIC LAWYER, SUMMER 1958 it was or was not done in accordance with has been taken by the attorneys for the the laws of the Church, and he concluded Bishop and the pastor. From the determi- that the act was done according to those nation of the Court of Appeals, recourse laws in as much as the two persons who may be had to the Supreme Court of contracted civil marriage were denominated Cassation. public sinners, but that the act did not The Penal Code accord with church law in denominating Article 595 of the Penal Code punishes those persons as concubinaries. In spite of with imprisonment of from fifteen days to a this latter conclusion, the Public Prosecutor year, or a fine of from 400 to 80,000 lire, "anyone who, communicating asked that both the Bishop and the pastor with a num- be discharged, because they had acted in ber of persons, harms the reputation of good faith, that is, in the belief that their another." conduct was within the limits of their right Article 51 of the same code excludes and their duty. punishment of one who acts in exercise of a The Tribunal, on the contrary, was of right or in fulfillment of a duty imposed by opinion that they need not determine law or by a lawful direction of the public whether or not the Bishop's act conformed authorities; and, by Article 59, punishment to Canon Law, that being an internal ques- is excluded in respect of one who errone- tion of the government of the Church, whose ously believed that his act was in exercise of is unquestioned; but the Tri- a right or in fulfillment of a duty. bunal held that they must adjudge whether The Tribuhal evidently held that the the Bishop's act, though it issued within a Bishop's was within the contempla- juridical order distinct from that of the tion of Article 595, and that Articles 51 and State, may or may not have overstepped the 59 had application to the case of the pastor, limits between the two juridical orders, and but not to the case of the Bishop. particularly whether or not the act may have Under Article 596 of the Penal Code, one breached any right guaranteed to citizens by guilty of defamation is punished even though Articles II and III 5 of the Constitution. the facts which he has attributed to the Passing then to a consideration of the person offended be true and notorious. Yet, episcopal document, the Tribunal found when the offense consists in the attribution there a violation of such rights, holding that of a determined fact, there are some cases in it was injurious to reputation. which the defamation is not punished if it Now the case is to be adjudicated by the can be shown that the fact is true. Court of Appeals of Florence, where appeal In the case of the Bishop of Prato, the question of the truth of the fact was not an 5 The Italian Constitution of December 27, 1947: issue; he was not accused of having attrib- Art. 11 The Republic recognizes and guarantees the inviolable rights of man, both as an indi- uted to the complainants a determined fact, vidual and in the social groups in which he but of having called them "public sinners" personality, and it requires the develops his and "concubinaries." fulfillment of the irrevocable duties of political, economic and social solidarity. Let us see whether the Bishop's letter can Art. III All citizens have the same social dignity be considered defamatory, and whether or and are equal before the law, without distinction not its issuance was for him the exercise of of sex, race, language, religion, political opinion, personal and social conditions. a right or the fulfillment of a duty. BISHOP OF PRATO

The Bishop of Prato, in his letter, brought indicate that it is a matter of indifference to the attention of the faithful- in order to the State that a citizen profess one religion that they should understand well the gravity or another, or that he fulfills or neglects his of the offense and be deterred from similar religious duties. If this be so, then the State conduct - the classifications "public sin- cannot logically consider injurious to repu- ners," "concubinaries," etc. and the canoni- tation the act of saying - as the Bishop of cal sanctions incurred automatically under Prato said in substance - that Titius and the law of the Church by the two persons Caia have transgressed the precepts, even who had attempted to marry by a civil the grave precepts, of God and of the ceremony. Church. Further, it is beyond question that Clearly, now, this can be said of any of the expressions employed in the Bishop's the' persons affected by the Bishop's letter. letter, "public sinners," "public concubi- If such a one professes Catholic doctrine, naries," "inception of a scandalous concu- he cannot view as a legal offense a document binage," are directed to characterize the whose issuance the principles he professes deed and its doers in a purely religious made obligatory upon the Bishop, nor can scope, that is, before God and the Church, he so view an act which is merely an appli- and to characterize them within the juridical cation of the same principles. If, on' the order of the Church, before the Canon Law, contrary, a person affected by the letter and not in the scope of the State or of social dissents from the Church, he surely cannot relations. This conclusion follows from two take it as offensive to his reputation - rather conceded propositions. It is conceded that he may congratulate himself - if the Church the author of the letter was the Bishop declares him a transgressor of the laws of writing as head of the diocese, acting in exer- God and of the Church, which laws he cise of his power of ecclesiastical govern- boasts he will not observe. ment and of his pastoral ministry. And the And, on the other hand, Articles III, letter itself indicates that the characteriza- tions employed therein are drawn from texts VIII and XIX6 of the Italian Constitution of church law, specifically, from Canons of 6 Art. III All citizens have the same social the Code of Canon Law which are accu- dignity and are equal before the law, without rately cited in the letter. Finally, one reads distinction of sex, race, language, religion, in the letter complained of this phrase, "in political opinion, personal and social conditions. Art. VIII All religious professions (confes- the light of Christian morality and of the sioni) are equally free before the law. laws of the Church." All religious professions, which are not Furthermore, if the Bishop had said Catholic, have the right to organize themselves according to their own principles, insofar as simply that Titius and Caia are to be con- these are not in conflict with the juristic order sidered public sinners and concubinaries, of Italy. Their relations with the State are without explaining why, perhaps it might be regulated by laws based upon agreements with the respective representatives. said that these expressions were injurious to Art. XIX All have the right to profess freely the reputations of Titius and Caia. But the the religious faith to which they adhere, in any Bishop has said that these characterizations form, individually or in association, to spread apply to Titius and Caia because they have their faith and to worship publicly or privately, provided that the ritual involved is not contrary contracted civil marriage, and so, if it does to good morals. not harm their reputation to say that they 4 CATHOLIC LAWYER, SUMMER 1958 have contracted a civil marriage, the stitution 7 declares, that in Italy relations Bishop's letter is not injurious to them. between the Church and the State are reg- Indeed, all Prato already knew that those ulated by the Lateran Pacts (the Treaty and two persons had contracted civil marriage, the Concordat), and these Pacts are also and some citizens of Prato had judged the the law of the State. By Article I of the celebration of this civil ceremony a wrong- Treaty, the Catholic, Apostolic, Roman re- ful thing, while others had judged it not ligion is the only religion of the State; that wrongful. The contempt in which the former this Article remains in effect has been re- held the two young persons, and the esteem affirmed by the Constitutional Court in its in which the latter held them, certainly Sentence numbered 125, dated November could not be increased or diminished by 28-30, 1957. the Bishop's letter. This letter, therefore, Through Article I of the Concordat, the cannot be considered defamatory, for it has Italian State ". . . assures to the Catholic not harmed the reputation of the two per- Church the free exercise of spiritual power, sons to any degree beyond what their the free and public exercise ... of its juris- reputations had already suffered by their diction in ecclesiastical matters"; and fur- own act of celebrating a civil marriage. ther, "where it is necessary, [the State] The Bishop - as everyone knows - is, in accords to ecclesiastical persons, for the acts the legal system of the Church, at the same of their spiritual ministry, the protection of time a lawmaker, a governor, and a judge. its authorities." No one ever dreamed of accusing of defa- From this it follows that whatever scope mation a judge who in giving sentence is given by the laws'of the Church to the characterized, for example, as a thief, one jurisdictional power of the Church is con- who had stolen: there is no question of sented to by the State, and acts done in Jefamation here, but simply a necessary exercise of that jurisdictional power cannot, justification of what the sentence directs. therefore, be viewed from the standpoint of In the current year, on January 18th, a State law as wrongful or, much less, crim- decision of the Second Session of the Court inal. Consequently, Article 51 of the Penal of Cassation called concubinaries those who Code, quoted above, is applicable to ecclesi- cohabit after celebrating a religious mar- astical authorities who exercise the Church's riage in such circumstances that it is de- jurisdictional power. prived of civil effects. No one has laid an Article II of the Concordat is nothing information against the judges who signed other than an application of these principles that sentence. to a particular hypothesis. The Article declares: Right and Duty According to "Both the and the Bishops may the Law of the State publish freely, and they may post within If one grants that the Bishop acted in conformity with the law of the Church, then 7 Art. VII The state and the Catholic Church from that very fact it must follow, in the are, each in its own order, independent and view of the State's law, that he acted in the sovereign. Their relations are regulated by the Lateran Pacts. Modifications of the Pacts, ac- exercise of a right. cepted by both parties, do not require proceed- It is a fact, as Article VII of the Con- ings for revision of the Constitution. BISHOP OF PRATO buildings dedicated to public worship and must be given to the full and undisputed to the works of their ministry, and on the right of the Catholic Church to provide, outside doors of the same buildings, instruc- within the limits of its activity, for the tions, ordinances, pastoral letters, diocesan attainment of its objectives. The State judge bulletins and other papers having to do with has no authority to adjudicate for any pur- the spiritual government of the faithful, pose, characterizing as unjust, the conduct which they see fit to issue within the scope of a person clothed with ecclesiastical juris- of their competence." diction, who acts for a religious objective, From this disposition also, it follows that interpreting the standards prescribed by ec- a State tribunal cannot adjudge whether or clesiastical superiors." not a determination made by ecclesiastical These principles, which were taught by authority conforms to the laws of the notable jurists even before the Concordat, Church, and decide that the determination have even greater weight today, since the is lawful in the former case and unlawful in Lateran Pacts, and since Article VII of the the latter. This has been decided by the Constitution has recognized that the Church, Tribunal of , in a sentence of April on a par with the State, is sovereign and 21, 1955, which reads in part: "Recognition independent.

THE RIGHT TO EDUCATE components of the American educational (Continued) system. cation of their children. Religious schools They protest against the kind of thinking are flourishing. The graduates of such that would reduce them to a secondary level, schools are eligible for any public or pri- and against unfair and discriminatory treat- ment which would, in effect, write them off vate employment for which their educa- as less wholly dedicated to the public wel- tion has prepared them. fare than the state-supported schools. The On the federal level and in many of the students of these schools have the right to States, students of church-related schools benefit from those measures, grants, or aids, receive the benefits of bus transportation, which are manifestly designed for the health, safety and welfare of American youth, irre- textbooks, free lunches and other measures, spective of the school attended. grants-in-aid which are manifestly designed This statement is submitted in quiet con- for the health, safety and welfare of Ameri- fidence that the national sense of justice will can youth, irrespective of the school stand firm, and that a cordial appreciation attended. of private and church-related schools, both The place of the private and church- for what they are and for what they have done for America, will see to it that they related schools in America is one dictated are preserved and upheld so long as this is 43 by nothing more than justice and equity. a nation of free men. In the words of the Catholic Bishops of the United States such schools have the full 43 The Bishops' Message on American Principles right to be considered and dealt with as in Education, 56 J. 1,3 (1956).