- Posted by Mary's Advocates
- On July 25, 2016
Further legal enactments particularly pertinent to procedural law were the Instruction of the Sacred Congregation of the Council, issued on August 22, 1840,(note 5) and an Instruction of the Sacred Congregation of the Holy Office of June 22, 1883, addressed to Oriental bishops(note 6). This last directive was incorporated for the most part by the Sacred Congregation for the Propagation of the Faith in its Instruction of the same year as sent to the bishops of the United States (note 7). This Instruction was incorporated along with the Constitution Dei miseratione, of Benedict XIV in the Acta of the III Plenary Council of Baltimore in 1884 (note 8). The assembly of the hierarchy also recommended to the attention of the American bishops the procedural norms of the Austrian Instruction of 1855. This Instruction was promulgated by Joseph Cardinal Rauscher (1797 – 1875), Archbishop of Vienna, in the meeting of the Austrian hierarchy in 1855 and it was approved by the Holy See as a particular law of the Austrian Empire (note 9).
Not only the Council of Trent but the Holy See through several papal letters and through Instructions of the Congregations insisted upon the right of the Church to hear marriage cases. These suits, it was pointed out, were not a matter of the mixed forum, but belonged to the exclusive jurisdiction of the Church. The reason for this declaration, was based on the nature of such cases as “causae spirituales”; thus the Church alone was competent. The same applied to separation cases. These cases, since they affected the very status of persons, were considered “res gravissimae” and were to be judged solely by an ecclesiastical tribunal (note 10).
It was not intended that the jurisdiction of the Church was exclusive in only vincular cases. Separation, even if it was only temporary, was considered a public matter and contrary to the nature of marriage. As a result, it not only looked to ecclesiastical recognition but also necessitated the intervention of ecclesiastical authority. Moreover, the actual hearing before the Church was to be considered not simply as a recommendation, but rather as a compulsory mandate (note 11).
Furthermore, this hearing before the Church was a serious matter. Even in this late post-Tridentine period the solemn process was still the ordinary mode of judging such suits. The summary and administrative methods were doubtless in use, but the law still considered the formal procedure to be the accepted practice. It was not until the latter part of this era that the more informal method received ecclesiastical sanction (note 12).
[(Mary’s Advocates Note) Fontes: One valuable resource for canonical research are the fontes to the 1917 code, collected in nine volumes by Cardinal Gasparri: Pietro Gasparri, Codicis iuris canonici fontes / cura em̄i Petri Card. Gasparri editi, 9 vols. (Publisher – Rome: Typis Polyglottis Vaticanis, 1923-1939). Cited as reference by “P. Gasparri, Codicis Iuris Canonici fontes (Rome: Typis Polyglottis Vaticanis, 1923–1939).” Available at Archive.Org HERE.
Fontes, n. 4069. This Congregation was erected on August 2, 1564 by Pope Pius IV (1559-1565) to provide for the execution of the Tridentine decrees. Its power was extended by Pope St. Pius V (1566-1572) and Gregory XIII (1572-1585). Finally Pope Sixtus V (1585-1590) in a constitution of Jan. 22, 1588, Immensa aeterni Dei, gave it the full faculty of interpreting the decrees of the Council, but reserved to the Pope any interpretation of dogma——Zamboni, Collectio Declarationum Sacrae Congregationis Cardinalium Sacri Concilii Tridentini Interpretum (4 vols., Atrebati, 1860-1868), I, XIV (hereafter cited as Collectio Declarationum S.C.C.); Bouix, Tractatus de Curia Romana (Parisiis, 1859), p. 169. This Congregation shared the hearing of marriage cases with the Sacred Roman Rota, although the latter was not very active until the present century. Pope Pius X (1903-1914), by his constitution, Sapienti Consilio, of June 29, 1908, revived the Sacred Roman Rota and gave it jurisdiction to hear “causae omnes contentiosae non maiores,” which included cases of separation——Fontes, n. 682.
S. C. S. Off., instr. (ad Ep. Rituum Orient.), a. 1883—Fontes, n. 1076.
S. C. de Prop. Fide, instr., Causae Matrimoniales, a. 1883—Fontes, n. 4901; Collectanea S. Congregationis de Propaganda Fide (2 vols., Vol. I, ann. 1622-1866, Nn. 1-1299; Vol. II, ann. 1867-1906, Nn. 1300-2317, Romae: S. C. de Propaganda Fide, 1907), II, n. 1587 (hereafter referred to as Collectanea). Although there is no title of address prefaced to this Instruction in the Fontes or the Collectanea, it follows immediately upon another Instruction to the bishops of the United States regarding the manner of procedure in criminal and disciplinary cases of clerics. Many authors refer to it as directed to the bishops in the missionary territories of the world, but the better opinion confines it to the bishops of the United States. This view is substantiated by a response of the Sacred Congregation of the Holy Office, which refers to it as sent to the hierarchy of this country—cf. S. C. S. Off. (Colonien), 23 inn. 1903, n. 2—Fontes, n. 1266.
“In agendis hisce causis pro rei gravitate exacte servetur tum Constitutio Benedict XIV, Dei Miseratione, 3 nov. 1741, tum Instructio a S. Cong. de Prop. Fide Nobis communicata quae incipit Causae Matrimoniales . . :’Acta et Decreta Concilii Plenarii Baltimorensis Tertii, A. D. MDCCCLXXXIV (Baltimore: John Murphy and Co., 1886), n. 304.
”Utiliter etiam consuli poterit Instructio pro judiciis acclesiasticis Imperii Austriaci in causis matrimonialibus, a. 1855 a gravis theologis et canonistis Romanis, licet solo privato suo judicio, commendata”—loc. cit.; cf. Instructio Austriaca Josephi Cardinalis Rauscher, 4 maii 1855—Acta et Decreta Sacrorum Conciliorum Recentiorum, Collectio Lacensis (7 vols., Friburgi Brisgoviae: Herder, 1870-1890), V, coll. 1286-1316 (hereafter referred to as Collectio Lacensis); Analecta Iuris Pontificii (Romae, 1855-1869; Parisiis, 1872-1891), II (1857), 2515-2562.
“Si quis dixerit, causas matrimoniales non spectare ad iudices ecclesiasticos: anathema sit.”—Conc. Trident., sess. XXIV, de matrimonio, canon 12; Pius VI, const. Auctorem fidei, 28 aug. 1794, Prop. 58, 59, 60—Fontes, n. 475; Pius IX, Syllabus Errorum (a. 1864), Prop. 74—Fontes, n. 543; idem., litt. ap. Ad apostolicae 22 aug. 1852, n. 2—Fontes, n. 511; Idem., ailocut. “Acerbissimum,” 27 sept. 1852, n. 3—Fontes, n. 515; instr. S. C. De Prop. Fide (a. 1883), n. 1—Collectanea, II, n. 1587. The authors of this period clearly confined separation cases to the ecclesiastical forum—Schmalzgrueber, lus Ecclesisticum Universum (5 vols. in 12, Romae, 1843-1845), II, tit. 1, n. 53 (hereafter cited as Schmalzgrueber) ; Gasparri, Tractatus Canonicus de Matrimonio, 3. ed., II, nn. 1457, 1458; Wernz, lus Decretalium, IV, n. 731.
“Et propterea net al est coniuges fideles se, propria voluntate aut arbitrio, a coniugali toro separare, nisi ex causa a sacris canonibus permissa et auctoritate ac iudicio Ecclesiae cognita et probata.”—Sixtus V, coast. Ad compescendunt, 30 oct. 1586—Bullarum Diplomatum et Privilegiorum Romanorum Pontificum Taurinensis Editio (24 vols. et Appendix, Augustae Taurinorum, 1857-1872), VIII (1572-1588), 789. The III Plenary Council of Baltimore (1884) was faced with a special problem of Catholics seeking a civil separation without ecclesiastical permission. Such people were warned of the gravity of this offense and reminded of the penalty which he bishop might inflict at his own discretion—Acta et Decreta Concilii Pknaril Baltimorensis Tertii, A.D. MDCCCLXXXIV, n. 126.
Wernz, lus Decretalium, IV, n. 714.
Page 79: “[The Defendant] has a right to the common life from the marital contract”
Page 90: “There is also place for court actions that seek to re-establish the unity of conjugal life” … “The common action in this matter is a petition for canonical recognition of the right to separation from an errant consort for a just cause. This action may look to a permanent or temporary separation, and in the later case for a determinate or indeterminate period of time.”
Page 111: “[T]he ecclesiastical judge must attempt the observance of these provisions as far as possible. Canon 1132 grants the guardianship of the children to the innocent party as a general rule.”
Page 147-148: “These writers [1885-1909], while not minimizing the great evils of divorce, nevertheless oppose the assertion that it was intrinsically evil and, therefore, never to be permitted. Their treatment consider this matter as never licit unless very grave and proportionate causes were present, as measured by a consideration of the evils and the insecurity afflicting an innocent spouse when there was no civil protection available and by a balancing of the good and evil which would result from divorce. […] [T]his opinion […] allowed such action [filing for civil divorce] only in those cases in which it was necessary to establish civil effects for an ecclesiastical granted separation. Moreover, it insisted on a grave and proportionate cause and the permission of the ordinary in every instance.”
Page 155-156: “The permission of the local Ordinary is necessary requisite for a licit action [filing for civil divorce] in every instance. It is his office to judge the gravity of the reasons for seeking this legal remedy, and it is but reasonable, as a means of preventing the abuses arising from private judgment in this matter, that he, the guardian of faith and morals in his territory, thoroughly familiar with the local civil statutes, should be the authority to issue this permission in worthy cases.”