- Posted by Mary's Advocates
- On January 1, 1885
- Council of Baltimore year 1885, Decree No. 126
- 1917 Code of Canon Law
- Provincial Councils and Diocesan Synods
- 1983 CODE OF CANON LAW
Council of Baltimore year 1885, Decree No. 126
When the United States was still pseudo-mission territory, the U.S. Bishops drafted some particular laws for the faithful in their territories. Included among them was Number 126 stating that those who petitioned the civil forum for separation [or divorce] needed permission from the bishop first. The decree of promulgationis was dated January 6, 1886. The decree of recognitionis from the Prefect of the Offices of the Sacred Congregation for the Propagation of the Faith was dated September 21, 1885.
[English Translation] We lay down the precept to all those, who are married, that they not enter civil tribunals for obtaining separation from bed and table, without consulting ecclesiastical authority. But if anyone should have attempted it, let him know that he incurs grave guilt and is to be punished through the judgment of the bishop.
1917 Code of Canon Law
The 1917 Code did not abolish laws promulgated for countries by those countries’ Plenary Councils. Article No. 126 from the Third Plenary Council of Baltimore remained binding for U.S. Catholics because of several reasons: the particular law was not in conflict with the laws of the 1917 Code (Canon 6, 1°); the particular disciplinary law for individual countries remain binding (Canons 6, 6° and 22); the laws issued for a particular nation bind those who have domicile in that territory (Canon 13).
Art. 126 had two substantive aspects: 1) the penalty part, and 2) the procedural part that requires a party to have the bishop’s permission before petitioning in the civil forum. Both aspects remained in effect after the 1917 code was promulgated.
Summary and Commentary on 1917 Code (see Woywod)
General Principles of Canon Law
6. 2°. Canons of the Code that restate former laws exactly as they were before, must be interpreted according to the approved and accepted interpretation of commentators on the old law. Canons which agree only in part with the former law are to be interpreted like the former law in the points in which they agree; but in the points in which the new law differs from the former they must be judged by their wording and context. When it is doubtful whether a law of the new Code differs from the old law, one must not deviate from the former law. (Canon 6, 2°, 3°, 4°.)
6. 4°. All other disciplinary laws which have been in force up to the present time cease to be binding, unless they are explicitly or implicitly contained in the Code. The laws contained in the approved liturgical books, however, remain in force. This part of the Canon refers to the common law of the Church, for the Code states in Canon 22 that particular laws, namely for dioceses, individual countries, Orders, are to remain in force unless they are opposed to the laws of the Code. (Canon 6, 6°.)
Principles of Ecclesiastical Laws.
8. The laws are instituted when they are promulgated. A law is not presumed to be personal but rather territorial unless the law indicates that it is to be considered personal. In the common law of the Church it makes little difference whether a law is personal or territorial, but in particular laws for dioceses or countries the distinction is important for the reason that the law, if territorial, does not bind outside the limits of the diocese or country. (Canon 8.)
13. The general laws of the Church bind all persons for whom they are issued anywhere in the world. Laws issued for a particular territory, e. g., a diocese or a nation, bind those persons who have a domicile or a quasi-domicile in that territory and actually live there. For those who are absent from their own place for a while the following Canon provides. (Canon 13.)
22. A more recent law given by the competent authority abolishes a former law when it explicitly makes a statement to that effect, or when it is directly contrary to the former law, or, finally, when it takes up and readjusts the entire subject matter of the law. A general law, however, does not abolish laws for particular places or the statutes of inferior legislators, e.g., of bishops, unless the general law is either directly opposed to the special law, or the general law explicitly revokes the particular law. The Code, therefore, does not abolish the decrees of National and Provincial Councils, nor diocesan statutes. rules and constitutions of Orders, except in as far as they may in some points be against the Canons, or in points where the Code explicitly states that notwithstanding particular laws the Code is to be followed. (Canon 22.)
Chapter VII Plenary and Provincial Council
197. The acts of the Plenary and the Provincial Council must be subjected to the revision and approval of the Sacred Congregation of the Council before they are published. (Canon 291)
The Sacrament of Marriage
859. The marriage of baptized persons is regulated not only by the Divine law, but also by Canon Law, saving the competency of the civil power over the merely civil consequences of the marriage contract. (Canon 1016.)
Article II. Separation from Bed and Board.
971. The married couple is obliged to live together in conjugal relations, unless a just cause frees them from this obligation. (Canon 1128.)’
972. For reason of adultery of one party. the other has the right to solve even for all times the community of life, though the marriage bond remains, unless the other consented to the crime, or was the cause of it, or expressly, or tacitly, eons cloned it, or, finally, committed the same crime himself, or herself.
Tacit condoning of the crime consists in this that the innocent party, after having become certain of the crime, nevertheless continues to live with the other in marital relations; such the law presumes to be the case, unless the innocent party within six months either expel or leave the guilty partner, or bring legal accusation against him, or her. (Canon 1129.)
973. The married person who, either upon sentence of the judge, or by his or her own authority lawfully leaves the guilty party, has no longer obligation to again admit the adulterer to conjugal life; the innocent party, however, has the right to admit the guilty partner, and to oblige him, or her, to return, unless he or she has in the meantime, with the consent of the innocent party, embraced a state of life contrary to marriage. (Canon 1130.)
974. Other reasons for separation: if one party joins a non-Catholic sect; or educates the offspring as non-Catholics; or leads a criminal and despicable life; or creates great bodily or spiritual danger to the other party; or if through cruelties he or she makes living together too difficult, and other such reasons, which are to the innocent party so many legal causes to leave the guilty party by authority of the Ordinary of the diocese, or also by private authority, if the guilt of the other party is certain beyond doubt, and there is danger in delay.
In all these cases the common life must be restored when the reason for the separation ceases; if, however, the separation was pronounced by the bishop either for a time, or indefinitely, the innocent party is not obliged to return except when the time specified has elapsed or the bishop gives orders to return. (Canon 1131.)
975. After the separation, the children are to be placed in charge of the innocent party, and if one of the parties is a non-Catholic the Catholic party is to have charge over them, that they may be raised as Catholics, unless the Ordinary decides differently for the sake of the welfare of the children, always safeguarding their Catholic education. (Canon 1132.)
Title XX Matrimonial Cases.
CHAPTER I.Competent Forum.
1386. Matrimonial cases between baptized people belong by proper and exclusive right to the ecclesiastical judge. (Canon 1960.)
1387. Cases concerning only only civil sequences of marriage belong to the civil magistrates, as stated in Canon 1016, if they constitute the principal action in the case; if, however, civil consequences are incidental or accessory questions in the case, they may be examined and decided also by the ecclesiastical judge by his own authority. (Canon 1962.)
Provincial Councils and Diocesan Synods
Herein are shown examples of acts (decrees or statutes) from provincial councils and diocesan synods that further promulgated Number 126 from the III Plenary Council of Baltimore. The Acts/Decrees from a Plenary Council were in effect for all of the United States. A provincial council sets policies for all the diocese that are under an archdiocese.
province. (1) A grouping of an archdiocese, called the metropolitan see, and the dioceses under it, called suffragan sees. The Code of Canon Law spells out certain limited obligations and authority that the metropolitan archbishop has with respect to the dioceses within his province. (from USCCB website)
New York Provincial Council 1884
The last provincial council for the dioceses under New York was the forth council held in 1884. The Third Plenary Council of Baltimore had not yet gone into effect at that time. Ten decrees on marriage were issued by the provincial council.
30 September 1883
Acta et decreta Concilii Provincialis Neo-Eboracensis IV
Marriage: Articles XVI – XXV (pages 51-60)
New York Archdiocese Synod 1895
The eighth synod for the New York Archdiocese was in 1895 and their decrees notified reader that the Acts of Third Plenary Council of Baltimore are promulgated and binding.
20 November 1895
Synodus Diocesana Neo-Eboracensis Octava (pages 132 – 136 in collection)
1. Conciliorum Plenariorum Baltimorensium II et III, Provincialium Neo-Eboracensium decreta quibus S. Sedis adprobatio accessit, necnon Synodorum Nostrae Dioceseos superioribus annis celebratarum statuta iterum promulgamus atque servari mandamus, iis exceptis, quibus legitime derogatum fuit
[machine translate] The Plenary Council of Baltimore 2 and 3, the provincial approval of the Holy See, which they came to the decrees of New York, as well as the decrees of the order to be observed, and we promulgate it to the established way of our Dioceseos celebratarum the previous years, except for those matters, which it was deprived of
New York Archdiocese Synod 1950
The seventeenth synod for the New York Archdiocese was in 1950 and their decrees presuppose the Plenary Council again.
General Norms §3. The statutes of this Synod become effective on January 1, 1951. Thereupon all preceding particular laws of this archdiocese are revoked, unless contained in the present legislation, or established as legitimate customs not contrary to these laws. §2. Customs contrary to the decrees of this Synod, even if they be immemorial, are suppressed and should not be revived. (Authorized English Translation, page 71)
Philadelphia Provincial Council 1880
The Decree from Cardinal Simeoni, at the Congregation of the Propagation of the Faith, about the 1880 Provincial Council of Philadelphia, includes the Plenary Council of Baltimore. Council is for five diocese: Philadelphia, Scranton, Harrisburg, Erie, Allegheny. Cardinal Simeoni’s decree is dated 1 September 1886.
The Roman Pontiffs’ Encyclical Letters which pertain in any way to the conservation of faith and conduct in their integrity are to be held in the highest esteem and received with the whole affection of heart and mind. Of these we commend to our clergy and laity the recent letters of our Most Holy Father, Leo XIII on Christian Matrimony and on the observation — or, where it has been neglected, the restoration — of Saint Thomas’s Method of teaching the theological and philosophical sciences, as documents most salutary for all times and most opportune for this age.
Philadelphia Archdiocese Synod 1934
The ninth synod for the Archdiocese of Philadelphia was held in 1924 and the first act showed that the decrees of the Third Plenary Council of Baltimore were again promulgated.
Synodus Diocesana Philadelphienis IX. 26 April 1934 (Latin and English)
Cincinnati Provincial Council Ohio 1882
The dioceses in Ohio had their fourth Provincial Council, closing on March 19, 1882. The acts of the council have a decree of Approbatio from the Prefect of the Offices of the Sacred Congregation for the Propagation of the Faith dated 30 June 1886. Some of the language about needing the bishop’s permission before filing in the civil forum for separation is exactly the same as the language in No. 126 of the Third Plenary Council of Baltimore.
Translation: Since the Catholic doctrine that matrimonial causes belong to ecclesiastical judges is defined (Conc. Trent, Session XXIV, can. 12), it is not permitted for one to approach the civil tribunals unto the petitioning of separation from bed and board unless the cause first be approved by the ecclesiastical judge, legally only unto establishing civil considerations. Wherefore petitioners of this kind of separation from civil tribunals, without ecclesiastical authority having been consulted are to be denied absolution, and the case is reserved to the Bishop.
Los Angeles Diocese Synod 1960
The diocese of Los Angeles, while citing No. 126 from the Third Plenary Council of Baltimore, reiterated in their own diocese statutes, the requirement to have the bishop’s permission before filing in the civil forum for divorce. This requirement was already binding for those living in L.A., because the acts from the Third Plenary Council, No. 126 were binding for the whole United States.
Synodus Dioecesana Angelorum in California : septima 1960
Seventh Synod of the Diocese of Los Angeles California, 12 December 1960
Liber Tertius – De Rebus
Tit. II De sacramenetis in specie
Cap. VI De matrimonio (statuta 99-101)
99 Circa matrimonii sacrementum pastores animarum semel saltem in anno fideles doceant sequentia ex Conc. Plen. Balt. III. depromta:
99 §2 Eos omnes qui matrimonio conjuncti suni prohiberi, ne auctoritate ecclesiasiastica inconsulta, tribunalia civilia adeant ad obtenendam separationem a thoro et mensa; quod si quis attentaverit, sciat se gravem reatum incurrere et pro Episcopi judicio essse puniendum. (N 126)
Providence Diocese 1952
The Fourth Synod of the Diocese of Providence (read original)
October 8, 1952 with His Excellency, The Most Rev. Russel J. McVinney, Presiding
The diocese of Providence in Rhode Island reiterated in their own diocesan statutes the requirement to have the bishop’s permission before filing in the civil forum for divorce. Furthermore, priests and lawyers were given strict instruction.
1° It is not within the power of a pastor or any other priest to give such permission.
2° It is the duty of the pastor to do all that he possibly can to effect an understanding between married persons as soon as he is aware of serious difficulties between them, and to effect a reconciliation if perhaps they have separated on their own authority.
3° When permission is sought to apply for separation in accordance with Canons 1128 to 1131, the request shall be submitted to us through the pastor of the petitioner with an accurate summary of the whole case and the reasons justifying a consideration of the petition.
§2. Under pain of mortal sin a Catholic lawyer may not approach the Civil Courts as attorney for a plaintiff seeking a separation, divorce or annulment of a marriage which has been contracted before a Catholic priest unless the plaintiff or the lawyer has first obtained Our permission to institute proceedings.
1983 CODE OF CANON LAW
The 1983 Code did not abolish laws promulgated for countries by those countries’ Plenary Councils.
If article No. 126 from the Third Plenary Council of Baltimore was contrary to the prescripts of the 1983 code, that would be a reason to abrogate it (but that is not the case). Moreover, the 1983 Code expressly makes a provision for particular laws (i.e. countries’ Plenary Councils’ acts) for cases of separation of spouses.
If C. Plen. Bait. III. n. 126 was a particular penal law issued by the Apostolic See and not specifically contained in the 1983 Code, it would be abrogated (but that is not the case).
Moreover, insofar as the 1983 Code repeats the 1917 Code, the 1983 canons must be assessed in accord with canonical tradition. The 1917 code had a section on separation of spouses very similar to those of the 1983 Code (see 1917 cc. 1128-1132, 1960).
Canon 87 of the 1983 Code shows that a diocesan bishop is not able to dispense from procedural laws, and the procedural law for separation of spouses is codified in the 1983 Code by canon 1692.
To repeat the aforementioned overview, Art. 126 from the Third Plenary Council of Baltimore (yr. 1885) had two substantive aspects: 1) the penalty part, and 2) the procedural part that requires a party to have the bishop’s permission before petitioning in the civil forum. After the 1983 code was published, the penalty part was effected. Rather than having a territorial law applicable for the USA specifying that divorce without the bishops permission is to be punished through the judgement of the bishop, the 1983 code lists principles under which penalties are applicable. In accordance with the judgement of the bishop, penalties which could be applied to a marital abandoner include, but are not limited to, the following: canon 1371, rejecting moral teaching; canon 1371, disobeying command of his Ordinary; canon 1393 violating obligations imposed by penalty; canon 1397, gravely wounding graviter vulnera one’s spouse and children; canon 1399, externally violating divine and canon law; and canon 1717 committing a delict. After the 1983 code was published, the procedural requirement (to have the bishop’s permission) was incorporated into canon 1692.
Excerpts from 1983 Code of Canon Law
1/ the Code of Canon Law promulgated in 1917;
2/ other universal or particular laws contrary to the prescripts of this Code unless other provision is expressly made for particular laws;
3/ any universal or particular penal laws whatsoever issued by the Apostolic See unless they are contained in this Code;
4/ other universal disciplinary laws regarding matter which this Code completely reorders.
§2. Insofar as they repeat former law, the canons of this Code must be assessed also in accord with canonical tradition.
Can. 12 §3. Laws established for a particular territory bind those for whom they were issued as well as those who have a domicile or quasi-domicile there and who at the same time are actually residing there, without prejudice to the prescript of can. 13.
Can. 20 A later law abrogates, or derogates from, an earlier law if it states so expressly, is directly contrary to it, or completely reorders the entire matter of the earlier law. A universal law, however, in no way derogates from a particular or special law unless the law expressly provides otherwise.
Can. 21 In a case of doubt, the revocation of a pre-existing law is not presumed, but later laws must be related to the earlier ones and, insofar as possible, must be harmonized with them.
Can. 29 General decrees, by which a competent legislator issues common prescripts for a community capable of receiving law, are laws properly speaking and are governed by the prescripts of the canons on laws.
Can. 32 General executory decrees oblige those who are bound by the laws whose methods of application the same decrees determine or whose observance they urge.
Can. 33 §1. General executory decrees, even if they are issued in directories or in documents of another name, do not derogate from laws, and their prescripts which are contrary to laws lack all force.
§2. Such decrees cease to have force by explicit or implicit revocation made by competent authority as well as by cessation of the law for whose execution they were given. They do not, however, cease when the authority of the one who established them expires unless the contrary is expressly provided.
Can. 34 §1. Instructions clarify the prescripts of laws and elaborate on and determine the methods to be observed in fulfilling them. They are given for the use of those whose duty it is to see that laws are executed and oblige them in the execution of the laws. Those who possess executive power legitimately issue such instructions within the limits of their competence.
§2. The ordinances of instructions do not derogate from laws. If these ordinances cannot be reconciled with the prescripts of laws, they lack all force.
Can. 87 §1. A diocesan bishop, whenever he judges that it contributes to their spiritual good, is able to dispense the faithful from universal and particular disciplinary laws issued for his territory or his subjects by the supreme authority of the Church. He is not able to dispense, however, from procedural or penal laws nor from those whose dispensation is specially reserved to the Apostolic See or some other authority.
§2. If recourse to the Holy See is difficult and, at the same time, there is danger of grave harm in delay, any ordinary is able to dispense from these same laws even if dispensation is reserved to the Holy See, provided that it concerns a dispensation which the Holy See is accustomed to grant under the same circumstances, without prejudice to the prescript of ⇒ can. 291.
Can. 135 §1. The power of governance is distinguished as legislative, executive, and judicial.
§2. Legislative power must be exercised in the manner prescribed by law; that which a legislator below the supreme authority possesses in the Church cannot be validly delegated unless the law explicitly provides otherwise. A lower legislator cannot validly issue a law contrary to higher law.