Notes on Rotal Jurisprudence from 1912 concerning lack of form, force and fear

In a class on the jurisprudence of the Roman Rota, our professor was naming all the places to find published sentences and decrees, and also warned us of the danger of taking one sentence alone, as if that was sufficient to represent the constant and common jurisprudence of the Roman Rota. But then I wondered, “How much do we have to read? Surely we can’t read all of it?” I asked her and she recommended reading one sentence a week. If you do that 10 months out of the year, then you will have read 40 sentences within a year. Within two years, I could read 80 sentences, and she said that would be “sufficient” for obtaining some grasp of the common and constant jurisprudence which should guide all tribunals.

Eager to begin this project, I went to the library and found the earliest matrimonial nullity case I could find, and was pleased to discover it was only six pages long! It was easier than I expected, though I still had to look up about 20 words in the course of reading it. I was also curious to see which laws would be referred to, since this case was decided before the promulgation of the first Code of Canon Law in 1917. As an exercise, I will put some observations below.

Rosmersholm and new ideas poorly conceived

Henrik Ibsen

My third classic is Rosmersholm, a play written by Henrik Ibsen, a Norwegian writing in Danish. I only discovered this play after discovering that Rebecca West was only the pen name of the author of Black Lamb and Grey Falcon, one of my favorite works of literature, and that she took this pen name from a character in Rosmersholm. She was born Cicely Isabel Fairfield, but she changed her name to Rebecca West while she was about 20 so that she could write articles in Freewoman, a feminist magazine, without raising suspicions in her mother who did not want her reading it. Rebecca West’s Return of the Soldier, her first published novel, contains themes similar to Rosmersholm: unhappiness in marriage, the impossibility of leaving it, and the suspicion of a feigned mental condition.

Raymond on Paying but not Demanding

As I was reading commentators on Amoris Laetitia, and trying to think of difficult marriage situations, I remembered passages in Raymond of Penyafort’s Summa on Marriage. In these passages, there is doubt about the validity of the marriage, and consequently a limit on the enjoyment of the rights proper to marriage. What follows are two scenarios where Raymond (following the Liber Extra, a book of Papal Decretals that Raymond edited) judges it is acceptable to pay the marriage debt, but not to demand it. I left the Liber Extra passages in Latin, since the sense of them are basically in the passages from Raymond.

From Raymond of Penyafort, Summa on Marriage

Title XIII, The Impediment of Bond (p. 58)
“Suppose a wife believes her husband is dead and she contracts with another. Say that as long as she believes it and he does not return she is excused from adultery and fornication on account of the ignorance of fact.” “But what if he does not return and, nevertheless, she believes he is alive; what should she do? She should not demand the debt from the [second] husband, but pay if he demands.”

X.4.21.2
“Dubitans de morte coniugis, nisi prius certificetur, contrahere non debet, et, si contraxit, reddat, sed non exigat debitum. Et si postmodum sciat primam vivere, dimittat secundam. Abbas Siculus.

Lucius III. universis Christianis in captivitate Sarracenorum positis.

Dominus ac redemptor noster (Et infra:) Sane, super matrimoniis, quae quidam ex vobis nondum habita obeuntisconiugis certitudine contraxerunt, id vobis auctoritate apostolica respondemus, ut nullus ex vobis amodo ad secundas nuptias migrare praesumat, donec ei firma certitudine constet, quod ab hac vita migraverit coniux eius. Si vero aliquis vel aliqua id hactenus non servavit, et de morte prioris coniugis adhuc sibi existimat dubitandum: ei, quae sibi nupsit, debitum non deneget postulanti, quod a se tamen noverit nullatenus exigendum. Quodsi post hoc de prioris coniugis vita constiterit, relictis adulterinis illicitisque complexibus ad priorem sine dubio coniugemrevertatur.”

Title XXI, How an Accusation Is to Be Made against a Marriage (p. 78)
The scenario is a case where two men related to each other end up marrying two women who are related to the each other. Later on, “a judgment of divorce between one and his wife is rendered by the Church because of consanguinity. So the question arises whether the other, on account of this, can be separated from his wife, or how he ought to conduct himself with her.” Raymond says that the other couple should not be separated since a judgment concerning some persons does not affect other persons.

But then he makes a distinction with respect to carnal union: “either he know that consanguinity or another perpetual impediment exists between himself and his wife, or he believes it. In the first case he should nether demand nor pay the debt. In the second, if he believe for a probable reason, he should pay, but not ask. However, if he believes for a slight or inconsiderable reason, he should pay, and if he can, lay aside his erroneous conscience and afterwards demand.”

X.5.39.44
“Si coniux scit pro certo impedimentum matrimonii, non debet reddere debitum, sed potius excommunicationempati; si autem hoc credat ex causa probabili et discreta, potest reddere debitum, non autem exigere; sed si ex levi et temeraria causa, deposita conscientia potest reddere et exigere.

Idem.

Inquisitioni tuae breviter respondentes credimus distinguendum, utrum alter coniugum pro certo sciatimpedimentum coniugii, propter quod sine mortali peccato non valeat carnale commercium exercere, quamvis illud apud ecclesiam probare non possit, an impedimentum huiusmodi non sciat pro certo, sed credat. In primo itaquecasu debet potius excommunicationis sententiam humiliter sustinere, quam per carnale commercium peccatumoperari mortale. In secundo vero casu distinguimus, utrum habeat conscientiam huiusmodi ex credulitate levi et temeraria, an probabili et discreta; et quidem ad sui pastoris consilium, conscientia levis et temerariae credulitatisexplosa, licite potest non solum reddere, sed exigere debitum coniugale. Verum quum conscientia pulsat animumex credulitate probabili et discreta, quamvis non evidenti et manifesta, debitum quidem reddere potest, sed postulare non debet, ne in alterutro vel contra legem coniugii, vel contra iudicium conscientiae committatoffensam. Tu ergo iuxta responsionem praescriptam super illo procedas articulo, de quo nos consulere voluisti.”

Initial Thoughts on Coccopalmerio

I was recently asked about Cardinal Coccopalmerio’s recent comments on how to interpret Amoris Laetitia. This gave me an opportunity to spell out some of my thoughts on the possible situations where discernment might lead to the conclusion of permitting someone in an irregular marriage situation to receive the sacraments of Penance and the Eucharist. The following is all lifted from an email I sent to someone. They are by no means definitive, but just a thinking-out-loud.

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I hadn’t been keeping up with news the last couple weeks, so your email was the first I heard about Coccopalmerio’s new little book. One first note is that even though Coccopalmerio is the President of the Council for Legislative Texts, and even though his book is published by the Vatican, he is not publishing it as head of that Council and so it does not function as authentic interpretation of the law.

Looking around a few websites, it sounds like he is basically open to “discerning” situations where it would be possible to give communion to people in irregular marriage situations, just as the bishops in Germany, Malta, etc. What I’ve read from him looks a bit more moderate than these others, inasmuch as he sees certain cases as exceptional. I’ve been trying hard to figure out what these exceptional cases look like. In the case where you have a couple civilly married that is committed to living as brother and sister, there is no objective sin, and (so long as no scandal is involved) I think everyone agrees that such persons could be admitted to the sacraments.

The cases that people are more interested in are those where the irregular couple continue to have sexual relations, since this seems (pretty obviously) to mean that they are objectively in a state of sin. Now Coccopalermio says that all that is necessary is “verification of two essential conditions — that they desire to change that situation, but they cannot act on their desire”. The only cases I can think of where they cannot act on the desire seems to be where there is disagreement between the persons involved with respect to either understanding or will. I will give two scenarios where I think there is reason to consider giving communion to a civilly remarried person.

The first case is disagreeement of will between the spouses: both spouses know they are in an irregular situation (i.e. not actually married), and one spouse wants to abstain from sexual relations, but the other one does not. Both of these people live together perhaps for a number of reasons (financial dependence, children) and so that it would be inconvenient for them to live apart. Here it seems possible to me that one spouse could have a real desire to abstain from relations, but this is impossible while living in the same house with someone who is not committed to living in that manner. Now there is a distinction that St. Raymond of Penyafort makes for dealing with certain odd marriage situations that may be relevant in this case. He distinguishes between requesting the marriage debt and paying the marriage debt, and gives some cases where he thinks it would be morally acceptable to pay the marriage debt but not morally acceptable to ask for it. Now in this case, it is not a true marriage, but I think there may be a difference between to requesting relations and acquiescing to someone seeking sexual relations (especially when to resist could lead to dangerous consequences). I’m not 100% sold on this, but it is the sort of case that I would consider.

The second case is like the first, but with an added element. Let’s say that a woman was married to a man who then left her, and is now civilly married to an unbaptized man with whom she has 3 children. She has been from the Church for years and now is wanting to go to confession and receive communion again. Since she is objectively still married to the man who abandoned her, this means that relations with her irregular spouse would be adulterous, and so she should not have relations with him. From her side, this seems clear enough. But now look at the conscience of the unbaptized man. He is not a man of faith, and so he does not have any sense of anything but civil law governing his marriage situation, and so objectively has no reason to think that he is not legitimately married to this woman who was divorced from her first husband according to civil law. As far as he is concerned, he is not doing anything wrong in having relations with a woman whom he considers in good faith his spouse. Again, it seems this is a case where the woman involved could certainly not ask the marriage debt, but perhaps could acquiesce to the man who asks it in good faith. Again, I’m not completely sure on this, but it is a case I would consider.

Here is another case that comes to mind: Polygamy exists among Muslims. Let’s say there is a Muslim woman who is the third spouse of a Muslim man, and she comes to faith that Jesus is Lord. In societies where Sharia Law reigns, I don’t think she could be expected to separate herself from this man upon whom she depends, especially in a society where the civil law does not give her freedom to leave. In such a case, I would be inclined to admit this woman communion, following the same distinction: so long as she does not ask the marriage debt, but only renders it. This case is similar to the second case, but the lack of freedom involved is more obvious and certain.

So those are the cases where I think it may be possible that the conditions named by Coccopalmerio, “that they desire to change that situation, but they cannot act on their desire”, might actually be met. Looking at his comments, I think he would apply it more widely. But I as far as I understand it, it would only be one-sided situations where there is a disagreement between the irregular spouses that I can even conceive of a moral impossibility. If it was both spouses coming to me, and both Catholic, I can’t imagine “discerning” to give them communion unless they were at least committed to living chastely. “Oh, you’re both Catholic? You both understand the Church’s teaching on marriage, and accept that you are not actually married? But you are going to continue having sexual relations but want me to give you communion?” No, I can’t imagine giving communion in that case. Now, if they were committed to living as brother and sister and occasionally fell (for it is reasonably difficult to live continently with someone to whom you are attracted and with whom you have been in the habit of having relations with), then that would be another matter. Some people have trouble seeing the difference.

Again, I am not completely convinced in the cases I have named for you, but I only think that these sorts of situations are the sort where a debate is actually possible.

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If anyone out there has comments, feel free to share! Just today, I purchased Coccopalmerio’s book, so I will be able to take a closer look at what he is actually saying and to think it over. More to come…