An Age-Old Practice
Archbishop Angelo Becciu
The centralized role of the bishop in marriage processes
The reestablishment of the marriage process desired by Pope Francis is “a just and merciful response of both Synods.” This is the main point of the address given by the Dean of the Roman Rota, Msgr Pio Vito Pinto, introducing the academic opening of the Studio Rotale 2015-2016 in the Sala Riaria in the Palazzo della Cancelleria. Archbishop Angelo Becciu, Substitute of the Secretariat of State, presided over the event and excerpts of his speech are translated here.
One result of the Extraordinary Synod on the Family is the reintroduction of the role of the diocesan bishop into the process for the nullity of marriage. What the Holy Father himself stresses in the first paragraph of each of the two motu proprii — Mitis iudex dominus Iesus and Mitis et misericors Iesus — is mainly a response to the nature and tasks the Lord Jesus entrusted to the Church and her pastors.
Therefore, an equally essential fact must be highlighted, namely Francis’ intention to ask everyone, especially bishops, to be prepared to exercise a real ongoing service. He strongly urges that each bishop personally return to the exercise of this personal power, or authority, or at least give some sign of this to the faithful.
The Pope’s invitation has a firm foundation in the great traditio ecclesiae. Indeed, the two-fold authority-duty of passing judgment is rooted in early Christian practice by which disputes between individuals were resolved within the community with the objective of avoiding the scandal of litigation before the eyes of secular judges. As the Church expanded, the bishops’ pastoral responsibility to settle disputes took on ever greater and more universal relevance in the Church, and also in civil matters. Emperors guaranteed the services of the episcopal tribunal to the Christian community, in a manner much like that afforded to Jews for the resolution of civil disputes before their own religious leaders.
In 318, Emperor Constantine issued two constitutions guaranteeing legal status to the episcopal tribunals. Various imperial edicts were issued to reduce the nearly constant flow of petitioners before the episcopal tribunals, since these tribunals guaranteed rapid judgments without great cost. A large number of people preferred this to a secular judicial system that was slow, expensive and corrupt.
Indeed, St Augustine himself testified to the fact that Ambrose was overwhelmed by the great number of cases he had to try as a judge. Augustine was to face a parallel situation 10 years later in the exercise of his own episcopate. Legal issues on which Augustine had to rule dealt with the ownership of goods, contracts, inheritance, as well as charges of adultery. Augustine was invested with the power to pronounce sentence, including the imposition of fines and, in the case of Christians, even excommunication.
Augustine knew that he was expected to make just judgments and was furthermore aware that as bishop he was permitted to exercise Gospel meekness (mansuetudo) in an effort to reconcile the parties and he did not hesitate to urge imperial judges and officials to do the same. In accordance with the Lord’s words, “Let he who is without sin cast the first stone”, he did not hesitate to maintain that the Christian judge must emulate Christ’s clemency: “May Christian humility surrender to this maxim, as the impiety of the judges was surrendered; may the faithful surrender humbly as the arrogance of the persecutors was surrendered; may they who profess themselves sincerely to be Christian surrender as those who were hypocritical tempters of Christ surrendered. Pardon the wrong-doer, you who are good; for the more good you are, so much more humble should you be. For the more authority you hold, the more humble should you be for goodness’ 'sake”. The bishops’ potestas iudicialis remained intact throughout the Mediaeval period but was often delegated by the bishop to his deacon or archdeacon or other cleric under him. The Council of Trent, therefore, willed both on account of a renovatio in pristinum and the Church’s renovatio in melius (as recent scholarship fully confirms), stated with force in canon XX: “All causes belonging in any way whatever to the ecclesiastical court ... in the first instance, before the Ordinaries of the places only; and shall be completely terminated within two years at the latest from the time that the suit was instituted: otherwise, at the expiration of that period, it shall be free for the parties, or for either of them, to have recourse to superior, but otherwise competent, judges, who shall take up the cause as it shall then stand, and shall take care that it be terminated with all possible despatch ... From the above are to be excepted those causes, which, pursuant to the appointments of the canons, are to be tried before the Apostolic See, or those which the Sovereign Roman Pontiff shall, for an urgent and reasonable cause, judge fit to appoint, or to assume, for his own hearing, by a special rescript under the signature of his Holiness signed with his own hand”.
Regarding marriage causes, this Holy Council declares: “Furthermore marriage and criminal causes are not left to the judgment of the deacon or archdeacon or minor clerics, even if they are available. Rather, they are only to be examined and judged by the bishop, even if between the bishop and the deacon or archdeacon or others under him there is litigation pending, in any instance, in the trial of these causes. And if one party can truly prove his poverty before the bishop he cannot be obliged to continue the proceedings outside his province, neither in the second nor in third instances of the same marriage cause, unless the party is prepared to provide for the maintenance of the other party and bear the expenses of the suit”.
This language emerges in the Codex iuris canonici of 1917 which in turn only confirmed the age-old discipline of the Church regarding the judicial power of the bishops, who in their respective dioceses are the natural judges for whatever cause arises in their territories, except for the authority of the Holy Father in this field too, for the whole of the Church.
The concept of potestas iudiciaria being transferred to an interdiocesan or regional tribunal was mostly overlooked in canonical legislation until 1938 when Pius XI established regional tribunals in Italy for the contentious causes pertaining to marriage nullity. Actually, already in the preparation of the Code of 1917 there was no lack of attempts to introduce tribunalia regionalia appellationis, ut admihistratio iustitiae magis tuta ac facilis evaderet, itemque levaretur onus S. R. Rotae. But the commission charged with the task of drafting the Code of 1917 did not accept the various proposals which requested that regional tribunals be introduced into the universal legislation.
Doctrine, then, has never denied the potestas iudicialis episcopalis and in the wake of this ancient traditio ecclesiae the entire Magisterium of Peter’s Successors has on multiple occasions called this to mind, especially in addresses to the Roman Rota.
Pius XII, in his 29 October 1947 address to the Roman Rota, high-lighted that different ends determine a profound difference between ecclesiastical judicial power and civil power. He stated clearly: ‘"Judges in the Church are — by virtue of their office and through divine will — bishops, of whom the Apostle says, ‘they have been constituted by the Holy Spirit to support the Church of God’. But ‘supporting’ includes ‘judging’ as a necessary function. Therefore, according to the Apostle the Holy Spirit calls bishops no less to the office of judgment than to the office of governance of the Church. Hence from the Holy Spirit derives the sacred character of that office. The faithful of the Church of God ‘purchased by him with his own blood’ are the recipients of this judicial service. Fundamentally, Christ’s law is that according to which sentences are delivered in the Church. The vital divine principle of the Church moves all things and all people who are in her toward her same end. Thus the judicial power and the judge too are moved: caelestia ac sempiterna bona comprare".
In more than one address to the Roman Rota in the wake of the Council, then recently concluded, Blessed Paul VI vigorously reaffirmed the judicial function of bishops, founded entirely on the ecclesiastical tradition and above all on the ecclesiology of the Council.
In his final address to the Roman Rota on 29 January 2005, almost a testimony to the question we are dealing with today, St John Paul II recalled the essential relationship that the process has with the search for objective truth. He taught us: “It is primarily the Bishops, by divine law judges in their own communities, who must be responsible for this.... Sacred Pastors cannot presume that the activity of their tribunals is merely a ‘technical’ matter from which they can remain detached, entrusting it entirely to their judicial vicars”.
The Petrine ministry of Pope Francis is placed in the context of the history cited above, and in Evangelii Gaudium he reasserts that the necessity for “the renewal of structures demanded by pastoral conversion can only be understood in this light: as part of an effort to make them more mission-oriented, to make ordinary pastoral activity on every level more inclusive and open, to inspire in pastoral workers a constant desire to go forth and in this way to elicit a positive response from all those whom Jesus summons to friendship with himself".
The logic of being ‘close’, according to Pope Francis, is related to “the renewal of structures demanded by pastoral conversion” and directly manifests the spirit that motivates the reform of the marriage process. The Pope during his audience with the participants in the course given on causes rato et non consummato (5 November 2014) stated that the bishops in the Synod expressed their deep concern that the procedure be streamlined to ensure that true justice be exercised in an orderly and expeditious way, one that respects the faithful.
It is precisely with this perspective that the motu proprio Mitis iudex, so that the “teaching of the Second Vatican Council ... finally be put into practice”, ordered that “the bishop himself, in the Church over which he has been appointed shepherd and head, is by that very fact the judge of those faithful entrusted to his care”.
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13 November 2015, page 4
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