Computing Time and Birthdays

Most people don’t think of time as a legal topic, but it’s hard to imagine what any of our societies would look like if our laws never mentioned any measures of time. A recent article in Studia Canonica (A. Marcello, “The Computation of Time: A Canonical Overview,” Studia Canonica 51 [2017], 207–250) explored the canonical history of computing time. I thought I’d take a few moments to explore the fun problem of birthdays and leap day birthdays (Feb. 29) from a legal perspective.

If one is not familiar with the reasons for a leap day, in a nutshell, it’s because the actual time it takes the earth to orbit the sun once (tropical year) is 365 days 5 hours 48 minutes 46 seconds. Our calendar has 365 days per year. How do we account for the accumulation of those extra hours, minutes, and seconds? A leap day every four years (with periodic exceptions because four times 5 h. 48 m. 46 s. is slightly less than 24 hrs.)

The question of computing time was first tackled by ancient Roman jurists. Roman law established that a day is a 24 hour period measured from midnight to midnight (cf. Dig. 2.12.8 (Paulus, Ad Sabinum 13)) and that the law recognizes days only as whole units: a partial day must either be reckoned a whole day or no day (cf. Dig. 50.16.134 (Ulpian, Ad legem Iuliam et Papiam 2)). Additionally, a period of time is not considered over until the last day in the count has entirely expired (cf. Dig. 44.7.6 (Paulus, Ad Sabinum 4)). These principles established themselves in European legal thought and found their way into the modern day civil law and common law traditions. With respect to computing time, at least, common law, civil law, and canon law have only a few differences.

The principles of canonical computation as laid out in the current Code of Canon Law and the Code of Canons of the Eastern Churches are basically identical to the principles followed by the modern civil law tradition. Compare, for example, 1983 CIC can. 200–203 and 1990 CCEO can. 1543–1546 to France’s Code of Civil Procedures, art. 641–42; Italy’s Code Civ. Proc., art. 155; Germany’s Civil Code, sec. 187–188, 191; and to the codes of civil procedure of Quebec and Louisiana, two civil law jurisdictions in countries following the common law tradition (cf. Qc. Code Civ. Proc., art. 8; La. Code Civ. Proc., art. 5059). Turning to the common law (I’m using American common law as my example) we find the same basic principles. “The law [takes] no cognizance of fractions of days” (US v. Wrigtht, 197 F 297 (8th Cir. 1912)). Additionally a day is considered to be the period of 24 hours from midnight to midnight (cf. Talbott v. Caudill, 248 Ky. 146, 58 S.W.2d 385 (Ky. Ct. App., 1933)). Lastly, “where the common law prevails, the general rule for the computation of time is to exclude the first and include the last day” (People v. Woolfolk, 304 Mich App 450; 848 NW2d 169 (Mich. Ct. App., 2014)).

That brings us to topic of calculating one’s age. One’s age indicates the number of full years one has completed since the moment of one’s birth. So if, for example, Jack is born on 2:31 PM on 1 Jan. 2018, he’ll turn one year of age on 2:31 PM on 1 Jan. 2019, two on 1 Jan. 2020, etc. Pretty simple. The problem is that the legal principle is that parts of days don’t count. Either it counts as a whole day or it counts as no day. Going back to our example, that means the law considers Jack to have been born either at 12:00 AM, 1 Jan. 2018 (if 1 Jan. counts) or (if 1 Jan. doesn’t count) 12:00 AM, 2 Jan. If Jack was “legally” born midnight on 1 Jan., then a year’s period will end at 11:59 PM on 31 Dec. If Jack was “legally” born midnight on 2 Jan., then Jack finishes a year at 11:59 PM on 1 Jan.

However, it’s not that simple. Remember, days are either whole days or no days. There is no difference between something that happens at 12:00 AM and something that happens at 11:59 PM; legally speaking they happened at the same time. So, when does Jack turn one year old? 12:00 AM on 31 Dec. (because he completes one year at 11:59 PM, 31 Dec., because he was “legally” born at 12:00 AM, 1 Jan.) or 12:00 AM on 1 Jan. (because he completes one year at 11:59 PM, 1 Jan., because he was “legally” born at 12:00 AM, 2 Jan.)

Canon law and the civil law tradition address this dilemma by, first, not counting the birth day and, second, by understanding that when the law says a year, it means a complete year and change. So, in our example, if Jack’s age were calculated according to canon law or the civil law tradition, he turns a year only after 12:00 AM, 2 Jan. (See, e.g. 1983 CIC can. 1083 §1 and France Civ. Code, art. 144 that speak of the completion of age necessary to marry.)

The common law does something different, and on top of that it does not have a uniform approach. Some jurisdictions follow the traditional common law rule, which is to count the birth date. A more recent approach taken by other common law jurisdictions is to not count the birth date (the so-called “birthday rule”). In both cases—following the principle originally laid down in Roman law (cf. Dig. 28.1.5 (Ulpian, Ad Sabinum 6))—a person turns a year at midnight of the day prior. So if, for example, our friend Jack lived in Missouri (which follows the traditional rule), he would legally turn a year on 12:00 AM on 31 Dec., but if he was lived in California (which follows the “birthday rule”), he would legally turn a year at 12:00 AM on 1 Jan (his birthday!).

Now that we’ve settled that, what about Jack’s older sister Amy who was born at 6:21 AM on 29 Feb. 2012? When does she turn a year older?

One approach to leap days is simply to ignore them. According to Roman law anything that happened on the leap day legally happened on the day prior (cf. Dig. 50.16.98 (Celsus, Libro digestorum 39)). Even if one doesn’t ignore it, leap day birthdays aren’t actually that problematic for legal computations of time.  In the canonical and civil law traditions, her birth date did not count so she was not “legally” born until 12:00 AM, 1 Mar. 2012. Therefore, she completed her first year at 12:00 AM, 1 Mar. 2013, her second on 1 Mar. 2014, etc. Likewise, common law jurisdictions that follow the traditional rule have no problem. Amy was “legally” at 12:00 AM, 29 Feb. 2012 and turned one at 12:00 AM, 28 Feb. 2013, two on 28 Feb. 2014, etc.

What about common law jurisdictions that follow the “birthday rule”? In that case, Amy’s year started at 12:00 AM, 1 Mar. 2012 and ends at midnight the day prior to 1 Mar. 2013, that is 12:00 AM, 28 Feb. 2013 (except on leap years in which case it’s 29 Feb.). This is the same wrinkle that the canonical and civil traditions have for birthdays on 28 Feb. 2012. That year period started at 12:00 AM, 29 Feb. 2012 and was completed at 12:00 AM, 1 Mar. 2013 (except on leap years in which case it completes on 29 Feb.).

In the end, leap days are not that big of a deal because the law has a flexible definition of a year. It’s 365 days unless it needs to be 366. If lawmakers want 365 days and only 365 days, they write the law to say 365 days instead of saying one year. (Eg. a year prison sentence which ran through Feb. 2012 is one day longer than a 365-year prison sentence that ran through Feb. 2012.)


Naming the Bishop in Eucharistic Prayers

Today I want to address the naming of the diocesan bishop in the Eucharistic prayers or the Canon in the 1962 missal. Under most circumstances, the naming of the pope and the diocesan bishop is rather routine and looks the same in both forms of the mass. In the ordinary form of the mass, the naming of the pope and diocesan bishop is governed by 2002 GIRM 149. First it covers what a bishop says when he celebrates in his own diocese and then when he is in another bishop’s diocese. Of interest to me is the next paragraph which states that:

The Diocesan Bishop, or one who is equivalent to the Diocesan Bishop in law, must be mentioend by means of this formula: together with your servant N., our Pope, and N., our Bishop (or Vicar, Prelate, Prefect, Abbot).

In the extraordinary form, the naming of the pope and diocesan bishop is determined by Ritus servandus VIII, 2:

2. […] When he says “et Antistite nostro N.,” he specifies the name of the Patriarch, Archbishop, or Ordinary Bishop in the respective Diocese, and not the name of any other Superior, even if the Celebrant is entirely exempt, or under the jurisdiction of another Bishop. If, however, the Bishop who is Ordinary of that place, in which the Mass is being celebrated, is deceased, these words are omitted, and are omitted even by those who are celebrating at Rome. […]

One will immediately notice that the 1962 missal tries to provide direction for when a diocese is occupied and when it is vacant, but it is silent with regards to vicars and prefects and other transitional situations. The new law, while being very helpful about how a bishop can reference himself and others and what is done is non-diocesan territories, is entirely silent about what happens when the see is vacant. What happens in the situations that fall into these holes in the law is where this topic gets interesting.

I want to dive into these differences because they affect those priests who celebrate both the ordinary form and extraordinary forms of the mass. As I explored earlier with regard to deacons, the differences in ecclesiology that underpin the discipline of the ordinary and extraordinary forms can, at times, produce results that are opposite to each other. And, because the Summorum pontificum derogates from liturgical laws promulgated after 1962 and which are incompatible with the rubrics of the pre-1962 liturgical books (cf. Universae Ecclesia [UE] n. 28), priests have no choice but to juggle these differences.

Extraordinary Form

As early as 1722, it was the opinion of the Sacred Congregation of Rites that during a vacancy, that name of the administrator of a diocese should not be mentioned in the Canon (S.R.C. Decree 2274 [3952], Sarsinaten, n. 5). This was repeated in S.R.C. 3047, n. 4 and 4288, n. 2. Following the promulgation of the 1917 Code of Canon Law, the same congregation answered a dubium whether apostolic vicars and apostolic prefects should be named in the Canon, because they enjoy in virtue of 1917 CIC 294 the same rights within their territory as territorial bishops. Relying on 1917 CIC 2 (liturgical laws retain their force unless expressly changed by the code) and a distinction made in 1917 CIC 308 between vicars and prefects augmented with episcopal character, the Congregation of Rites responded negatively (S.R.C. Dubium, 8 Mar 1919, AAS 11 [1919], p. 145). The one exception rubricists made was in allowing apostolic administrators who are of episcopal character and who are permanently constituted over a territory to be named in the Canon because 1917 CIC 315 extends to them the same rights, honors, and honorific privileges that residential bishops enjoy (Cf. O’Connell, The Celebration of the Mass [Bruce: Milwaukee, 1964], 259).

Ordinary Form

The first edition of the post-conciliar missal provided no direction regarding who may be mentioned in the Eucharistic prayer. The Congregation for Divine Worship addressed this omission in 1972 with the decree Cum de nomine (AAS 64 [1972], pp. 692-694), which forms the basis of the current language in the GIRM. Reflecting the increased awareness of local and universal communion which the documents of Vatican II highlight, the decree reads

[the] mention of the bishop in the eucharistic prayer is not simply or mainly a matter of honor but of communion and charity […]. Such considerations obviously apply also those who, whether marked by episcopal consecration or not, preside over some community of the people of God.

The decree goes on to say that the follow must be named: a territorial bishop, a bishop still retaining administration of one diocese after being transferred, apostolic administrators who is a bishop whether permanent or temporary whether a see is vacant or not, apostolic vicars and prefects, and a prelate or abbot nullius having jurisdiction over a territory not attached to any diocese.

In the American Experience

In the American context, the only tricky situation that one is going to encounter is a vacant diocese with either a diocesan administrator or an apostolic administrator. A diocese is vacant if the bishop dies, takes possession of a new see (i.e. is transferred), is granted retirement, or is removed from office (cf. 1983 CIC 416). One of three situations follow:

A) If the Holy See names an apostolic administrator who is a bishop to administer a diocese, he is certainty named in the ordinary form. In the extraordinary form, it’s a bit less clear since the canonical distinctions upon which the 1962 rubricists relied are no longer present in the 1983 code, which doesn’t even discuss apostolic administrators. It might depend on the details of his appointment. There is some precedent for naming apostolic administrators in the Canon, so it would not be entirely improper, especially if one has a view toward organic development in the liturgy, to also name an apostolic administrator who is a bishop in the extraordinary form.

B) If a diocesan administrator is elected by the college of consultors (cf. 1983 CIC 421), if he is a bishop, he is named in the ordinary form; if he is not, he wouldn’t and the line “and N., our bishop” would be omitted entirely. In the extraordinary form, a diocesan administrator is not mentioned at all and the Latin phrase would be omitted.

C) When a bishop is transferred, from the time of the announcement of his transfer until he takes possession of the new see, he is still technically bishop of his current see but his power is limited to that of a diocesan administrator (cf. 1983 CIC 418, §2). Because he is still the bishop of the see, the 1972 CDW decree stipulated he must be named. The extraordinary form would do the same since who possesses a see is a matter for the Code of Canon Law, from which Summorum Pontificum does not derogate (UE, n. 27). When he does finally take possession of the new see, he ceases to be bishop of his former diocese and that diocese is then vacant. At that point, he would cease to be named in both the ordinary or extraordinary forms.

An Interesting Alternative

I mentioned at the start that Summorum Pontificum derogates from laws connected to the sacred Rites promulgated after 1962 and which are incompatible with the rubrics of the pre-1962 liturgy. As one may have noticed at the outset, what the liturgical laws actually say is rather limited. One may ask the question, in this very narrow matter, how much of the post-conciliar law is actually incompatible with the pre-conciliar law?

Certainly, the provisions in the post-conciliar law allowing for apostolic vicars and prefects and abbots nullius are incompatible with the pre-conciliar law since it calls for an alteration of the Canon from Antistite nostro N. to Vicario, Praelato, Praefecto, Abbate nostro N.. The same goes for the post-conciliar law allowing for the naming of auxiliary and coadjutor bishops as well as a bishop referencing himself and the local bishop, since all these require insertions or adaptations of the Canon text. The post-conciliar situation with regards to diocesan and apostolic administrators who happen to be bishops is different. Since neither the post-conciliar rubrics nor the pre-conciliar rubrics provide for this situation, there can be not incompatibility of law. Moreover, there is no alteration of the Canon text(antistite being a synonym for episcopo). The post-conciliar practice is based on the interpretation of the Congregation for Divine Worship as explained in Cum de nomine regarding the purpose of naming the bishop, while the pre-conciliar practice is based on earlier interpretations of the same congregation (before its name was changed). The more recent interpretation should carry more weight not only because it is more recent, but because more accurately reflects the doctrinal and canonical reality of the Church today.

In that case then, at least in the American experience, what a priest does when he reaches that point in the Eucharistic prayer or the Canon will be the almost same regardless of the form of the mass being celebrated.

Follow up to Two-obligations-with-one-Mass Debate

Last week, the Immaculate Conception fell on a Monday and the question was raised whether, in light of can. 1248 §1, one could satisfy both obligations by attending one Mass on Sunday evening. The canonist Dr. Peters put that question to rest rather thoroughly on his blog.

At the end of his post he made reference to a 1974 dubium to the Congregation of Clergy on the matter, which was included in the Bishops’ Committee on the Liturgy Newletter for that month. For completeness and in the hopes of putting this finally to rest especially for those who would like an authoritative statement on the matter, I post the text of the relevant part of that USCCB’s newsletter, as cited by Peters. Perhaps, at some point I’ll hunt down the original dubium if I can, but it wouldn’t change anything.

Fulfillment of Holyday and Sunday Mass Precept

   In reply to inquiries it received, the Congregation for the Clergy clarified the matter of simultaneous fulfillment of holyday and Sunday obligations by attendance at the evening vigil mass.
   By way of example the following dubium was presented: “Whether the faithful who attend Mass on Saturday, 15 August, would fulfill the double precept of hearing Mass on Saturday, feast of the Assumption, and Sunday, 16 August”?
   The Congregation responded “Negative” to the above case and all analogous cases.
   The indult by which the faculty is given to fulfill the obligation of attending Mass on the evening of a Saturday or of a feast day of obligation is generally granted in view of rendering easier the fulfillment of such a precept, without prejudice of keeping every Lord’s Day holy.

(BCL Newsletter  vol. 10, n. 11 (Nov 1974); reprinted in USCCB, 35 Years of the BCL Newsletter, p. 450.)

One’s ability to fulfill the obligation to attend Mass on the preceding evening is now, obviously, a matter of law and not of indult, but the point of the last paragraph remains: the object is to make it easier to fulfill one’s obligations, not eliminate one’s obligations.


All Souls Day Continued

Following up on my previous post, what about priests who are obliged to celebrate both forms of the Mass on both days?

Canon 905 establishes that priests may celebrate only one Mass per day. Two exceptions are envisioned. Written into section 1 is the exception “in cases where the law permits him to celebrate or concelebrate more than once on the same day.” The law, in this case, would be GIRM, 3rd ed., no. 205 which includes Christmas Day (c) and All Souls Day (d), and which incorporates the rules regarding intentions and stipends for All Souls Day established by Incruentum altaris sacrificum. The other exception is found in section 2, which allows a local ordinary for a just cause to allow bination on all days and, if pastoral necessity requires, it trination on Sundays and holy days of obligation. The intention and stipends stemming from this exception are governed by can. 951.

A priest who is obliged to celebrate both forms of the Mass on the same day presumably has the faculty to binate and trinate per can. 905, §2. No priest is required to take advantage of the All Souls Day exception to can. 905, but if he does, he must follow the rules laid down by Incruentum altaris sacrificum. This is all the more true on All Souls Days that fall on Sunday when the priest already has the faculty to trinate on Sunday. A priest with this faculty may elect to trinate in virtue of the exception found in section 2 or in virtue of the exception found in section 1. If he chooses the latter, he must be free to apply one Mass to all the faithful departed and one for the Pope’s intentions. But if he is obliged to offer two Masses for specific intentions (which due to circumstances he cannot transfer to another day), it seems then that he cannot take advantage of the All Souls Day exception—although this has no practical effect on him because he may still offer a third Mass in virtue of the grant by his local ordinary for whatever intention he wish.

The same principles apply to Monday, November 3, All Souls Day (EF), if a priest is obliged to celebrate the OF of the Mass. Even if he was not free to apply his OF Mass for his own intentions, this does not disrupt the norms of Incruentum altaris sacrificum, which allowed for one stipend Mass for any intention. This priest would be free to say two more Masses that day, but only in the EF because only in the EF form is Monday All Souls Day. If a priest, however, is obliged to celebrate two Masses (OF) for specific donor intentions, it would seem correct that he be able to celebrate a third Mass that day. This is because his two OF Masses were in virtue of the sec. 2 exception to canon 905 and his third Mass would be in virtue of the sec. 1 exception, again, as long as he celebrates it in the EF. This third Mass would, of course, be without stipend and for either the Pope’s intentions or—perhaps more fittingly—for all the faithful departed.

Oh the complications that stem from having two out-of-synch calendars…


Three Masses on All Souls Day

This year November 2 (Commemoration of All the Faithful Departed) falls on a Sunday, and this leads to a peculiar situation, namely All Souls Day will be celebrated on two days all depending on which calendar one is using. In the Ordinary Form (OF) of the Roman Rite, according to the Universal Norms on the Liturgical Calendar and the General Roman Calendar, All Souls Day trumps the Thirty-First Sunday in Ordinary Time (cf. Table of Liturgical Days, nn. 3 and 6). In the Extraordinary Form (EF), however, according to rubrics of the 1962 Roman Missal, the Twenty-First Sunday after Pentecost trumps All Souls Day (cf. Rubricae Generales, ch. III, no. 16 b), which then gets transferred to Monday, November 3rd. This difference in dates does not affect priests which celebrate exclusively only one form of the Roman Rite. However, for those priests who take advantage of Summorum Pontificum, does this repetition mean that he is allowed to celebrate three masses on All Souls Day both on Sunday and then again on Monday?

Originally, the celebration of three Masses on All Souls Day was a privilege granted by Benedict XIV to only priests living in lands controlled by the kings of Spain and Portugal. In the Apostolic Constitution Incruentum altaris sacrificium, Pope Benedict XV extended this to the entire Church. This constitution was incorporated into the provisions of 1917 CIC 806, §1. This permission, however, was not specifically included in the 1983 CIC and was not found in the first two editions of the General Instruction of the Roman Missal, and so it was an open question whether Benedict XV’s constitution applied to the Post-Conciliar Mass. (See CLSA Comm. 2, p. 1101 note 25 for the canonical situation prior the GIRM 3rd ed.) The third edition of the GIRM, however, clarified that the permission for trination on All Souls Day according to the norms of Incruentum altaris sacrificium applied also to the Ordinary Form (cf. GIRM 3rd ed., 204 d).

This brings us to the question posed above. Does a priest who celebrates OF and EF Masses get to celebrate three masses on both November 2 and November 3 of this year? I think the answer is yes. There can be little doubt that the celebration of Mass for the poor souls in Purgatory is a favorable concession by the Holy See to all priests. The fact that Incruentum altaris sacrificium restricts the priest to only one stipend and requires one Mass be said for the intention of all the Faithful Departed suggests the beneficiaries of this favor are the Poor Souls, not the priest himself. Following the well establish canonical principle that odious things be restricted and favorable things broadened (cf. Regula juris 15), it seems only right that this concession in favor of and for the benefit of the souls in Purgatory be enjoyed both on November 2 (OF) and November 3 (EF). “Broad interpretation is normative when the law is favorable.” (CLSA Comm. 2, p. 75).

It is important to remember, however, that the principle favores ampliandi, odia restringenda is an interpretive tool designed to help apply a law to circumstances not envisioned by the legislator and not a means to vitiate the law itself. It is clear that the legislator in both Incruentum altaris sacrificium and in the GIRM, 3rd ed., foresaw there being only one form of the Roman Rite in normative use. Neither could have predicted that there’d be two forms of the Roman Rite, equally legitimate and equally available to priests of the Roman Rite. Priests who, however, for whatever reason celebrate only one form of the Mass fit into the circumstances envisioned by Benedict XV and John Paul II. It would be contrary to the law, then, to suggest that even in these circumstances three Masses may be said on November 2 and November 3, because only one of those dates is All Souls Day for a one-form priest.

One might argue that because Incruentum altaris sacrificium is an exception to 1983 CIC 905, §1, it should be interpreted strictly per can. 18, which specifically states that laws “which […] contain an exception from the law are subject to strict interpretation.” Does this mean then that any exceptions written into the law should be applied to as narrow a situation as possible? It depends. Many canons contain an exception when “necessity” requires it. In some contexts the exception restricts a right, in others it is for the benefit of the faithful. Should one judge exceptions that impact a true good of the faithful like those that don’t? It seems proper that can. 18 should also be interpreted according the maxim favores ampliandi, odia restringenda, such that “favorale laws, even if they are exceptions to the rule, are subject not to strict but to broad interpretation” (CLSA Comm. 2, p. 76). So while one cannot expand the permission to trinate on All Souls Day to days that are not All Souls Day, it seems right to allow the permission to trinate on All Souls Day to apply to both days when All Souls Day occurs twice in a given year.


Deacons and Summorum Pontificum

As ordination season is just around the corner, I was asked by a soon-to-be deacon to what extent can a deacon use the 1952 Roman Ritual, which was the ritual in force in 1962, in light of Summorum Pontificum? The short answer is not much. It goes almost without saying that the role of the deacon envision by the 1917 CIC (and mirrored by the pre-Conciliar liturgical laws) is fairly minimal and the 1983 CIC marks a sizable increase in the role of the deacon in the sacramental life of the Church. It’s these differing visions of the diaconate in the Church that is at the root of the above question.

Prior to the instruction Universae Ecclesiae it was uncertain whether post-1962 changes in the law had effect on pre-1962 liturgies performed after the Conciliar revisions of the liturgy. The instruction has clarified that the motu proprio derogates from liturgical laws promulgated after 1962 and which are incompatible with the rubrics of the pre-1962 liturgical books (cf. UE n. 28). In other words, these books stand on their own and should not be revamped to match post-Conciliar practice. The pre-Conciliar ritual books mention deacons in three areas: baptism, distribution of Holy Communion, and blessings.

We’ll begin with blessings because the change—actually, the lack of change in the law between the 1983 and 1917 codes in this area—impacts the deacon’s ability to function in the other three rites. The current law, 1983 CIC can. 1169, §3 reads almost exactly like the prior law, 1917 CIC c. 1147, §4. Compare 1983 CIC 1169, §3 “A deacon can impart only those blessings expressly permitted by law” with 1917 CIC 1147, §4 “Deacons and lectors can validly and licitly impart only those blessings that are expressly permitted to them in the law.” Both codes leave it up to the individual liturgical books to dictate what blessings a deacon could give and which he could not.

With respect to baptism, 1983 CIC 861, §1 states that the deacon is an ordinary minister of baptism. This is a change from 1917 CIC 741, which designated a deacon as an extraordinary minister of baptism. This change, in practice, has little effect on the ceremonial role of the deacon. Even in the 1952 Roman Ritual, the deacon is instructed to follow the ritual exactly as if he were a priest with the exception that the deacon cannot bless the salt and water required for the rite, and so is dependent on a priest having done this beforehand (cf. 1952 RR, Order of Bapt. of Children, n. 27; Order of Bapt. of Adults, n. 51; Supplying Cerem. for a Bapt. Child, n. 25; Supplying Cerem. for a Bapt. Adult, n. 44) Because the current law on diaconal blessings is the same as the prior law, this exception has the same force today as it had prior to the 1983 code, even though the deacon is now an ordinary minister of baptism.

With respect to Holy Communion, 1983 CIC 910, §1 establishes that the deacon is an ordinary minister of Holy Communion. This is a change from 1917 CIC 845, §2, which stated that the deacon was an extraordinary minister of communion, who needed the permission of the pastor or local ordinary and a legitimate reason in order to distribute communion. With the change from extraordinary to ordinary minister, the deacon now would no longer need permission and a legitimate reason in order to distribute communion. Ceremonially there is no change. The 1952 Roman Ritual allowed the deacon to distribute communion using the same ritual as a priest (cf. 1952 RR, Order of Administering Holy Comm. outside Mass, n. 10) and could also give the blessing found at the end of the rite (see Cod. Comm., Resp. 13 July 1930). Similarly, the ritual allowed the deacon to administer Viaticum (cf. 1952 RR, Order of Communion to the Sick, n. 29). That this included the blessing within the rite was made clear, first, by an 1858 response by the Sacred Congregation of Rites (see S.R.C. 5270, Tonkini Occidentalis [14 Aug 1858]), and then, by 1917 CIC 1274, §2.

In summary, the deacon can baptize (using previously blessed salt and water), administer Holy Communion and Viaticum, and impart only those blessings expressly allowed to him. The fullest listing I have been able to find of what blessings are expressly given to a deacon in the pre-Conciliar discipline is in Werz-Vidal’s commentary (see Ius Canonicum, vol. IV, p. 396-397). It states that a deacon can bless the Easter Candle (which was understood to be blessed by the incensing and singing of the Exsultet). He can likewise impart the blessings found in the rite of baptism and the supplying ceremonies (as discussed above) and bless a sick person in the context of administering Viaticum (as mentioned above). To this we would have to add the blessing in the context of communion outside mass (see Code Comm., resp. 13 July 1930). He specifically cannot give Benediction (see S.R.C. 5402, Angelopolitana [11 Sept 1847]).

One interesting question remains. Do today’s deacons have the power to bless bread and fruit? Wernz-Vidal suggested in a footnote that pre-Conciliar deacons also had been given the power to bless bread and fruits, the blessing of which was expressly given to lectors in the pre-Conciliar ordination liturgy of lectors, under the principle that the higher order possessed the lower orders. The question boiled down to whether the bishop’s words at the ordination expressly gave them the power per 1917 CIC 1147, §4. Today, of course, there is not order of lectors. And while one might say today’s deacons possess the post-Conciliar ministry of lector, they certainly do not possess the pre-Conciliar order of lector which was abolished over thirty years ago. Thus, any privileges which were accorded to pre-Conciliar lectors must, I think, be said to have expired, meaning deacons ordained today do not have the power to bless bread and fruit even if it might have been possible in the pre-Conciliar era. This, I think, might an example of the 1983 CIC trumping those pre-Conciliar provisions incompatible with the present law (cf. Universae Ecclesiae, n. 27).


Excommunicated Cardinals at Conclaves

With the recent resignation by Pope Benedict XVI, there has been much chatter concerning how papal elections work. One of those fun questions is whether an excommunicated cardinal can participate in a conclave. Canonist Dr. Edward Peters has eloquently answered most of this question over at his blog, “In the Light of the Law“. I believe, however, there is still some more that can be said.

Believe it or not, the question wouldn’t have been a question before 1996. Prior to apostolic constitution Universi dominici gregis [UDG], the special law that control papal elections (cf. can. 349) was Paul VI’s 1975 apostolic constitution Romano pontifici eligendo [RPE]. RPE had a clause specifically addressing the question of censured cardinals. RPE, n. 35 stated:

“No cardinal elector can in any way be excluded from the active and passive election of the Supreme Pontiff on account of any reason or pretext of whatever excommunication, suspension, interdict, or other ecclesiastical impediment. These censures, in so far as they affect an election of this kind, are deemed suspended.” (1)

It wasn’t until the promulgation of UDG that this question became relevant. The change in language from RPE, n. 35 to UDG, n. 35 was deliberate but for what reason is hard to say. Perhaps the pope thought this language was a bit too archaic and no longer relevant to the Church’s modern situation (after all, the exact phraseology had not changed much since the 1300s). Perhaps he figured that since cardinals are judged by the pope (can. 1405, §1), if a cardinal’s behaviour were ever so egregious as to incur excommunication, the pope would go ahead and depose him from the College of Cardinals (cf. UDG, no. 36). Ultimately, it is impossible to say with certainty. That brings us back to the question posed above—can a cardinal elector be barred from the conclave because he labors under a ferendae sententiae excommunication? (Since latae sententiae excommunications do not affect the validity of the election, it need not be considered.)

I agree with Dr. Peters that a cardinal elector can claim an excommunication, either latae sententiae or ferendae sententiae, to be an impediment to participation, and the College of Cardinals would, in all probability, recognize the impediment and proceed without him. Even if they did not recognize the impediment, should the cardinal elector still keep away, the Conclave could proceed without him (cf. UDG, n. 40). None of this is problematic. The problem is what if a cardinal elector suffering from such an excommunication refuses to claim it as an impediment and presents himself with the other electors at the place and time of the conclave? Dr. Peters suggests that the College of Cardinals can, in fact, bar this cardinal from the conclave because it could jeopardize the validity of the papal election. While I understand the absolute necessity to ensure a papal election is valid, I do not see the text of UDG providing strong support for this claim.

UDG does foresee barring admission or readmission to cardinal electors, but in the context of electors having violated or attempting to violate UDG. A cardinal over 80 years of age who attempts to enter the conclave can be barred because he attempts to violate the age limit placed by UDG, no. 33. A cardinal who has been deposed or has renounced the cardinal-ate with papal consent — and is thus no longer a cardinal (see UDG, no. 36) — yet attempts to enter the conclave can be barred because he is attempting to violate UDG, no. 33, which gives cardinals the exclusive right to elect the pope. A cardinal elector refuses to come to Vatican City without having been excused by the College of Cardinals on account of some impediment violates UDG, no. 38 and can be barred entrance (cf. UDG, no. 40). A cardinal elector who leaves Vatican City without a grave reason or on account of illness and without being excused by a majority of electors can be barred re-admittance (cf. UDG, no. 40, §§1 and 2). Beyond these cases, I do not see where UDG foresees any further exclusion of electors.

UDG, no. 35 would suggest, in my view, that there cannot be any valid reason or motivation (beyond those provided for in UDG) to exclude an elector — including, I argue, a ferendae sententiae excommunication. I realize that UDG, no. 35 does not provide explicit support for this claim, and that its general statement could be explained to allow for such an exclusion given how specific the circumstances have to be. The sources for UDG, no. 35 (see footnote 1), however, support such an interpretation of the current law, even if in some sense it is an argument from silence. Perhaps John Paul II changed Paul VI’s language because he did intend to bar excommunicated electors — perhaps he didn’t. In either case, however, I am uncomfortable allowing the mere non-mention of a specific provision to overturn seven centuries worth of an establish, documented principle.

Now, assuming the above interpretation is correct and an elector under a ferendae sententiae excommunication is admitted, there is still the issue of can. 171 which would — it seems — invalidate his vote (§1, 3º) or worse yet invalidate the whole election (§2). There would be no point in admitting an excommunicated elector if his vote will always be null and thereby place the validity of the election at risk. If the above interpretation of no. 35 is true, then it must also be the case that the effects of excommunication upon an electors participation (as listed in can. 171) are suspended.

This was explicitly the case in the former law, RPE, no. 35 and the other earlier sources, but here again, it is an argument from silence because along with not mentioning the issue of admitting excommunicated electors, there is no mention of the validity of their votes. Did John Paul II wish to elimination this exception to can. 171 as his predecessor had from 1975 to 1996 in RPE, no. 35? The late pope did carve out an exception via UDG, no. 78 to can. 149, §3 regarding simoniacal provisions of an office, so something similar could have been done. As above, I think that in the absence of a clear departure from historical papal practice, we must uphold the long held practice of papal election law, which supports the view of a suspension from the effects of can. 171. I realize that this may sound like impermissibly creating an exception to the Code where there is none, but faced with the conflict between UDG, no. 35, which in my opinion gives excommunicated cardinal electors a right to vote in conclave, and can. 171, which denies that right, I think the past practice of the Holy See shows that even if the exception did not happen to get put down on paper in the last revision, such an exception does, in fact, exist to the codified law.

In other words, under UDG no. 35, a cardinal labouring under a ferendae sententiae excommunication can participate in a conclave and may validly cast votes. Fortunately, as Dr. Peters said at the start off his post, this is purely hypothetical.


(1) Paul VI, Ap. Const. Romano pontifici eligendo (1975), no. 35. This section incorporates and largely repeats earlier legislation on papal elections; see list below:
See Pius XII, Ap. Const. Vacantis apostolicae sedis (1945), n. 34;
Pius X, Ap. Const. Vacante sede apostolica (1904), n. 29;
Gregory XV, Ap. Const. Aeterni Patris (1621), § 22;
Pius VI, Ap. Const. In eligendis (1562), § 29; and
Clement V, Decree Ne romani (1311), § 4.