Canonical Approach to Durable Power of Attorney

Many people become incapable of managing their own affairs whether due to aging, disease, or serious accident. If one is not able to act one’s own behalf, then that means another must act for him or her. This fiduciary relationship can take different forms in law. This post explores the canonical understanding of these civil arrangements.

In American Civil Law

If a court determines an adult to be incapable of caring for one’s own person, the court will appoint a fiduciary termed a “guardian.” If one is merely incapable of managing one’s own property, then the court-appointed fiduciary is termed a “conservator.” (Note the terminology does vary by jurisdiction, so this is not a hard and fast distinction.) The court’s oversight ensures the fiduciary fulfills his or her duties, but with increased court involvement comes increased costs and time plus that fact it becomes a matter of public record.

An alternative to a court-appointed fiduciary is a privately-appointed “agent” or “attorney-in-fact.” An agent/attorney-in-fact is empowered by an individual (known as the “principal”) to legally act on his or her behalf. The principal determines when the agent is empowered and the extent to which he can act via a legal instrument call a power of attorney document. This instrument, however, must be executed before the principal becomes incapacitated, i.e. one must plan ahead. Traditionally, common law held that an agent/attorney-in-fact lost power at the same time the principal became incapacitated. This made it useless for estate planning until states rewrote their laws to create an enduring agency that continues after the principal is incapacitated. This is termed durable power of attorney. The incapacitation that triggers a power of attorney is generally not a court determination but the written determinations of one or more physicians. Because of the reduced costs, the flexibility, and the privacy of this alternative make it by far the most common means of providing for one’s incapacitation.

A Canon Law Approach

Understanding guardianship/conservatorship through the lens of canon law is easy. A guardian/conservator is essentially the same as the Roman law concepts of tutor (the guardian for a minor) and curator (the guardian for a adult), which canon law inherited and to which the code refers to in several places (cann. 98, 105, 1478, 1479, 1508, 1519, 1521, and 1524). In general canon law observes the prescripts of the relevant civil law in what pertains to guardians and their authority (can. 98 §2), which means it leaves the determination of capacity and appointment of guardians mostly to civil authority. However, canon law does allow the Church the ability to make its own determination and choice of curator in specific instances for ecclesiastical matters (cf. Exeg. Comm., vol. IV/1, 967). Since civil laws rightly doesn’t address capacity to act in spiritual matters, this determination and curatorship must be made by ecclesiastical authority according to the canonical understanding of legal capacity.

The equivalent to the traditional agent/attorney-in-fact in common law is a procurator. A procurator is essentially a personal representative, a proxy, who is freely empowered by a person (the “mandator”) to act on one’s behalf in legal and non-legal matters, for a specific task or generally (cf. Wernz-Vidal , Ius Canonicum, vol. 4, 215–219). They are empowered by an instrument called a mandate (cf. 1484 §1) or a special mandate (cf. 1485). They can contract obligations (can. 310) and receive public documents (cf. can. 487 §2) but not vote on another’s behalf (can. 167 §1). They can contract marriage on another’s behalf (cann. 1104–1105) but not swear oaths for others (can. 1199). A procurator ad litem can bring a suit in ecclesiastical tribunal (can. 1504, 3°) and undertake a trial (can. 1508 §3), appear in court (cann. 1477, 1559, and 1725), renounce a legal action (1524 §3) and appeal a decision (1486 §2).

A canonical procurator, however, is simply a proxy, a stand-in for the mandator. If the mandator can no longer act then neither can his stand-in. This explains why canon 1105 §4 revokes the mandate upon the mandator’s development of amentia. Essentially, becoming non sui compos is equated with death (Coronata, Institutiones Iuris Canonici, vol. 3, 112). In only one case does canon law foresee a procurator continuing after the death of a mandator, but the exception is not significant. That exception (can. 1518, 2°) establishes that if the instruction phase of a trial has concluded and a party to the case dies, the judge must continue it and bring it to judgment after having cited the procurator or heir. This doesn’t change things because after the close of instruction, parties are no longer active participants in the process. It is entirely in the tribunal’s hands until after a decision is rendered and the parties face the decision to appeal. So in point of fact, the procurator is not doing anything on the descendant’s behalf. Compare this situation to one in which a party dies before the close of instruction. In that case it is the heir’s choice whether to continue and no mention is made of the procurator because the procurator’s mandate to act is gone (can. 1518, 1°).

What is the canonical approach to durable power of attorney?

Canon law is a bit less flexible than American common law in the realm of legal fiduciary relationships for incapacitated persons. While both have permanent fiduciaries appointed by competent authority (guardian/conservator and tutor/curator). Both have non-enduring privately appointed fiduciaries (agent/attorney-in-fact and procurator). Canon law, however, lacks an enduring privately appointed fiduciary that compares with the statutorily created durable power of attorney. With no direct canonical equivalent, it seems to me the best solution would be to interpret durable power of attorney as a procuration while the principal is still capable and following incapacity to interpret it as a curatorship.

Without doubt this is how I would approach it if the incapacitation is determined by means that are civilly effective even if it just the determination of physicians and not a judicial determination by a court. But what if a person with a durable power of attorney arrangement is determined to be incapacitated by an ecclesiastical authority while not yet having been determined incapacitated by civilly cognizable means? I recognize this is almost an incredible hypothetical, but I would argue that the principle of “canonization” of civil law laid out in canons 98 §2 and 22 requires that in the eyes of ecclesiastical authority this ecclesiastical determination should trigger the curatorship-like powers of the durable power of attorney. In effect, after the determination, ecclesiastical authority would respect the power of attorney arrangement (as if the determination had been made civilly) and not appoint a curator because this would implicitly reject the value of civil durable power of attorney arrangements.

I think this approach to durable power of attorney is the most consistent with the deference canon 98 §2 affords the civil prescripts concerning incapacitation and guardianship.

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Alzheimer’s and Becoming Catholic

A woman suffering from moderate Alzheimer’s began attending RCIA. She is a baptized non-Catholic. She lived with her son (a Catholic) who diligently brought her classes. The catechesis she was receiving was tailored to her abilities (can. 777, 4°). Her condition began deteriorating quickly and her inability to remember her young grandson and son made peaceable living impossible. She was moved to a memory care facility.  At the facility she speaks of herself as being Catholic. Can this woman enter full communion with the Catholic Church? 

Yes, of course! Holy Mother Church would never deny someone the grace of full communion. But, how does one make sense of it canonically. The act by which a baptized non-Catholic enters into full communion is simply the public, juridic manifestation of one’s intention to become Catholic (cf. Huels, Liturgy and Law, 76). One must distinguish between this act, which is the constitutive element for valid reception into the Church, and the the liturgical act, namely the Rite of Reception in the RCIA ritual. This is important because it means valid entrance into the Church is not dependent on one’s ability to fully perform the rite. All that is necessary is that she manifests her intention to become Catholic before competent ecclesiastical authority. The competent authority need not do anything besides knowingly witness the person’s manifestation of intention (Huels, Liturgy and Law, 77).

With that in mind, I think there are a two options.

A) Alzheimer’s disease in its moderate and severe stages places a person in danger of death. Every baptized but unconfirmed person is capable of receiving confirmation and in instances of danger of death a person is to be confirmed immediately regardless if one has the use of reason (cann. 891 and 889 §2). Additionally, baptized non-Catholics who are in danger of death can receive the sacraments of penance, Eucharist, and anointing if they demonstrate a Catholic faith and spontaneously ask for them (can. 844 §4), at least implicitly prior to losing their faculties (can. 1006). This woman’s participation in RCIA and her self-identification as a Catholic manifests her intention to become Catholic, suitably demonstrates a Catholic faith in the sacraments, and implicitly expresses her desire to receive the fullness of sacramental grace. Her reception into the Church takes place implicitly by her reception of confirmation by a Catholic minister (cf. Huels, The Pastoral Companion, 84).

B) Another possible route follows from the canon 99, which canonically equates persons who habitually lack the use of reason to infants. These persons are not responsible for themselves (non sui compos) because they lack the use of reason (cann. 97 and 99). A person with Alzheimer’s disease will become progressively less capable of personal responsibility as the disease progresses. To understand the canonical significance of the deterioration, we must consider the spectrum canon law uses to describe juridic capability.

  1. Adults. They are person over 18 who have the full exercise of their rights and are fully responsible for themselves (cann. 97 and 98 §1).
  2. Adult persons who have some impairment in the use of reason but still possess sufficient use of reason to marry (can. 1095, 1°).
  3. Adult persons of diminished mental capacity (minus firmae mentis). They can speak for themselves regarding their own delicts but normally act through a guardian/curator especially in the administration of temporal goods (can. 1478 §4).
  4. Minors over the age of 14. They can speak for themselves in spiritual matters (1478 §3) such as freely choosing in which sui iuris church to be baptized (can. 111 §2). In all other things they must act through a guardian/curator.
  5. Minors with the use of reason. The law presumes one has the use of reason after age 7 (can. 97 §2). These persons persons exercise their rights in a limited fashion through their guardian (can. 98 §2). They can, for example, ask for baptism with their parents consent (RCIA [USA] 252).
  6. Those who lack the use of reason and are completely incapable of personal responsibility (non sui compos). Their guardian/curator acts for them in absolutely all matters (cann. 97 §2; 98 §2; and 99).

These last three stages (4, 5, 6) can be respectively thought of as the mental ability of an adolescent, the mental ability of a 7 year-old, and the mental ability of a baby. From the above, it would seem that the mental capability necessary for a baptized Protestant to validly be received into the Catholic Church on his or her own (that is, publicly manifest his intention to become Catholic in a juridically cognizable fashion) would that of an adolescent (stage 4). This is because reception into the Catholic Church necessary means freely submitting oneself to her laws and beliefs, the same things that distinguish one sui iuris church from another. A person in stage 5 could do so through a guardian/curator. A person in stage 6 becomes Catholic simply at the declaration of his or her guardian/curator (cf. Huels, Liturgy and Law, 95).

The progression of Alzheimer’s will take a person through all these stages of juridic capability. When one compares the stages of canonical capability with the commonly outlined stages of Alzheimer’s disease (Alzheimers.net), the following conclusions seem appropriate:

  • Alzheimer’s stages 1 & 2 do not affect a person’s juridic capability.
  • Alzheimer’s stage 3 renders one diminished in mental capacity and in need of a guardian/curator for temporal goods administration.
  • Alzheimer’s stages 4 & 5 means one acts through a guardian/curator, but may well be able to make decisions in spiritual matters on one’s own depending on the precise progression of the disease in that individual.
  • Alzheimer’s stages 6 and 7 render one completely non sui compos. Their guardian/curator acts for them in all things.

So going back to the original question, if the woman is in stage 6 or 7 Alzheimer’s, then her entrance into the Church comes via a declaration of whoever has legal guardianship of her person (cf. Huels, Liturgy and Law, 95). If she is in stage 5, her self-identification as Catholic combined with her guardian’s statement regarding her desires would be enough to manifest her intention to become Catholic. It seems most likely that if she is in stage 4 she is still fully capable of acting canonically on her own with respect to entering the Church.

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.