Canon 1405

The fine canonically focused blog In the Light of the Law has a fascinating post today about removal of a bishop from the clerical state.  We often hear about removal of priests, but not of bishops.   But, bishops are clerics too.

Let’s have a look:

After decades of disinterest, suddenly two Canon 1405 cases?

POST ONE: Pope Benedict XVI is believed to be mulling over the possibility of expelling a bishop, Fernando Lugo, from the clerical state. That would certainly be a first under the 1983 Code (the Jacques Gaillot case in 1995 was not a precedent; Gaillot was removed from office, but not from the clerical state), and I’m pretty sure it never happened under the 1917 Code.

Lugo, though suspended and removed from ecclesiastical office, remains a cleric, but his election under a reformist banner to Paraguay’s presidency upped the ante. Clergy are forbidden to assume civil governing offices (see 1983 CIC 285.3 and my negative conclusions about "Permission given to priest to run for political office", 2007 CLSA Advisory Opinions 60-62) and bishops in political office are at odds with, oh, about a dozen other norms.

Canon 290,3 says that removal from the clerical state can be granted (or imposed, if it comes to that) on deacons for "grave cause" or presbyters for "most grave cause". But the canon doesn’t even mention dismissal of a bishop from the clerical state. It’s as if no one could imagine it ever happening.

Lugo has reportedly offered to "resign" but it is unclear exactly what he meant by that, or he could face a penal process with the pope as judge per 1983 CIC 1405, 1. Ironically the pope could hear this matter as a case of judging "those who hold the highest civil office of a state" or he could hear it as a case of judging "bishops in penal matters." But regardless of which kind of case he considers, removal of a bishop from the clerical state, and not just from office, is an extremely serious action, something that hasn’t happened for centuries.

Okay, so, maybe it’s time it did.


POST TWO: How utterly ironic.

I had intended the above title, about the "two Canon 1405 cases" to refer to two possible applications of Canon 1405 in the one case of Bp. Fernando Lugo. But now I see another news item that would involve, of all things, Canon 1405 for a second, completely separate, time.

I refer to Richard Sipe’s denunciation of, among others, Theodore Cdl. McCarrick (ret. Washington) on the grounds of sexual misconduct. I know next to nothing about Sipe, but his statement leaves little room for nuance: "I know the names of at least four priests who have had sexual encounters with Cardinal McCarrick. I have documents and letters that record the first hand testimony and eye witness accounts of McCarrick, then archbishop of Newark, New Jersey actually having sex with a priest, and at other times subjecting a priest to unwanted sexual advances."

The same Canon 1405 I referenced above reserves solely to the Roman Pontiff the right to judge all cases involving cardinals and, in penal matters, bishops. Under either heading, let alone both, the only person authorized to investigate, and if warranted judge, Sipes’ allegations, is the pope. No ecclesiastical authority may move on this matter without the consent of the Roman Pontiff.

I do think, however, that in conscience, (though not by canon law given the abrogation of 1917 CIC 1935.2), Sipe is bound to send to the Holy See all the information he has about these matters, and not wait to be asked for it.

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  1. Gregor says:

    I had read this at Dr Peters’s blog, very interesting.

    However, in this letter the Congregation for Bishops sent to Msgr Lugo: Card. Re says the following:

    “La reducción jurídica al estado laical viene concedida por el Papa a los diáconos por motivos graves, a los presbíteros por motivos gravísimos (cfr. can. 290 & 3), pero nunca a los Obispos, en cuanto la plenitud del sacerdocio recibido en la ordenación episcopal obliga en grado máximo a la fidelidad a Cristo y a la Iglesia por toda la vida, como también obliga a la coherencia con las obligaciones libremente asumidas en la ordenación presbiteral, y aún más en la ordenación episcopal.”

    My translation, with my emphasis: “The juridical reduction to the lay state is granted by the pope to deacons for grave causes, to priests for most grave causes (cf. can. 290 § 3), but never to bishops, since the fullness of the Priesthood received in the episcopal ordination obliges in the highest degree to fidelity to Christ and to the Church for the entire life, as it also obliges to coherence with the obligations freely assumed in the priestly ordination, and even more so in the episcopal ordination.”

    Wouldn’t this suggest that the removal of a bishop from the clerical state is in fact impossible? Of course, this letter of the Congregation can hardly bind the pope, but since it concerns this specific case it is surely not irrelevant.

  2. RichR says:

    Is it critical that these things be done so publicly? What about innocent until proven guilty? I understand, if it is true, it is best to be aware so that there are no further victims, but what if it isn’t true? The black cloud will always hang over the Cardinal’s head.

    I know this is a real fear of priests – insinuation. It no longer matters if it is true, all that has to be done is imply that it could be true.

  3. Gregg the obscure says:

    What about Archbishop Milingo and his dalliance with the Moonies? Would that not also be a potential case for canon 1405?

  4. Tony says:

    As far as Bishop/President-elect Lugo, I have always understood that a bishop cannot be removed from the clerical state for any reason, since he has received the fullness of the priesthood, and therefore he is ontologically equivalent to the Pope. The witness of the early Church and the first ecumenical councils, I think, bears this out, although someone who has more knowledge than I can feel free to set me straight.

    Being from New Jersey, I have known about Cardinal McCarrick’s evil ways for years. I have heard priests and laity alike say that when the lid gets blown off this scandal, it’s going to be worse than Cardinal Law. I hope this guy has the goods, because this is exactly the type of filth that we need to expose and uproot.

  5. Michael says:

    Isn’t “innocent until proven guilty” an American concept?

  6. Jamie says:

    If the Pope does act on this, it could be a very providential event – as it may put the scare in to a lot of the disobedient Bishops and help to motivate them to correct their ways.

  7. RichR says:

    Isn’t “innocent until proven guilty” an American concept?

    It actually dates back to the thirteenth century, but has evolved since then, to become a part of our laws. Even so, is it a good and worthy maxim? I think so. No one should have to endure this type of shame if he is innocent. We should wait for the evidence before casting aspersions on someone, but reality says that insinuation is all that’s needed to destroy someone’s credibility.

    My intent in my first post was to say, “Can’t this be taken care of behind closed doors?” If it’s proven true, fine. But if it’s a scam, wouldn’t private inquiry be the most prudent way to go about things?

    I’m not thinking simply of Card. McCarrick, but of those good priests unjustly accused. Where are they left after being dragged through the mud? There are a ton of good clerics out there serving their flocks and the Lord faithfully, but they are not immune to this McCarthyism.

  8. Tim Ferguson says:

    Actually, the concept of the presumption of innocence goes way back in the history of law. It formed a principle of jurisprudence in ancient Roman law, upon which the Church\’s canon law was founded, and is in the Decretum Gratiani de Presumptionibus, L. II, T. XXIII, c. 14.

    It is writ throughout both the Latin and the Eastern Code as well, though not always practiced in fact by the authorities of the Church…

  9. Volpius says:

    His election is proven.

  10. caesium says:

    I have seen homosexual extraordinary ministers distribute communion in our cathedral parish. Nothing is done about this.

  11. Tim, in your kindness, what is the standard citation for
    that passage in Gratian? I have never seen a cite in that

    Is it meant to be C. 2 Q 23 c. 14? Which would be
    Causa 2, Questio 23, capitulum 14?

    Or is “L. 2” supposed to be what used to be called the
    second part of the first section (i.e. Distictions 21-101)?

    in which case you mean D. 23 c. 14? Which would be
    Distinction 23 capitulum 12.

    Or is this really to the Gregorian Decretals? The old way of citing
    the decretals was to give the title of the title (e.g., “de
    presumptionibus” then to the capitulum (usually by its first words, but
    also sometimes by its number), and then to the section of the
    captitulum. Today we put an X before the nubmers
    for “Liber eXtra” Since So do you mean X.2.23.14. In fact, book 2,
    title 23, is “De Praesumptionibus.”

    It is the Extra, not Gratian, right?

  12. Gregg the obscure says:

    The McCarrick allegations are concerning for several reasons, not least among them those that relate to Paragraph 2477 of the Catechism:

    “Respect for the reputation of persons forbids every attitude and word likely to cause them unjust injury. He becomes guilty:
    – of rash judgment who, even tacitly, assumes as true, without sufficient foundation, the moral fault of a neighbor;
    – of detraction who, without objectively valid reason, discloses another’s faults and failings to persons who did not know them;
    – of calumny who, by remarks contrary to the truth, harms the reputation of others and gives occasion for false judgments concerning them.”

    The allegations against Cdl. McCarrick – true or false – present many occasions of sin. May the allegations be resolved in a timely manner.

  13. I thought this would be interesting from the point of view of law. Apparently people want to turn this into something else.

    I am closing the combox.

  14. EJ says:

    With regards to the likes of Lugo, my gut instinct is to wonder out loud how men like this were ever given a miter?

    I urge extreme caution with respect to the allegations against the cardinal mentioned. I have heard the rumors, and they come from circles famed for being more concerned about gossip than about the gospel – and I really urge caution against somthing that has such little credible evidence. If the evidence is so strong, it would have come out into the light a long time ago. The man is in retirement, he himself has said that in this period of his life, that he is focused upon the day when he will meet his judgement – pray for him if you really have any concerns. I am personally more concerned about filth like Fr. Maciel of the LC’s and the damage they were able to inflict for so long, just because they were powerful in the Church.

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