Ed Peters has updated his original post on the Chinese episcopal consecrations and has included a new argument. Referencing a Vatican press statement (which unfortunately is only in Italian, it seems), he writes (EXCERPTS):
The comment about bishops and priests being "greatly pressured and threatened" ( I can imagine) to take part in the ordinations raises fresh concerns, I suggest, about their validity. See 1983 CIC 125, etc.
Analogy: Two Catholics free to marry, but under ecclesiastical precept not to marry one another (1983 CIC 1077), and neither of them wanting to marry each other, are forced by government officials to go through a wedding ceremony together. Any guesses as to how many ways such a sacramental "marriage" could be declared null?
This is an argument that deserves to be taken seriously. If you pressure someone to perform a sacrament then you can get them into a state of mind in which they withhold–or are unable to generate–the intention necessary to perform the sacrament. Thus the first canon that Ed links provides that
Can. 125
§1. [A juridic] act placed out of force inflicted on a person from without, which the person was not able to resist in any way, is considered as never to have taken place.
§2. An act placed out of grave fear, unjustly inflicted, or out of malice is valid unless the law provides otherwise. It can be rescinded, however, through the sentence of a judge, either at the instance of the injured party or of the party’s successors in law, or ex officio.
As you can see §1 of this canon provides that completely irresistible force would invalidate (since episcopal consecrations are juridic acts). However, it is not clear that this form of force was used in the Chinese consecrations.
This canon distinguishes in §1 and §2 between force and fear, and some commentators–such as the authors of the Red Code–hold that the former refers only to irresistible physical force. The distinction between the forms of coercion in §1 and §2 would then be that the former deals with physical coercion and the latter with mental coercion.
The green CLSA commentary notes that some commentators regard the force in question only as physical force, though it adds that other commentators think that irresistible coercion of a psychic or chemical nature could also qualify if they sufficiently destroy the subject’s ability to exercise the will such that no human act takes place.
Despite the proximity of these episcopal consecrations to Manchuria, it is not clear that any Manchurian Candidate-like force has been brought to bear on the individuals performing (or receiving) the consecrations and rendered them unable to perform the act validly.
Evidence of such force might emerge in the future, but it has not emerged to date, so far as I know.
We may more safely presume, instead, that the parties acted under fear of the Chinese authorities–and indeed the press statement that Dr. Peters cites refers to pressure and threats, which would seem to indicate fear–thus placing the act under the heading of §2 of the canon.
If that is the case then the law would hold that such an episcopal consecration, "placed out of grave fear, unjustly inflicted, or out of malice is valid unless the law provides otherwise."
Thus in the absence of a canon expressly providing for the invalidity of such consecrations, §2 would lead us to conclude that the consecrations were valid if what was present here was grave fear rather than irresistible force.
(Incidentally, note that this canon expressly speaks of validity if a juridical act is placed out of malice, like the "Stick it to the Catholic Church" motive that the Chinese authorities are presumed to have. They weren’t the ones performing the consecrations–those were performed by bishops–but the canon seems to indicate that even if the bishops themselves had a "Stick it ot the Vatican" motive that the consecrations would be valid, per my previous post.)
It could emerge that a form of invalidating coercion was used in these cases, but until evidence of this emerges–or until another invalidating ground is found–the Church’s presumption would be expressed by the previous canon:
Can. 124
§2. A juridic act placed correctly with respect to its external elements is presumed valid.
It seems that the Vatican has excommunicated the Bishops and priests involved.
Vatican Excommunicates Four Chinese Bishops
VATICAN CITY — The Vatican on Thursday excommunicated two bishops ordained by China’s state-controlled church without the pope’s consent, escalating tensions as the two sides explore preliminary moves toward improving ties.
The Vatican also excommunicated the two bishops who ordained them, saying church law mandates excommunication for bishops involved in ordinations without Vatican approval.
Vatican spokesman Joaquin Navarro-Valls cited Article 1382 of the Roman Catholic Church’s canon law. That article states that “both the bishop who, without a pontifical mandate, consecrates a person a bishop, and the one who receives the consecration from him, incur a ‘latae sententiae excommunication,'” which means they are automatically excommunicated.
CountryWatch: Holy See
Earlier, Navarro-Valls said Pope Benedict XVI was deeply saddened by news of the ordinations, which have occurred in recent weeks.
“It is a great wound to the unity of the church,” Navarro-Valls said in a statement.
Chinese Foreign Ministry officials were not available to comment on the excommunications. But earlier, a duty officer referred to an April 30 statement issued after the Vatican criticized the first ordination.
“The criticism toward the Chinese side by the Vatican is groundless,” that statement said. “We hope the Vatican can respect the will of Chinese church and the vast numbers of priests as well as its church members so as to create good atmosphere for the improvement of Sino-Vatican ties.”
I posted the fact about the excommunications on the OTHER thread. The Church has spoken. So be it.
Below is the full, official, English translation of the Vatican statement, and I still have doubts about whether the reference to the excommunication canon, coupled with reference to exculpatory factors, ammounts to a declaration that the excommunication has been incurred.
******
TRADUZIONE IN LINGUA INGLESE
I can inform you of the position of the Holy See regarding the episcopal ordination of the priests Joseph Ma Yinglin e Joseph Liu Xinhong, which took place, respectively, last Sunday, April 30, in Kunming (province of Yunnan) and Wednesday, May 3, in Wuhu (province of Anhui).
The Holy Father has learned of the news with profound displeasure, since an act so relevant for the life of the Church, such as an episcopal ordination, has been carried out in both cases without respecting the requirements of communion with the Pope.
It is a grave wound to the unity of the Church, for which severe canonical sanctions, as it is known, are foreseen (cfr. canon 1382 from the Code of Canon Law).
According to the information received, bishops and priests have been subjected – on the part of external entities to the Church – to strong pressures and to threats, so that they take part in the episcopal ordinations which, being without pontifical mandate, are illegitimate and, besides, contrary to their conscience. Various prelates have given a refusal to similar pressures, while others were not able to do anything but submit with great interior suffering. Episodes of this kind produce lacerations not only in the Catholic community but also in the internal conscience itself.
We are therefore facing a grave violation of religious liberty, notwithstanding that it is sought to present the two episcopal ordinations as a proper act to provide the pastors of vacant dioceses.
The Holy See follows with attention the troubled path of the Catholic Church in China and although aware of some peculiarities of such a path, believed and hoped that similar, deplorable episodes would by now belong to the past.
Holy See considers it now her precise duty to give voice to the suffering of the entire Catholic Church, in particular to that of the Catholic community in China and especially to those bishops and priests who have been obligated, against conscience, to carry out or to participate in the episcopal ordination, which neither the candidates or the consecrating bishops want to carry out without having received the pontifical mandate.
If it is true the news according to which other episcopal ordinations are to take place in the same manner, the Holy See would like to repeat and stress the need for respect of the liberty of the Church and of the autonomy of her institutions from any external interference, and eagerly wishes that such unacceptable acts of violent and inadmissible constrictions are not repeated.
The Holy See has, on various occasions, stressed her willingness for honest and constructive dialogue with the competent Chinese authorities to find solutions that would satisfy the legitimate needs of both parties.
Initiatives such as the above mentioned do not favor such dialogue but instead create new obstacles against it.
[00656-02.01] [Original text: Italian]
[B0228-XX.04]
*******
Jimmy mentions that, because there was only moral cohersion, and not the use of phyisical force, canon 125, 1 does not apply, and the act cannot be considered as never having taken place. Also, under canon 124, we must presume, from the external elements, that the act was valid.
But we must also take account of the PENAL provisions of Canon Law, according to which one does not incurr the penalty, if one is not culpable for the action. This is a matter of guilt. So, we must distinguish the eventual validity of the ordinations from guilt in its performance. If one is guilty of performing an episcopal ordination without mandate then one is excommunicated latae sententiae? But what about situations when guilt is absent?
Here are the relevant canons:
Can. 1321 §1. No one is punished unless the external violation of a law or precept, committed by the person, is gravely imputable by reason of malice or negligence.
§2. A penalty established by a law or precept binds the person who has deliberately violated the law or precept; however, a person who violated a law or precept by omitting necessary diligence is not punished unless the law or precept provides otherwise.
§3. When an external violation has occurred, imputability is presumed unless it is otherwise apparent.
Can. 1322 Those who habitually lack the use of reason are considered to be incapable of a delict, even if they violated a law or precept while seemingly sane.
Can. 1323 The following are not subject to a penalty when they have violated a law or precept:
1/ a person who has not yet completed the sixteenth year of age;
2/ a person who without negligence was ignorant that he or she violated a law or precept; inadvertence and error are equivalent to ignorance;
3/ a person who acted due to physical force or a chance occurrence which the person could not foresee or, if foreseen, avoid;
4/ a person who acted coerced by grave fear, even if only relatively grave, or due to necessity or grave inconvenience unless the act is intrinsically evil or tends to the harm of souls;
5/ a person who acted with due moderation against an unjust aggressor for the sake of legitimate self defense or defense of another;
6/ a person who lacked the use of reason, without prejudice to the prescripts of cann. ⇒ 1324, §1, n. 2 and ⇒ 1325;
7/ a person who without negligence thought that one of the circumstances mentioned in nn. 4 or 5 was present.
Can. 1324 §1. The perpetrator of a violation is not exempt from a penalty, but the penalty established by law or precept must be tempered or a penance employed in its place if the delict was committed:
1/ by a person who had only the imperfect use of reason;
2/ by a person who lacked the use of reason because of drunkenness or another similar culpable disturbance of mind;
3/ from grave heat of passion which did not precede and hinder all deliberation of mind and consent of will and provided that the passion itself had not been stimulated or fostered voluntarily;
4/ by a minor who has completed the age of sixteen years;
5/ by a person who was coerced by grave fear, even if only relatively grave, or due to necessity or grave inconvenience if the delict is intrinsically evil or tends to the harm of souls;
6/ by a person who acted without due moderation against an unjust aggressor for the sake of legitimate self defense or defense of another;
7/ against someone who gravely and unjustly provokes the person;
8/ by a person who thought in culpable error that one of the circumstances mentioned in ⇒ can. 1323, nn. 4 or 5 was present;
9/ by a person who without negligence did not know that a penalty was attached to a law or precept;
10/ by a person who acted without full imputability provided that the imputability was grave.
§2. A judge can act in the same manner if another circumstance is present which diminishes the gravity of a delict.
§3. In the circumstances mentioned in §1, the accused is not bound by a latae sententiae penalty.
*****
I would like to draw special attention to canons 1323 item 4, canon 1324, paragraph 1, items 5 and 10 and canon 1324, paragraph 3. The latter provision totally excludes the possibility of latae sententiae punishments in cases of diminushed culpability.
WELL, the Holy See´s statement seems to recognize diminushed culpability. It makes reference to the penalty, but also makes reference to the cohersion, and does not say that the penalty was incurred. Canon 1321 paragraph 1 also comes into play.
On the validity of the consecrations:
Once upon a time, the words of marriage did not require witnesses, let alone a priest. Then the Council of Trent, tackling the obvious problem of bigamy with such a situation, added the requirements of witnesses, one to be a priest unless it was actually infeasible.
It would not pertain to this consecration, but I don’t see why such regulations could not also be attached to future ones.
The marriage parallel given in the post does not seem to be exact, since it postulates a couple who have no wish to marry each other rather than a couple who wish to marry but are pressurised into doing so under illicit circumstances. Peters’ argument assumes something which cannot be proven; that the consecrators involved simply saw themselves as communist civil servants performing mumbo-jumbo for political reasons (i.e. an absence of intent) rather than as genuine bishops acting out of weakness, misguided nationalism, or belief that it is better to have the sacraments available even at this price. Someone who had themselves consecrated in order to marry would sin gravely but would still be validly consecrated since validity depends on the intentions of the consecrator not the recipient.
You might be interested in a posting I made about this at my blog at http://epiph.blogspot.com/2006/05/mormons-and-communists.html
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