SECTIONS OF THE NEW CODE IN FORCE

ALREADY

BY REV. M. J. O'DONNELL, D.D.

FROM a document of the Secretariate of State, dated the 20th of August last, we learn that several Bishops and other local Ŏrdinaries humbly petitioned His Holiness Pope Benedict XV to have [certain] prescriptions of the Code come into force without delay. The same document informs us that the Holy Father, in an audience granted [to Cardinal Gasparri] on the 19th of August, received the said petitions favourably, and decreed that the prescriptions in question should have binding force from that very day' and that, moreover, on his own initiative, he granted to Cardinals of the Holy Roman Church the enjoyment of each and every privilege mentioned' in certain specified sections.2 The concessions were duly promulgated in the September issue of the official Roman bulletin."

These canons have all been published already in the I. E. RECORD. If the reader refers to them, he will find that the second collection--those taking effect on the Pope's own initiative --have little bearing on the life of the ordinary priest. Under one of them (239, § 1, divided into twenty-two sub-sections) are enumerated the privileges of Cardinals in regard to confession, Mass, blessings, preaching, indulgences, benefice revenues, precedence, and the administration of Confirmation and Holy Orders; under another (240) the Cardinals' rights in the churches from which they take their title; and under the remaining three (600, § 3, 1189, and 1401) their special exemption from the laws governing Papal enclosure, private oratories, and forbidden books, respectively.

1 Canons 859, § 2; 1108, § 3; 1247, § 1; 1250–1254.

2 Canons 239, § 1; 240; 600, § 3; 1189; 1401.

3 Acta Ap. Sed., 1st September, 1917, p. 475.

4 October, 1917 (pp. 343-6). Owing evidently to an oversight, the second and third sections of canon 239 have been included.

5 Canons 239, § 1; 240; 600, § 3; 1189; 1401.

FIFTH SERIES, VOL. x—NOVEMBER, 1917

But the canons of the first series-those with which the Bishops' petitions were concerned-are on an entirely different footing. All of them imply a serious change in the general law; and at least some of them an equal, if not a greater, change in the law hitherto in force in this country. They deal with matters in which every Catholic, and especially every priest, will feel a deep concern and interestwith the questions of fast and abstinence, the feasts to be observed as feasts of precept, the fulfilment of the Paschal precept, and the closed' times, for marriages. Before we are deluged with positive decisions, that will settle or complicate matters as the case may be, it will be just as well for us to take stock of the situation, find out the points about which there may be, for the present at all events, a legitimate difference of view; and, having mapped out our ground, put ourselves in a fair way to understand and appreciate any new information we may be given about positions to be held or evacuated.

That these positive decisions will come we may be absolutely certain. And anyone who has had to deal with similar decisions in the past will agree that it would require the wisdom of Solomon to forecast them correctly. We do not think we are putting the case too strongly when we say that, at the present moment, no human being alive can foretell the replies that will mould the new legislation generally into the clear-cut form it will have assumed before we are five years older. But that need not deter us from venturing on a tentative solution in any particular department. We all know, even if the new Code had not told us so, that 'custom is the best interpreter of law': and it is only right that everyone interested in these matters should assist, in his own small way, in establishing a public opinion and consistent practice that, so far as we are concerned, will go far towards ensuring the interpretation most closely in harmony with the needs, requirements, and possibilities of our own country.

In the attempt, the interpreter will probably find himself adopting views that the wisdom of legislators will refuse to sanction. Even so, the attempt will not be in vain. He must be prepared to accept the bitter with the sweet. That is the principle on which we will go ourselves. We are prepared for replies that, at least from the time they are given, will make our opinions on any particular point untenable. But we will state what we honestly consider

the most probable and equitable views; and we need not add that the reasons given for them must stand or fall on their own merits and are put forward solely on our own responsibility.

I. FAST AND ABSTINENCE

One of the first things that strikes us in regard to the new Code is the obvious intention of the legislator to secure, as far as is humanly possible, uniformity in practice all over the Catholic world. In the case of previous laws we have been accustomed, as indeed we shall be for the future in regard to laws not contained in the Code,1 to find the greatest respect shown to local laws and customs-Canon Law thus providing, in a manner unknown to our civil codes, for the special tendencies of each individual locality. The milder form of general law blew gently over the ordinary customs without affecting them in the slightest : the more deeply they became embedded, the greater was the legal force required to dislodge them; and nothing less than a hurricane of legislation was needed to eradicate them when they had grown into the life of the people by a century's practice. The Code is quite different. All its canons are of the hurricane type. They sweep aside practically everything that stands in their way and even the immemorial custom, the petted favourite of previous legislators, will be saved from extinction, if it be saved at all, only in extraordinary circumstances and as a result of specially delicate treatment by the Ordinary.2

This principle of uniformity is a very admirable one from many points of view. If only for the pleasure of being able to inscribe ubique eadem on our banner, most of us in this country would be willing to submit gladly to the new obligations imposed on us, in its name, in several sections of the new legislation. But, in equity at least, there should be a little give and take. Compensation is a policy beloved of all reformers, except the most radical. If, for the sake of uniformity, there is to be a levelling up when we are found below the standard of the general law, we may reasonably suggest that, for the sake of that same uniformity, a little levelling down may be easily tolerated or condoned when our position is found to be inconveniently higher than

1 Code cc. 22, 30.

2 Ibid. c. 5.. Seo Dr. Kinane's article infra, pp. 374-6.

the normal. In the opening canons of the new Code (2-6) there is no mention, we admit, of customs that lie outside the law and are not opposed to it (praeter legem); technically speaking, therefore, and according to the letter of the law, they will remain, unless when revoked in express terms or by implication. But the spirit of the law must be taken into account as well; and the consideration just referred to, though technically not decisive, will suggest the proper background when we want to get things in their proper perspective. We might put the matter in another way, by giving a slight turn to a maxim that has always commended itself to men of common sense: Qui incommoda sentit is utique et commoda sentire debet.

To apply all this to the question of fast and abstinence. The Irish practice has been more strict than the Continental, much more strict than the practice contemplated in the new Code. There are particular laws and customs which impose greater restrictions, but which, at the same time, are not opposed to the general law, and might, therefore, at first sight seem to remain unaffected. We can imagine some one even objecting that their abolition would confer undue favours on every member of the Irish Church. But, we would submit, the fasting regulations should not be taken by themselves; the Code should be taken as a whole. These laws and customs have been consistently upheld by ecclesiastical authority in the past, but largely, we think, because the principle of uniformity, a fundamental one in the new Code, was never so strictly emphasized before. If, in order to secure consistency in practice, we have to submit to restrictions in matters in which we deviated from the general standard in the way of indulgence, we may be excused for holding liberal views when there is a reasonable doubt about the binding force of regulations that imply an equal deviation in the way of rigour. This, we admit again and repeat, is no decisive principle of interpretation. All we would claim for it just now is that it embodies a principle of equity and suggests a liberal frame of mind for the discussion of individual problems.

And there is another consideration that will carry us in the same direction. Fasting is comparatively an easy matter for people in the South. Their climate helps them: so does their greater supply of the lighter articles of diet. Now, the fasting law that binds us was framed in the South.

1 See Dr. Kinane's exposition of Canons 5 and 6, pp. 374-9.

That, of course, implies no reflexion on its merits: the religious beliefs, not only of Catholics, but of every Christian in these countries, came originally from the South, and it is to the South that we look for light and guidance and binding law from Christ's own Vicar. But it would be humanly impossible that laws of this kind, framed primarily for the South, and with a view primarily to Southern conditions, should not press with greater severity on the people of more Northern latitudes; just as laws made primarily for summer might involve intolerable rigour if strictly enforced in winter. Whatever our views about the comparative merits of German and Italian ideals just now, we can all sympathize with the German theologian who, in a friendly discussion on this very matter with Southern confrères over two hundred years ago, gave voice to a complaint, obviously wrung from the depths of his wintry experience: Let the Italians and Spaniards,' he said, 'send to the Germans in the fasting season their warm sky, their food and rich wines, their fruit and preserves, etc., and we will fast with them.' When the Southern laws in this department are applied further north, we must take note of our closer approximation to the Arctic Zone, and decide with corresponding leniency. The essential principles of law are independent of climate, it is true: not so the conditions that modify their application.

1

Coming to the law as formulated in the new Code, we find that 'abstinence' has taken on a new meaning. It now implies abstinence from flesh-meat and its products (soup, broth, etc.), but from nothing else. The prohibition against the use of eggs and white-meats drops completely out of general Church legislation; and the regulations we have been accustomed to, for many years past, in regard to condiments' are continued in force (1250). 'Fast' means what it always did: but the universal custom of having some food morning and evening is legally recognized. It will be seen, however, that another well-known principle is still maintained-the quantity and quality of the food taken at the minor meals is to be governed by approved local custom (1251). At first sight this might seem out of harmony with the generally accepted maxim that abstinence governs the quality of food, and fast merely the quantity. But it is, after all, only a legitimate conclusion from the fact that the fast,' by per se prohibiting 1 Sporer, De Praec. Decal., App. ad 3m praec., § 2.