“An invalid marriage is generally a matter of public record, but it may not be a matter of public knowledge. The very mention of the word “public” brings up the familiar discussion on whether the norm of canon 1037 or 2197 should be applied. Scandal arises not from records in archives, but from the knowledge of the people.”[1]

– Canonist Msgr. John Krol, later Cardinal Archbishop of Philadelphia, in 1950.

1. THE CANONICAL CONTEXT

Canon 915 of the 1983 Code of Canon Law (“1983 CCL”)[2], as interpreted by Pope St. John Paul II, was understood to constitute an absolute, automatic and exceptionless ban on the reception of Holy Communion by the divorced and remarried (i.e. where they have neither an annulment nor live in complete continence)[3]:

“Those who have been excommunicated or interdicted after the imposition or declaration of the penalty and others obstinately persevering in manifest grave sin are not to be admitted to holy communion.” [Emphasis added]

Putting aside for present purposes the doctrinal basis for this canon and its interpretation, the canonical reasons for this ban applying without exceptions were explained by the 2000 Pontifical Council for Legislative Texts Declaration Concerning the Admission to Holy Communion of Faithful who are Divorced and Remarried (“2000 PCLT Declaration”) as follows[4]:

“The phrase “and others who obstinately persist in manifest grave sin” is clear and must be understood in a manner that does not distort its sense so as to render the norm inapplicable. The three required conditions are:

a) grave sin, understood objectively, being that the minister of Communion would not be able to judge from subjective imputability;

b) obstinate persistence, which means the existence of an objective situation of sin that endures in time and which the will of the individual member of the faithful does not bring to an end, no other requirements (attitude of defiance, prior warning, etc.) being necessaryto establish the fundamental gravity of the situation in the Church.

c) the manifest character of the situation of grave habitual sin…

their condition as persons who are divorced and remarried is per se manifest.” [Emphasis added]

In other words, under the interpretation of “manifest” (i.e. public) used by the 2000 PCLT Declaration, the civil legal recognition of divorce and remarriage was deemed to be “per se manifest” (i.e. by itself without reference to circumstances). Accordingly, it followed that Canon 915 was always required to be applied to those whose divorce and remarriage was recognised by civil law.

On the other hand, under Pope Francis’ Amoris Laetitia (“AL”), Canon 915 and “manifest” have been reinterpreted. Rather than divorce and remarriage being considered “per se manifest”, AL instead teaches that while divorce and remarriage may be sufficiently manifest to prevent reception of Holy Communion where (AL 297):

“Naturally, if someone flaunts an objective sin as if it were part of the Christian ideal, or wants to impose something other than what the Church teaches, he or she can in no way presume to teach or preach to others; this is a case of something which separates from the community (cf. Mt 18:17).” [Emphasis added]

It may however not be sufficiently manifest to prevent reception of Holy Communion where (AL 300):

“When a responsible and tactful person, who does not presume to put his or her own desires ahead of the common good of the Church, meets with a pastor capable of acknowledging the seriousness of the matter before him, there can be no risk that a specific discernment may lead people to think that the Church maintains a double standard.” [Emphasis added]

That this is indeed the teaching of AL is confirmed by Archbishop Víctor Manuel Fernández, the theologian widely credited with assisting Pope Francis with drafting Chapter VIII of AL[5], who has noted that[6]:

“When the need to avoid scandal is spoken about, we must note that this only happens when people “flaunt” their situation as if it were correct (cf. AL 297). Otherwise, scandal would also be given when the first marriage has been declared null, since probably many who see them go to confession and communion do not know about the annulment. For that matter, neither could they know whether they live as brother and sister or not. The objective fault is not “manifest” insofar as it cannot be confirmed from the outside, and all deserve the benefit of the doubt. Let us leave this matter – in fact, unverifiable – to the intimacy of the discernment of the member of the faithful with his pastor.” [Emphasis added]

2. THE QUESTION

The orthodoxy of AL, including its view of Canon 915, can undoubtedly be defended on doctrinal and legislative grounds (see my Amoris Laetitia – An Apologia for its Orthodoxy, particularly its Chapter 3.0 Public Scandal in relation to Canon 915 and the tradition it represents)[7].

From a canonical perspective however, when assessing AL’s interpretation of Canon 915, a question does arise in relation to its continuity with canonical understandings which applied before the introduction under Pope St. John Paul II of the 1983 CCL.

In other words, is the interpretation of Canon 915 advanced by AL within the bounds of the views provided by respected, authoritative and orthodox canonical commentators (“Commentators”), writing before the Second Vatican Council on its predecessor canons in the 1917 Code of Canon Law (“1917 CCL”)?

If this question can be answered in the affirmative, and such Commentators equally allowed that in some circumstances the divorced and remarried need not be prevented from receiving Holy Communion, it would demonstrate that AL is far more traditional (and less novel) than many of its critics charge.

3. THE AUTHORITES

For the purposes of this article, the Commentators to be consulted will primarily be the standard multi-volume pan-textual commentaries on the 1917 CCL in English, as identified by Dr. Edward N. Peters in his English translation of the 1917 CCL[8]:

“John Abbo (an Italian canonist and papal diplomat with various duties in North America) and Jerome Hannan (vice-rector of Catholic University of America and later Bishop of Scranton) wrote The Sacred Canons, a highly regarded two-volume work …

Dom Augustine (ne Charles Bachofen), a Benedictine monk writing from Missouri, penned his eight-volume Commentary on the New Code of Canon Law over several years … Besides the high level of scholarship expected in a comprehensive work, Augustine, more than any other author in English, attempted to explain the 1917 Code in light of pre-code law …

Stanislaus Woywod was a Franciscan priest trained in civil law. His two-volume Practical Commentary on the Code of Canon Law was first published in 1925 … The work is considerably more scholarly than its “hand-bookish” title would indicate …

Each of these works should be consulted for a through grounding in English-language positions on Pio-Benedictine canonical issues.” [Emphasis added]

Aside from these three major pan-textual commentaries (i.e. Abbo-Hannan, Dom Augustine and Woywod), this article will also have regard to the topical commentaries Penal Legislation in the New Code of Canon Law and Legislation on the Sacraments in the New Code of Canon Law by Fr. Henry A. Ayrinhac (an American Sulpician 1867-1931), which Dr. Edward N. Peters elsewhere notes as “rank[ing] among the more important topical commentaries on Pio-Benedictine law”[9].

Finally, reference will be made to a small number of articles on the 1917 CCL in The Jurist, particularly those published before the Second Vatican Council, which Dr. Edward N. Peters notes “is the flagship of professional academic journals of canon law in English”[10].

4. THE 1917 CCL

The predecessors to Canon 915 in the 1917 CCL, particularly in respect of the divorced and remarried, were Canons 2356 and 855. In this regard, Canon 2356 provided that[11]:

“Bigamists, that is, those who, notwithstanding a conjugal bond, attempt to enter another marriage, even a civil one as they say, are by that fact infamous; and if, spurning the admonition of the Ordinary, they stay in the illicit relationship, they are to be excommunicated accordingly to the gravity of the deed or struck with personal interdict.” [Emphasis added]

And Canon 855 provided that[12]:

Ҥ 1. All those publicly unworthy are to be barred from the Eucharist, such as excommunicates, those interdicted, and those manifestly infamous, unless their penitence and emendation are shown and they have satisfied beforehand the public scandal [they caused].

§ 2. But occult sinners, if they ask secretly and the minister knows they are unrepentant, should be refused; but not, however if they ask publicly and they cannot be passed over without scandal.” [Emphasis added]

5. BIGAMY AND THE CRIMINAL LAW

The first thing to be noted is the meaning of “bigamy” for the purposes of Canon 2356 included what we are referring to in this article as divorce and remarriage. That is, as noted by Ayrinhac[13]:

“A bigamist is a person who has formed two matrimonial unions, successively or simultaneously; i.e., the second union may have been formed after the dissolution of the first or whilst it was still in existence … In modem criminal law the term bigamy is taken in the second sense and a bigamist is defined in this canon as one who, although still bound by a first marriage, attempts to contract a second one.

In order that there be bigamy punishable by law, the first marriage must have been contracted validly and not have been dissolved; and there must have been an attempt at a second marriage, not simply adulterous relations or concubinage. The second marriage can only be an attempted one as long as the first is not dissolved; the Church does not consider merely civil marriage as marriage in any sense but it is sufficient to constitute an attempt.” [Emphasis added]

However, for the purposes of the 1917 CCL, bigamy did not automatically and without exception cover all objective cases of divorce and remarriage. Canon 2356 formed part of Book 5 of the 1917 CCL, which related to the criminal law of the Church, and thus only applied where an individual was subjectively culpable. As Fr. John Cuthbert Ford SJ and Fr. Gerald Kelly SJ, leading American Catholic moralists before the Second Vatican Council, explained[14]:

“It is sometimes forgotten that the law of the Church, like the law of any sovereign society, must include penal sanctions. The fifth book of the Code of Canon Law is entitled “On Crimes and Penalties” not “On Sins and Penalties.” Just as the codes of nations have a section on criminal law, setting forth definite crimes against the law of the land and definite penalties for such crimes, so also the Code of Canon Law has its criminal section …

To understand this law it is necessary to distinguish between a sin and a crime. A sin is a violation of a law which obliges in conscience. It offends God. The violation may be of natural law, of divine positive law, or of human law, whether ecclesiastical or civil. It may be a violation in thought or in word or in deed. But not all sins are crimes. According to canon 2195, § 1, the first canon on crimes and penalties: “The word crime in ecclesiastical law means an external and morally imputable violation of a law to which has been added a canonical sanction, at least an indeterminate one.” [15] Every crime therefore, in ecclesiastical law, must be a sin to begin with, because it must be a “morally imputable violation of a law.” …

The canons which follow lay down the fundamental norms for judging criminal imputability in canon law …

Canon 2199: The imputability of a crime depends on the criminal intent of the delinquent, or on his negligence in being ignorant of the violated law or in omitting proper diligence; accordingly, all the causes which increase, diminish, or do away with criminal intent or negligence, by that very fact increase, diminish, or do away with the imputability of a crime[16].

Canon 2200, § 1: Criminal intent here is the deliberate will to violate the law, and opposed to it on the part of the intellect is a defect of knowledge, and on the part of the will a defect of freedom.

§ 2: Once the external violation of the law has taken place, criminal intent is presumed in the external forum until the contrary is proved[17] …

Canon 2205, § 1: Physical force which destroys all power of action precludes crime entirely.

§ 2: Grave fear also, though only relatively grave, necessity, and even grave hardship generally do away with crime entirely if merely ecclesiastical laws are at stake.

§ 3: If, however, an act is intrinsically evil, or tends to the contempt of the faith or of ecclesiastical authority, or to the harm of souls, the causes mentioned in § 2 diminish indeed the imputability of the crime, but do not do away with it[18] …

It is noteworthy, too, as a corollary of the doctrine of diminished responsibility, that canon law supposes that the freedom and responsibility of the offender may be diminished to a significant degree but still be sufficient for the commission of a serious sin in the sight of God. For it is basic in the criminal law of the Church that without such serious guilt there can be no ecclesiastical crime at all.” [Emphasis added]

The application of this principle to Canon 2356 is also confirmed by Dom Augustine[19]:

“A bigamist, as here understood, is a man who has two or more wives … It is punishable only when it is subjective, i.e. when one knows that the former marriage tie was and is still valid and not dissolved in an ecclesiastically legal form. Unfortunately the State sometimes grants a divorce for reasons nugatory in the eyes of the Church, and without regard to her laws …

A man who marries (invalidly) a woman whilst his first wife is still alive, but bona fide believed to be dead, would not commit bigamy subjectively, but objectively; and, therefore, could not be punished as a bigamist in the ecclesiastical court.” [Emphasis added]

In this regard it is worth noting that the divorced and remarried which AL permits to receive Holy Communion are precisely those, as noted by AL 305 and its Footnote 351, who are not subjectively guilty of mortal sin:

“Because of forms of conditioning and mitigating factors, it is possible that in an objective situation of sin – which may not be subjectively culpable, or fully such – a person can be living in God’s grace, can love and can also grow in the life of grace and charity, while receiving the Church’s help to this end …

In certain cases, this can include the help of the sacraments.” [Emphasis added]

That does not mean, of course, that none of those able to receive Holy Communion under AL would have been considered guilty of the crime of bigamy under Canon 2356. Adultery and bigamy are undoubtedly intrinsic evils[20], such that Canon 2205, § 3, would have ensured that Canon 2356 applied to the divorced and remarried, even where for example they were only venially culpable due to “necessity”[21].

There is however one class of divorced and remarried who, as noted by Dom Augustine, would not would be subject to Canon 2356 – Those which AL 298 note “are subjectively certain in conscience that their previous and irreparably broken marriage had never been valid”.

As with the man mentioned by Dom Augustine who bona fide but wrongly believes his wife to be dead, these individuals (even if their subjective certainty is objectively wrong) may as noted by St. Thomas Aquinas similarly be inculpably ignorant as to the fact they are married[22]:

“For instance, if erring reason tell a man that he should go to another man’s wife, the will that abides by that erring reason is evil; since this error arises from ignorance of the Divine Law, which he is bound to know. But if a man’s reason, errs in mistaking another for his wife, and if he wish to give her her right when she asks for it, his will is excused from being evil: because this error arises from ignorance of a circumstance, which ignorance excuses, and causes the act to be involuntary.” [Emphasis added]

It is indeed on this basis that, from the 1940s in places like the Archdiocese of Chicago the so called “good faith solution” was employed, to grant access to Holy Communion to divorced and remarried non-Catholics seeking to join the Church where 1) the validity of the first marriage was in doubt, 2) the second marriage was stable, 3) the parties in good faith believed their second marriage was valid and 4) there was no scandal[23].

6. EXCOMMUNICATION, OBSTINACY AND WARNINGS

The next thing to be noted in relation to Canon 2356 is that, even where the divorced and remarried were taken to be guilty of the crime of bigamy, the penalty of excommunication could only be imposed once a person had spurned the admonition of their Ordinary (i.e. their diocesan Bishop or equivalent – See Canon 134 of the 1983 CCL). That is to say, while in respect of Canon 915 the 2000 PCLT Declaration provided its application for “obstinate persistence” did not require any “attitude of defiance, prior warning, etc”, that was not the case for excommunication under Canon 2356.

Rather, as outlined by Dom Augustine, this excommunication was neither automatic nor exceptionless[24]:

“But the severer penalties are to be inflicted only after a warning, which should be a canonical one (can. 2309), because the penalty to be inflicted (ferendae sententiae) is the heaviest, namely, excommunication or the personal interdict.” [Emphasis added]

On the other hand, Canon 2356 did deem individuals guilty of bigamy to be “by that fact infamous” (i.e. “sunt ipso facto infames”), automatically and without exception. That is, as noted by Ayrinhac[25]:

“Bigamists become ipso facto legally infamous. The penalty is incurred as soon as the attempt at a second marriage has been made, or the formalities for it have been complied with, before consummation.” [Emphasis added]

This penalty, infamy of law (and its relation with infamy of fact), was further described in Canon 2293 of the 1917 CCL[26]:

Ҥ 1. Infamy is either of law or of fact.

§ 2. Infamy of law is that which is expressly established for cases in common law.

§ 3. Infamy of fact is contracted when someone, because of the perpetration of a delict or from depraved morals, has lost the good estimation of the thoughtful and grave members of the faithful, which determination looks to the Ordinary.”

In this regard, as explained by Ayrinhac[27], the consequences of infamy of law were many:

“Infamy means total loss of good name resulting from a fault that is serious and attended in many cases with public contempt …

Infamy of law may be latae or ferendae sententiae. The following incur infamy of law ipso facto: … (vi) bigamists (can. 2356) …

Effects of Infamy. (i) Infamy of law produces an irregularity; moreover, it disqualifies for benefices, pensions, offices, ecclesiastical dignities; for the exercise of the legitimate acts of any ecclesiastical right or office, for any ministry in sacred functions. After sentence of the court a person who is infamous by law cannot vote in canonical elections (can. 167), nor stand as god-father in baptism or confirmation (can. 766-795); nor exercise the right of patronage (can. 1470, § 4); he is not admitted to appear as a witness in an ecclesiastical trial, nor as an expert or arbiter (can. 1757, 1795, 1931); if the infamy is publicly known he ought to be refused holy communion. (Can. 855.).” [Emphasis added]

It is however notable that Ayrinhac did not assume infamy automatically excluded from Holy Communion in accordance with Canon 855, § 1 – This was only taken to be required where the infamy was publicly known.

This approach is similarly taken by Dom Augustine, who did not list refusal of Holy Communion under the effects of infamy of law. Rather, he listed it under the effects of infamy of fact, which Dom Augustine provided was generally (but not automatically) contracted by bigamists and adulterers[28]:

“There is a twofold infamy distinguished in can. 2293: one of law, the other of fact.

a) Infamy of law (iuris) is that expressly stated in common law as a penalty for certain crimes; it is legal conviction of a crime.

b) Infamy of fact (facti) exists when one, by reason of a crime committed, or on account of bad character, has lost his good reputation with upright and serious Catholics. Whether and when this is the case, is for the Ordinary to decide. Generally speaking, apostates, bigamists, adulterers contract infamia facti. But the facts must be proved, not merely asserted, and, as in criminal cases, at least two trustworthy witnesses are required.

c) The effects of legal infamy are stated as follows:

1º. Legal infamy may be inflicted as a penalty, as per can. 2291, n. 4.

2º. Legal infamy involves irregularity according to can. 984, n. 5, and therefore no layman affected by it can receive the tonsure or any order without an apostolic dispensation.

3º. Legal infamy entails disability or disqualification for any ecclesiastical benefice, pension, office, dignity; if conferred, the act is invalid (can. 2391).

4º. It disqualifies the infamous person from performing any legal ecclesiastical act of the kind mentioned in can. 2256, n. 2, especially sponsorship.

5º. It disqualifies the infamous person from exercising any ecclesiastical right or charge, e. g., the right of election, presentation, or nomination, or such charges as are involved in the offices of notaries, defenders, procurators or attorneys, counsel, administrators, and, we suppose, also church trustees.

6º. An infamous person must be prevented from cooperating in sacred functions, such as serving at Mass, carrying the canopy, cross, or censer, playing the organ at divine service, etc.

d) Infamia facti produces the following effects:

1º. It constitutes a canonical impediment for receiving orders, but does not render one irregular (can. 987, n. 7).

2º. It disqualifies one from lawfully (not validly) accepting ecclesiastical dignities, benefices, or offices.

3º. Infamous persons may not exercise any function of the sacred ministry which may ordinarily be performed by laymen, as stated above.

4º. They must be repelled from exercising actus legitimi as explained under can. 2256, n. 2. Those who are manifestly infamous must also be refused the Holy Eucharist (can. 855, §1).” [Emphasis added]

7. INFAMY AND MANIFEST INFAMY

The explanation for why Ayrinhac and Dom Augustine did not consider that Canon 2356 was sufficient by itself to exclude the divorced and remarried from Holy Communion, is that while Canon 2356 deemed bigamists to be “infamous” (i.e. infames), the example given by Canon 855 of those who must be considered publicly unworthy (i.e. publice indigni) and thus barred from Holy Communion were the “manifestly infamous” (i.e. manifestoque infames).

In other words while the 2000 PCLT Declaration ruled for Canon 915 that the condition of the divorced and remarried is “per se manifest”, a view which if applied to Canons 2356 and 855 would mean that the terms “infamous” (i.e. infames) and “manifestly infamous” (i.e. manifestoque infames) could be treated as equivalent, that understanding was not shared by the Commentators to the 1917 CCL.

Rather, as suggested by the canonist Dr. James H. Provost, in a 1980 article in The Jurist[29]:

“Bigamists are legally infamous. Infamy at law does entail exclusion from certain legal acts, but it does not necessarily exclude one from the Eucharist. Canon 855, § 1 is clearly to be enforced only against those who are manifestly infamous. The degree of publicity is a major factor in determining the impact of infamy on access to the sacraments: persons who are legally infamous but not reputed to be infamous in the area may exercise their right to the Eucharist stated in canon 853 provided, of course, they are not conscious of a grave mortal sin (canon 856).” [Emphasis added]

In this regard the meaning of “public” and “manifest” in the 1917 CCL, as understood by Commentators, was summarised at some length by Fr. John J. Heneghan in a 1945 article in The Jurist. Fr. Heneghan, then Vice-Chancellor and Defender of the Bond of the Diocese of Brooklyn, noted that the Commentators understood these terms with reference to the notions of “public” and “notorious” provided by Canon 2197 of the 1917 CCL in relation to public delicts[30]:

“3. PUBLIC SINNERS

The Code of Canon Law does not define the notion of public sinner, nor does it determine precisely all those who are to be classed as public sinners. Recourse to the pre-Code law shows that there prevailed a rather comprehensive notion as to those persons who, according to the law, were considered as public sinners. The common opinion among pre-Code canonists, so Many relates, was that “public and manifest sinners” included all those who died publicly impenitent, and those who lived in a state of notorious sin, for example, those who lived in a state of notorious concubinage or prostitution, those whose work or duty could not be performed without their committing sin, and members of condemned societies. Furthermore, notoriety was an essential element to be verified before one might be designated a public sinner.

Whether this interpretation of the term public sinner can be considered to have been retained in the new law is not certain. Two problems arise in this matter. Is notoriety, as explained earlier in reference to delicts, an essential note in the designation of a public sinner? Does the term public sinner refer only to those who are guilty of public (or notorious) delicts, or does it include also those who commit a public (or notorious) sin which is not prohibited by a law to which is attached a canonical sanction or penalty?

A delict is essentially an external and morally imputable violation of a law to which a canonical sanction, at least indeterminate, has been attached. Sin is a morally evil human act by which man freely transgresses the law of God. It is thus quite possible that one may commit a public sin which is not necessarily at the same time a public delict. The two are not necessarily identical, although in a particular case they may be such. It is evident that the notion of public sinner certainly includes those who are guilty of either notorious or public delicts. Every delict is a sin, and publicity is verified in both public and notorious delicts.

The majority of canonists who discuss the matter considers that the notion of public sinner includes also public sinners as such, that is, even if they have not committed a canonical delict – a public sin which is prohibited by a canonically sanctioned law. Thus, Cappello states that the notion of public sinner requires as essential elements that there be a grave sin which is publicly known and still perdures, at least by reason of the scandal which it effected.

The opinion of the vast majority of canonists, which does not restrict the notion of public sinner to one who is guilty of a public delict but includes also the person who has committed a public sin as such, reflects the only definition or explanation of a public sinner which has been given by the Holy See. This was contained in the most detailed of four particular legislative enactments of the Holy See in reference to the contracting of marriage by Catholics with public sinners. This particular decree was issued by the Sacred Congregation of the Council on August 28, 1852. It described the public sinner as one whose mortally sinful condition not only could be, but necessarily had to be, concluded from some public and external act.

The notion of the term public sinner as it is explained by the majority of canonists and moralists will be the one understood here concerning the public sinners who are referred to in canon 1066. It will include public sinners as such, together with those who are guilty of canonical delicts, either public or notorious. Therefore, the term public sinner includes: (1) the delinquents who are mentioned in canon 1065, whether their delict is notorious or only public; (2) those who are guilty of any notorious [cf. canon 2197, 2°, 3°] or public [cf. canon 2197, 1°] delict, even if they have not notoriously, either legally or factually, incurred the censure of excommunication or of interdict; and (3) all those who are guilty of a grave sin which is publicly known and still perdures, at least by reason of the scandal which it effected.

To be designated a public sinner it suffices that the sin have attained the publicity which is predicated of a public delict, that is, that it be divulged and commonly known, or at least practically certain to become so. Since every delict is a sin, no greater publicity is required for the designation of a public sinner than for that of a public delinquent. Accordingly, a public sinner is one who is guilty of a grave sin that is either public or notorious.

This opinion is substantiated by the explanation of the notion of public sinner which is given by most canonists. Thus, Cappello describes a public sinner as one whose unworthiness, practically regarded, has become commonly known. He thereby applies to the designation public sinner the notion of publicity which is predicated of a public delict by canon 2197, n. 1. This application of the definition which is given by the Code is explicitly defended by Vlaming.

Most canonists and moralists rightly explain that publicity is verified in public sin not only when the sin is public strictly so-called, but also when it is notorious, in the sense in which publicity and notoriety are predicated of delicts in canon 2197.” [Emphasis added]

In this regard, Canon 2197 provided[31]:

“A delict is:

§ 1. Public, if it is already known or is in such circumstances that it can be and must be prudently judged that it will easily become known;

§ 2. Notorious by notoriety of law, [if it is] after a sentence by a competent judge that renders the matter an adjudicated thing, or after confession by the offender made in court in accord with Canon 1750;

§ 3. Notorious by notoriety of fact, if it is publicly known and was committed under such circumstances that no clever evasion is possible and no legal opinion could excuse [the act];

§ 4. Occult, if it is not public; materially occult, if the delict is hidden; formally occult, if imputability [is not known].” [Emphasis added]

Further Canon 1750, which was mentioned by Canon 2197, provided[32]:

“The assertion of any fact in writing or orally by one party against himself and in favour of the adversary in the presence of the judge, whether freely offered or upon interrogation of the judge, is called a judicial confession.”

And Canon 1902, which outlines when a matter is adjudicated (i.e. res iudicata), provided[33]:

“A matter is considered adjudicated [when]:

§ 1. [There are] two conforming sentences;

§ 2. A sentence is not appealed within the useful time; or if, even though appealed in the presence of the judge from whom, it was deserted in the presence of the judge to whom;

§ 3. There is a sole definitive sentence from which there is given no appeal, according to the norm of Canon 1880.”

It is also worthwhile noting that in making this connection between the content of Canons 2197 and 855, the Commentators were merely following the understanding of pre-code canonists and moralists going back to the patristic period. This tradition is witnessed to by for example St. Thomas Aquinas, who taught[34]:

“A distinction must be made among sinners: some are secret; others are notorious, either from evidence of the fact, as public usurers, or public robbers, or from being denounced as evil men by some ecclesiastical or civil tribunal. Therefore Holy Communion ought not to be given to open sinners when they ask for it …

But if they be not open sinners, but occult, the Holy Communion should not be denied them if they ask for it. For since every Christian, from the fact that he is baptized, is admitted to the Lord’s table, he may not be robbed of his right, except from some open cause … Augustine’s gloss remarks: “We cannot inhibit any person from Communion, except he has openly confessed, or has been named and convicted by some ecclesiastical or lay tribunal.”” [Emphasis added]

That is not to say that this connection between Canons 2197 and 855 was unanimously agreed by all Commentators. For example the then Monsignor John Krol[35] and Fr. James P. Godley[36], while they both taught that the norms of Canon 2197 were required to be applied for these purposes, noted that there was a “familiar discussion” and “controversy” as to if the norms of Canon 1037 should instead be used. The basis for this controversy in respect of Canon 1037, which provided “That impediment is considered public that can be proven in the external forum; otherwise it is occult”[37], was explained by canonist Meletius M. Wojnar[38]:

“In chapter ten the norms regarding the judicial and administrative infliction and declaration of penalties are presented and commentated upon. The author justly remarks that, while this part does not belong to the penal law but rather to the procedural, it is necessary to follow the distribution of the matter according to the Code. There are some important problems in this matter that the author develops and resolves. One of them regards the object of the criminal trial. There are two opinions in this question. The first opinion (Chelodi, Vermeersch-Creusen, Noval, Muniz, Eichmann, De Meester, Baczkowski-Baron-Stawinoga) considers public crime only as the object of trial, according to canon 2197, §1. In the criminal law publicity is determined by that canon. Only in case the public good requires the reparation of scandal and disturbed order should there be a trial. For secret crimes there are other means in canons 1934, §4, and 2186-2194. The second opinion requires the publicity of these crimes according to canon 1037 (Wernz-Vidal, Monitore, Roth, Kurczynski) because canon 2197, §1, determines the publicity of crime for the fifth book of the Code and not for the fourth. The judicial inquisition requires the observation of secrecy; canon 2210 says that from any transgression follows a criminal action, not only public, according to canon 2197, §1. The author is for the second opinion for both penalties ferendae and latae sententiae, against Kurczynski, who applies the first opinion to the penalties latae sententiae and the second opinion to the penalties ferendae sententiae.” [Emphasis added]

However, as noted by Fr. Matthew M. Crotty in 1957, the majority view was that Canon 2197 should be applied[39]:

“The problem of scandal may be a very simple or a very complicated one. If no one in the district knows of the invalidity of the marriage and if no one is very likely to find out about it, then there is no particular difficulty on this point. It is true that the marriage is a matter of public record ‘but it is equally true that the records may be so far removed or so difficult of access that there is no likelihood that the invalidity of the union will be discovered or divulged. The couple may have been married in a far distant state or even in another country.

The problem becomes complicated when there is good possibility that the invalidity may become public knowledge. In this case the prudent judgement of those responsible for permitting or recommending the use of the fraternal-cohabitation arrangement must be the court of final appeal. It may even be possible that some few people in the district already know of the invalidity. In practice it is impossible to determine with mathematical accuracy the number of people whose knowledge of the invalidity makes the case public in the sense of canon 2197 [All are agreed that publicity in this case should be determined according to canon 2197 and not according to canon 1037. Cf. Krol, … Godley, … Sullivan].” [Emphasis added]

8. NOTORIETY OF LAW

From these canons, it can be seen that those guilty of bigamy but only deemed to be ipso facto “infamous”, could not by that reason be treated as “manifestly infamous” by notoriety of law. Both the bigamy and the infamy were deemed, not determined by a judge civil or ecclesiastical, let alone finally adjudicated (i.e. res iudicata).

Similarly, while the civil recognition of a divorce and remarriage may in some sense be understood as a confession of the sin, this recognition does not normally take the form of a judicial confession as required by Canon 1750. This is confirmed by Dom Augustine’s explanation of notoriety of law in Canons 2197, § 2, and 1750, where he states[40]:

“A crime is notorious by notoriety of law (notorietate iuris) if it has become an adjudged matter, according to can. 1902-1904, or judicially confessed, according to can. 1750. Extrajudicial confessions do not render a crime notorious by notoriety of law. Here we must take issue with the assertion that the Code acknowledges such confessions. Thus it has been stated that it would be a notorium juris if the bishop or vicar-general would catch a clergyman in flagranti! The Code contains nothing to that effect, but requires (can. cit.) a confession before the judge sitting in court.” [Emphasis added]

This is further confirmed by both Heneghan[41]:

“A delict … is legally notorious after a judicial sentence which has been rendered by a competent judge in a trial, in a matter which has become adjudged (res iudicata) in any of the three ways outlined in canon 1902, or after the delict has been confessed in a criminal trial, either orally or in writing, whether spontaneously or in answer to a legitimate question by the judge.” [Emphasis added]

And Ayrinhac[42]:

“Delinquencies … are legally notorious after a valid judicial sentence which has become final, that is, from which there is no appeal; and after a confession made in court, in presence of the judge, with all the formalities required to give it a judicial character.” [Emphasis added]

This conclusion is somewhat further reinforced by Canons 1989[43] and 1903[44] of the 1917 CCL, which provided that “a sentence in a matrimonial case” or “on the status of persons” “never pass into an adjudicated matter” (i.e. “res iudicata”), and thus could never result in notoriety of law for the purposes of Canon 2197, § 2.

9. PUBLIC, MANIFEST OR NOTORIETY OF FACT

Given the fact that the infamy of the divorced and remarried could not normally be manifest by notoriety of law, it necessarily follows that the divorced and remarried could only normally be excluded from Holy Communion under Canon 855 if their sin or infamy was “public” or “notorious in fact”.

For these purposes it is noted that the difference between being “public” and being “notorious in fact”, is as explained by Heneghan related to if an individual was subjectively guilty of the relevant crime (i.e. bigamy) or not[45]:

“Canonists agree in general that notoriety is that element which is predicated of a delict when it appears fully culpable, when it is evident that it was the intention of the delinquent freely to commit an act which he knew was contrary to the law … It is precisely this element of inexcusability, arising from the delinquent’s apparent knowledge of the criminal character of his deed, which differentiates a notorious crime or delict from a public delict.” [Emphasis added]

That is, whereas those subjectively guilty of bigamy and therefore infamous under Canon 2356 may have been subject to Canon 855 on the basis that their crime was “notorious in fact”, those divorced and remarried not guilty in that respect could still potentially be subject to Canon 855 if their situation was “public”.

In neither case however did the Commentators consider that the status of the situation/sin/crime of the divorced and remarried as “public” or “notorious in fact” could be determined based on a general rule, automatically and without exception.

Rather, with Pope Francis in AL 300, they recognised that:

“If we consider the immense variety of concrete situations such as those I have mentioned, it is understandable that neither the Synod nor this Exhortation could be expected to provide a new set of general rules, canonical in nature and applicable to all cases.” [Emphasis added]

This can be seen for example in the discussion of Canon 855 by Woywod[46]:

“UNWORTHY PERSONS NOT TO BE ADMITTED TO HOLY COMMUNION

753. Catholics who are publicly known to be unworthy (for example, those who have been excommunicated or interdicted, or who are manifestly of ill repute) must be refused Holy Communion until their repentance and amendment has been established, and satisfaction has been made for the public scandal which they have given. Occult sinners, who secretly ask for Holy Communion, shall be refused by the minister if he knows that they have not amended; if, however, they seek Communion publicly and the priest cannot pass them by without scandal, he shall not refuse them (Canon 855).

These rules are a restatement of the former law. It may be difficult in some cases to judge when a person is to be regarded as a public sinner. No general rule covering all cases can be given for distinguishing a public sinner from an occult one, and the circumstances of every individual case must be considered.” [Emphasis added]

9.1 Public Record, Not Public Knowledge

Even more explicit that divorce and remarriage is not always manifest for the purposes of Canon 2197 was the then Monsignor John Krol in 1950, who was at the time President of the Canon Law Society of America, and later became the strongly orthodox and conservative Cardinal Archbishop of Philadelphia. Writing in The Jurist, in the context of defending the “brother and sister” solution which was later affirmed by Pope St. John Paul II[47], Krol stated[48]:

“An invalid marriage is generally a matter of public record, but it may not be a matter of public knowledge. The very mention of the word “public” brings up the familiar discussion on whether the norm of canon 1037 or 2197 should be applied. Scandal arises not from records in archives, but from the knowledge of the people. If, therefore, the fact of the invalidity is not known, and there is no danger of it being disclosed, the petition can be given consideration. Often the fact of the invalidity is known, but is incorrectly ascribed to defect of canonical form. In such cases, the reception of the sacraments, after a brother-sister permission, would be popularly regarded as a sign of validation, and thus scandal would be avoided.

The danger of scandal should not be underestimated; neither should it be exaggerated. The remarriage of a Catholic after a divorce normally is, and should be, a source of scandal. We cannot, however, ignore the fact that our society accepts divorce as a part of everyday life. In a small town or village, a divorce creates a sensation. In a large city, only a very small percentage of divorce cases rate a notice in the newspapers. Our courts are grinding out divorces at an incredible rate of speed. A prominent judge, who operates but one of a number of the divorce courts in a large city, boasted of his record of efficiency as a public servant. He had granted 84 divorces in less than two hours. This wholesale turnover, coupled with the fact that many people involved in divorces make every effort to conceal their divorce and remarriage, explains why in a particular case there may be no danger of scandal. This is particularly true in our large cities, where a person can practically cover all traces of the past by moving into a new neighborhood or into a suburb. This is not a conjecture, but a reality based on experience of many in the active ministry. In some cases, even the parish priest does not suspect that his happily married parishioners, who are very faithful to their religious obligations, were invalidly married and were not receiving the sacraments.” [Emphasis added]

Krol’s intervention in this regard is particularly significant, as he was a noted defender of the discipline of the Church in relation to remarriage. For example, in response to attempts by some American Bishops in 1972 to allow the Sacraments to the divorced and remarried who in “good conscience” believed their first marriages were invalid (i.e. despite being unable to obtain a declaration of nullity), Cardinal Krol in his capacity as president of the National Conference of Catholic Bishops (“NCCB”) issued a statement[49]:

“[S]aying that the issue of the reception of the sacraments by divorced and remarried Catholics was under study by the Holy See and by the NCCB’s Committee on Pastoral Research and Practices. He referred to a letter from the Holy See which made clear that “dioceses are not to introduce procedures that are contrary to current discipline” while the studies are under way.”

Further, it is worthwhile noting that Krol’s article was well received by other prominent orthodox Catholic theologians and canonists at the time of its publication. In this regard, not only did Krol repeat his teaching outlined above in 1958 while Auxiliary Bishop of Cleveland[50], the explicit endorsements of his intervention included Kelly in 1952[51]:

“Msgr. Krol’s article [“Permission to Parties Invalidly Married to Live as Brother and Sister,: Jurist, XI (Jan., 1951), 7-32.”], by the way, should be read by everyone who may be called upon to judge the advisability and feasibility of the brother-sister arrangement. Of special value is the third part of the article, which gives, in an eminently useful way, the principles to be followed in these cases, as well as detailed suggestions concerning the application of these principles. The author limits this part of the discussion to the external forum, but much of what he says would also be valuable in handling cases in the internal forum.” [Emphasis added]

Godley in 1954[52]:

“Here the problem reaches the zenith of difficulty. It can be assumed that every brother-sister case offers a potential source of scandal. Convincing proof and assurance of the absence of scandal must be had ‘before the granting of permission may be effected. An invalid marriage is generally a matter of public record, yet it may not be a matter of public knowledge. With the mention of the word “public” there can arise a controversy on whether the term should be gaged according to the norm of canon 1037, or that of canon 2197. It seems that the norm of canon 2197 should be used, since scandal arises not from records in archives, but from the knowledge of the people.” [Emphasis added]

Crotty in 1957[53]:

“In 1950 Very Rev. Monsignor Krol (now an Auxiliary Bishop of Cleveland) wrote an article to show that the brother-and-sister arrangement was a very practical means of allowing invalidly married couples to return to the reception of the Sacraments under certain conditions … Each of these treatises is excellent: the writer can hope to add little if anything to the information they contain.” [Emphasis added]

And canonist Arthur Caron in 1962[54]:

“The offence is materially occult (materialiter occultum) if the common life set-up is publicly unknown; it is formally occult (formaliter occultum) but materially public (materialiter publicum) when the fact of common cohabitation is known but, the parties being believed to be lawfully married, the moral and juridical guilt is unknown. Whenever the offence is notorious in fact (notorium notorietate facti), the impossibility for a transgression to remain formally occult is evident; when it is notorious in law (notorium notoiietate juris), it is equally hardly possible for a transgression to remain formally occult, although, as Bishop Krol so aptly remarked, a public fact is not a fact buried in the archives.” [Emphasis added]

Further even those who did not fully adopt Krol’s teaching as their own, such as Fr. Nicholas P. Connolly in 1951, acknowledged it as within the bounds of orthodox views[55]:

“No absolute rule is available to determine what is public in the sense of this law. Vermeersch refuses to be more specific than to say that it is known to a greater part of the particular community. Coronata thinks that the offense is public, or certainly will become public, if it is known to one or more garrulous persons, or to five or six taciturn people in a town, or to seven or eight in a city, and he lines up some good company for himself in Augustine, Benedict XIV, and Gasparri. Beste rejects the mathematical enumeration, prescribing, instead, the judgment of a prudent man who weighs all the circumstances, the number, character and station of the persons who know of it. The authors disagree as to whether the mere fact that a delict is a matter of public record and provable by documents, makes it public, even though it is actually known to no person other than the culprit.” [Emphasis added]

9.2 Other Commentators

Krol’s conclusion in this regard is also supported by the other Commentators. For example, Dom Augustine confirms that in order for a situation to be public and/or notorious, it must be known by the majority of the relevant congregation where Holy Communion is to be received (and that the benefit of doubt argues against exclusion from Holy Communion)[56]:

“The general rule, as laid down by Benedict XIV, is that public and notorious sinners must not be admitted to Holy Communion, no matter whether they demand it publicly or secretly …

The next question is: Who are public and notorious sinners? According to the same Pontiff sinners are public and notorious, (a) if they have been declared such by an ecclesiastical judge, or (b) if they have publicly confessed their crimes or, as we say, “pleaded guilty”; or (c) if they have committed in word or deed a crime that still lasts and is known to the public as not atoned for and therefore is a source of scandal. A sin is therefore notorious when it cannot be concealed, and public, like a matrimonial impediment, when it can be proved in court. All of which supposes, in our case, that the priest as well as the congregation, or at least the larger part thereof, are aware of the unworthiness of the one who wishes to receive Communion. If the priest knows nothing, or doubts the publicity or notoriety of the crime, it would certainly be safer to give the Holy Eucharist to one who publicly asks for it.

The text adds: “quales sunt excommunicati, interdicti manifestoque infantes.” … Infamy is attached to certain crimes, either ipso facto, or by declaration of the ecclesiastical court. Our canon does not distinguish between … infamy of fact and of law …  Hence all these categories are comprised by the term “publice indigni.” …

§ 2. Occult sinners, if they ask secretly and the priest knows they have not amended, should be refused the Bl. Sacrament; but not if they ask publicly and cannot be passed over without scandal.

This rule was made to spare the good name of such occult sinners as have not lost their reputation. Occult sinners are those whose unworthiness or crime is known only to a few persons and, we must add, which will not be proved in court within a short time.” [Emphasis added]

Abbo-Hannan further confirms that a situation will not be public if those few who know are discreet, and even if a situation is public in one place, it may not be in another where that information is not available[57]:

“[I]f there is doubt about the notoriety of the sin, the communicant is to be favored in public …

The minister shall likewise refuse to admit secret sinners if they privately request Holy Communion and he knows they have not repented; but he shall not do so if they publicly request Holy Communion and he is unable to pass them by without scandal. A sin remains secret even if it is known to a few persons, provided they are such that it will not be widely publicized. Even when publicly known, the moral responsibility of the sinner must be publicly known if the sin is to be regarded as public and the sinner as a public sinner. In short, all sinners are secret sinners whose sinfulness before God is not generally known to the public. And they may be secret sinners in one place though public sinners in another; in the place in which their sinfulness is not publicly known, they are to be treated as in canon 855, § 2. Moreover, in applying this provision a confessor cannot employ knowledge that he has derived from the confessional, even to refuse a communicant who requests Holy Communion privately.” [Emphasis added]

And finally Ayrinhac not only notes that exclusion from Holy Communion cannot be enforced as strictly as in former times, but also provides an even more lenient definition of when a situation will be public, suggesting something may remain occult even when known by the majority of the relevant congregation where Holy Communion is to be received, if it is not known to the community more generally[58]:

“Dispositions for Communion. (Can. 855-858.)

145. I. External Worthiness. 1. Divine and ecclesiastical law command absolute exclusion from the Holy Table of all persons publicly unworthy of it, unless they have shown signs of conversion and amendment and repaired the scan­dal given to the community.

(a) The unworthiness is legally public when it has been formally confessed in court or pronounced by sentence of the judge; it is public in fact when it has become generally known. Some canonists do not consider as absolutely or strictly public the guilt known to the majority of the persons present, when, for example, the party who asks for Holy Communion is not known to the community generally. (Cappello, 1. c., n. 74.)

Public here has the sense of notorious in fact. Benedict XIV, who first formulated this law, used the two terms together, public and notorious, to qualify the offence excluding from the sacraments. (Ex omnibus, Oct. 16, 1756.)

The Code names as publicly unworthy the excommunicated, interdicted, or notoriously infamous. Excommunication and personal interdict have that effect only after a condemnatory or declaratory sentence or after general divulgation (Can. 2232; Penal Legislation, n. 57); infamy must be notorious legally or in fact. (Can. 2197, 2293; Penal Legislation, n. 6, 161.) We may consider also as public sinners or publicly unworthy persons commonly known as living in concubinage or married outside of the Church invalidly, or belonging to a forbidden society, or engaged in gravely sinful occupations.

(b) When there is no scandal to repair, the mere fact of going to confession in presence of witnesses will ordinarily suffice as evidence of the necessary amendment, and often also approaching the Holy Table will be interpreted as an indication of conversion.

But when the case calls for the reparation of an injustice or a scandal, or for the removal of a proximate occasion of sin, fulfillment of these conditions must precede the administration of the Holy Eucharist …

In cases of doubt the exclusion should ordinarily not be pronounced, nor probably when the unworthiness, although public elsewhere, remains occult in the place and will likely continue so, at least for a good period of time.

Present conditions usually do not permit the same strict enforcement of the law as in times past and demand always great caution in its application.” [Emphasis added]

It should be noted however that Ayrinhac elsewhere cautions that this more lenient approach ordinarily applies to matters being “notorious in fact”, rather than merely “public”. On the other hand, he does note that where a fact is publicly known (such as for example cohabitation), it can still be formally occult, where its irregular nature is not public (i.e. that the cohabitation is not sanctioned by a valid marriage)[59]:

“Occult, Public, Notorious. (Can. 2197.) Delinquencies are always external acts, but they may be unknown or known in various degrees; hence the division into occult, public and notorious.

(a) They are occult, in the full and strictest sense, when they are known to no one but the agent. They are also considered as practically unknown and occult when they are known to only two or three prudent and discreet persons who are not likely to divulge them. They are occult materially, when the fact itself is unknown; formally, when the fact being known, its disorderly character is not.

(b) Delinquencies are public when they already are or, in all probability, will soon be divulged. To how many persons they should be known to be considered as divulged, is not defined by law nor can it easily be, as so much depends on circumstances and the character of the witnesses. St Alphonsus holds that a crime may still remain occult although it be known to five or six persons, or even seven or eight in a large city. In another place he goes farther and demands for a crime to become truly public, that it be known to the greater part of the town, the neighborhood or the community. (Lib. vii, n. 76.) This is not, however, the ordinary sense of public as distinct from notorious. (D’ Annibale, i, n. 242, note 49; Gasparri, Tractatus Canonicus de Matrimonio, n. 252, Paris, 1891; Tractatus Canonicus de Sacra Ordinatione, n. 222.)” [Emphasis added]

10. CONCLUSIONS

In light of the above, it can safety be said that for the Commentators, the 1917 CCL did not provide an absolute, automatic and exceptionless ban on the reception of Holy Communion by the divorced and remarried.

Rather these Commentators understood that under the 1917 CCL, the divorced and remarried could not be refused Holy Communion in two circumstances, being where:

1. Good Faith – The person was not subjectively culpable of bigamy/adultery (i.e. such that Canon 2356 did not apply), due to being in good faith that their current union was their only presently valid marriage, and their irregular situation was not infamous or public in fact (i.e. such that Canon 855 did not apply).

2. Occult in Fact – While the person was at least venially culpable of bigamy/adultery, such that they incurred infamy of law under Canon 2356, it could not be said:

a) They had ignored a warning from their Bishop (i.e. so no excommunication or personal interdict could be imposed); or

b) The irregular nature of their situation was manifest/notorious/public in fact (i.e. such that Canon 855 did not apply).

In this regard, not only are these exceptions similar in their scope to those provided by AL, they are also similar in rationale and application – Exceptions applied on a case-by-case basis due to the objectively grave sin lacking subjective culpability and/or not being manifest/public in fact.

These similarities between the disciplines applied by the Commentators to the 1917 CCL and AL, and their shared differences from the interpretation of Canon 915 by Pope St. John Paul II, arise from the following factors:

Canonical Issue	1917 Commentators	2000 PCLT Declaration
Objective vs Subjective	Canon 2356 – Level of Subjective Culpability Required.	Canon 915 – Only Objective Grave Sin Required.
Obstinacy	Canon 2356 – Warning Required.	Canon 915 – No Warning Required.
Manifest by Law vs Fact	Canon 855 – Manifest by Fact Required.	Canon 915 – Per se Manifest (i.e. Manifest by Law).

Therefore if we return to the question with which this article started, if the interpretation of Canon 915 advanced by AL is within the bounds of the views provided by the Commentators on the 1917 CCL, it is clear that it can be answered in the affirmative.

Following on from this conclusion, it further seems necessary to affirm that rather than being a novelty or rupture with constant and unchanging practice of the Church in relation to divorced and remarried, AL may be better understood as merely restoring the discipline which the pre-conciliar orthodox canonical consensus taught applied under the 1917 CCL.

11. FOOTNOTES

[1] John Krol, ‘Permission to Parties Invalidly Married to Live as Brother and Sister’, 11 The Jurist 7, 1951, p. 24.

[2] Ad sacram communionem ne admittantur excommunicati et interdicti post irrogationem vel declarationem poenae aliique in manifesto gravi peccato obstinate perseverantes.

[3] Hereafter the divorced and remarried.

[4] At Paragraph 2.

[5] Sandro Magister, “Amoris Laetitia” Has a Ghostwriter. His Name Is Víctor Manuel Fernández [website], 2016, http://chiesa.espresso.repubblica.it/articolo/1351303bdc4.html?eng=y, (accessed 6 February 2018).

[6] Victor Manuel Fernandez, ‘El capítulo VIII de Amoris Laetitia: lo que queda después de la tormenta’, Medellin, volume XLIII No. 168 Mayo – Agosto (2017) pp. 449-468, https://web.archive.org/web/20170903011043/http://documental.celam.org/medellin/index.php/medellin/article/viewFile/182/182 (Accessed 6 February 2018). An English translation, which has been relied upon here, is available from https://rorate-caeli.blogspot.com/2017/08/full-text-pope-francis-ghostwriter-of.html (Accessed 6 February 2018).

[7] Please see in particular Section 3.5 Authentic Interpretation, for an outline of why AL‘s reinterpretation of Canon 915 outlined above should be accepted as both canonically valid and binding.

[8] Edward N. Peters, The 1917 Or Pio-Benedictine Code of Canon Law: In English Translation with Extensive Scholarly Apparatus, San Francisco, CA, Ignatius Press, 2001, p. xxxiii. (https://books.google.com.au/books?id=2XbtF6Y21LUC) (Accessed 30 January 2018). English translations of the 1917 CCL in this article are primarily sourced from this book.

[9] Edward N. Peters, Topical Commentaries on the 1917 Code [website], 2013, https://web.archive.org/web/20171217175545/www.canonlaw.info/canonlaw_cites17-T.htm, (accessed 4 February 2018).

[10] Peters, The 1917 Or Pio-Benedictine Code of Canon Law: In English Translation with Extensive Scholarly Apparatus, p. xxxiv.

[11] Bigami, idest qui, obstante coniugali vinculo, aliud matrimonium, etsi tantum civile, ut aiunt, attentaverint, sunt ipso facto infames; et si, spreta Ordinarii monitione, in illicito contubernio persistant, pro diversa reatus gravitate excommunicentur vel personali interdicto plectantur.

[12] § 1. Arcendi sunt ab Eucharistia publice indigni, quales sunt excommunicati, interdicti manifestoque infames, nisi de eorum poenitentia et emendatione constet et publico scandalo prius satisfecerint. § 2. Occultos vero peccatores, si occulte petant et eos non emendatos agnoverit, minister repellat; non autem, si publice petant et sine scandalo ipsos praeterire nequeat.

[13] Henry A. Ayrinhac, Penal legislation in the New Code of Canon Law, New York, NY, Benziger Brothers, 1920, p. 298 (https://archive.org/stream/penallegislatio00ayrigoog#page/n300/mode/1up/search/2356) (Accessed 30 January 2018).

[14] John C. Ford and Gerald Kelly, Contemporary Moral Theology Volume 1 – Questions in Fundamental Moral Theology, Westminster, MD, The Newman Press, 1959, pp. 253-257.

[15] Nomine delicti, iure ecclesiastico, intelligitur externa et moraliter imputabilis legis violatio cui addita sit sanctio canonica saltem indeterminata.

[16] Imputabilitas delicti pendet ex dolo delinquentis vel ex eiusdem culpa in ignorantia legis violatae aut in omissione debitae diligentiae; quare omnes causae quae augent, minuunt, tollunt dolum aut culpam, eo ipso augent, minuunt, tollunt delicti imputabilitatem.

[17] §1. Dolus heic est deliberata voluntas violandi legem, eique opponitur ex parte intellectus defectus cognitionis et ex parte voluntatis defectus libertatis. §2. Posita externa legis violatione, dolus in foro externo praesumitur, donec contrarium probetur.

[18] §1. Vis physica quae omnem adimit agendi facultatem, delictum prorsus excludit. §2. Metus quoque gravis, etiam relative tantum, necessitas, imo et grave incommodum, plerumque delictum, si agatur de legibus mere ecclesiasticis, penitus tollunt. §3. Si vero actus sit intrinsece malus aut vergat in contemptum fidei vel ecclesiasticae auctoritatis vel in animarum damnum, causae, de quibus in §2, delicti imputabilitatem minuunt quidem, sed non auferunt.

[19] Dom Augustine (ne Charles Bachofen), A Commentary on the New Code of Canon Law, Volume VIII, Book V, St. Louis, MO, B. Herder Book Co, 1922, p. 412. (https://archive.org/stream/commentarycanon08charuoft#page/n425/mode/2up/search/2356) (Accessed 29 January 2018).

[20] Catechism of the Catholic Church 1756 (http://www.vatican.va/archive/ccc_css/archive/catechism/p3s1c1a4.htm).

[21] For further explanation of the mitigation of culpability arising from “necessity”, in respect of circumstances such as threatened harm to children, please see Section 2.3 Consequences as Mitigating Circumstances in my Amoris Laetitia – An Apologia for its Orthodoxy.

[22] Summa Theologica I-II, q. 19, a. 6 (http://www.newadvent.org/summa/2019.htm#article6). For further explanation of how subjective certainty of nullity may result in inculpable ignorance, please see Section 1.4 Internal Forum and Nullity in my Amoris Laetitia – An Apologia for its Orthodoxy.

[23] Raymond G. Carey, ‘The Good Faith Solution’, 29 The Jurist 416, 1969, pp. 428-438.

[24] Dom Augustine, A Commentary on the New Code of Canon Law, Volume VIII, Book V, p. 413.

[25] Ayrinhac, Penal legislation in the New Code of Canon Law, p. 298.

[26] §1. Infamia est vel iuris vel facti. §2. Infamia iuris illa est quae casibus iure communi expressis statuitur. §3. Infamia facti contrahitur, quando quis, ob patratum delictum vel ob pravos mores, bonam existimationem apud fideles probos et graves amisit, de quo iudicium spectat ad Ordinarium.

[27] Ayrinhac, Penal legislation in the New Code of Canon Law, pp. 156-157.

[28] Dom Augustine, A Commentary on the New Code of Canon Law, Volume VIII, Book V, pp. 245-247.

[29] James H. Provost, ‘Intolerable Marriage Situations Revisited’, 40 The Jurist 141, 1980, p. 186  (https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?referer=https://www.google.com.au/&httpsredir=1&article=2080&context=tcl) (Accessed 30 January 2018).

[30] John J. Heneghan, ‘The Marriages of Unworthy Catholics: Canons 1065 and 106’, 5 The Jurist 389, 1945, pp. 407-410.

[31] Delictum est: § 1. Publicum, si iam divulgatum est aut talibus contigit seu versatur in adiunctis ut prudenter iudicari possit et debeat facile divulgatum iri; §2. Notorium notorietate iuris, post sententiam iudicis competentis quae in rem iudicatam transierit aut post confessionem delinquentis in iudicio factam ad normam can. 1750; §3. Notorium notorietate facti, si publice notum sit et in talibus adiunctis commissum, ut nulla tergiversatione celari nulloque iuris suffragio excusari possit; § 4. Occultum, quod non est publicum; occultum materialiter, si lateat delictum ipsum; occultum formaliter, si eiusdem imputabilitas.

[32] Assertio de aliquo facto, in scriptis aut oretenus ab una parte contra se et pro adversario coram iudice, sive sponte, sive iudice interrogante peracta, dicitur confessio iudicialis.

[33] Res iudicata habetur: § 1. Duplici sententia conformi; § 2. Sententia intra utile tempus non appellata; aut quae, licet appellata coram iudice a quo, deserta fuit coram iudice ad quem; § 3. Sententia definitiva unica, a qua non datur appellatio ad normam can. 1880.

[34] Summa Theologica IIIa, q. 80, a. 6 (http://www.newadvent.org/summa/4080.htm#article6).

[35] Krol, ‘Permission to Parties Invalidly Married to Live as Brother and Sister’, p. 24.

[36] James P. Godley, ‘Brother-Sister Arrangement in Invalid Marriages’, 14 The Jurist 253, 1954, p. 267.

[37] Publicum censetur impedimentum quod probari in foro externo potest; secus est occultum.

[38] Meletius M. Wojnar, ‘Book Reviews – The Penal Law: A Commentary’, 29 The Jurist 332, 1969, pp. 342-343.

[39] Matthew M. Crotty, ‘Cases and Studies – The Invalidly Married Living as Brother and Sister’, 17 The Jurist 59, 1957, p. 94.

[40] Dom Augustine, A Commentary on the New Code of Canon Law, Volume VIII, Book V, p. 16.

[41] Heneghan, ‘The Marriages of Unworthy Catholics: Canons 1065 and 106’, p. 391.

[42] Ayrinhac, Penal legislation in the New Code of Canon Law, pp. 29.

[43] Cum sententiae in causis matrimonialibus nunquam transeant in rem iudicatam, causae ipsae, si nova argumenta praesto sint, retractari semper poterunt, firmo praescripto can. 1903.

[44] Nunquam transeunt in rem iudicatam causae de statu personarum; sed ex duplici sententia conformi in his causis consequitur, ut ulterior propositio non debeat admitti, nisi novis prolatis iisdemque gravibus argumentis vel documentis.

[45] Heneghan, ‘The Marriages of Unworthy Catholics: Canons 1065 and 106’, p. 392.

[46] Stanislaus Woywod and Fr. Callistus Smith, A Practical Commentary on the Code of Canon Law, New York, NY, Wagner, 1952, pp. 856-857 (http://slatts.blogspot.com.au/2007/09/more-on-canon-855-1917-code.html) (Accessed 2 February 2018).

[47] For a brief explanation of the “brother and sister” solution, as well as its history, please see my History of the Brother and Sister Solution.

[48] Krol, ‘Permission to Parties Invalidly Married to Live as Brother and Sister’, p. 24.

[49] Kenneth R. Himes and James A. Coriden, ‘Notes on Moral Theology 1995 – Pastoral Care of the Divorced and Remarried’, Theological Studies, 57, 1996, p. 100, http://cdn.theologicalstudies.net/57/57.1/57.1.6.pdf (Accessed 7 February 2018).

[50] John J. Krol, ‘Permissible Cohabitation in Invalid Marriages’, 18 The Jurist 279, 1958, p. 301.

[51] Gerald Kelly, ‘Notes on Moral Theology 1951’, Theological Studies, 13, 1952, p. 81, http://cdn.theologicalstudies.net/13/13.1/13.1.3.pdf  (Accessed 7 February 2018).

[52] Godley, ‘Brother-Sister Arrangement in Invalid Marriages’, p. 267.

[53] Crotty, ‘Cases and Studies – The Invalidly Married Living as Brother and Sister’, p. 89.

[54] Arthur Caron, ‘Canon Law and Moral Theology’, 22 The Jurist 319, 1962, pp. 328-329.

[55] Nicholas P. Connolly, ‘Christian Burial – An Outline for Chancery Office Officials’, 11 The Jurist 355, 1951, pp. 371 – 372.

[56] Dom Augustine (ne Charles Bachofen), A Commentary on the New Code of Canon Law, Volume IV, Book III, St. Louis, MO, B. Herder Book Co, 1920, pp. 229-231. (https://archive.org/stream/acommentaryonthe00charuoft#page/n3/mode/2up) (Accessed 29 January 2018).

[57] John Abbo and Jerome Hannan, Sacred Canons, A Concise Presentation of the Current Disciplinary Norms of the Church, rev. ed., St. Louis, MO, B. Herder Book Co, 1957, pp. 885-856.

[58] Henry A. Ayrinhac, Legislation on the Sacraments in the New Code of Canon Law, New York, NY, Longmans, Green & Co, 1928 (http://slatts.blogspot.com.au/2007/09/more-on-canon-855-1917-code.html) (Accessed 2 February 2018).

[59] Ayrinhac, Penal legislation in the New Code of Canon Law, pp. 28-29.