Rorate Caeli

Catholic Divorce: Can zealous Bishops and Cardinals question the Annulment Reform and ask for its abrogation?

Can the governing acts of the Pope be questioned?

Roberto de Mattei
Corrispondenza Romana
September 18, 2015

Sandro Magister has documented the vulnus inflicted on Christian matrimony by Pope Francis’ two Motu Proprio with an in-depth article, which adds to Antonio Socci’s comments in “Libero”, Paolo Pasqualucci’s on “Chiesa e Post Concilio” and to my article in Corrispondenza Romana. Confirmation that there is an atmosphere of deep unease in the Vatican has come from the other side  from the news service “Die Zeit” of September 10th, concerning the dossier that is apparently circulating in the Vatican against the marriage annulment procedures of Pope Francis.

At this point a delicate problem is now placed before many consciences. Whatever judgment we have about the Motu Proprio, it is [nonetheless] presented as an act of personal and direct government by the Supreme Pontiff. Yet, can a Pope be mistaken in the promulgation of ecclesiastical laws? Further, if there is dissent, is it not however respectful to have an attitude of silence in his regard? 

The answer comes to us from the doctrine and history of the Church.  Many times actually, it has happened that Popes have been mistaken in their political, pastoral and even magisterial acts, without in any way undermining the dogma of the Roman Primate’s  infallibility.  The resistance of the faithful to these erroneous acts, and in some instances illegitimate by some Supreme Pontiffs, has always been of benefit to the life of the Church.

Without going too far back into the past, I’d like to focus on an event of two centuries ago. The pontificate of Pius VII (Gregorio Chiaramonti: 1800-1823), like his predecessor’s Pius VI, went through periods of grievous tension and bitter struggles between the Holy See and Napoleon Bonaparte, the French Emperor.  Pius VII, signed a concordat with Napoleon on July 5th 1801, thinking [that by doing so] he was bringing an end to the era of the French Revolution, but Bonaparte proved very quickly that his real intention was to form a national church subordinate to his power.  On December 2nd 1804, Napoleon crowned himself Emperor (by his own hands) and a few years later invaded Rome again, annexing the Pontifical States to France. The Pope was imprisoned and transferred to Grenoble and then to Savona (1809-1812).

The conflict increased with the Emperor’s second marriage. Napoleon had married Josephine Beauharnais on December 2nd 1804. On the eve of the coronation, the Empress threw herself at the feet of Pius VII and confessed that her union with the Emperor had been only through a civil marriage.  The Pope then made it known to Napoleon that he would not have proceeded with the coronation until after the religious marriage.  The marriage was hastily celebrated at night by Cardinal Fesch, Napoleon’s uncle.  Josephine, however, did not give any heirs to Napoleon and her origins were too humble for one who wanted to rule Europe by forming alliances with its sovereigns.

The Emperor then decided to have his marriage annulled in order to marry Maria Luisa  of Austria, daughter of the most important European sovereign. In 1810,  a senatus consultus dissolved the civil marriage and immediately after, the diocesan tribunal of Paris delivered a judgment of nullity on Napoleon and Josephine’s religious marriage. The Holy See did not recognize this declaration of nullity, emitted by obliging prelates, and, on April 2nd 1810, when the Emperor entered the Chapel of the Louvre for his second marriage, to Maria Luisa, he found the places assigned to thirteen Cardinals invited to the ceremony, empty. The Emperor treated them as rebels and enemies of the State, since with this act they had wanted to express their conviction that his first marriage could only be dissolved by the Pope.  For this, the thirteen cardinals were condemned to abandon immediately their religious garments and insignia and dress as ordinary priests: from this [comes] the name “black cardinals” or “the zealous” (zelanti) in contrast with the “red”  who were loyal to Napoleon and in favor of his marriage.  
Pius VII wavered between the two tendencies, but on January 25th 1813, worn out by the fight, signed a Treatise between the Holy See and the Emperor where he undersigned some conditions incompatible with Catholic Doctrine. The document, known as “the Concordat of Fontainebleau” (the text can be found in the Enchiridion dei Concordati. Two Centuries of Church-State Relations, EDB, Bologna 2003, nn. 44-55) in fact, accepted the principle of the Holy See’s submission to the French national authority, placing, effectively, the Church in the hands of the Emperor.

This act, which was done publicly by the Pope as Head of the Catholic Church, was immediately judged by contemporary Catholics as catastrophic and is still considered such by Church historians. Father Ilario Rinieri who dedicated three volumes to the study of the relations between Pius VII and Napoleon writes that the Fontainebleau Concordat “was as ruinous for the sovereignty of the Roman Pontiff  as it was for the Apostolic See” (Napoleon and Pius VII (1804-1813). Historical Reports on unpublished documents from the Vatican Archives. Unione Tipografico- Publisher, Turin 1906, vol. III, p. 323), adding: “Why had the Holy Father Pius VII allowed himself to be induced to sign a treatise which contained conditions so ruinous? An occurrence, in which the explanation goes beyond the laws of  history”. (ibid, p. 325)

“The sense of foreboding and the dreadful effects that the publication of this Concordat produced are indescribable”, recalls Cardinal Bartholomew Pacca (1756-1844), in his Historical Memoirs (Ghiringhello and Vaccarino, Rome 1836, vol. I, p. 190).There was no scarcity of those who had accepted the Concordat enthusiastically, as well as those, while criticizing it privately, did not dare express themselves publicly, out of servility or bad theological Catholic doctrine.  Cardinal Pacca, Pro-Secretary of State to Pius VII, belonged instead to that group of Cardinals, who, after having tried in vain to dissuade the Pope from signing  the document, declared that: “there was no other remedy for the scandal given to Catholicism and to the very grave evils that the implementation of that Concordat would have brought on the Church, than an immediate retraction and general annulment of it entirely on the part of the Pope; and they attached the well-known example in Church history of Paschal II. (Historical Memoirs, vol. II, p.88).

The retraction arrived. Confronted with the protests from the “zealous” Cardinals, Pius VII, with great humility, realized his error and, on March 24, signed a letter to Napoleon in which we find these words: “Of that document, even if signed by Us, we will say to Your Majesty the same thing that was said to our Predecessor Paschal II in a similar case of a declaration signed by him containing a concession in favor of Henry V, of which his conscience had reason to repent, that is, “as We recognize that declaration as a bad deed, so We confess it as a bad deed, and with the help of the Lord, We desire that it be amended immediately so that no damage to the Church and no detriment to Our soul result from it”. (Enchiridion cit. n. 45, pp. 16-21).

Knowledge of the retraction by the Pope didn’t arrive right away in Italy - only the matter on the signing of the Concordat.  Consequently, Venerable Pio Brunone Lanteri (1759-1830), who lead the movement “Amicizie Cattoliche” (Catholic Friendships) immediately composed a letter of strong criticism about the Pope’s act, and among other things, he wrote: “ I will be told  that the Holy Father can do anything, 'quodcumque solveris, quodcumque ligaveris etc.’, this is true, but he can do nothing against the Divine Constitution of the Church; he is the Vicar of God, but he is not God, neither can he destroy the work of God.” (Writings and  Archival Documents, II, Polemics-Apologetics, Edition Lanteri, Rome-Fermo 2002, p. 1024 (pp. 1019-1037)) The Venerable Lanteri, who was a strenuous defender of the rights of the Papacy, admitted the possibility of resisting a Pontiff in the case of error, knowing well that the power of the Pope is supreme, but not unlimited and arbitrary.

The Pope like any other faithful Catholic must respect the Divine and Natural Law, of which he, by divine mandate, is the guardian. He cannot change the rule of faith nor the Divine constitution of the Church ( for example: the Seven Sacraments) just as any temporal sovereign cannot change the fundamental laws of the kingdom, since, as Bossuet recalls, in violating them « all the foundations of the earth are shaken » (Sal. 81, 5) (Jacques-Benigne Bossuet, Politique tirée des propres paroles de l’Ecriture Sainte, Droz, Geneva, 1967 (1709), p. 28).

No one could accuse Cardinal Pacca of excessively strong language or Pio Brunone Lanteri of lacking attachment to the Papacy. The concordats, like motu proprio, apostolic constitutions, encylicals, bulls and briefs are all legislative acts which express the Pontiff’s will, but they are not infallible, unless the Pontiff, in promulgating them, intends to define points of doctrine or morality in a binding manner for every Catholic. (Cfr. R. Naz, Lois ecclésiastique, in Dictionnaire de Théologie catholique, vol. VI, col. 635-677).  

Pope Francis’ Motu Proprio on the nullity of matrimony, is an act of government which can be questioned and removed by a subsequent act of government. Benedict XVI’s Motu Proprio Summorum Pontificum of July 7th 2007 on the traditional liturgy was debated and strongly criticized (see for example, the comparison of two voices, Andrea Grillo – Pietro De Marco. Ecclesia universa o introversa. Debate on the motu proprio Summorum Pontificum, Edition San Paolo, Cinisello Balsamo (MI) 2013). 

Pope Francis’ Motu Proprio, until now, his most revolutionary act of government yet, will not come into effect until December 8th 2015. Is it illegitimate to ask the Synod to question this matrimonial reform and that a group of “zealous” (zelanti) cardinals ask for its abrogation?

[Translation: Contributor Francesca Romana]