A Canonica & Theological Study on the SSPX
by SISI NONO
The 1988 Consecrations
Canonical Study Part 1, 2, 3, 4, 5
Theological Study Part 1,2
A. Dogma is defended by maintaining the Mass of All Time
1. Archbishop Lefebvre and the so-called "Lefebvrists"
Ten years ago, 83-year-old Archbishop Marcel Lefebvre, sensing that he was approaching the hour of his death, consecrated four bishops without waiting for the pontifical mandate (promised in exhausting negotiations, but always postponed or subjected to destabilizing conditions) in order to provide for the survival of the Society of Saint Pius X. The Society had been founded by him in November 1970 at the request of a group of French seminarians who asked his assistance to maintain sound Catholic doctrine, to preserve the Catholic seminaries imbued with that faith, and to celebrate the Holy Mass of the so-called Tridentine rite. As a consequence of these episcopal consecrations, Archbishop Lefebvre, already considered "rebellious" for refusing to do away with the Society as the local Ordinary [H.E. Bishop Mamie] had arbitrarily ordered him to do and suspended a divinis for having ordained priests, was excommunicated ipso facto and doubly accused of being disobedient to the Pope and schismatic.
By this excommunication, the Holy See sent Archbishop Lefebvre and the Society founded by him [with Rome's canonical approval and blessing --Ed.] into exile. The so-called "Lefebvrists," a label applied to clerics and laity, were made unpopular. We say "so-called" Lefebvrists because a "Lefebvrism" does not exist and never existed. A "doctrine" of Archbishop Lefebvre, in fact, does not exist. His enemies have tried to write him off as "schismatic" or even "heretical," but as anyone knows who has studied the facts, these accusations are false.
Archbishop Lefebvre is not the head of a sect. He never wished to establish one. He is not to be considered the head of "traditionalists" in general. His religious thought, which is known from his sermons and various exegetic and homiletic writings, is absolutely orthodox and permeated with zeal for Catholic Truth. He has been marginalized and persecuted because he wished to remain loyal in faith and work to the constant teaching of the Church, without respect of persons. The so-called "Lefebvrists" are nothing but Catholics faithful to what the Church has taught for almost 20 centuries up to the Second Vatican Council. Strictly speaking, therefore, it is not correct to call them "traditionalists." It is better said that they are faithful to Catholic Tradition. The Tradition in Catholicism is precisely fidelity to the dogma consecrated by the Magisterium of the Church.
2. A Corrupt Liturgical Rite
Anyone who wishes to be faithful to dogma must be obedient to the principle of salvation proclaimed by our risen Lord, "Be you faithful until death and I will give you the crown of life" (Apoc. 2:10). The novelties which have emerged from Vatican II are disturbing and cannot be accepted.
Here is a council of the Church held with the express purpose of opening the Church up to the world [i.e., aggiornamento], an intention unlike any other in the history of the Church. It declared itself only a pastoral council and not a dogmatic one, hence a trustee of a spurious magisterium. It is responsible for disseminating grave ambiguities in doctrine. It gave a new "ecumenical" definition of the Catholic Church, promoted a "collegiality" of a democratic or semi-conciliarist sort, and advertised freedom of conscience of the liberal-Jacobean variety. The "spirit" of this council conceived the Novus Ordo Missae, that is, the "Mass of Paul VI," with its idea of a table in order to be theologically agreeable to the protestant heretics of which six participated in its very formulation. There is a question whether this Mass is theologically dubious and necessarily an ambiguous rite since it was supposed to please the heretics.
3. The "Celebrating" People
It is true that corrections were made to the scandalous first edition of the New Mass (1969). These were instigated by the indignant and documented criticisms of theologians and scholars headed by Cardinals Bacci and Ottaviani. But one notes the presence of all the same protestant heretical concepts in the definitive text of 1970.
The first of these protestant concepts is to equate the ordained priesthood with the faithful by speaking of the faithful’s participation in the celebration of the Holy Sacrifice in a new manner. There is ground for a new mentality believing the Mass is a "concelebration" of priest and people. This idea was condemned with great clarity by Pope Pius XII in Mediator Dei.(1) As a consequence of this, the priest is no longer considered the exclusive minister of the Holy Eucharist, a Catholic teaching defined by the Magisterium. The minister becomes, on the contrary, the "people of God," which "has to send the prayers of the whole human family up to God," as if it exercised a sort of priestly mediation in behalf of all humanity which is understood to include, therefore, non-believers, non-Catholics, and atheists.(2)
As a consequence of Vatican II, the Holy Mass -- the "sacerdotal" prayer of the "people of God" -- has acquired an ecumenical significance and, therefore, the stamp of heterodoxy. The "people of God" is identified with humanity, a realization of the unity of the human race, of which unity the Holy Mass becomes a signal moment.(3)
The new rite expresses a depreciation of the ministry of the priest and an erroneous concept of the common priesthood of the faithful because the expiatory sacrifice celebrated by the presider is conceived as celebrated by the people, which "alone...enjoys a true priestly power, while the priest acts merely through the office entrusted to him by the community," a thesis condemned by Pius XII in Mediator Dei (Dz.2300). This new definition of the Sacrifice of the Mass appears in the clearest fashion in the notorious Article 7 of the Instruction of the Novus Ordo Missae 1970, in which it is dared to be written:
In Missa seu Cena dominica populus Dei in unum convocatur, sacerdote praeside personamque Christi gerente, ad memoriale Domini seu sacrificium eucharisticum celebrandum -- In the Mass or the Lord's Supper the People of God are called together in one place where the priest presides over them and acts in the person of Christ. They assemble to celebrate the Memorial of the Lord, which is the sacrifice of the Eucharistic.
Notice three things: 1) the celebrant, even if representing the person of Christ, is only the president of the Assembly, as if he were a Protestant minister; 2) it is the assembly that is gathered together in order to "celebrate" the memorial of the Lord; and 3) the memorial of the Lord is called a "eucharistic sacrifice," but not a propitiatory one. This distinction would not have pleased the protestants. The text ineffectively expresses the idea of expiatory sacrifice required by the Faith. [It should be mentioned that the 1970 version of the Instruction of the Novus Ordo Missae was a revision under pressure from more traditional bishops of the 1969 version which is theologically worse than the 1970! (See Pope Paul's New Mass, "Revisions to the Instructio Generalis," by Michael Davies. Price: $19.95 from Angelus Press) --Ed.]
4. An Ambiguous "Real Presence"
One would think the rest of Article 7 (1970) would recall the dogma of transubstantiation. On the contrary, it is never mentioned. Instead, we find it replaced by an ambiguous "Real Presence," acceptable to protestants who reject transubstantiation. The 1970 text continues:
Hence the promise of Christ: "Wherever two or three are gathered together in my name, there am I in the midst of them" (Mt. 18:20) applies in a special way to this gathering of the local church.
For in the celebration of the Mass whereby the Sacrifice of the Mass is perpetuated, Christ is really present in the very community which is gathered in His name, in the person of His minister and also substantially and continuously under the eucharistic species.(4)
This definition speaks as if the "Real Presence" is no longer reserved to the unique presence that results from transubstantiation, but is extended to the presence (non-sacramental) of Christ in the "assembly," in the "person of the minister," and in His Word. This same presence, which is "in a substantial and permanent manner" under the Eucharistic species, depends, according to the text, not on transubstantiation, about which it does not speak, but on the assembly being gathered together "in the name" of Christ.
Doesn't all this recall the consubstantiation of the Lutheran heretics, who deny, as has been noted, that Holy Mass really renews the expiatory sacrifice of our Lord on Calvary?(5) The lack of reference to transubstantiation helps us understand why all the traditional signs of faith [e.g., interior gold-plating of the sacred vessels, kneeling for Holy Communion, etc. --Ed.] have been taken away.(6)
5. A New Type of "Faith"
Except for the Creed, mention of the Holy Trinity has disappeared from the invocations and prayers of Holy Mass. Liberal protestants do not like it; Jews and Muslims detest it. The Holy Trinity has been replaced by an anonymous "God of the universe." It is true that the celebrant may bring up such a subject matter in his homily, but it is so vast it is frequently skipped.
As Archbishop Lefebvre insisted, the new rite is a "corruption" of the Catholic Mass. How can a rite which pleases heretics and non-Christians be suitable for Catholics? It represents for the priests that celebrate it the faith which was taught to them in seminaries drenched with liberalism and modernism. This is a new type of faith. It is ecumenical, and, even if preserving vestiges of the old Catholic faith, is syncretistic and poisoned with heresy. It is the cult of Humanity and dialogue with error placed side by side with the adoration owed to the Holy Trinity, while not yet taking its place.
A corrupt liturgical rite is a grave danger to the souls of those who assist at it. The new Mass has been one of the most bitter fruits of Vatican II. And all official Catholicism that somehow has survived the ambiguity and repeated infidelity shows signs of a seriously diseased body. Once Catholic societies and nations are suffering declines in birthrate, rebellion, vice and corruption, false religions, a variety of sects, and invasion without reprieve by Muslims.
6. The Merit of Archbishop Lefebvre
Having thought it put Archbishop Lefebvre out in the cold with its arbitrary excommunication of him, the Vatican might have thought it succeeded dissolving the bastion of fidelity to dogma represented by the Society of Saint Pius X. But this is not the case. Despite material difficulties of every kind, the Society today numbers over 400 priests, has 180 seminarians in training, 120 sisters, 65 oblates, and 55 brothers. It maintains five international seminaries. It is alive and kicking, for which it thanks the Lord. A few years ago, Cardinal Ratzinger admitted his astonishment regarding the extension and apostolate of the Society.
Catholics faithful to dogma relish being able to assist at the Mass of All Times in the churches and chapels of the Society of Saint Pius X to the great and inestimable benefit of their souls. They are not constrained to recognize -- against their conscience -- "the legitimacy and the doctrinal correctness" of the missal promulgated by Pope Paul VI,(7) as happens on the contrary to whomever frequents the Tridentine Mass conceded by the Indult of Pope John Paul II, in which Indult, for the record, this condition is found formulated. It is a matter of a recognition, which, even if implicit, is dangerous for the salvation of souls, given that the "doctrinal correctness" of the Mass of Paul VI is, as has been seen, doubtful.
We do not know if the lack of doctrinal correctness is such as to have to consider the new rite invalid a priori. We don't have the authority to make a definitive judgment in the matter. We know, however, that if we hold to the salvation of our soul, we must avoid the new rite at all costs, with its hyper-politicized priests and the secularized ambience that engulfs it. We are aware of owing the inestimable benefit of being able to attend the truly Catholic Mass to the persevering defense of the Faith undertaken in their times by Archbishop Marcel Lefebvre and Bishop Antonio de Castro Mayer, the only two Bishops who forthrightly defended it, and by the Priestly Society of Saint Pius X founded by Archbishop Lefebvre. We await with unchangeable faith in the work of God for the day when the Holy See, having returned to the sound doctrine of all time, will wipe away the unjust condemnations.
In the meantime, we thank our Lord also for saving us from the seductions laid by Rome to lead back into the "flock" those of us who persist in preferring the true Catholic Mass to that of Pope Paul VI. We make reference to the Motu proprio Ecclesia Dei Adflicta, issued by Pope John Paul II on the occasion of the invalidly applied excommunication of Archbishop Lefebvre. It is the tenth anniversary of that document, the anniversary that some have made the object of triumphant declarations in light of the success of the so-called "Ecclesia Dei Latin Mass communities," established according to the directives and the promises contained in the papal motu proprio. It is true that over the last ten years since Ecclesia Dei Adflicta was released, some 15 priests and 30 seminarians have left the Society of Saint Pius X. But it has held its ground for ten years, please God, even though the competition of the "Ecclesia Dei" communities has invariably moved in nearby.
B. The Illusion of "Ecclesia Dei"
1. The Motu Proprio Ecclesia Dei Adflicta
Why do we say this motu proprio has given life to an illusion? Consider the facts. Issued on July 2, 1988, as if for a comment on the excommunication applied against Archbishop Lefebvre, the document warned all those who until that moment "had been tied in some way to the movement created by Archbishop Lefebvre" to recognize their duty to not support the named "movement."(8) At the same time they held out their hand. How?
In paragraph five of the document, the Pope manifested his will, to which he asked all the Bishops and those invested with the pastoral ministry of the Church to associate themselves, that "ecclesial communion" for the sake of the faithful who are "bound to former liturgical and disciplinary forms in the Latin tradition," by establishing measures that would guarantee their "just aspirations."(9) Therefore, the Pope established the beginnings of a commission [i.e., the Ecclesia Dei Commission --Ed.] presided over by an appointed cardinal and composed of members of the Curia charged with collaborating with the competent organs and interested parties on all sides in order to facilitate "full ecclesial communion" of priests, seminarians, religious communities and individuals up till now affiliated with the Society of Saint Pius X, who desired to remain united to the Successor of Peter "preserving their spiritual and liturgical tradition, in light of the Protocol signed on May 5, 1988 by Cardinal Ratzinger and Archbishop Lefebvre."(10) [For the text of this Protocol of Accord and the archive of all the documents exchanged between Rome and Archbishop Lefebvre in the time leading up to and immediately following his consecration of the four bishops, see Archbishop Lefebvre and the Vatican available from Angelus Press. $12.45 --Ed.]
This famous Protocol of Accord, though not taking effect at the time, constituted the juridical base for organizing those structures which have since been called "Ecclesia Dei communities." These are generally societies of apostolic life composed initially of refugees from the Society of Saint Pius X to whom the privilege of celebrating the aforesaid Mass of St. Pius V and of maintaining "the previous liturgical and disciplinary forms" is granted. Among the first and more notable of these communities are the Benedictine Abbey of St. Madeleine of Le Barroux, France, and the Fraternity of St. Peter.
In various aspects the autonomy accorded to these institutions, however, is rather limited.(11) An important point must be recalled here. In the Protocol of Accord of May 5, 1988, the Holy See acknowledged
for practical and psychological reasons, the consecration of a member of the Society as a bishop appears useful. This is why, in the framework of the doctrinal and canonical solution of reconciliation, we suggest to the Holy Father that he name a bishop chosen from within the Society, presented by Archbishop Lefebvre...(Protocol of Accord, II,5.2)
This means that Rome had in principle accepted the consecration of a bishop faithful to Tradition. Upon reflection, Archbishop Lefebvre doubted Rome's sincerity. In any case, having maintained the Protocol of Accord as the basis for the recognition of the "Ecclesia Dei communities," the official promise of a future bishop was understood. By now, such a consecration for these communities is long overdue. But, up to now there has not been even a hint. In other words, the promise has not been kept.(12)
2. An Indult Gravely Conditioned and Without a Reason for Being
We turn now to the text of the motu proprio. In concluding his instruction, the Pope affirmed that there was a need to respect the "spiritual desire" of the faithful "who feel attached to the Latin liturgy, by applying in a broad and generous way the directives adopted some time ago by the Apostolic See for the use of the Roman Missal according to the typical edition of 1962."(13) To what was the Pope referring? -- Answer: To his indult Quattuor Abhinc Annos, issued on March 10, 1984 and already cited by us, which established, for priests and faithful who had applied to their bishop for it, the possibility of receiving the privilege of celebrating and assisting at the so-called Tridentine Mass. Naturally, the granting of the privilege was subject to some conditions among which were that the petitioners would accept "the legitimacy and the doctrinal correctness of the Roman Missal promulgated in 1970 by the Roman Pontiff, Paul VI" and that such a celebration would take place "only for the use of whoever asked for it" and in the places of worship and under the conditions established by the local ordinary. Parish churches were excluded from concession of the privilege, save extraordinary cases.(14) The exercise of the privilege was subjected to notable limitations and the bishops showed themselves quite deaf to the requests of the faithful for it.(15) The faithful bound in conscience to Tradition continued to assist in great number at the Masses celebrated by the priests of the Society of Saint Pius X.
In 1986, the Pope established a commission of eight cardinals of the Curia with the task of examining the situation and of preparing norms which would establish a new regulatory form for the Indult, valid for the whole Church. These norms, however, were never promulgated.(16)
Perhaps the most important work of this commission [which included Alfonse Cardinal Stickler --Ed.] concerned the question of the suppression or non-suppression on the part of Pope Paul VI of the so-called Tridentine Mass. According to these cardinals Pope Paul VI never formally suppressed this Mass on which account "no bishop has the right to prohibit a Catholic priest from saying the Tridentine Mass."(17)
Though it wasn’t its express purpose to do so, the conclusion of this commission, which holds up under canonical scrutiny, deprives the Indult of any significant necessity. If the Tridentine Mass has never been formally suppressed and continues therefore to exist as a perfectly valid liturgy of Holy Church, celebrating it and assisting at it is a right, not a privilege, and the Indult of Pope John Paul II, which concedes the privilege for it is canonically superfluous.
3. The Passive Resistance of Bishops and the Interpretation of the Holy See
However it may be, the invitation extended to the bishops by the Pope to be "generous" in conceding the permission to celebrate the Tridentine Mass has not been welcomed. The evidence is extremely clear. The bishops turn a deaf ear. At the same time, the demand for that Mass seems to increase, perhaps because the faithful are fed up with the "liturgical anarchy" which, thanks to the Mass of Pope Paul VI, reigns in almost all the parishes universally, though degree and intensity may vary, especially in France.(18)
The attitude of the bishops, however, contradicts that of the Holy See only in appearance. This is the point. The Holy See has made promises, for example, the appointment of a "traditional" bishop, which it has not kept. It established the aforementioned commission of cardinals but its norms, valid for the whole Church and which contain a new regulatory form, have never been promulgated. We give here the first three of the six norms cited in the commission’s summary:
1) In the offices of the Roman Rite, there ought to be accorded to the Latin language the honor due to it. The bishops must try to have at least one Mass in the Latin language in every important locality of their diocese on Sundays and Holy Days. Nevertheless, the readings of the Mass will be able to be done in the vernacular.
2) All priests are able to say, at any time, their private Masses in Latin.
3) For every Mass said in Latin -- be the faithful present or not -- the celebrant has the right of freely choosing between the Missal of Pope Paul VI (1970) and that of Pope John XXIII (1962).(19)
Norm No.3 makes it possible to celebrate the Mass named from Pope St. Pius V, overstepping the limits of the Indult! It is obvious why a norm of this kind has never been promulgated. It would have demonstrated plainly the failure of the liturgical reform by officially putting the "spirit of the Council" in crisis.
On October 13, 1993, the then President of Una Voce, Dr. Eric de Saventhem, asked the Pope to command the authorization of the Mass and the Sacraments according to the ancient rite to be freely accessible throughout the whole Church and thereby bypass the passive resistance of the bishops. He was answered January 17, 1994 by the deputy in charge of general affairs for the Secretary of State, Msgr. Giovanni Battista Re, who wrote that the Ecclesia Dei Commission had conceded the use of the Roman Missal...
...under certain conditions. The diverse dispositions taken after 1984 aim at facilitating the ecclesial life of a certain number of faithful, without however rendering perpetual the previous liturgical forms [i.e., the Tridentine rite and the traditional Sacraments --Ed.]. The general law is that of using the rite revised after the Council, on account of which the use of the previous rite must be understood as being in the order of a privilege which has an exceptional character.
This is the writing on the wall. The purpose of the Ecclesia Dei Commission was only that of "facilitating ecclesial life" for the faithful attracted to the Tradition, but it was not allowed to "render (the ancient rite) perpetual." This phrase means that the ancient rite was being temporarily tolerated so as not to offend the sensibilities of certain faithful, but it was not to be considered a rite destined to remain. The conclusion of the letter was extremely clear in its intention. After having paid formal homage to the "safeguarding of the values which constitute a precious patrimony for the liturgical tradition of the Church," Msgr. Giovanni Battista Re continued by declaring with forceful clarity that...
...the first duty of all the faithful is that of welcoming and probing the wealth of the meanings which are found in the liturgy in force, and of doing it in the spirit of faith and obedience to the Magisterium, by avoiding all opposition harmful to ecclesial communion.(20)
The letter concludes by reminding Dr. de Saventhem that the Holy Father hopes Una Voce [whose current international president is Mr. Michael Davies --Ed.] will contribute to this end.
By the way, Dr. de Saventhem replied to Msgr. Re with two follow-up letters which remained however without an answer. In the first of these letters he wrote:
That at which the faithful assist is nothing other than the innumerable different forms of eucharistic embellishments which have multiplied in the Church for 25 years, appealing to the legitimacy more or less well-grounded of the different editions of the Roman Missal of Paul VI and to the multiple options provided there...In the majority of parishes these celebrations have been simply imposed. That's why the faithful, discouraged, had no other way of avoiding them except the silent exodus...Finally, it is shown by the polls of the last 25 years that a progressive erosion of the faith, even among those who still frequent churches, must be taken into account. Since lex credendi follows lex orandi [i.e., the law of belief follows on the law of prayer --Ed.], is there no need to conclude, then, that the Faith is no longer nourished by the reformed liturgy or even that this latter has accelerated the loss of faith?(21)
4. A "Parenthesis of Tolerance"
The text of Msgr. Re should be taken as an authentic interpretation of the motu proprio Ecclesia Dei. The commission born of this document has not in the least intended to genuinely restore the ancient rite or to even put it on a level of parity with the new rite. It was only a case of being a "pastoral gesture" of Pope John Paul II when faced with the sensibilities of certain faithful "anchored to the past." It is a "parenthesis of tolerance"(22) which does not aim at "rendering perpetual" the ancient rite within the official liturgy of the Church. On the contrary, the clear mandate from Rome is that all the faithful fulfill their duty to follow uncritically the new rite since this is and remains the will of the Pope.
The importance of this letter, of this official interpretation of the motu proprio, is confirmed by the fact that the bishops often cite it in refusing to concede the Mass by means of the Indult.(23) The overwhelming mentality of the present hierarchy is that the Indult to celebrate the Tridentine Mass is nothing other than a parenthesis destined to be closed one day. On account of this we say Ecclesia Dei itself is an illusory carrot which many have bitten, hoping that the present Pontiff would effectively command the full restoration of the ancient rite of Holy Mass with equal dignity in respect to the new.
But the day of a rude awakening is drawing nigh. The recent demands sent to the "Ecclesia Dei communities" by the Secretary of the Ecclesia Dei Commission, Msgr. Camille Perl, demonstrate this. In a document he issued in the summer of 1998 (perhaps in anticipation of celebrations commemorating the Commission's tenth anniversary), Msgr. Perl mandated that: 1)in the Tridentine Masses celebrated by reason of the Indult, the celebrant from now on be seated during the reading of the Epistle; 2)that the Prologue of St. John's Gospel read at the end of Mass [i.e., the Last Gospel --Ed.] be abolished; and 3)that the so-called "universal prayer" begin to be recited during the Mass.(24)
We judge this an attempt to mutilate the Tridentine Rite and to contaminate it with the new rite of Pope Paul VI. For what reason would the priest have to sit while the Epistle is read? Where else is this type of thing generally seen? It is the priest-presider of the protestant Novus Ordo Mass who remains seated while laity of various sort read the passages of the Old and New Testament inserted into the so-called "Liturgy of the Word." To demand the celebrant to sit during readings that he has traditionally stood to read himself is to make necessary the presence of someone else other than the celebrant to do the reading. A nun? A layperson? You see the groundwork being laid.
Why is the cutting out of the Last Gospel wanted? What's the problem? It is very clear. On five counts, the Last Gospel is radically un-ecumenical and not politically correct because: 1)it reaffirms the divine nature of Christ; 2)it recalls that the world and those of "its household," namely the Jews, "received Him not"; 3)it reminds us that the world is inimical to Christ and must be converted; 4)it is a bitter yet pitiful reminder to the Jews of their sin against the Holy Ghost; and 5)it proclaims Christians superior to the sons of Abraham because, thanks to faith in Christ, they have become the chosen "sons of God."
The so-called "universal prayer," finally, is a prayer worded according to various formulas, in accordance with which the "ecumenical" spirit is introduced explicitly into the Mass, as the "conciliar Church" born from Vatican II understands it.(25)
This letter of Msgr. Perl shows that the Holy See has decided to pick up the pace. The "restoration" is done for. Unless they appease the authorities by further compromises, hard times are around the corner for the "Ecclesia Dei communities." Their superiors will perhaps attempt to resist and defend the Mass of All Time from the excisions and the corruptions. But will they succeed? For how long? They will learn that, in retrospect, they should not have let themselves be seduced in 1988. They should have taken exception to the manifest invalidity of the condemnation of Archbishop Lefebvre. This has been officially proposed by the American priest, Rev. Fr. Gerald Murray, in his "thesis for a licentiate" in Canon Law, argued and approved with the highest mark (July 1995) at the Pontifical Gregorian University. We will discuss this thesis in the next installment of this canonical study of the 1988 episcopal consecrations of Archbishop Lefebvre. Our work hopes to make a contribution to the truth by doing our part, God willing, in dispelling the cloud of lies and false interpretations which surround the person and work of Archbishop Lefebvre.
1 Cf. A.A.S. 1947, p.553, cited in Arnaldo Xavier da Silveire, La nouvelle Messe de Paul VI: Qu’en penser? translated from the Portuguese of C. Salagnac, Chireen-Nontreuil, 1975, p.103. This work, which develops a fundamental analysis of the Novus Ordo Missae 1969 & 1970, contains in an improved translation three studies having appeared in 1970 & 1971. The analysis of the Novus Ordo of 1970 is on pp.100-124. We have abundantly availed ourselves of this essay. We have likewise availed ourselves of Romano Amerio’s Iota Unum. Studio sulle variazioni della Chiesa cattolica nel secolo XX Milano-Napoli 1986 2nd ed., Chapters XXXVII;XXXVIII, pp.496-548. [Available in its English translation from Angelus Press. Price: $24.95-Ed.]
2 La nouvelle Messe de Paul VI, cit., pp. 103-105. The text of the Novus Ordo in question is in Article 5 of the Prologo of the same.
3 On the idea of the unity of the human race as an end of the Catholic Church coming from Vatican II, see P. Pasqua-lucci Un’intrusione laica nel Vaticano II: il concetto di unita del genere umano in Italian edition of SiSiNoNo, 1998 (XXIV) n.11.
4 Quare de huiusmodi sanctae Ecclesiae coadunatione locali eminenter valet promissio Christi: “Ubi sunt duo vel tres congregati in nomine meo, ibi sum in medio eorum” (Mt. 18:20). In Missae enim celebratione, in qua sacrificium Crucis perpetuatur, Christus realiter praesens adest in ipso coetu in suo nomine congregato, in persona ministri, in verbo suo, et quidem substantialiter et continenter sub speciebus eucharisticis.- The 1969 and 1970 Latin texts of Article 7 are reported in Pope Paul’s New Mass, pp.285-287.
5 La nouvelle Messe de Paul VI, loc. cit., and ch. V: Le nouvel ordinaire de la Messe et le repas protestant.
6 For a detailed list, see Breve esame critico del Novus Ordo Missae, pp.20-21.
7 The Indult Quattuor abhinc annos of March 10, 1984 (text in the appendix to Enquete sur la Messe traditionelle, 1988-1998 in the article, “Dixieme anniver-saire du Motu proprio Ecclesia Dei,” special issue of La Nef, 1988, edited by Christopher Geffroy and Philip Maxence
8 We cite the text published in Enquete, cit., Appendix, pp.373-374.
9 Op. cit., p. 74
11 Official Bulletin of the French District of the Society of Saint Pius X, n. 29 of 29 Sept. 1988 for some details of the accord between Dom Gerard and Rome on the occasion of the recognition of the Abbey of Le Barroux.
12 The fact was noted by M. de Jaeghere in his intervention reported by Enquete, cit. on p.279.
13 Text can be found in the Appendix to Enquete, cit., p.374.
14 Text cited in Enquete, p.375.
15 Introductory essay to Enquete, cit., “Ecclesia Dei? Rappel historique,” pp.12-55, p.38.
16 A summary of these “norms” given in the Appendix to Enquete, cit. p.39.
17 The source of information is Alfonse Cardinal Stickler, in La Nef (1995) 53, pp.8-11 (see note n. 54 on p.53 of Enquete). The review reprints an interview of the Cardinal by The Latin Mass (1995).
18 Enquete, cit., p.264; pp.103,261,274.
19 Enquete, cit. p.391.
20 Enquete, cit., p.385.
21 The text is in the Appendix of Enquete, cit., p.385.
22 The expression is from Fr. Claude Barth, Enquete, cit., p.249.
23 The testimony is from Fr. Jean-Paul Argouarch, Superior of the Institute of Pontifical Rite “Santa Croce” of Riaumont [France], one of the “Ecclesia Dei communities,” cited in Enquete, pp.90-91.
24 From the Bulletin Inter Multiplices Una Vox (June 1998).
25 Examine, for example, the Festive Missal for the Faithful, Year A-B-B, the official text of C.E.I. edited by G. Boffa, with an introduction by Msgr. Mariano Magrassi, Coletti ed., Roma 1984, p.869.
II. A Contested Excommunication
A. The Facts and Some Solid Points
1. The Facts
In his "Thesis for a Licentiate" in Canon Law which was argued and approved with the highest grade (July, 1995) at the Pontifical Gregorian University, Rev. Fr. Gerard Murray, an American priest who has no connection with the Society of Saint Pius X, held that the excommunication latae sententiae, declared at the time against Archbishop Lefebvre, Bishop de Castro Mayer, and the four bishops consecrated by Archbishop Lefebvre without pontifical mandate, is not valid according to strict canonical law, nor is the connected accusation of schism valid in the formal sense. As of yet, his thesis for the licentiate has not been published, but a summary of it and an interview with its author is available in the American magazine, The Latin Mass.(1)
Two facts must be mentioned: 1) Fr. Murray made a partial retraction of his own thesis (Summer, 1996); and 2) the Pontifical Council for the Interpretation of Legislative Texts has published its opinion that the excommunications were justified. Though the council is entrusted with interpreting the laws of the Church, it is not a font of law itself and its opinion, in any case, was anonymous. The "Murray Thesis" is not even considered for, it said, "It is impossible to evaluate the Murray Thesis because it has not been published and the two articles [of the magazine --Ed.] which appeared about it are confused."(2)
Could it be that the thesis is contrary to the public policy of the Gregorian University? Since it has never been made available in the original, we are forced to discuss the arguments based on what appears in the magazine articles, despite the fact that the pontifical council asserts they are "confused." Without a doubt, a scholarly analysis would have considered the thesis of Fr. Murray, but the council's denial has silenced its viewpoint. On the other hand, Fr. Murray published his retraction one year before the appearance of the opinion attributed to the Pontifical Council. Why on earth would this council have to say anything regarding arguments already formally, even if partially, retracted by their author?! -- Retracted, by the way, even before a wider public with authoritative knowledge had been able to read it.
2. Solid Points
1. Whatever may be the changes of opinion of Fr. Murray about his own work and the motives for not publishing it, the fact remains that the thesis had been approved with the highest grade by the professors of the Gregorian University, conferring on this work exceptional value. This approval must be held in due regard.(3)
2. The extract of the "Murray Thesis" which appeared in The Latin Mass is sufficient to understand, namely, that the American priest, with Code of Canon Law in hand, denies -- or if you prefer, places into doubt -- the validity of the excommunication ipso iure applied to Archbishop Lefebvre because he acted in a state of necessity without bringing into being any schism. According to Fr. Murray, it is necessary to recognize that, on the basis of the canon law in force, the excommunication of Archbishop Lefebvre is substantially invalid and the schism does not exist. It is thesis undoubtedly courageous and above all founded on law, even if we may not agree with the hypothesis of Fr. Murray that Archbishop Lefebvre was able to have been mistaken in good faith about the existence of the state of necessity which authorized him to proceed with the consecrations. In any case, the partial retraction of Fr. Murray concerns only the admissibility of the state of necessity, not the existence of a schism in the formal sense.
Fr. Murray is not the first to maintain the invalidity of the unjust excommunication declared against Archbishop Lefebvre and the non-existence of the so-called "schism" imputed to him. We recall the reader to the canonical study of the German canonist, Rev. Fr. Rudolf Kaschewski, which appeared in Is Tradition Excommunicated? [available from Angelus Press. Price: $7.95], on the aspect of the episcopal consecrations without papal permission.(4) This study, published shortly before the episcopal consecration of Archbishop Lefebvre and by an author independent of the Society of Saint Pius X, demonstrates unequivocally that, on the basis of the 1983 Code of Canon Law, the episcopal consecration without pontifical mandate cannot be punished with excommunication. In fact, the author writes at the conclusion of his essay:
Therefore, the widely spread opinion that the consecration of one or several bishops without papal mandate would cause an automatic excommunication and would lead to schism is false. Due to the very terms of the law itself, an excommunication for the aforementioned case could not be applied, neither automatically nor by sentence of a judge.(5)
The article appearing in the original Italian SiSiNoNo of July 1988 (XIV) 13, titled "Neither Schismatics nor Excommunicated" [reprinted in Is Tradition Excommunicated?, pp.1-39] demonstrates how, in the case of the episcopal consecrations for the Society of Saint Pius X, all five of the conditions required for taking advantage of the law corresponding to the state of necessity had been realized. They are namely: 1) the existence of the state of necessity; 2) attempts having been made to remedy it with ordinary means; 3) the "extraordinary" action not being based on an act intrinsically evil nor harmful to neighbor; 4) having remained within the limits of the requirements actually imposed by the state of necessity; and 5) never having put into question the power of the competent authority, the consent of which it would have been able to presume in all legitimacy in normal circumstances.(6)
Though the Vatican officially denies its existence, a bleak picture of the real state of necessity in the present-day Catholic Church was painted by Joseph Cardinal Ratzinger in his speech to the Chilean Episcopal Conference (July 13, 1988) on the latest developments of the "Lefebvre case." The discourse, printed by the weekly Il Sabato of July 30, 1988, was reproduced by the Italian edition of SiSiNoNo, November 15, 1988, (XIV) 17, with the title, "Cardinal Ratzinger Demonstrates the State of Necessity in the Church."
The same Cardinal Ratzinger states in his discourse that Rome is not carrying out its necessary and indispensable functions and the bishops do not make use of or have made it utterly impossible to make use of that power which by divine right they possess in the Church for the eternal salvation of souls. It is the same Cardinal Ratzinger documenting that state and that law of necessity, to whom His Excellency Msgr. Lefebvre made his appeal when on June 30 he took advantage of a juridical competence outside of the ordinary.(7)
The passage of the speech of the Cardinal to which reference is made is the following:
Criticism for the choices of the post-Conciliar period is not tolerated: but, where the ancient rules, or the great truths of the faith -- for example the bodily virginity of Mary, the divinity of Jesus, the immortality of the soul, etc. -- are at stake, we do not react at all or we do it with extreme moderation. I myself was able to see, when I was a professor, how the same bishop who before the Council had expelled an irreproachable professor for his somewhat uncouth speaking, was not able to remove, after the Council, a teacher who was openly denying some fundamental truth of the Faith. All this drives many people to wonder whether the Church of today is really that of yesterday, or if it has been changed into another without informing them...(8)
We have to help us the essay "Neither Schismatics nor Excommunicated," the work of Fr. Kaschewski, Dr. Georg May's "The Disposition of Law in Case of Necessity Within the Church," [see both in Is Tradition Excomunicated?, pp.1-39; 111-113], the discourse of Cardinal Ratzinger, together with an article on the correct idea of tradition and with three appendices have finally been combined into one volume entitled Is Tradition Excommunicated? [available from Angelus Press, Price: $7.95]. Nor can we forget the careful study of Fr. Gerard Mura, Les sacres episcopaux de 1988. Etude theologique, which we mention in the competent synthesis published in French by the magazine Sel de la Terre, in four issues, in 1993 and 1994.(9) The salient contribution of this study, which is built on a prevalently theological plane, is on the thesis that "the pontifical prohibition for the celebration of the consecrations ought to be maintained as null and not having happened" because "contrary to the common good of the Church, a factor for the defense of the faith; defense of the faith which, aware of the state of necessity in which the Church exists, was demanding the consecrations done by Archbishop Lefebvre."
The book of the American Catholic lawyer, Charles P. Nemeth, The Case of Archbishop Marcel Lefebvre: Trial by Canon Law [Angelus Press, Kansas City, 1994. Price: $9.95], must be mentioned. It presents a strictly juridical analysis which denies the validity of the excommunication and of the accusation of schism, reaching the same conclusion as Fr. Kaschewski.(10)
We have wished to mention these precedents also in order to draw attention to the fact that Fr. Murray concludes to a point substantially similar to Fr. Kaschewski's. It can be said, in fact, that Fr. Murray applies them to a concrete case. In our mind this shows that the tone of the norms of the Code of Canon Law is clear enough to have de facto permitted the establishment of opinions that are "on the same beam." As laid down by strict law, the excommunication could not be declared nor could the censured act be maintained as schismatic.
III. Juridicial Terms Concerning the Question
Let us consider the strictly juridical terms concerning the question so the reader is able to get the clearest picture possible.
Archbishop Lefebvre has been condemned for having consecrated four bishops without papal mandate. On this argument let us follow the commentary of Fr. Kaschewski:
1. Episcopal consecration occupies the highest place in the hierarchy of consecrations:...The bishop enjoys two powers: 1) the power of Order (in which is included the power to consecrate priests and bishops); and 2) the power of Jurisdiction, which he cannot exercise if he is not in possession of a diocese. The episcopal power is a power of divine right which confers on the bishop a proper authority and assures him of a juridical-constitutional autonomy which not even the pope can suppress or modify.(11)
This autonomy which the bishop enjoys depends on the nature of his power, which springs directly from Our Lord because bishops are the successors of the Apostles and hence enjoy that power which was conferred personally by Christ.
The autonomy of the episcopal power, nevertheless, does not mean independence. The submission of bishops to the authority of the Pope was affirmed in a very clear manner by the 1917 Code of Canon Law (Canon 329,§1):
Bishops are the successors of the Apostles and through divine institution are at the head of the local church, which they govern with ordinary power under the authority of the Roman Pontiff.(12)
In the 1983 Code of Canon Law, as a consequence of the democratic applications that Vatican II wished to exercise in the Church, the principle of submission to the pope, even if present, is stated in an ambiguous manner (e.g., in Canon 375,§1). Yet, while maintaining a millenary practice (from Gregory VII on), even the 1983 Code of Canon Law affirms that it is forbidden to consecrate a bishop without episcopal mandate, that is, without the previous authorization of the pope. And in fact the text of Prof. Kaschewski continues thus:
2. It is licit for no one to consecrate a bishop without Pontifical mandate (1983 Code of Canon Law, Canon 1013). He who acts contrary to this canon incurs excommunication latae sententiae reserved to the Apostolic See (1983 Code of Canon Law, Canon 1382). One incurs latae sententiae excommunication ipso facto [by the fact itself], that is, at the very moment the offense is committed, and it is not necessary that the penalty be inflicted through a decree. For the illicit consecration of a bishop the [1917 Code of Canon Law] threatened only suspension [See 1917 Code of Canon Law, Canon 2370; "They are suspended by the law itself until the Apostolic See shall have dispensed them." --Ed.]. Only with the decree of the Holy Office (August 9, 1951), in consequence of the tragic turn of events of the Church in the Chinese Communist Republic [where bishops of the Chinese "Patriotic Church" were being appointed by the governing communists --Ed.], was the penalty of ipso facto excommunication introduced, reserved to the Holy See specialissimo modo [in a most special manner --Ed.](13)
The 1983 Code of Canon Law does not give the definition of excommunication, which must be taken from the 1917 Code of Canon Law (see Canon 2257ff.). It consists in the (external) "exclusion" from the "communion of the faithful." It belongs to that class of penalties called censures which are: excommunication, interdict, and suspension (1917 Code of Canon Law, Canon 2255,§1). Censures are "medicinal" penalties because they are meant to serve as a medicine for the one being disobedient so that he may be convinced of his error and make amends. At the moment in which the offender or "contumacious one" recedes from his disobedience, the penalty ought to be remitted for him.(15) Medicinal penalties are distinguished from those called "vindictive" [a.k.a. "expiatory" in the 1983 Code of Canon Law --Ed.] which have instead as their essential purpose not the correction of the offender, but the restoration of the violated juridical order.(15)
The effects of excommunication are grave because it involves the prohibition of administering and receiving the sacraments. Yet, it is an administrative type of sanction that can be removed by the same authority that has inflicted it. Moreover,...
...the communion from which one is excluded is not that internal [communion], inhering in the soul and embracing the goods of the theological life, as grace and the virtues of faith, hope and charity, by nature invisible, but those external, visible goods, entrusted to the Church and ordained to produce the internal spiritual goods or the other external goods that are inseparably connected to the internal goods (e.g., sacraments, sacrifice, ecclesiastical power, etc.). Radical or ontological communion, which makes us members [by means of baptism --Ed.] of the Mystical Body of Christ is not called into question by excommunication.(16)
B. Unjust Excommunication
A species of excommunication used to exist and still does exist among the Jews(17) and St. John tells us that those Jewish leaders, who were favorable to Jesus, did not dare to declare that He was the promised Messias, for fear of being expelled from the synagogue, that is, of being formally excluded from the community of believers by decree of the proper authority.(18)
The possibility exists therefore that excommunication may be inflicted unjustly. The "excommunications" which the unbelieving Pharisees and persecutors were threatening or preparing to inflict upon the disciples of Our Lord, are an example of unjust excommunication:
They will put you out of the synagogues: yea, the hour cometh, that whosoever killeth you, will think that he doth a service to God. And these things they will do to you; because they have not known the Father, nor me (Jn. 16:2,3).
Another well-known example is the excommunication inflicted by Pope Alexander VI on Savanarola.(19)
C. Excommunication Latae Sententiae and Ferendae Sententiae
There are two types of excommunication: 1) latae sententiae is that excommunication where a sentence has been passed; and 2) ferendae sententiae, an excommunication where a sentence needs to be passed. These classifications give the two most general categories of the penal law of the Church, which find application even in the case of excommunication. A canonical penalty is called latae sententiae when "one incurs it by the very fact of having committed a crime."(20) This means that the penalty inheres, so to speak, in the criminal deed, without having to wait for a judge or a superior to inflict it by means of a sentence or a decree. On account of this it is said that excommunication latae sententiae is applied automatically. The application of the penalty therefore has only declarative value, because the decree or the sentence which contains it is limited to declaring the existence of it. This is so much the case that the juridical effects of the latae sententiae penalty are produced "from the moment in which the criminal deed was completed" (1917 Code of Canon Law; Canon 2232,§2) and not from the moment of the sentence or declaration.
The excommunication "ferendae sententiae" is, on the contrary, that which "must be inflicted by the judge or by the superior."(21) "This occurs as a rule after a trial. In this case, the sentence or the decree are constitutive of the penalty: they are not limited to declaring the existence of a penalty that already inheres in a certain behavior, but they cause it to come into being, they constitute the term of the trial, which could, in fact, also be concluded with an absolution. Therefore, the juridical effects of the ferendae sententiae" penalty are produced "from the moment of the sentence or decree," and not from the moment in which the deed was committed. No retroactivity exists here. In contrast to the situation in the latae sententiae penalty, in the former case of the ferendae sententiae penalty there cannot be a penalty without a trial and consequent sentence or decree. The difference is not small. The difference is so great that the 1917 Code of Canon Law specifies that "the penalty must always be understood ferendae sententiae," unless it is explicitly affirmed that it must be understood as latae sententiae.(22)
D. Imputability and Latae Sententiae Penalties
Every modern penal law takes into consideration the subjective element of the offense. In order that someone may be able to be considered punishable, it is not enough that he has committed the criminal act, but it is necessary that he be imputable, that is to say that the breaking of the law can be ascribed to him as an action of a subject capable of understanding and willpower. In other words, that the subject acted with a will freely directed to a determined end. In order that there be full imputability, it is necessary that the subject has acted with the intention of offending [animus laedendi] or, as the Roman jurists used to say, "with an evil intent." In fact Canon 1321,§2 of the 1983 Code of Canon Law says: "A person who has deliberately violated the law or precept is bound by the penalty prescribed in that law or precept..."
A weakened form of imputability is that which considers not the malice, but the fault, understood as the disposition of the subject who does not show the animus laedendi, but a simple "omission of due diligence." The distinction is clear from the second sentence of Canon 1321,§2 of the 1983 Code of Canon Law, the first part of which we quoted above: "...If, however, the violation was due to the omission of due diligence, the person is not punished unless the law or precept provides otherwise." In the case of a culpable violation of the norm, the punishability can be lessened.(23)
In the law of the Church the subjective element has always enjoyed a particular importance. This is derived from the very character of the religious and moral conception that the Church has practiced, defended, and developed through its own juridical system.
In order that the subject be punishable he must be imputable. The 1983 Code of Canon Law states:
No one can be punished for the commission of an external violation of a law or precept unless it is gravely imputable by reason of malice or of culpability (Canon 1321, §1).24
The full imputability of the penalty is valid, therefore, for whoever has deliberately violated the law with full consciousness and intention. For such a motive, the 1983 Code of Canon Law demands that, in the case of latae sententiae penalties which, as we have defined them, are applied without a judgment, malice and full imputability are always presumed.
The condition of malice is required by Canon 1318 of the 1983 Code of Canon Law, which says:
A legislator is not to threaten latae sententiae penalties, except perhaps for some outstanding and malicious offenses which may be more grave by reason of scandal or such that they cannot be effectively punished by ferendae sententiae penalties. He is not, however, to constitute censures, especially excommunication, except with the greatest moderation, and only for the more grave offenses.(27)
The invitation of the Code to prudence and to caution in a matter so delicate is substantiated in the specification of three conditions necessary for the imposition of latae sententiae penalties: 1) there must clearly be malice on the part of its author; 2) the offense must provoke grave scandal among the faithful; 3) the offense must not be punishable through ferendae sententiae penalties.(26)
For the purposes of our discussion, it is of interest that the Code of Canon Law desired to place the accent on the presence of malice as a necessary requisite for the imposition of a latae sententiae penalty. But malice can be demonstrated only if the subject is fully imputable, since only to a fully imputable subject can the moral fault of having deliberately wished to violate the law be attributed. Therefore, if full imputability is lacking, the latae sententiae penalty of excommunication cannot be legally applied.
The requirement of full imputability of the offender naturally comes into play in every malicious crime. This is a general principle of every modern penal system. All the more is it valid for latae sententiae penalties, given their exceptional character. And, in fact, Canon 1324,§1 [1983 Code of Canon Law], in ascribing ten circumstances attenuating imputability, delineates in §3 of the same canon that in all ten cases "...the offender is not bound by a latae sententiae penalty."(27)
E. Attenuating Circumstances and Exemptions
Attenuating circumstances do not eliminate imputabulity, but they do reduce it. They prevent the imputability from be characterized as "full." As a consequence of this, a mitigation is had of the penalty already established or the substitution of it by other sanctions, for example penances. Penances are not technically penalties by definition, but replace or increase them [1983 Code of Canon Law; Canon 1312,§3). Canon 1324 states in §1:
The perpetrator of a violation is not exempted from the penalty, but the penalty prescribed in the law or precept must be diminished, or a penance substituted in its place, if the offence was committed by: 1o one who had only an imperfect use of reason;...
The list of nine other attenuating circumstances follows the first listed in the above quote.(28) Among these nine other attenuating circumstances two are of interest to us: Numbers 5 and 8. Number 5 considers the case of one who was "compelled by grave fear, even if only relative, or by reason of necessity or grave inconvenience, if the act is intrinsically evil or tends to be harmful to souls."(29) The meaning of this part of Canon 1324 means that whoever has completed an action "intrinsically evil or tends to be harmful to souls," not deliberately, but only on account of having been forced or from grave fear, necessity, or grave inconvenience, is entitled to have take these circumstances, which attenuate his imputability, taken into consideration. This requires that the penalty not be imposed in its fullness and/or it be substituted by another type of sanction, as for example, a penance.
But why doesn't the attenuating circumstances of Number 5 of Canon 1324 eliminate all imputability? -- Because the action to which they have felt forced to perform was itself "intrinsically evil" or tending to be "harmful for souls." Given this nature of the action, it necessary that a form of sanction be maintained in view of the common good. Among the penalties which cannot be maintained, however, is excommunication.
In Number 8 of Canon 1324 on attenuating circumstances, there is considered, on the other hand, the case of one "who erroneously, but culpably, thought that some one of the circumstances existed which are mentioned in Canon 1323, Numbers 4 or 5."(30) It reads:
No one is liable to a penalty who, when violating a law or precept acted only under compulsion of grave fear, even if only relative, or by reason of necessity or grave inconvenience, unless, however, the act is intrinsically evil or tends to be harmful to souls; [or] acted, within the limits of due moderation, in lawful self-defense or defense of another against an unjust aggressor.
Besides these two circumstances, Canon 1323 of the 1983 Code of Canon Law gives five other circumstances that exempt the agent from all imputability, rendering the application of the penalty impossible. The exemptions mentioned are those according to which the law has been violated through grave fear even if relative, necessity, and grave inconvenience when the act performed is not intrinsically evil or does not tend to be harmful to souls or has been performed through legitimate defense.(31) Therefore, for that which regards the state of necessity [the category which is important for us to analyze --Ed.], when a norm has been violated with an act intrinsically evil or harmful for the salvation of souls, there is had a circumstance only attenuating, sufficient however for excluding the application of excommunication which ought to be substituted for by another penalty or by a penance. On the other hand, if the norm was violated with an act neither intrinsically evil nor harmful for souls, then imputability absolutely does not exist and neither can a penalty nor another form of sanction be inflicted. If the subject erroneously thought himself to be within the conditions given in Numbers 4 and 5 of Canon 1323 [1983 Code of Canon Law], namely of being forced to act in a state of necessity [or through grave fear, grave inconvenience, or legitimate defense --Ed.] without his action constituting something wicked in itself or harmful for the salvation of souls, then he has a claim on the attenuating circumstances. This means that even if the action warrants excommunication, this cannot be declared because it must be substituted by another penalty or by a penance. When the error of judgment takes place without fault on the part of the acting subject, then, rather than laying claim to an attenuating circumstance, the subject has claim to an exempting circumstance:
No one is liable to a penalty who, when violating a law or precept thought, through no personal fault, that some one of the circumstances existed which are mentioned in Numbers 4 or 5 [1983 Code of Canon Law; Canon 1323, n.7].
1 See “Gaps in the New Code?” an interview with Fr. Gerald E. Murray followed by a detailed enough exposition of his thesis, “Schism, Excommunication, and The Society of St. Pius X” edited by Steven Terenzio on pp.50-55 respectively in The Latin Mass (Fall, 1995). For another interview with Fr. Murray see 30 Days, n.4, April, 1995, pp.17,18.
2 Mise au point du Conseil Pontifical pour l’interpretation des textes legislatifs in La documentation catholique, 79 (1997), 2163, of July 6, 1997, pp.621-623. The retraction of Fr. Murray is found in The Latin Mass (Summer, 1996; pp.54,55). The Mise au point has been translated into Italian in Il regno-Documenti, n.17, 1977, pp.528,529. The Letter to Friends and Benefactors, #53 of the Society of Saint Pius X (Sept. 23, 1997) points out that the Mise au point and a simultaneous document from the Congregation of the Faith on the canonical situation of the “levebvrists” presented by Msgr. Brunner are in reality anonymous documents without date nor protocol number. For these reasons an obligatory value cannot be granted to them. These documents are evidence of the persistent hostility of the French and Swiss episcopates towards the Society of Saint Pius X.
3 This has been emphasized by Fr. Michel Beaumont in the article “L’abbé Gerald Murray se fait taper sur les doits,” which appeared in an issue of Fideliter (1997), pp.41-46, strongly critical of the “retraction” of the American scholar: “But this is the explicit approbation given by the highest academic instance, the Pontifical Gregorian University of Rome, which confers on this work an exceptional value.” This value is not able to be lessened in light of its retraction otherwise we would have to say that the professors of the Gregorian must retract their scientific approval! (Fr. Albert O.P. “La these de l’abbe Murray” in Le sel de la terre, n.24, Spring 1998, pp.50-67).
4 See Is Tradition Excommunicated?, “The Episcopal Consecrations: A Canonical Study,” pp.103-110. [Available from Angelus Press. Price: $7.95].
5 Is Tradition Excommunicated? cit., p.110.
6 SiSiNoNo, Ne schismatici ne excomunicati, Albano 1997, p.28ff.
7 SiSiNoNo, October 1988 (XIV, 17,p.4).
8 Op. cit., p.1.
9 Le sel de la terre (1993) 4, pp.27-45; 5, pp.44-87; 7, pp.25-57; (1994) 8, pp.28-44. The original is in German: “Bischofsweihen durch Erzbischof Lefebvre. Theologische Untersuchung der Rechtmassigkeit” [“The Episcopal Consecrations of Archbishop Lefebvre: A Theological Examination of their Legitimacy”], Zaitzkofen, 1992.
10 The book is interesting for its numerous comparisons between the 1917 Code of Canon Law and the 1983 Code of Canon Law. The 1917 Code of Canon Law is also called the Pian-Benedictine Code because it was compiled through the initiative of Pope Pius X and promulgated under Pope Benedict XI (Sept. 15, 1917). The 1917 Code of Canon Law is a known for its conceptual and systematic vision.
11 Kaschewski. French translation in La tradition excommuniee, cit., pp.51-57, p.51.
12 “Episcopi sunt Apostolorum successores atque ex divina institutione peculiaribus ecclesiis praeficiuntur quas cum potestate ordinaria regunt sub auctoritate Romani Pontificis.”
13 Kascewski, op. cit., p.4; French translation cit., pp.51-52
14 See Commento al Codice di Diritto Canonico [a.k.a., Commento] edited by Msgr. Pio Vito Pinto, Urbaniana University Press, Rome, 1985, pp.771, 772; see Del Guidice Istituzioni di diritto canonico, 12th revised ed. in collaboration with G. Catalano, Milan, 1970, p.488ff.
15 See Commento cit. p.777; Del Giudice op. cit., p.488ff.
16 Commento, p.772.
17 See “Das Mosaïsche-Rabbinische Strafgesetze und Strafrechtliche Gerichts Verfahren [“The Mosaic-Rabbinical Penal Law and Penal Procedure”] edited by Head Rabbi Hirsch B. Fassel, Gross-Kanischa, 1870, reprinted anast., Scientia, Aalen, 1981, sec. II, §13, p.12.
18 Jn. 12:42-43. An Old Testament reference is found in Prov. 22:10: “Cast out the scoffer and contention shall go out with him, and quarrels and reproaches shall cease.”
19 See the biography of R. Ridolfi, Vita di S. Girolamo Savonarola, Firenze, 1974, 5th ed., pp.283ff.
20 Canon 2217, §1, 2º [1917 Code of Canon Law]: “Poena dicitur...latae sententiae, si poena determinata ita sit addita legi vel praecepto ut incurratur ipso facto commissi delicti; ferendae sententiae, si a iudice vel superiore infligi debeat.” The penalties latae sententiae and ferendae sententiae are considered also in the 1983 Code of Canon Law, but for their definition it is necessary to go back to the former 1917 Code of Canon Law. The “fixed” penalty is that established especially by a norm addressed to all [law] or individually specified persons [precept]: “Poena dicitur: Determinata si in ipsa lege ver praecepto taxative statuta sit” [Canon 2217, cit.1, 1º].
21 Canon 2217, §2, 2º, 1917 Code of Canon Law, cit.
22 Canon 2217 cit., §2, “Poena intelligitur semper ‘ferendae sententiae,’ nisi expresse dicatgur eam esse latae sententiae vel ipso iure contrahi, vel nisi alia similia verba adhibeantur.” The concept is reaffirmed in the 1983 Code of Canon Law, which in Canon 1314 reassumes the exposition of the 1917 Code: “Poena plerumque est ‘ferendae sententiae,’ ita ut reum non teneat, nisi postquam irrogate sit; est autem ‘latae sententiae,’ ita us in eam incurratur ipso facto commissi delicti, si lex vel praeceptum id expresse statuat.” [See p.753 of the Commento cit.: “The penalty is generally ferendae sententiae, such that it does not oblige the guilty one if it has not afterwards been inflicted; but it is latae sententiae such that it is incurred through the very fact of the offense having been committed, if the law or the precept expressly establish it.”] On the declarative and constitutive significance of the act of the condemned, see Commento cit., p.489.
23 The whole of Canon 1321 of the 1983 Code of Canon Law reads: “1) No one can be punished for the commission of an external violation of a law or precept unless it is gravely imputable by reason of malice or of culpability. 2) A person who deliberately violated a law or precept is bound by the penalty prescribed in that law or precept. If, however, the violation was due to the omission of due diligence, the person is not punished unless the law or precept proveides otherwise. 3) Where there has been an external violation, imputability is presumed, unless it appears otherwise.” [On this canon and its relation to the 1917 Code see Commento, cit., pp.758-759. The definitions present in the 1917 Code are clearer: cf. 1917 Code of Canon Law, Canons 2199;2200.]
24 The canon has already been reported in its entirety in footnote §13.
25 This canon re-echoes Canon 2241, §1, of the 1917 Code of Canon Law: “Censures, especially latae sententiae, most of all excommunication, are not to be inflicted, except moderately and with great circumspection.”
26 Examine Commento, cit., on p.756.
27 Commento states: §3 [of Canon 1324 of the 1983 Code] articulates a general principle that every diminution of imputability frees from latae sententiae penalties otherwise demanding full imputability [cf. Canon 2218,§2 of the 1917 Code.] When it is a question of latae sententiae penalties, the judgment of whether one of the causes (cited in Canon 1324) exists is the concern of the delinquent himself. This is different from what happens in ferendae sententiae penalties in which there is a judge to establish whether or not the cause exists [Commento, cit., pp.765-766]. If §3 of Canon 1324 states a general principle, this ought to be valid then for all cases in which a latae sententiae penalty is foreseen, even for apostasy, heresy, and schism [1983 Code, Canon 1364,§1). Lacking full imputability, they would never be able to be punished by incurring a latae sententiae excommunication.
28 “Violationis auctor non eximitur a poena, sed poena lege vel praecepto statuta temperari debet vel in eius locum paenitentia adhiberi, si delictum patratum sit: 1o ab eo, qui rationis usum imperfectum tantum habuerit.” See also Commento, cit., pp.763ff.
29 See Commento, cit., p.762: “The general principle of Canon 125,§2 [1983 Code under “Title VII: Juridical Acts”-Ed.] decrees that an act performed as a result of fear which is grave and unjustly inflicted is valid unless the law provides otherwise. However, in a penal matter whether absolute or relative, having taken into account the subject who places the threat and whoever undergoes it, it frees from every penalty.”
30 “...ab eo, qui per errorem, ex sua tamen culpa, putavit aliquam adesse ex circumstantiis, de quibus in can.1323, nn.4 or 5.”
31 “...metu gravi, quamvis relative tantum, coactus egit, aut ex necessitate vel gravi incommodo, nisi tamen actus sit intrinsece malus aut vergat in animarum damnum.”
F. The State of Necessity
From what has been seen in Part II of this canonical study of the 1988 Consecrations by Archbishop Lefebvre , it is certain that through the 1983 Code of Canon Law the attenuating and exempting circumstances have not only objective force, but also subjective force. This means that the canon is to be applied even if the situation of crisis, such as the state of necessity, of grave fear, etc., exists merely in the mind of the acting subject, that is to say, be it the fruit of his own erroneous judgment, an error which can even be due to his own fault, namely to a culpable ignorance which leads the subject to a "false judgment about some thing."(1) Let us return to the text of canon lawyer Fr. Rudolf Kaschewski, whom we have been quoting from in this series [see Is Tradition Excommunicated? "The Episcopal Consecrations: A Canonical Study," available from Angelus Press. Price: $7.95].
Even if one were to call into question, or actually deny altogether, the existence of a situation of emergency, as we have described it [i.e., his analysis of the dreadful situation of today’s Catholic Church -–Ed.], the following would still apply:
No one will deny that a bishop who, in the aforementioned
situation, consecrates another one, would be
a)The person who thought, without fault on his part, that a circumstance foreseen in Canon 1323, Numbers 4,5, and 7 applied when he was breaking the law or an administrative order, does not incur any punishment.
b)The violator of the law is not exempt from all penalty but the penalty laid down in the law or in the administrative order must be mitigated, or a penance must be substituted, if the offense was accomplished by someone believing through an error, even if culpable, that he was in a circumstance foreseen in Canon 1323, Numbers 4 and 5 (Canon 1324, §1, No.8)...
Thus those who would suppose that the emergency exists only in the fantasy and the imagination of the bishop concerned could hardly argue that this supposedly erroneous conception would be punishable.
Even if someone were to put it to him that he was guilty for having arrived at such a mistaken notion of the existence of an emergency (not, in fact, existing), still:
1) The automatic excommunication could not follow as mentioned in Canon 1382 [i.e., it could not be automatic].
2) In any case, an eventual penalty which a judge might apply would have to be more clement than that foreseen in the law, so that here, too, an excommunication would be out of the question.(2) [All emphasis in original.]
How can it be denied that, in the case of consecrations imposed by necessity, "a bishop is at least subjectively convinced that it is a question of a state of necessity detrimental to souls"? The 1983 Code of Canon Law protects this very consideration by establishing a true and proper presumption of good faith, since it protects it even when it is erroneous, that is, even when it may be the result of an error of judgment to be ascribed to the acting subject and not to the circumstances. It is evident that the current law renders the application of a latae sententiae excommunication to the consecration of a bishop without mandate practically impossible, and that, therefore an excommunication declared in contempt of that 1983 Code of Canon Law (especially of Canons 1323,1324) must be considered completely invalid with the consequent intrinsic nullity of all the effects which canon law attributes to it.
How was the Holy See able to make such a mess of the case of Archbishop Lefebvre? -– It has judged him to have had bad faith. Perhaps, while violating the principle that the Church does not judge internal matters, the Church has conducted a trial on the intentions of Archbishop Lefebvre, something that only God can do.
The "Notice" that appeared in L'Osservatore Romano (June 30-July 1, 1988) addressed the fact that in some circles the latae sententiae excommunication was considered completely invalid. L'Osservatore Romano took action against Archbishop Lefebvre's intentions by accusing him of bad faith. It said that in this situation "Canon 1323 [of the 1983 Code of Canon Law] cannot be applied," which considers, as we know, the state of necessity among those reasons that exempt one from penalty. L'Osservatore Romano proposed that even the supposed "state of emergency" in the Church was deliberately created by Archbishop Lefebvre in order to preserve his position of defending tradition within the Catholic Church!(3) This insanely ludicrous proposal does nothing more than show the bad will of L'Osservatore Romano! It is clear! Obviously, it felt it necessary to embrace this proposal because saying so means Archbishop Lefebvre acted in bad faith, preventing the application of Canon 1323 and thereby justifying the bogus excommunication!
The "Notice" in question does not mention Canon 1324 at all, which establishes the ten famous attenuating circumstances exempting one from penalty, even in the presence of error imputable to the acting subject. That which we have called the subjective relevance concerning the state of necessity, as conceived by the 1983 Code of Canon Law so as to exclude every action against intentions, is passed over in silence by L'Osservatore Romano.
It is sure that the Vatican authorities know canon law. The silence on Canon 1324 has, according to us, a specific reason. Please tell us, how can the supposed bad faith of a bishop who believes (even erroneously!) in a state of necessity in the Church and who acts as he feels he must as a consequence be proven conclusively? It is a proof that can follow only from judgments against his intentions, that is, a proof that is impossible to make. Yet the allusion to bad faith is quite clear in the "Notice." From this, the antagonists will advance the proposal that this "bad faith" arose from a schismatic will which they attribute unjustly to Archbishop Lefebvre. The "Notice" says that the consecrations of bishops in Ecône which were "performed expressly against the will of the Pope," are to be absolutely considered an "act formally schismatic according to the norm of Canon 751 [of the 1983 Code], by holding that Archbishop Lefebvre openly refused submission to the Supreme Pontiff and communion with the members of the Church subject to him."(4) The so-called "schismatic will" of Archbishop Lefebvre will be then be used to "prove" his bad faith in invoking the "state of necessity" in the Church. The whole circular argument boils down to its central point: What is schism?
Before analyzing schism from the juridical point of view, we want to observe how the non-mention of Canon 1324 [which was heavily discussed in Part II of this canonical study -–Ed.] is tantamount to the exclusion by the Conciliar Church of every possible attenuating circumstance useful to defending Archbishop Lefebvre and those others who, such as Bishop Antonio de Castro Mayer, maintained and are maintaining themselves faithful to the dogmas of the Faith. This has become a constant in the Conciliar Church which has provoked a distorted representation of Canon 1324 of the 1983 Code of Canon Law.
With this is mind, we make reference to the opinion of the Pontifical Council for the Interpretation of Legislative Texts which attempts to debunk the well-founded thesis of canonist Fr. Gerald Murray regarding the validity of the latae sententiae excommunication of Archbishop Lefebvre. Fr. Murray is an American priest who has no connection with the Society of Saint Pius X. The "Murray Thesis," receiving the highest grade at the Pontifical Gregorian University in Rome, holds that the excommunication latae sententiae declared against Archbishop Lefebvre, Bishop Antonio de Castro Mayer, and the four bishops consecrated, was not valid according to strict canonical law nor is the accusation of schism valid in the formal sense . Against the Murray Thesis, the Pontifical Council said:
Nevertheless, the validity of the excommunication of the Bishops, declared by the motu proprio and by the decree, cannot be reasonably doubted. In particular, the possibility of looking for attenuating or nullifying circumstances concerning the imputability of the offense (Canons 1323,1324 of the 1983 Code of Canon Law) does not seem admissible. As far as concerns the state of necessity in which Archbishop Lefebvre would have been able to find himself, it is necessary to remember that such a state must exist objectively and that the necessity of consecrating bishops contrary to the will of the Roman Pontiff, head of the College of Cardinals, never happens [emphasis added].(5)
This "clarification" clearly contradicts what is established in the 1983 Code of Canon Law. It affirms, in fact, that for the 1983 Code the state of necessity "must objectively exist," but in fact, according to the same 1983 Code, the state of necessity, as we have already shown, can exist only subjectively. Hence, the "clarification" misrepresents the norms in force, as if the 1983 Code considered the state of necessity only in its objective reality, as is the case of the 1917 Code of Canon Law. The Pontifical Council passes over in silence the attenuating circumstances that the Holy See should have legitimately considered had it wanted to, in order to prevent the application of a latae sententiae excommunication that was not only unjust but also invalid.
G. Schism, and Consecration Without Mandate
What was written by Prof. Kaschewski and reported above shows how consecration without pontifical mandate and schism are two totally independent things which by their very nature are not related. They are governed by two distinct canons of the 1983 Code of Canon Law [i.e., Canon 1382 for consecration without pontifical mandate, and Canon 1364, §1 for schism --Ed.] even if the penalty provided is the same.
Nevertheless the documents which declare or explain the condemnation of Archbishop Lefebvre all contain the accusation of schism, and of schism in the formal sense, beginning with the already cited anonymous "Notice" from L'Osservatore Romano of June 30-July 1, 1988, published two days before the official documents of the Holy See. In the "Notice," it is affirmed that, since to "no bishop is it permitted to consecrate anyone as Bishop, unless it is first established that a pontifical mandate has been issued (1983 Code, Canon 1013), the episcopal consecrations which took place:
were performed expressly against the will of the Pope with a formally schismatic act according to the norm of Canon 751, he [Archbishop Lefebvre] having openly refused submission to the Supreme Pontiff and communion with the members of the Church subject to him.
As a consequence of this, the "Notice" says that:
he cannot even apply Canon 1323, any relevant matter foreseen by him not being verified in this case, since even the alleged "necessity" was deliberately created by Archbishop Lefebvre in order to preserve a posture of separation from the Catholic Church, notwithstanding the offers of communion and the concessions made by the Holy Father John Paul II.(6)
The official declarations of excommunication on the part of Cardinal Gantin (July 1, 1988) affirm likewise that Archbishop Lefebvre has "...performed a schismatical act by the episcopal consecration of four priests without pontifical mandate and contrary to the will of the Supreme Pontiff..."(7) Also the motu proprio of the Pope, Ecclesia Dei Adflicta (July 2, 1988), condemns the consecrations of Ecône as a "schismatic act" using the same faulty theological and canonical reasoning as that in the "Notice":
...In itself, this act was one of disobedience towards the Roman Pontiff in a very grave matter and of supreme importance for the unity of the Church, such as is the ordination of bishops whereby the apostolic succession is sacramentally perpetuated. Hence such disobedience -– which implies in practice the rejection of the Roman primacy -– constitutes a schismatic act. [A citation of Canon 751 of the 1983 Code of Canon Law defining "schism" is inserted here. -–Ed.] In performing such an act, notwithstanding the formal canonical warning sent to them by the Cardinal Prefect of the Congregation for Bishops on June 17 last, Archbishop Lefebvre and the priests Bernard Fellay, Bernard Tissier de Mallerais, Richard Williamson, and Alfonso de Galarreta, have incurred the grave penalty of excommunication envisaged by ecclesiastical law...[The reference to Canon 1382 is inserted here which, as we know, provides for latae sententiae excommunication for consecration without pontifical mandate.(8)]
Only the anonymous "Notice" of L'Osservatore Romano speaks expressly of a "formally" schismatic act. As already mentioned, this "Notice" furnishes the so-called "canonical motivation" for the condemnation which would appear in the same paper two days later (July 3) with the simultaneous publication of the Decree of the Office of the Congregation for Bishops (see Archbishop Lefebvre and the Vatican, p.126) and of the motu proprio, Ecclesia Dei Adflicta. The "Notice" is therefore of extreme importance because it makes clear that the Vatican did not consider applying the nullifications provided by Canon 1323 of the 1983 Code of Canon Law because it accused Archbishop Lefebvre of giving life to a true and proper schism in the formal sense, which, by definition, is manifested by the denial of the primacy of Peter and the creation of a parallel "Church." This being the mindset of the Vatican, it is not possible for it to invoke any circumstance nullifying imputability. This imputation of schism by the Vatican was not repudiated by the Decree of the Office of the Congregation for Bishops nor by Ecclesia Dei Adflicta, although both use the adjective "schismatic" without the adverb "formally."
Archbishop Lefebvre has been charged twice over, that is, with both disobedience and schism in the formal sense. Be it the one or the other, they cause the acting subject to incur excommunication ipso iure. If two offenses have been imputed to Archbishop Lefebvre, has he incurred two excommunications at the same time? The dean of the faculty of Canon Law at the Institut Catholique (Paris, France) maintains that schism is not created per se by the consecration of a bishop without papal mandate. What causes schism is the subsequent conferral of an Apostolic Mission upon this bishop, a symbol of the usurpation of power of the Supreme Pontiff proving one wishes to constitute a parallel Church.(9)
On the same note, the canonist Neri Capponi of the Faculty of Jurisprudence of the University of Florence states that in order to consummate a schism, Archbishop Lefebvre would have had to establish his own hierarchy.(10) Theological and canonical doctrine hold that the essential requisites for a schism in the formal sense consist in 1) the express denial of the papal primacy; 2) the denial of communion with members of the Church, and 3) the conferral of the power of jurisdiction.(11)
The first two requisites do not necessarily have to concur; only one of them is enough. And if they are not explicitly affirmed, by themselves or together, the act of the conferring of the power of jurisdiction is sufficient to create schism. This act, implying the establishment of an official ecclesiastical jurisdiction over a determinate territory, causes a proper hierarchy to be born, created with that act and therefore distinct from that of Holy Church and parallel to it. Here we have a formal rupture of unity. The act of disobedience alone (such as an episcopal consecration without papal mandate) does not create schism through itself. Not every act of disobedience is schismatic, but only those that meet any or all of the three aforementioned criteria. In the case of the episcopal consecrations for the Society of Saint Pius X, nothing done applies to be called "schismatic." Though, yes, the act was disobedient (through force of events), no act conferring any "apostolic mission" was ever performed.
The act imputed to the Archbishop was only one according to the terms of law -– the consecration of bishops. The excommunication is, therefore, one only. But the fact that one unique act has received two imputations of illegality -– i.e., "disobedience" and "formal schism" -– shows that the Holy See wanted to establish an intrinsic relation between the consecration without mandate and schism. For the excommunication to be valid from the point of view of the 1983 Code of Canon Law, the connection of these two different imputations must find its foundation in the one act performed by Archbishop Lefebvre.
H. The "Mandate" at Ecône
The episcopal consecrations for the Society of Saint Pius X took place without the mandatum, that is, the authorization of the pope. Nevertheless a mandatum was read during the ceremony. With what right? -– With the right that springs from the state of necessity, correctly understood. At the beginning of the rite of consecration of the four bishops, the following dialogue took place between the consecrating bishops and the Archpriest who presented the bishops-elect for consecration:
Do you have an apostolic mandate?
We have it!
Let it be read.
We have this Mandate from the Roman Church, always faithful to the Holy Tradition which She has received from the Holy Apostles. This Holy Tradition is the Deposit of Faith which the Church orders us to faithfully transmit to all men for the salvation of their souls...(12)
If the authorities of the Church refuse their permission for an episcopal consecration required by the state of necessity created by a Catholic clergy infected with postmodernist errors and which no longer transmits the deposit of the Faith, then it is totally legitimate to hold that the "Roman Church" of 19 centuries (excluding Vatican II) "orders" those who have remained faithful to the Magisterium to "faithfully transmit" the Deposit of the Faith for the salvation of souls. The "authorization" of Archbishop Lefebvre to consecrate these bishops comes from the Catholic Church of All Time and its Head of All Time. Our Lord Jesus Christ is the Head of the Church, not properly the Holy Father, who by definition is only its Vicar pro tempore. If, in a case like the consecration of these four bishops, the earthly ruler refuses to authorize an act required by the public and general necessity and totally in accordance with the Church of All Time, it is lawful to maintain that the Church supplies jurisdiction.
A mandatum conceived in this manner is totally legitimate from both the theological and canonical points of view.
After having declared in the first part of the mandatum the Authority which conferred this mandate, the dialogue continued:
...Since the Second Vatican Council to this day, the authorities of the Roman Church are animated by the spirit of modernism. They have acted contrary to the Holy Tradition since "...there shall be a time, when they will not endure sound doctrine;...and will indeed turn away their hearing from the truth, but will be turned to fables...," as says St. Paul in second Epistle to Timothy (II Tim. 4:3-5). This is why we reckon of no value all the penalties and all the censures inflicted by these authorities.(13)
That which is affirmed here is not a refusal of submission to the Pope nor a refusal of communion with the members of the Church. And neither is it the denial of the authority of the present hierarchy, insofar as it is the legitimate Catholic hierarchy. More simply, validity is denied to "penalties and censures" inflicted or declared by an authority which at the present moment is infected by a postmodernist spirit and professing grave errors and ambiguities such as to lead souls into error.
In this case, the understanding of the authority of the Holy Father to govern the Catholic Church is not taken in a purely formal sense, that is to say that, as though his authority extends to making valid everything the pope says or does simply by the fact alone that he is formally invested with the authority of the papacy. This simplistic idea of authority has never been Catholic. On the contrary, the perennial principle prevails, that is, "The corruption of law is not law." Therefore it is not enough that authority be legitimate, it is also necessary that its commands are legitimate and do not contradict the reason for being of the authority itself. The sole reason for papal authority is that the Holy Father propagate the Faith and extirpate heresy.
If authority is clearly infected by a postmodernist spirit, the spirit of heresy which has penetrated the Church through Vatican II documents like Lumen Gentium [which gives a new definition of the Catholic Church (§8) contrary to that given by the Church herself for 19 centuries and thus placing the Church in contradiction with herself -–Ed.]; if legitimate authority shows itself by consistent and various acts and declarations to have lost the sense of the Catholic Faith, then let it be resolved that it is lawful to often ask how much value ought to be attributed to the decisions of the Conciliar Church and if it ought to be always unquestionably obeyed as expressing the will of the God.
All actions made in the spirit of postmodernism and hence manifestly in contradiction with the purposes of the Church are "devoid of weight" and therefore invalid. On the contrary, when Pope John Paul II reaffirms in conformity to Tradition the prohibition against women being ordained priests (L'Osservatore Romano, May 30-31, 1994), this action is unquestionably valid because it corresponds to the doctrine and purposes of the Holy Church of All Time. When, however, the same Pontiff declares Archbishop Lefebvre -– a bishop most faithful to the papal primacy, whose desire owing to the urgency of the age was to consecrate bishops to preserve the life of his priestly fraternity which Rome had enthusiastically approved and which was found unreproachable in doctrine and ecclesiastical discipline, devoted to the formation of priests for the purpose of helping souls in the state of grave general necessity -– to have incurred a latae sententiae excommunication, we call this action invalid in the substantial plane, considered apart from the formal plane already examined [i.e., constituted by conformity to what has been established expressly by the pertinent canons of the 1983 Code of Canon Law, which nevertheless we claim exclude the possibility of Archbishop Lefebvre’s excommunication ipso iure -–Ed.]. The action is invalid and without weight because it wishes to exclude from the Catholic Church the defenders of Tradition with totally unfounded theological and canonical imputations because these defenders do not accept the New Theology's concept of "living" Tradition professed by Pope John Paul II and other members of the present hierarchy.
Rejecting the validity for "penalties and censures" inflicted with a "modernist spirit" by Vatican authority does not indicate a rejection of the legitimacy of this authority insofar as with this denial we do not confess any act of schism. It indicates that we declare unacceptable and invalid every act of authority that is contrary to the preservation and perpetuation of the doctrine of the Catholic Faith.
Among these acts considered invalid are the suppression of the seminary of Ecône and subsequent suspension of Archbishop Lefebvre a divinis. The latter is to be judged invalid because the Vatican did not consider the state of necessity in which Archbishop Lefebvre found himself as a consequence of the illegitimate suppression of the Ecône seminary.
The mandatum of the episcopal consecrations reaffirmed a truth in the form of a general principle which implies, in the concrete case, the invalidity a priori of the penalties and censures already inflicted or to be declared by an authority that is fundamentally postmodern and acting with a false notion of Tradition.
The Vatican's false notion of Tradition shows up in an explicit manner in the motu proprio Ecclesia Dei Adflicta where Archbishop Lefebvre is accused of having accomplished an act to be considered schismatic for not having sufficiently embraced "the living character of Tradition."(14) In the language of modernism, "living tradition" is tradition as understood by the New Theology, not the tradition which the Magisterium of the Church has always understood. "Living tradition" moves (that is, lives) by a dynamic concept, moving to see truth evolve and see that evolution applied to Church doctrine, whose content is no longer unchanging but must be updated to the times. Thus in the already cited §8 of the Vatican II document, Lumen Gentium, the notion of the Catholic Church is adapted to the demands of ecumenism, fundamentally denying that the Catholic Church is the one and only Church of Christ, that the Christian denominations which cut themselves off from Her are not the Church of Christ. The notion of "living tradition" in the New Theology is nothing more than passing off as being in harmony with true Catholic Tradition any adaptations to the falsehoods of heretics and schismatics by the Conciliar Church of the past 40 years.
The mandatum concludes with the explicit, official motivation of the episcopal consecrations of 1988:
As for me, "I am even now ready to be sacrificed: and the time of my dissolution is at hand" (II Tim. 4:6). I heed the call of souls who ask for the Bread of Life, Who is Christ, to be broken for them. "I have pity upon the crowd" (Mk. 8:2). It is for me therefore a grave obligation to transmit the grace of my episcopacy to these dear priests here present, in order that in turn they may confer the grace of the priesthood on other numerous and holy clerics, instructed in the Holy Traditions of the Catholic Church.
It is by the Mandate of the Holy Roman Catholic Church always faithful, then, that we elect to the rank of bishop in the Holy Roman Church the priests here present as auxiliaries of the Priestly Society of Saint Pius X: Fr. Bernard Tissier de Mallerais, Fr. Richard Williamson, Fr. Alfonso de Galarreta, Fr. Bernard Fellay.(15)
The text is most clear. On account of the state of necessity in which he had come to find himself, Archbishop Lefebvre knew he had to "transmit his episcopal grace" without further delay to other priests, satisfying the legitimate expectations of seminarians and faithful, for the salvation of their souls. To the bishops consecrated by him he gave the power of order, not the power of jurisdiction, so that they might be best called "auxiliaries" of the Society of Saint Pius X.
Archbishop Lefebvre was consistent with the general stance taken and maintained by him for a long time. In the letter addressed to the future bishops, already prepared on August 28, 1987, in which he was inviting them to take upon themselves this grave responsibility, it was declared in an explicit manner that he would confer on them only the power of order:
[T]he principal object of this transmission [of my episcopal grace -—Ed.] is that of conferring the grace of the sacerdotal order for the continuation of the True Sacrifice of the Holy Mass and to confer the grace of the sacrament of Confirmation to children and the faithful who ask it of them.(16)
So you see, there is no intention to create a parallel hierarchy, and therefore, no power of territorial jurisdiction conferred. The jurisdiction that he did confer was unicamente supplita ad actum, that is, a jurisdiction on a case-by-case basis at the request of souls in the state of necessity.
Even more important for showing the consistency and good faith of Archbishop Lefebvre is what he wrote Pope John Paul II (Feb. 20, 1988) six weeks after a presumably favorable report had been given the Holy Father by Edward Cardinal Gagnon, President of the Pontifical Council for the Family, who had been assigned by the Vatican to make an Apostolic Visitation to seminaries, schools, and priories of the Society of Saint Pius X. Told by Cardinal Gagnon the Pope had read the report and yet not receiving any response from the Holy Father, Archbishop Lefebvre wrote this letter to Pope John Paul II expressing once again the three requirements he understood to be necessary for a happy resolution of problems: 1) a Roman Secretariat composed exclusively of members chosen from within Tradition; 2) consecration of several bishops to be decided on or before June 30, 1988; and 3) exemption vis-à-vis the local Ordinaries. It is the part of this letter which talks about the second of these requirements that we quote:
2) The consecration of bishops succeeding me in my apostolate appears indispensable and urgent.
For the first designation, and while waiting for the Roman Office to assume its functions, it seems to me that you can entrust it to me, as is done with the Eastern patriarchs.
If this is agreed to in principle, I will present the names [of the episcopal candidates -–Ed.] to Cardinal Gagnon.
The second point is the most urgent one to be resolved, given my age and my fatigue. It is now two years that I have not done any ordinations at the seminary in the United States [in Ridgefield, CT at the time -–Ed.] The seminarians ardently aspire to be ordained, but I no longer have the health to be crossing oceans.
This is why I entreat Your Holiness to resolve this point before June 30 of this year.
These bishops would be in the situation vis-à-vis Rome and vis-à-vis their Society [i.e., the Society of Saint Pius X -–Ed.] that the missionary bishops were vis-à-vis the Congregation for the Propagation of the Faith and their own Society. Instead of a territorial jurisdiction, they would have a jurisdiction over individuals.
It goes without saying that the bishops would always be chosen from among priests of Tradition.(17)
From this text, the state of necessity for the Church and in the person of Archbishop Lefebvre himself clearly appears. What is more interesting is the qualification he gives concerning the jurisdiction of the future bishops. There is no question here of threatening a schism. Archbishop Lefebvre is inspired with the precedent familiar within the Church of the "missionary bishop," a prelate devoid of territorial jurisdiction, with a jurisdiction only over individuals. These individuals are not predetermined by belonging to any particular diocese, but are those who would be qualified before the bishop as persons in need of an act of his power of order.
Archbishop Lefebvre remained faithful to this letter to the Holy Father and to the mandatum of the consecrations by conferring only the power of order upon the four bishops consecrated by him. While it can be maintained that the bishops consecrated by him are not exactly identical to "missionary bishops," it can be said that the "auxiliary" bishops of the Society of Saint Pius X are effectively "missionary," because they have received (only) a power of order to be exercised with a supplied jurisdiction over individuals.(18)
1 This is the doctrinal definition of “Error” as found
in Commento al Codice di Diritto Canonico [a.k.a., Commento], p.761: “Error,
which is in reference to an action done out of ignorance, is a false judgment
about some thing.” As regards ignorance, it is “the lack of due knowledge,
that is, an habitual state.” It can be culpable (i.e., “slight, grave,
crass or supine, affected or fully deliberate”). Ignorance that “removes
all penal imputability is only that which is inculpable” (op. cit., p.761).
2 See Is Tradition Excommunicated?, “The Episcopal Consecrations: A Canonical Study,” by Rev. Fr. Rudolf Kaschewsky, pp.108,109 [available from Angelus Press. Price: $7.95], translated from Una Voce Korrespondence, March-April 1988.
3 L’Osservatore Romano, cit.
4 L’Osservatore Romano, cit. Canon 751 of the 1983 Code of Canon Law reads: “Heresy is the obstinate denial or doubt, after baptism, of a truth which must be believed by divine and catholic faith. Apostasy is the total repudiation of the christian faith. Schism is the withdrawal of submission to the Supreme Pontiff or from communion with the members of the Church subject to him.”
5 Mise au point du Conseil Pontifical pour l’interpretation des textes legislatifs in La documentation catholique, 79 (1997), 2163, of July 6, 1997, p.529.
6 L’Osservatore Romano, 3 July 1988.
7 Archbishop Lefebvre and the Vatican, pp.126 (available from Angelus Press).
8 Ibid, pp.126,127.
9 Valeurs Actuelles, July 4, 1988, p.18.
10 Interview in The Latin Mass, Summer, 1993.
11 The word “Schism,” written by Fr. Yves Congar, in the Dictionnaire de Theologie Catholique, XIV, col.1286-1312; col.1299ff. See also the words “Schisme” and “Schismatique” in the Dictionnaire de Droit Canonique, col. 886,887.
12 Excerpted from Archbishop Lefebvre and the Vatican, p.123. For the text in Latin, see Fraternite S. Pie X. Bulletin Officiel du District de France, July 13, 1988, n.10, p.2.
13 Archbishop Lefebvre and the Vatican, p.123.
14 L’Osservatore Romano, July 3, 1988, cit.
15 Archbishop Lefebvre and the Vatican, cit.
16 Fideliter, June 29-30, 1988.
17 Archbishop Lefebvre and the Vatican, pp.42,43.
18 The bishops consecrated as “auxiliaries” of the Society of Saint Pius X are not to be included in the category of “auxiliary bishop” without “right of succession,” referred to in Canon 403, §1 of the 1983 Code of Canon Law. These latter enjoy the power of jurisdiction over the territory of a diocese, being placed alongside [a latere] the diocesan bishop when “he is not able personally to fulfil all the episcopal offices as the good of souls would demand” (Commento, cit., p.241). It must be remembered that jurisdiction in actu supplita is not the same as in actu expedita, referred to in §2 of the Nota Praevia affixed to Lumen Gentium, this latter always resulting from a canonical mission. That which justifies jurisdiction supplita in actu is especially the state of necessity, in particular in the case of grave error and of heresy which have been publicly spread, also and above all on account of a temporary cessation of the authority of the official Church. In a similar situation, grave necessity of the many which is effected by a danger of seduction to error is equated by unanimous teaching to the extreme necessity of the individual as can be had in the danger of death.
The bulk of Part 3 of this ongoing canonical study of the 1988 episcopal consecrations dealt with the notion of "mandate." It was conceded that these consecrations took place without the mandatum ("mandate"), that is, the authorization of the Pope. Despite this, we proved in Part 3 that these consecrations were not, therefore, a formally schismatic act. In any case, a mandate was read at the consecrations ceremony in Ecône. With what right? -- We answered in Part 3, "With the right that springs from necessity, correctly understood."
Do you have an apostolic mandate?
We have it!
Let it be read.
We have this Mandate from the Roman Church, always faithful to the Holy Tradition which She has received from the Holy Apostles. This Holy Tradition is the Deposit of Faith which the Church orders us to faithfully transmit to all men for the salvation of their souls...[Archbishop Lefebvre and the Vatican, Angelus Press, p.123]
In this part of our canonical study, Part 4, we will attempt to better understand what "schism" actually means.
Understanding "Schism" in the Formal Sense; Virtual Schism, and "Legitimate" Disobedience
If we analyze the mandate read at Ecône on the occasion of the episcopal consecrations, no will to be "schismatic" appears. No desire to establish a parallel hierarchy emerges, neither from the words nor from the actions of Archbishop Lefebvre. And it is known that, subsequent to the ordinations, he never conferred any "canonical mission" upon the bishops. In the years since 1988, none of the four bishops consecrated that day has behaved as if he were titular of a diocese.
The accusation of schism in the formal sense contained in the Vatican documents is based on the text of the mandate of Ecône and on the act represented by it. The consecrations performed (by necessity, we argue) against the will of the Pope are considered by the Vatican to constitute an act of disobedience further considered by it to be "schismatic." This opinion is contrary to the accepted principles according to which, as we have seen, it is necessary always to distinguish between "disobedience" and "schism." This appears in a clear manner from the decree of Card. Gantin who speaks of an act "by its nature" schismatic. In the opinion of the Cardinal, the consecration without mandate is an act "in itself" of disobedience, and this disobedience, regarding a most grave matter concerning the unity of the Church through apostolic succession, involves a true repudiation ("vera repudiatio") of the Roman Primacy and for this reason is to be considered a "schismatic act." His claim is because it denies the unity of the Church "this disobedience effects a schismatic act."
The sense of the text is clear: the disobedience of Archbishop Lefebvre was so serious it implied a refusal of the primacy of Peter, putting into doubt the unity of the Church, and therefore, must be considered "schismatic." In fact, the Cardinal has attributed a new quality to disobedience which makes him now consider the disobedience to be "schismatic." The Archbishop found himself accused of a "schismatic act" in the objective sense, an accusation derived from the assumed quality of the act alone attributed to it by Cardinal Gantin, which, through itself, is not schismatic! In addition, there exists no declaration of will by Archbishop Lefebvre to be schismatic, nor of further acts necessary to prove the existence of schism in the formal sense.
This concept of schism is totally unknown either to canon law or to theology. The Holy See made an innovation with regard to the current law, enforcing against Archbishop Lefebvre a notion of schism in the formal sense, different from what is admitted by Church doctrine and the 1983 Code of Canon Law. This new notion of schism is unacceptable because it does not distinguish between disobedience and schism, that is, between legitimate and illegitimate disobedience. Instead, it interprets any act of disobedience as an act in itself schismatic.
In the case of these episcopal consecrations, can a schism in the purely objective sense exist? That is to say, can a schism exist in the absence of a will annunciated and in the absence of the institution of a parallel hierarchy through an illegitimate "canonical mission"? No canonist or theologian would admit the existence of a schism thus conceived. It is true that the 1983 Code of Canon Law does not define the specific "schismatic act," but merely the concept of schism which refers substantially to St. Thomas Aquinas, but that does allow the Holy See to invent a new category of schismatic act, moreover one which is contrary to what doctrine has always maintained!
Of course, the Pope, supreme legislator and foremost teacher of the Church, has the power to innovate with respect to the Code. But, for him to do so, he must proclaim he is doing so, namely, by establishing and defining a new type of offense. Whatever he may call it -- "objective schism," or "objectively schismatic disobedience" -- he cannot sneak around doing so nor establish a proper procedure as if it were a question of the mere application of the law in force. The fact that the Code does not define "schismatic act" does not mean that the supreme authority can establish, between today and tomorrow, without creating new norms to which it assumes legislative responsibility, that a determinate act must be considered "by its nature" schismatic. On the contrary, it means that the Code of Canon Law must be interpreted by deferring the determination of a "schismatic act" to the consolidated canonical and theological doctrine of the Church and her practice through the ages. The supreme authority cannot ignore this deferment without falling into arbitrariness.
What is then the notion of "schism" in the formal sense? In Canon 751 of the 1983 Code of Canon Law "schism" is defined as "the withdrawal from submission to the Supreme Pontiff or from communion with the members of the Church subject to him."(1)
This withdrawal gives life to a separation from the body of the Church and represents a rupture of the unity of the Church. It is to be noted that, on the conceptual plane, schism can be had also by withdrawing oneself from communion with members of the Church only, who are subject to the Pope, without, at the same time withdrawing oneself from subjection to the Pope, or vice versa. The sin of schism is contrary to charity because it "directly and through itself opposes unity," given that not accidentally, but through its nature, a schismatic "intends to separate himself from the unity which charity produces." Schismatics are those who, in violating the command of charity, separate themselves from the Church willfully and intentionally. The unity of the Church must be considered in two ways in themselves linked together: 1) "in the mutual connection or communion of the members of the Church" and, 2) "in the subordination of all the members of the Church to the one head according to Colossians 2:18-19." The head "is Christ Himself, whose Vicar in the Church is the Supreme Pontiff." That is why St. Thomas Aquinas says:
[S]chismatics are those who refuse to submit to the Supreme Pontiff, and to hold communion with those members of the Church who acknowledge his supremacy.(2)
He gives therefore the concept of schism just as we find it even today in the Code of Canon Law.
Schism is a special type of sin in itself that demands proper qualifications. It cannot be reduced to simple disobedience as such, as the Vatican wishes, inasmuch as disobedience is the source of every sin, as St. Thomas Aquinas recalls in this objection to which he then proceeds to reply:
Further, a man is apparently a schismatic if he disobeys the Church. But every sin makes a man disobey the commandments of the Church, because sin, according to St. Ambrose, is "disobedience against the heavenly commandments." Therefore every sin is a schism.(3)
The reply of St. Thomas to this objection hinges on his indisputable reasoning that in disobedience that gives life to schism there must be a "certain rebellion" ("rebellio quaedam"):
The essence of schism consists in rebelliously disobeying the commandments: and I say rebelliously, since a schismatic both obstinately scorns the commandments of the Church, and refuses to submit to her judgment. But every sinner does not do this, wherefore not every sin is a schism [Summa Theologica, II-II, Q.39, A.I, Obj.2].
For one to be in schism, there must be a manifestation of a rebellion which must appear from the fact of "despising with pertinacity the teachings of the Church and of refusing to submit to its judgment. And every sin does not have this attitude in it. Therefore every sin is not schism."(4)
Schism is a "special" sin, which is to say, it can't be assimilated to another sin simply on the grounds of the principle that in every sin there is a disobedience. For St. Thomas, schism must be characterized by "rebellion." If expressed by a "rebellion," then the schism is a question of illegitimate disobedience, for if the disobedience is legitimate, then there is no question of rebellion! Torquemada says that theologians of at least the 14th century and later:
point out that schism is an illegitimate separation from the unity of the Church; they assert in fact that there could be a legitimate separation, as in the case of him who refuses to obey the Pope, if the Pope commands of him something evil or illegal [emphasis added].(5)
In such a case, as in an unjust excommunication, "there would be a purely exterior and putative separation from unity."(6)
Doctrine has therefore elaborated the concept of schism as the illegitimate refusal of submission and communion. This refusal must be understood in an act or in acts in which an illegitimate disobedience (or, rebellion) to authority is unequivocally manifested. In formal schism, the intention of the acting subject must be clearly manifest to consciously deny submission and communion on which is founded the unity of the Church. Otherwise schism is virtual; it is present, that is, in the intention, but not yet brought into action, not yet carried into an effective separation. It can already be a sin, even if it does not fall under the sphere of the norms of the 1983 Code of Canon Law.
Therefore by the notion of virtual schism is meant not only the attitude or the intention of the potential schismatic (schismatic in potency), but also behavior (conduct) that objectively reveals a non-participation in the communion of the Church's members, even in the absence of an actual schism in the formal sense. This behavior, which manifests a separation in fact, would reveal the existence of a situation of virtual schism. According to Fr. Gerald Murray in his interview published in The Latin Mass , this is the situation of the priests of the Society of Saint Pius X and of the Catholics who attend the Tridentine Mass in the churches and chapels of the Society. They cannot be defined as schismatics in the formal sense, because Fr. Murray denies that Archbishop Lefebvre can be considered schismatic in the formal sense, but they would be presumed nevertheless to be considered as separated from the official Church and therefore as schismatics in the virtual sense, canonically not condemnable but theologically reprehensible.(7)
This consideration, however, is totally erroneous. At the same time, however, the concept of virtual schism is also used in connection with heresy. St. Thomas reminds us that while schism is a sin opposed to charity, heresy is a sin opposed to the faith. Schism and heresy are different vices, although whoever is a heretic is also schismatic.(8) In this way a grave doctrinal error can be professed which per se implies a virtual separation from the Church. In substance, this is precisely the accusation Archbishop Lefebvre charged against the hierarchy that was condemning him as schismatic. Afflicted itself with the modernist heresies, the present hierarchy is to be considered virtually excommunicated because the modernists have been formally excommunicated by Pope St. Pius X.(9) Insofar as it is afflicted with a grave error such as that of §8 of Lumen Gentium about the notion of the Church, an error that breaks per se unity with the doctrine taught for almost 20 centuries by the Church, we can apply this concept to mean that the present hierarchy has placed itself outside the Church of All Time and put itself in a position of virtual schism.
Let us now put aside virtual schism and discuss the notion of a "schismatic act," the decisive point for the concept of schism in the formal sense. Yves Congar, a Vatican II liberal theologian, summarized St. Thomas this way:
The schismatic act is therefore that evil act which has directly, properly, and essentially as its specific object one thing contrary to ecclesiastical communion, that is to say, to that unity which, among the faithful, is the proper effect of charity. An act, in effect, is characterized through the object to which it tends per se, through the fact itself of what it [i.e., the act -–Ed.] is. An act will show therefore the quality of a schismatic act when, through its very own nature, it will have as its object the separation from unity, the spiritual fruit of charity.(10)
A schismatic act is, and cannot not be, that which has as its object the rupture of Church unity "directly, properly and essentially." Note that an indirect approach is not applicable. Therefore, it can be said that a schismatic act has this aim, it has a certain sign, given not by disobedience as such, but by "the will of constituting through one's own account a particular Church," according to the clear enunciation of St. Thomas.(11) It is not enough "not to preserve concord," nor is disobedience alone. The manifest will of constituting a separate Church is necessary. A schismatic act cannot be confined to mere disobedience, such as an episcopal consecration without papal mandate; on the contrary, a schismatic act will be that which institutes a hierarchy of a parallel church with "canonical mission." But if this were to happen, such an act certainly aims at a "separation from unity, the spiritual fruit of charity." It is the absolutely sure sign. Such an act is schism in the formal sense because with it one withdraws himself formally from submission to the Pope, denying him the authority as Supreme Pontiff, namely as the head of the universal Church.(12) This was the case with King Henry VIII of England who by his own will set himself up as head of a self-styled national "Catholic" Church with its own hierarchy after having degraded the authority of the Pope to that of a simple bishop of Rome at a session of the English Parliament (Nov. 3, 1534).
Without the schismatic act, without the "canonical mission," schism in the formal sense is impossible. And when is it that a schism in the virtual sense can be had? -- Certainly not when an exterior separation imposed by necessity is had. For a virtual schism, it is necessary that there be an effective will for schism, though in time it has not yet come to happen. This certainly was not the case of Archbishop Lefebvre, nor of his priests and of the faithful who attend the Latin Mass at the centers of worship of the Society of Saint Pius X. Contrary to the opinion of Fr. Gerald Murray, the Society maintains that it is incorrect to speak of it in regard to its being schismatic in the virtual sense. The signs of any will of schism whatever are lacking on its part. In this case, any separation is imposed by the existing state of necessity and does not express a schismatic will of any kind. The separation is not willed; it is endured. It is the price that must be paid for being able to celebrate a non-ambiguous Mass (as is the Novus Ordo Missae), surely Catholic, which preserves intact the Roman Rite which dates to the first centuries of Christianity, in order to be able to administer the sacraments, as for example Confirmation, with a rite which is certainly Catholic. It is the price that must be paid in order to assist at this Mass and in order to receive those sacraments. It is the price that must be paid in order to be faithful to the Church of All Time.
It is a separation de facto from the official Church provoked by the official Church itself. The official Church obstructs those who desire to be able to celebrate and assist at the Tridentine Mass without having to pledge against their conscience to the "doctrinal correctness" of the protestantized rite of Pope Paul VI. There is separation because the character of the official ecclesial society and of the faithful themselves is gravely corrupted by modernism in all its various forms -- theological, moral, political, etc. -- so as to place the faith of the Catholic who would be constrained to have contact with it in grave danger . We are here considering a Catholic who considers the salvation of his soul as the most important thing for him. Are we to define him as a "virtual schismatic" who is not able in conscience to have anything to do with the priests of the present hierarchy nor with the laity who gravitate around them, given their corrupted faith? Can we say he who is at least uncertain and constrained in an unprecedented state of necessity to live in such a condition of separation is virtually schismatic? We don't think so.
If he is a virtual schismatic, then so were those who were kept separated from the Arians while the Arians were ruling over the official Church of that time. Even St. Athanisius would have to be considered a virtual schismatic. His famous passage, "They [the Arians] have the churches, we have the faith," reveals that such a separation was there even in the absence of a new rite of Mass.
Therefore, there is no virtual schism for the priests of the Society of Saint Pius X nor for the faithful who attend their functions and listen to their teachings in the sermons, spiritual exercises, and catechism classes. Their position is simply that of him who, on account of the state of necessity, is forced into a temporary legitimate disobedience.
It is legitimate disobedience to disobey the implicit and explicit command to consider Vatican II doctrinally correct and to behave accordingly. It is legitimate disobedience to disobey the command to assist at the Mass of Pope Paul VI, so protestantized and so agreeable to heretics and non-Christians. Legitimate disobedience has always been admitted by theologians when the legitimate Catholic authority orders the doing of things contrary to the faith or which put into danger the salvation of the soul. "Justified separation from the orientations of the hierarchy for the time," which are in contradiction to the Magisterium of All Time, is not equivalent to "separation from the Church." The separation now is only for a time from the error unfortunately professed by the hierarchy and has been amply reaffirmed and illustrated by the essay, "Neither Schismatic Nor Excommunicated" to which we defer.(13) (See Is Tradition Excommunicated? Available from Angelus Press. Price: $7.95.)
By those forced to exercise it, this disobedience is conceived as temporary because it is imposed by the state of necessity which will last as long as the crisis in the Church lasts. One day, however, the crisis will end and the Catholic hierarchy will return to sane doctrine. It is of faith: "the gates of hell will not prevail against it." The present state of necessity will faint away along with its right to disobey the illegitimate commands of formally legitimate authority.
The imaginary schism
Therefore, the schism declared against Archbishop Lefebvre is not included in any category known and recognized as schism. There is no schism in the formal sense; there cannot be schism in the virtual sense. The judgment of condemnation of the Holy See was fabricated from a "pseudo-category" on theological and canonical planes. We find ourselves confronted with a monster. But such arbitrariness always tries to defend itself as good law by using appealing arguments which seem to have foundation. In our case, the monster uses two arguments. We will proceed to give those two arguments here and then shoot them down. Let us begin with the first:
1) On the grounds that Vatican II has approved of a new concept of collegiality, it is maintained that bishops receive at the moment of episcopal consecration the power of jurisdiction (1983 Code of Canon Law, can.375, §2). It follows from this that a consecration without mandate would be ipso facto schismatic. In consecrating without mandate, the acting subject (i.e., Archbishop Lefebvre) would ipso facto confer on the candidates the power of jurisdiction without mandate.(14) But if the power of jurisdiction is also given, then there is schism. The fact that, once consecrated, the bishops were not given effective jurisdiction by Archbishop Lefebvre would not prevail to avoid schism objectively on account of Canon 375, §2 already cited.
We answer that this argument is totally unacceptable. What in fact is the logic of Canon 375, §2 of the new Code? Let's read it:
By their episcopal consecration, Bishops receive, together with the office of sanctifying, the offices also of teaching and of ruling, which however, by their nature, can be exercised only in hierarchical communion with the head of the College and its members.
This canon contains two propositions; one principal and one relative depending on it. The principal proposition states: "...Bishops receive, together with the office of sanctifying, the offices also of teaching and of ruling,..."(15)
The age-old dispute, whether a bishop at consecration receives ipso facto the power of jurisdiction or only at its exercise, seems to have been resolved by the 1983 Code of Canon Law in a way favorable to the thesis that maintains the ipso facto position. In this matter the new Code has expressly applied the directive of Vatican II, as appears in Lumen Gentium (§21) and in the Decree Christus Dominus (§23).(16) The text of §21 of Lumen Gentium is taken word for word by the 1983 Code:
...Now, episcopal consecration confers, together with the office of sanctifying, the duty also of teaching and ruling, which, however, of their very nature can be exercised only in hierarchical communion with the head and members of the college....
Note that both Lumen Gentium (§21) and Canon 375, §2 of the 1983 Code of Canon Law begin with the same primary proposition delineating the episcopal offices and also include the same relative proposition regarding the exercise of those offices: "which [offices -–Ed.], however, by their nature, can be exercised only in hierarchical communion with the head of the College and its members."(17) The texts distinguish therefore between the powers received with the consecration and their exercise. This is a traditional distinction, that between possessor of a right (i.e., a power) and its exercise.(18) The realization of this exercise needs an act that authorizes it. It is not left to the whim of the consecrated bishop. The exercise of episcopal "offices" must take place "in hierarchical communion with the head of the College and its members," namely, in communion with the Pope and the members of the College of Bishops. In practice that means as related in the nota praevia in Lumen Gentium, that these powers can be exercised only "iuxta normas a supreme auctoritate adprobatas." That means that communion is "hierarchical" and requires for its "activation" respect for the qualifications guaranteed by the canonical mission related expressly by §24 of Lumen Gentium.(19)
Let us not enter into this arena on the merit of the erroneous semi-Conciliarist conception of collegiality which Vatican II attempted to introduce.(20) For our purpose, it is important to indicate the following point: if the power of jurisdiction given the bishop at his consecration must have also the "canonical mission" in order for that power to be exercised [a mission which has not been completely abolished by the 1983 Code of Canon Law -–Ed.], the canonical mission is always necessary for the institution of a hierarchy. And since schism in the formal sense is, as we have seen, the separation of oneself in order to institute the hierarchy of a parallel church, then for formal schism to be had an illegitimate "canonical mission" is always necessary, too. It is true that with the system established by Vatican II, the qualification for "canonical mission" has changed: from the act that confers a power (of jurisdiction) is derived the act that confers the exercise of a power, which would already be intrinsically present in the bishop from consecration. But, despite this new system, for the purpose of the concept of schism there has been no change because the "mission" always remains the pre-eminent schismatic act. It is the "mission" alone which confers the exercise of that power of jurisdiction from which a parallel hierarchy is derived. According to the current Code, lacking such an act, as in the case of the consecrations carried out by Archbishop Lefebvre, there is no schism.(21)
Let us proceed to the second possible argument:
2) The condemnations declared against Archbishop Lefebvre point out how he, besides having acted without mandate, proceeded against the express will of the Pope, who on June 29, 1988 requested him "paternally and firmly" to postpone the consecrations.
Now, it can happen that a consecration without mandate is not necessarily against the will of the Pope. If there is a state of necessity when it is not possible to obtain the mandate, one can proceed to the consecration relying on the fact that the Pope will approve post factum. This is what happened for the bishops ordained secretly under communist regimes.
But, in regard to the consecrations of Ecône, it is true that Archbishop Lefebvre received an "invitation" -- in reality a warning -- from the Pope not to proceed which was communicated to him the day before the date established for the ceremony. Therefore against Archbishop Lefebvre weighs the double accusation of having acted not only without the authorization, but also against the express will of the Pope. Does the action of the Archbishop against the express will of the Pope have an effect on the determination of the criminal charge imputed to him? It is inquired here, therefore, whether his having acted against the will of the Pope was able to have made the action itself make a leap of quality such as to confer on it the nature of a schismatic act. The argument is for a new type of schism through the declaration of censure "by the law itself," a composite of two elements: 1) a consecration without mandate, and 2) a consecration against the expressed will of the Pope. This is the juridical and theological monstrosity that has been instilled into the soul of the simple faithful so summarized: "Archbishop Lefebvre disobeyed the express will of the Pope; therefore he is a schismatic!"
The fact that, beside the absence of the mandate, there has also been a negative will expressed by the competent authority, does not change the quality of the unlawful act, which remains always an act of disobedience, but of its nature alone not schismatic. It must not be forgotten that the Code includes in it a canon quite distinct from that which establishes the penalty for schism, and that the link between the two types is not possible on the basis of other canons, according to the principle of systematic interpretation.(22) That which makes the consecrations become schismatic is not the absence of the mandate for the consecration, as we have made clear by now, but its conjunction with an illegitimate canonical mission. Neither does a declaration by competent authority make the action schismatic, which, besides the absence of the mandate, discloses also the contrary will of him who must admit it. The presence of this declaration of will can constitute at most an aggravating circumstance for the disobedient subject, but only in the internal forum, from the moral point of view, since the 1983 Code of Canon Law does not consider it among the aggravating circumstances.
In the case of Archbishop Lefebvre, we do not believe the existence of an aggravating circumstance of the kind can be admitted, since he was acting in the state of necessity. The state of necessity renders just every possible aggravating circumstance of this type, because the lack of the will of the legitimate authority [that which Professor Romano Amerio calls "systematic desisting," in Iota Unum, available from Angelus Press. Price: $24.95 -–Ed.] to carry out the particular acts necessary for the maintenance of sound doctrine and for the salvation of souls, is in a certain sense really the major cause of the necessity in which a bishop faithful to dogma comes to find himself. It is irrelevant to the purposes of the imputation ascribed to Archbishop Lefebvre that the so-called lack of will in authority may be implied or unexpressed or manifested under the form of prohibition. It is always a question of simple disobedience, nevertheless performed owing to a cause beyond control and therefore not imputable.
In any case, the fact that it has been manifested under the form of prohibition of an act in itself legitimate and necessary for the salvation of souls, is not able to justify in any way the charge of a new type of schism and in the formal sense.
Due to the exceptional circumstance faced by Archbishop Lefebvre to work even against the express will of the Pope, undue consequences have been drawn. It is falsely maintained, for instance, that his act, precisely due to that exceptional circumstance, is not limited to violating only "ecclesiastical law," but has represented a "break with tradition," reasons for which what he did is to be considered "intrinsically evil" and totally "unjustifiable." Archbishop Lefebvre has been rendered responsible "for the intrinsically evil act of an episcopal consecration against the will of the Pope."(23) If this particular assertion corresponded to truth, we would be dealing with a new type of offense springing from an unprecedented new category of "intrinsically evil acts." This is an untenable interpretation. Sound moral theology teaches us that an "intrinsically evil act" is prohibited because it is evil; it is not evil because it is prohibited. It is a question of an act that is an evil in itself according to the "negative natural law" which prohibits doing it even if danger to one's very life is present. For example: blaspheming, perjury, lying, murdering an innocent person.(24) Disobedience to a command of a superior, however grave, certainly cannot be compared to an act of such a kind, in itself evil, through its nature, independently from the law which punishes it. The consecration of a bishop, done for the salvation of souls, according to the intention of the Church, is certainly not an "intrinsically evil act." If, in the specific circumstance, it is preliminarily prohibited, it only means that in consequence of this prohibition it belongs, if anywhere, in that category of acts that are evil because forbidden, and not to that category of acts evil in themselves and therefore "intrinsically evil."
The thesis critiqued here presents still another aspect which is quite deviant from what has ever been known in the Church: that of placing the express prohibition from the Pope to carry out the consecration on the same level as natural law, that is, the Ten Commandments. If disobedience to a pontifical warning expressly directed to a person who disobeys is said to be an "intrinsically evil" act, the same value is given to this warning as is given to the negative natural law [e.g., "Thou shalt not kill," etc. -–Ed.], since only their prohibitions are applied to the act in itself evil. The warning of a pope is only one of the ways in which the supreme power of jurisdiction that he has in the universal Church is expressed. This is a power which, even though founded on the divine constitution of the Church, is certainly subordinated to the natural law created by God and occupies a position clearly inferior to it.
The consideration of those who say that no theologian or council has ever maintained the legitimacy of an episcopal consecration against the express will of the Pope(25) is irrelevant. The proof is obvious: what theologian or council could ever have been able to maintain the principle that the pope must be refused in order for the faithful to obey God?! Even speculatively, the question was never posed. But, that is because there has never been a situation as that of today! No theologian or council could have foreseen a crisis such as the one which has raged throughout the Church since Vatican II, a crisis more grave than the Arian crisis. Church theologians and councils aim to resolve the problems of the time in the light of dogma. While the problem in question has never been posed practically by the Church, it does not automatically mean that it never could be posed. On the contrary, what we are living through today demonstrates that the pinnacle of the present Church prefers novelties that contradict Tradition instead of defending Tradition against the novelties and the innovations. Immersed in these novelties, the Church has deprived itself of comprehending a consecration which had to be done against the express will of the Pope, since the same express will of the reigning Pope has itself systematically defended the novelty of the new rites, the new concept of the Church, the new humanist concept of the liberty of man, and all the other novelties of the "conciliar" Church which are contrary to Tradition.
The critics of Archbishop Lefebvre are constrained to maintain contorted and even deviant theses because they want to make the facts say something that the facts do not demonstrate. It is false reasoning to claim that the supposed "intrinsic evil" of the episcopal consecrations of Ecône is such as to render them "an act in themselves schismatic" in accord with the untenable thesis of the Holy See.
1 Commento al Codice di Diritto Canonico (hereafter abbreviated,
“Commento”) op cit., p.473.
2 Summa Theologica, II-II, Q.39, A.1., sed contra
4 Op.cit., Cf., Dictionnaire de theologie catholique under “Schism,” col.1304.
5 Ibid., under “Schism,” col.1302.
6 Ibid., under “Schism,” op. cit.
7 “Are they schismatic in spirit? I think some of them are, from what I’ve read;...” (The Latin Mass, Fall, 1995, p.52). “Yes, and as I’ve made the distinction before, it may be in fact a schismatic movement [i.e., the Society of St. Pius X–Ed.], but without the canonical penalty of schism attached to it,...” (ibid., p.53).p.5.). The accusation of virtual schism seems evident.
8 Summa Theologica, II-II, Q.39, A.1, op.cit.
9 “It is not we, but rather the modernists who leave the Church. As for saying ‘leave the Church,’ it is to make a mistake by assimilating the official Church and the visible Church. We well recognize the Pope’s authority, but when he uses it to do the opposite of that for which it is given him, then it is obvious that we cannot follow him. Are we “leaving” the Church, then? In a certain measure, yes, obviously. The whole book of Mr. Jean Madiran, L’Hérésie du XXeme siècle [i.e., The Heresy of the 20th Century–Ed.] is the history of the heresy of the bishops. To save one’s soul, it is necessary, then, to leave the ambit of the bishops.” (Quoted from the Official Bulletin of the SSPX, French District, no. 29, Sept. 29, 1988, p.7.) And furthermore, “we are condemned by people who are themselves condemned, and who should be publicly condemned. Has there been a declaration of schism? Schism with what? The successor of Peter? No, schism with the modernist Pope, schism with the ideas that this Pope spreads everywhere—modern, revolutionary ideas. Yes, we are in schism with all that. We do not accept it, of course” (Quoted from Fideliter, June 1988, p.18.).
11 Ibid. under “Schism,” op.cit., col.1301.
12 Op.cit., col.1304
13 “Neither Schismatic Nor Excommunicated,” in Is Tradition Excommunicated?, Angelus Press, 1993 [Available from Angelus Press. Price: $7.95], pp.1-40.
14 The thesis is mentioned in Most Asked Questions About the Society of Saint Pius X, Angelus Press, Kansas City, 1997 [Available from Angelus Press. Price: $6.95].
15 Commento, op.cit., p.226.
16 The point is recalled in Commento, op.cit., pp.226,227. On the matter see also the cited nota praevia in the footnote of Lumen Gentium, at n.2. On the age-old dispute: Dictionnaire de Droit Canonique, V, under “Eveques,” col. 569ff., col.571-574. For a defense of the stance adopted by Vatican II and by the 1983 Code of Canon Law: W. Bertrams S.J., Il potere pastorale del Papa e del Collegio dei Vescovi. Premesse e conclusioni teologiche giuridiche, Herder, 196, pp.8-25ff.
17 Commento, op.cit., p.226.
18 Even while admitting the possibility of immediate communication by the Christ, it is recognized that episcopal jurisdiction depends, in its exercise, from the supreme power of the Pope, who can determine its scope, suspend and limit it. (Dictionnaire, op. cit. col. 572).
19 Nota praevia affixed to Lumen Gentium in Il Documenti del Concilio Ecumenico Vaticano II (the Latin-Italian text), Padua, 1966, p.278.
20 For which we make reference to F. Spadafora, La tradizione contro il Concilio. L’apertura a sinsitra del Vaticano, 2º, Roma, 1989 (reprinted), p.177ff.
21 Cf. Bertrams, op.cit.: “Insofar as it concerns the office of teaching and of governing of the bishops, the Councils clear and unequivocal distinction between its conferring, which is had in Episcopal consecration, and its exercise, which can be had only in hierarchical communion” (p.27; n.14); that is through canonical mission. In fact the power created in Episcopal consecration (according to its substance) receives its juridical constitution in canonical mission because specified in relation to the passive subject” (ibid., p.26).
22 The fact has been recalled with vigor by Fr. Simoulin in Valeurs actuelles (July 4, 1988).
23 Enquette, pp.47-49.
24 Noldin De Principiis Theologiae Moralis, 1911, pp.202-203; Roberti-Palazzini, Dizionario di teologia morale, Roma, 1954, under “Causa Scusante”, p.207; G.G. Guzzetti, Morale generale, Marietti, 1955, 1, p.152.
25 Enquette, p.47.
The Specifics of the "Murray Thesis"
Rancor towards Archbishop Lefebvre continues despite the passing of over a decade since his actions. It has fomented unfounded accusations against the Society of Saint Pius X.
It would be illusory to expect anything different in the actual climate of decadence of the Church and of once-Catholic societies. Nevertheless, an exception was had with the "Murray Thesis", sanctioned by the Pontifical Gregorian University which does justice to the distorted charges against the Society. We will attempt to analyze the essential nucleus of it, just as it appeared in the summary of The Latin Mass Magazine (see "Gaps in the New Code?," Fall 1995).
An unauthorized consecration of a bishop cannot be described as an intrinsically evil act, nor would it necessarily be described as tending to the harm of souls, apart from a consideration of particular circumstances which define more specifically the nature of the act. In our case, the direct violation of the Holy Father's express will that the consecrations not occur gives this act of consecration a particular objective character (prescinding here from subjective considerations on the part of Archbishop Lefebvre, which also legally condition the nature of the act in question, as we shall see), i.e., that of disobedience of a schismatic nature, as stated by the Supreme Authority in the Church. A truly schismatic act always has the character of an act harmful to souls.
Therefore, Archbishop Lefebvre could not simply claim prima facie that §4 exempts him from the penalty. A prior question needs to be addressed, though: Can he legally claim that a state of necessity existed at the time? Does the law grant him that faculty?(1)
Therefore, we are not in the presence of an "intrinsically evil" act and not even one "harmful to souls" unless it is proven that this act, in that it was carried out against the express will of the pope, presents a "particular objective character," that is, of a "schismatic nature." But Fr. Murray recalls that, for the purpose of a correct juridical evaluation of the act, the "nature of the act in question" does not arise only from the judgment which the Holy See has given to it, it arises also from the evaluation which the author has given to it. In our case, this was Archbishop Lefebvre, who always invoked the existence of a grave state of necessity in order to justify it. The view expressed here by Fr. Murray seems absolutely correct, according to the law, because, for the 1983 Code of Canon Law, the juridical relevance of the act in question depends essentially on the valuation which the acting subject (Archbishop Lefebvre) has given to it, much more than on the valuation of the authority (the Holy See).
But when do you have a "state of necessity"? A state of necessity results, recalls Fr. Murray, every time that there is "a conflict between a subjective right and a canonical norm." But this "conflict" must not be seen only in the case of "ordinary" or "common" necessity, that is, when there is danger of "losing a good which is not indispensable to existence." The state of necessity is also that in which one is constrained "to act against that which is prescribed in order to avoid the danger of an evil ensuing from the fulfillment of this disposition."(2) A state of necessity exists, not only when, by obeying the norm, one risks losing a good, but also when one risks incurring an evil. In each case, a state of necessity always implies disobedience to a norm and therefore to the will of the legislator, which can be that already embodied in the norm of the Code of Canon Law, or which is manifested in the form of an individual precept toward those who feel themselves to be constrained to transgress it.
We must examine the criterion necessary to establish the actual existence of the state of necessity. What needs to be done, from the juridical point of view, is to analyze the relationship between the necessity invoked by Archbishop Lefebvre and Canon 1323,§7 of the 1983 Code, which dictates that he is not subject to any penalty who has violated the law or the precept, while considering as present, without fault on his part, any of the circumstances provided for in Numbers 4º and 5º of the same canon, or in the cases of superior or irresistible force, among which is the circumstance of necessity, and legitimate defense .
Canon 1323,7º contemplates the possibility of an error on the part of the subject who invokes necessity, but of an error without fault, a blameless error. In this case also, the subject must not be considered culpable, and is exempt from the penalty.
Fr. Murray examines the position of Archbishop Lefebvre in the light of Canon 1323,7º because the existence of the state of necessity is contested by the Holy See, which charges that the "necessity" was artificially created by the Archbishop. Was this state invoked following a diligent judgment on the part of Archbishop Lefebvre (Canon 1323,7º) or a negligent one (Canon 1324,§7,8º). The opinion reached must be formed by means of an analysis totally in accord with the express norms and with the principles of canon law. The logical progression followed by Fr. Murray appears to us to be the following: 1) Archbishop Lefebvre invoked Canon 1323,4º which concedes the exemption from penalty to whomever acted having been constrained by grave fear, even if the fear was only relative, or through necessity, etc., provided that the act not be intrinsically evil (i.e., lying, swearing falsely, etc.) or harmful to souls; 2) the Supreme Authority, on the contrary, has conferred on this act a "particular objective character," that of "a disobedience of a schismatic nature"; 3) a schismatic act is always "harmful to souls"; 4) if the act is "harmful to souls" then number 4 of Canon 1323 [invoked by the Archbishop] does not apply, because in this case one is not totally exempt from penalty, even though having the right to attenuating circumstances.(3)
The evaluation of the conduct of Archbishop Lefebvre must therefore be twofold, because it is a question of seeing whether 1) his conduct essentially falls into the subject matter of Canon 1323,7º according to which an error without fault is admitted as a cause exempting from penalty, or, 2) it falls into the subject matter of Canon 1324,8º, which concedes simple attenuating circumstances sufficient to exclude latae sententiae excommunication. Fr. Murray says:
Culpability is not a question of moral fault nor even of malice, but of an imprudent attitude deriving from the lack of diligence. According to Fr. Murray, it is sufficient that this fault not be "grave."(4)
Was Archbishop Lefebvre gravely culpable of a fault for thinking that there was a state of necessity authorizing him to perform the episcopal consecrations? If culpability is defined as the "omission of due diligence" (Canon 1321,§2), it would be hard to claim that Archbishop Lefebvre acted without some measure of due diligence in studying his decision to perform the episcopal consecrations based on what he claimed was a necessity of acting for the benefit of the Church.
His judgment was proclaimed to be faulty by the Holy See, but does that determination in itself mean that he was gravely culpable -- in the sense of forming a judgment in a negligent way -- for continuing to hold his judgment? It would seem not.(5)
"It would seem not," because, as Fr. Murray points out, the law in force obliges one to here consider the situation also (and especially) from the point of view of the acting subject:
The issue here is not simply the actual state of things as understood by the Holy See, but rather also the subjective appreciation of the person who violated the law. If he exercised due diligence, and indeed thought there was a state of necessity involving the securing of the good of the Church, then [Archbishop Lefebvre] would seem to be exempted from a penalty for the episcopal consecrations, according to Number 8 of Canon 1323.
Who is to judge if Archbishop Lefebvre exercised due diligence in thinking about and forming a judgment on this matter? Since it involves a question of the internal forum, i.e., his thoughts, then we have to leave that judgment to his conscience as manifested by his statements...[I]t would seem that the presentation of credible evidence that he acted with due diligence...would exclude both the presumption of culpability, and moreover, culpability itself.(5)
The Murray Thesis maintains that in the case of the consecrations of Ecône, one can apply Canon 1323,7º, which excludes from all penalty one who has only believed himself to be obliged to act in the state of necessity, provided that there was not a grave lack of diligence on his part. But the declarations of Archbishop Lefebvre do not allow the possibility of maintaining that there was a lack of that kind. His behavior proves this also, given that he consulted at successive stages with different persons on the matter [see Archbishop Lefebvre and the Vatican available from Angelus Press. Price: $12.45].
At this point, from a consideration of general character, it could be asked: if the subject exercised due diligence, where is the error in the evaluation? Doesn't that diligence exclude it? In truth, Canon 1323,7º does not explicitly mention error, but denotes a subjective judgment which may or may not correspond to the facts.
An absolutely certain state of necessity was the one which today is recognized as having been present in the Church at the time of the Arian crisis, when heresy had corrupted the faith of a substantial part of the hierarchy. This is an uncontestable fact. Equally certain was the state of necessity of the Church at the time of its public persecution, for example in Protestant England or in revolutionary France. It is so in the case of supplied jurisdiction for the salvation of the soul of one dying. A state of necessity implied by the crisis of faith, and therefore of the Church, will, however, be denied by those whose faith is no longer solid because they have been seduced by heresy. And so today, many admit the crisis of faith and of the Church, but almost no one dares to draw the necessary conclusion, namely, that souls find themselves in the state of necessity. This means that whoever, as Archbishop Lefebvre and Bishop de Castro Mayer, has proclaimed the state of necessity of souls, finds himself part of a small minority, and his judgment appears only his own, even if objectively based on the actual state of affairs. But this judgment, even if considered erroneous by the majority (therein is included the formally legitimate authority), is nevertheless safeguarded by the 1983 Code, provided it is a matter of a diligent judgment. This latter is not as such necessarily precise, because diligence shows the good faith of the subject, not the truth of his conviction. Naturally, the diligent judgment can be true, even if it can present the appearance of error when it is the judgment of an individual only or of a minority against the huge majority. The diligent judgment receives complete protection from the 1983 Code of Canon Law, with exemption from penalty; a negligent judgment, invalidated by an error due to the subject's fault, receives a lesser protection, but nevertheless exemption from latae sententiae excommunication.
This last benefit is that contemplated in Canon 1324, §1,8º, upon which the Murray Thesis naturally rests. After concluding that Archbishop Lefebvre and the four bishops consecrated by him could not be penalized, in accordance with the provision of Canon 1323,7º, Fr. Murray says:
This canon [1324, §1,8º] offers to Archbishop Lefebvre and to the bishops consecrated by him perhaps the strongest argument that they are not excommunicated. Number 8 of paragraph 1, like Number 7 of Canon 1323, refers to the thoughts of the person who committed the offense. The legal value given to an individual's subjective estimation of the existence of a state of necessity by the 1983 Code of Canon Law seemingly renders the incurring of a latae sententiae penalty impossible in the case of a person who violated a law or precept, either culpably or not, and without malice, while thinking that the state of necessity required or simply permitted him to violate a law or precept.(6)
This is therefore the conclusion of a general character, perfectly based on the positive law in force in the Church. Naturally, the subject must have acted without malice or deceit whatsoever. The negligent judgment about which Canon 1324, §1,8º speaks is almost always due to negligence, not to malice. The Holy See, however, as we know, has accused the Archbishop of bad faith and therefore of a malicious attitude. Here is Fr. Murray's reply:
If law A allows one to violate law B in certain circumstances with impunity, is a violation of law B in those circumstances really a violation? It would seem not, since an act cannot be authorized and not punishable, and yet be prohibited at the same time. If there is no prohibition, then there can be no violation. Law B falls, law A prevails, the act regulated by law B is not subject to a prohibition or a penalty; hence its completion involves no deliberate violation, and therefore malice is not involved.(7)
The first argument of Fr. Murray in favor of the impossibility of accusing Archbishop Lefebvre of malice is based on the observation that the exempting causes (and attenuating circumstances) make the very concept of deliberate violation of the law disappear, with the consequent impossibility of imputing any malice to the acting subject. Moreover, whoever violates the law on account of the state of necessity, is convinced of doing it for safeguarding a superior good: the purpose of his action is not to violate the law (something that he does unwillingly), but to protect this good, and such a purpose shows the absence of that which is commonly understood by malice.
The second argument is the following:
Furthermore, if the judgment of the applicability of law A is not legally reserved to a superior, but is rather left up to the individual judgment of the person who violates law B, then his appeal to law A [which exempts him from penalty --Ed.] is not illegitimate and cannot simply be gainsaid by the superior. The Code has given the person in question the capacity, if not the right, to judge the circumstances, and then mitigates or exempts him from the penalty attached to a violation of law B based on the legal qualification of his subjective appeal to, for instance, necessity.
If this supposition is correct, then Archbishop Lefebvre cannot be alleged to have acted with malice. It can plausibly be maintained that his intent was not to violate a law, but rather to act, with legal sanction, in a way that would, according to his judgment, secure the good of the Church, by means of a necessary transgression of Canon 1382 [already cited by us, which provides for "latae sententiae" excommunication for consecration without mandate --Ed.] in the extraordinary circumstances he alleged to exist in the life of the Church. This intent to obtain the good of the Church by means of disobeying in this particular instance, but not rejecting, the authority of the Supreme Pontiff and the submission due to him [insofar as the Holy Father --Ed.], would also exclude any direct intent to commit a schismatic act.
If Archbishop Lefebvre thought, even culpably, that he needed to act because of the necessity of the Church, he is furthermore not subject to a latae sententiae excommunication according to Canon 1324, §3. And as we saw, the code of Canon Law does not presume malice, but rather imputability (Canon 1321, §3). This presumption of imputability falls "if it appears otherwise" (nisi aliud appareat). Such an "appearance," indicating at the least a possible lack of imputability, can reasonably be asserted to exist in this case.(13)
This point of the Murray Thesis is important. It points out how Canon 1321 of the 1983 Code of Canon Law, with regard to the infliction of a penalty, presumes "grave imputability through malice or through fault." The external violation of the law or of the precept must be referred to an imputable subject. Once the violation has occurred, "imputability is presumed, if it does not appear otherwise."(14) And in the case that interests us this "otherwise," which causes imputability to fail, did with reasonable probability appear, according to Fr. Murray. But why is this remark so important? -- Because it reminds us that, through canon law, that which must be presumed, in the case of a violation of the law, is imputability, not malice: malice must be demonstrated. In the case of Archbishop Lefebvre, the Supreme Authority has proceeded in a way exactly opposite: it has presumed malice, without first making sure of the actual existence of imputability. But the latter was excluded or diminished on the bases of Canons 1323,7º and 1324,§1,8º and therefore malice cannot be presumed! Therefore the Holy See has fallen into a true and proper error of law, such as to allow us to consider invalid the pronouncement of excommunication against Archbishop Lefebvre invalid. Fr. Murray continues:
Hence, it would seem incumbent upon the competent authority first to establish Archbishop Lefebvre's imputability, and then his malice in performing the episcopal consecrations before declaring that the law has been violated in such a way as to incur a latae sententiae penalty. Whereas these two facts [imputability and malice --Ed.] have not been established with juridical certainty, then there exists a well-founded argument to reasonably contest the validity of the declaration of the latae sententiae excommunications against Archbishop Lefebvre and the other bishops involved...
The administrative declaration of the Holy See appears to have failed to take into proper account the revised penal law of the Code of Canon Law, especially as regards the mitigation of and exemption from latae sententiae penalties. Juridical malice has been presumed on the part of Archbishop Lefebvre and the bishops consecrated by him. Subjective convictions on their part as to an alleged state of necessity are simply dismissed in an unsigned communique, whereas the Code of Canon Law stipulates that holding and acting upon such a conviction, even erroneously, in effect prevents one from incurring a latae sententiae penalty.(10)
Therefore, according to Fr. Murray, there has been here also a possible violation of Canon 220 of the Code of Canon Law, which safeguards the "good reputation" which one enjoys, because a person is branded as "schismatic," when there is on the contrary the well-founded reason to maintain that this person has not incurred the penalty. Such an action, an arbitrary attribution, "would be a violation of that person's fundamental right to his good reputation, which is guaranteed by the Code itself."(11)
Essentially, this is the Murray Thesis, a thesis absolutely correct in point of law which spells out the illegality of the procedure followed. The partial retraction made of it afterwards by its author is incomprehensible to us.
In relation to the appointment of a bishop apparently conceded by the Holy See to the Society, it behooves us to underline that it was in reality a concession subjected to burdensome conditions. In his letter of May 30, 1988, Card. Ratzinger wrote that the Pope declared that he was "disposed" to nominate a bishop selected by the Society, but on precise conditions: 1) He demanded additional names on the list of candidates, in order not to be conditioned in his freedom of choice.(12) This was an entirely new demand being put forth, which, by leading in fact to an extension of time, removed with one hand what was conceded by the other, i.e., the date of August 15 for the consecration; 2) He demanded that the Archbishop write a letter to ask pardon and offer submission,(13) a request that had already been advanced before, but was now augmented by new requests, so that Archbishop Lefebvre would have had to publicly take a pledge not to carry out the announced consecration of three bishops and to defer to every decision of the Holy Father in this matter. This request indicated a lack of trust in Archbishop Lefebvre. Pope John Paul II did not concede the date of August 15th for the consecration of a traditionalist bishop: he said only that he was disposed to concede, and only on certain conditions which made clear what Rome meant by "reconciliation": a reabsorption, perhaps gradual, which strikingly resembled unconditional surrender. This "concession" of Rome did not convince Archbishop Lefebvre that the state of necessity in the Church (or in the Society) had passed. In a manner totally consistent with his convictions and in light of his accurate appreciation of the circumstances, the Archbishop asserted in his letter to the Pope of June 2, 1988, that "the moment for a frank and efficacious collaboration" with Rome had "not yet arrived." He had to continue down the path of providing for the "state of necessity" in souls.(14)
The Law Authorized by the State of Necessity
State of Necessity in the Church after the Council
We must discuss the right which is born of the state of necessity. The state of necessity exempts us from imputability, but does it engender for us an actual right? Prof. May in The Disposition of Law in Case of Necessity Within the Church ; also Is Tradition Excommunicated? available from Angelus Press. Price: $7.95) draws attention to the fact that the 1983 Code of Canon Law
...does not say what is meant by this item [i.e., "state of necessity" --Ed.]; it leaves to jurisprudence and lawyers the task of giving it a precise meaning. But it is clear from the context that necessity is a state wherein goods necessary for life are put in danger in such a way that to come out of this state the violation of certain laws is inevitable.(15)
The "violation of certain laws" is not free in the case of necessity as in the case of one who commits a crime, but is "inevitable," because imposed by necessity.
The observance of the laws is clearly a good thing. Catholics know they must "serve the Commandments" not only in faith and morals, but even the norms of the positive law of the Church and of civil authority. Nevertheless, there are goods superior to observance itself, and these are "the goods necessary for life," whose value is primary and essential. When there is a danger these goods may be injured and their necessary possession impeded, then it is lawful to violate the established norm -- for example, through an act of disobedience -- to prevent that from happening.
A situation in which "the goods necessary to life" are put in danger is clearly an exceptional situation of necessity. The juridical significance of a situation of that kind is admitted by all the modern legal codes, especially with its importance from the standpoint of morality.(16) With regard to the Church, what form can it assume? Dr. May says:
In the Church, as in civil society, it is conceivable that there arrive a state of necessity or urgency which cannot be surmounted by the observance of positive law. Such a situation exists in the Church when the endurance, order, or activity of the Church are threatened or harmed in a considerable manner. This threat can bear principally on ecclesiastical teaching, the liturgy, and discipline.(17)
The "endurance, order, or activity of the Church" represent per se fundamental goods, because they are "necessary to life," that is, the supernatural life of the faithful, since without the Church there is no salvation. The good of souls demands that the Church be maintained according to its nature and the intention of its Founder. The most basic sign of this conservation will be its fidelity to the deposit of the Faith. The Church cannot be lost to the faithful for any reason. But this good is threatened in its three forms of existence [i.e., "endurance, order, activity" --Ed.] when "teaching, liturgy, and ecclesiastical discipline" are corrupted.
In consequence of Vatican II these three forms of existence of the Church have entered into the most acute crisis, because doctrine has been attacked, on account of the heterodox conciliar novelties; the liturgy has been revolutionized in an ecumenical and Protestant manner; discipline has been relaxed and adulterated by the democratization of hierarchy and the relationship between the hierarchy and the faithful.
This situation has produced from inside the Church and is allowed to persist by the Church's hierarchy. The danger to the goods of faith and salvation is caused either through that which the hierarchy does and wants to be done, or through that which the hierarchy does not do and does not want to be done. In the first case we have an unlawful use of authority, because it orders the faithful to observe things contrary to the faith and to the salvation of souls, beginning with ecumenism and the secular form of freedom of conscience. In the second case (the cessation of authority) we have a culpable (and therefore morally illicit) omission of authority, which does not keep watch over the deposit of the Faith, but allows corruptions and errors to creep into doctrine, liturgy, and discipline. The corrective interventions of the Magisterium are in general limited to blatant excesses and only in a substantially feeble manner; they never give the impression that an effective change of course is sought. The only exception was the prohibition of the priesthood to women. The abeyance of authority persists because the authorities do not want to battle the revolution introduced by Vatican II, but merely to limit its excesses.
From the State of Necessity is Born the Law of Necessity
The state of necessity exists for priests and the faithful knowing they must keep the Faith and secure the salvation of their soul. They suffer from unlawful commands and the spectacle of disintegration within the Church. They cringe at seeing faith in contradiction to obedience, and obedience to the Magisterium of All Time in contradiction to the current Magisterium, corrupted in the faith, even if formally legitimate.(18)
The situation is not hopeless. When objectively existing, the state of necessity carries with it its own proper right, the right to act in order to protect the threatened vital good, even if for this purpose one has to violate some norms of the positive law in force. The action performed in the state of necessity is therefore the action of whoever has the right to act in that way, a right instituted by the necessity itself. And whoever acts by exercising a right is evidently not able to be imputable of a penalty. Hence the words of Prof. May: "A state of necessity justifies the law of necessity. The law of necessity in the Church is the sum total of juridical rules which apply in case of a menace to the perpetuity or activity of the Church."(19)
There are rules in force which are not expressly laid down by positive authority, but are imposed by the nature of things. The thing here is the situation that has come into being, which threatens "the perpetuity or the activity of the Church."
"Perpetuity" of the Church refers to the spiritual and material continuity of her doctrine which cannot be interrupted. It is spiritual on account of its content and quality; it is material on account of the activity of the Church, which can be materially interrupted in whole or in part by persecution. The spiritual continuity is the continuity of fidelity to dogma, guaranteed by the constant handing down of the Magisterium of the Church.
When errors are introduced into the doctrine itself and therefore into the teaching, then the perpetuity of the Church is endangered even if error is not in every specific act of the official Magisterium. On this account there has always been an objection to Vatican II in the name of fidelity to dogma. The number of objectors may be numerically small, but what counts is that it has maintained the continuity of Catholic doctrine. It is an indisputable fact that the marks of authentically Catholic doctrine are found integrally in the seminaries of the Society of Saint Pius X, and in a way as to be rendered practically inefficacious, in those of the official Church.(20)
Application of the Law of Necessity to the Concrete Case
The persistent threat to the perpetuity of Catholic doctrine represented by a teaching imbued with errors permits the application of the law of necessity. This justifies the Catholic who, by disobeying the commands of the authority infected by error, attends the seminaries, the functions, the catechism classes, etc., of the Society of Saint Pius X which has as its proper object that of providing for the serious state of necessity that has been caused in the Church.
The logical succession, which justifies the coming into being and the exercise of the law of necessity, can be represented thus:
1) The rite of Pope Paul VI and of the Novus Ordo, concocted by a commission of experts with the collaboration of Protestant heretics, is ambiguous and theologically doubtful, after having acceded to the requests of the same heretics and even possibly of non-Christians.
2) As a consequence, this rite represents a grave danger to the Faith for everyone.
3) Catholics are obligated to attend this rite even though the Tridentine Rite has never been formally abrogated, just as they are obliged to accept all the decisions of Vatican II and to conform to its spirit, which is at the origin of the Mass of the "New Order."
4) Commands that require doing something that places the faith in danger are to be considered, essentially, morally illicit and juridically invalid, (even if formally valid because emanating from the formally legitimate authority).
5) The faithful find themselves in a state of grave necessity, because the primary goods of the Faith and of the salvation of the soul are greatly threatened by the order to attend a rite per se dangerous to the Faith.
6) The faithful have the moral duty to defend the Faith, their own faith, and that of others, according to their capacities; this is a duty that is required of us by our Lord in the sacrament of Confirmation.
7) Besides this duty, right reason, supported by the customary practice of the Church, recognizes a true and proper right to act in order to defend the Faith, a right produced by the objectively existing state of necessity in which one may find themselves.
8) The need to safeguard the primary goods of the Faith, endangered by the commands of pastors themselves, authorizes the faithful to disobey the order of the official authority to attend the Mass of the Novus Ordo or the Tridentine Mass according to Indult.
9) Disobedience is legitimate because necessitated, because it is the exercise of that right which springs from necessity.
10) Insofar as it is legitimate, disobedience is not imputable and hence not punishable.
11) Insofar as it is legitimate, disobedience is not schismatic.
A Repugnant Compromise
It is necessary to disobey even the order to assist at the Tridentine Mass conceded by the Indult by exercising the right that necessity ascribes to us. The Indult of Pope John Paul II grants permission to celebrate or attend the Tridentine Mass on condition one admits "the legitimacy and the doctrinal correctness of the Roman Missal promulgated in 1970 by Pope Paul VI."(21) Refusing to go to the Indult Mass is not to deny the authority of the Pope; it is to legitimately disobey his command, "If you want to attend the Tridentine Mass, you must attend only that with the Indult granted by me", because he orders us to participate in a function in which the danger of losing the Faith is already present in the condition required.
The "Extraordinary Competence" of the Clergy in the State of Necessity
The teaching of the catechism and in seminaries, the ordination of priests, the consecration of bishops, etc., are expressly allowed by the custom of the Church in cases of necessity or grave danger. They are manifestations of that "juridical competence" which the state of necessity ascribes to priests. With these acts the void created by the official authority is filled.
It is a matter of extraordinary competence, thanks to which a bishop is authorized to perform ordinations against the will of the pope, and the faithful to attend Mass in the Tridentine rite (not of the Indult of the Holy Father). The character of "extraordinary competence" in the case of the state of necessity means that one can act not only in the absence of a declared will on the part of the legitimate authority, but also in the presence of its will which forbids performing the act although authorized by the state of necessity. This is because it is a matter of an act "necessary and indispensable" for the salvation of souls. The authorization does not arise here from a norm of positive law, but immediately from the reality [i.e., "the right springs from the fact" --Ed.] and indirectly from a claim superior to that of positive ecclesiastical law, that is, the claim represented by the will of our Lord and which we must qualify as normative. That right has, then, its ultimate foundation in the divine constitution of the Church itself.
However, the law of necessity must respect the "principle of proportionality." It can be resorted to "only when one has exhausted all possibilities of re-establishing a normal situation relying on positive law," and it must be exercised only in that measure "necessary for a restoration of functions in the Church"(22). It has a sphere that is not obviously predetermined by the norms, but which must come about unmistakably from the nature of the thing, that is, from the necessity of the situation, without exceeding it. The respect on the part of Archbishop Lefebvre for the "principle of proportionality" and his scruple of always following the requirements and competencies of the law of necessity are demonstrable. When it is said, "Necessity knows no law," it does not justify any action whatever, but only that it forces one to ignore for a time the positive law in force. The rights devolving from the law of necessity are not general, but flow from a specific necessity; therefore the action it justifies must be proportionate to the exigencies of the situation.
Archbishop Lefebvre's rejection of the "sedevacantist theory" finds its broadest juridical justification in a correct interpretation of the state of necessity: the competence that springs from it, however, inasmuch as it is proportioned to the effective necessity, is not such as to permit anyone to take advantage of it to declare the Papal Chair vacant.
The competence established by the state of necessity, since it concerns the safeguarding of specific and determined goods, is limited to conferring on the subject the right to point out those errors professed and put into practice by the hierarchy, errors which place those goods in danger, and to legitimately disobey explicit or implicit commands which are equally dangerous for the aforesaid goods.
1 The Latin Mass, Fall, 1995, p.59. The literal title
of the paper for the licentiate of Fr. Murray is: “The Canonical Status
of the Lay Faithful Associated with the Late Archbishop Lefebvre and the
Society of St. Pius X: Are They Excommunicated as Schismatics?” His reply
is that they are not excommunicated nor schismatic. The faithful who attend
the Masses celebrated by the priests of the Society do not perform any
schismatic act, they do not participate in any schism (also because, as
will be seen, for Fr. Murray, one cannot speak of formal schism while the
latae sententiae excommunication must be considered invalid). The Murray
Thesis dedicates a detailed analysis to reject the hypothesis of schism
for the faithful and the priests: cf. The Latin Mass, op. cit., pp.55-58.
The summary of the thesis, with ample extracts of the text, is from Steven
Terenzio: op. cit., pp.55-61. We limit ourselves here to taking into consideration
that which seems to us the essential nucleus of the thesis.
2 Op. cit. p.59.
3 Commentary on the New Code of Canon Law, p.762.
4 The Latin Mass, op. cit., p.61, footnote no.10.
5 Ibid. p.60
10 Op cit., p.61.
12 Cor Unum, 1988, no.30.
14 Op cit. pp.41-42.
15 Dr. Georg May, “The Disposition of Law in Case of Necessity Within the Church,” Is Tradition Excommunicated?, Angelus Press, Kansas City, MO, p.111.
16 Rudolf V. Jhering, Lo scopo nel dirritto (1877 ess.), partial Italian draft of G. Losano, Turin, Italy, 1972, p.185.
17 Dr. Georg May, Is Tradition Excommunicated?, op. cit., p.112. Also Dr. May in Die Krise der Kirche ist eine Krise der Bischofe (Cardinal Seper), pp.119, Una Voce Korrespondenz, 1987.
18 Dr. Georg May, “Neither Schismatic Nor Excommunicated,” Is Tradition Excommunicated?, op cit., pp.1-40.
19 Dr. Georg May, Is Tradition Excommunicated?, op. cit., p.112.
20 “We do not follow Bishop de Castro Mayer or Archbishop Lefebvre as cult-leaders. We follow the Catholic Church. But these two confessors of the Faith have been the only bishops who have risen up against the auto-demolition of the Church. We do not disassociate ourselves from them. Just as in the 4th century, at the time of the Arian heresy, it was a mark of orthodoxy to be ‘in communion with Athanasius’ [and not with Pope Liberius-Ed.], in the same way being united to Archbishop Lefebvre and to Bishop de Castro Mayer is a sign of fidelity to the Church of All Time” (declaration of Fr. Thomas d’Aquin, Prior of the Monastery of Santa Cruz of Nova Friburgo, Brazil, in 1988, in the Bulletin Officiel du District France, Fraternité S. Pie X. Sept. 29, 1988, no.29, p.10).
21 The Indult Quattuor Abhinc Annos.
Archbishop Lefebvre justified his act by appealing to the state of necessity. The force of this excusing cause was not undervalued by Vatican authorities, who did not contest it on the doctrinal level, but responded with an argument of fact, namely, that there was not a state of necessity(1), knowing full well that, if it had been, the action of Archbishop Lefebvre would have been fully justified, even as much as it concerns the "no" of the Pope, according to Catholic doctrine on the state of necessity.
The strength of the justification adduced by Archbishop Lefebvre escapes, on the contrary, most people through the simple fact that Catholic doctrine on the state of necessity is little known. We will try to explain it. The principles we will use are found in any traditional treatises regarding moral law or canon law. It is an absurdity to admit an extraordinary crisis in the Church and, at the same time, to pretend to measure what has been done in such extraordinary circumstances with the rule of norms valid in ordinary circumstances. It is contrary to logic and to the doctrine of the Church. Law, in fact:
...ought to be established on the more ordinary conditions of social life and, in consequence, necessarily leaves out of consideration those things which occur only rarely [emphasis added].(2)
St. Thomas Aquinas reinforces this principle:
Universal laws...are established for the good of the whole. Therefore, in establishing them the legislator bears in mind that which happens ordinarily and in the greater number of the cases (Summa Theologica, II-II, Q.147, A.4) [emphasis added].
Therefore, in cases "that happen rarely" and in which "one happens to have to act outside the ordinary laws," "it is necessary to judge on the basis of principles higher than the ordinary laws" (ST, II-II, Q.51, A.4). These "higher principles" are the "general principles of divine and even human law" (Suarez, De Legibus 1. VI c.VI n.5) which supply for the silence of positive law.
The Church is authorized to apply said principles when, because of cases not foreseen by the law, it defers to the general principles of law and to the common and constant judgment of the Doctors, which, precisely because common and constant, must be considered canonized by the Church.(3)
That having been set forth, we offer for the convenience of readers a summary of the arguments that we will treat here in succession.
I. Duties and Powers of a Bishop in the State of Necessity
A. State of Necessity and Its Various Degrees
The state of necessity consists in "a threat to the spiritual goods of life, of liberty or other earthly goods."(4)
If the threat regards earthly goods, we have material necessity; if it regards spiritual goods, we have spiritual necessity, a necessity all the "more urgent than that material" to the extent that spiritual goods are more important than material goods.(5)
In reality, various degrees of spiritual necessity can be given, but theologians commonly distinguish five of them:
1) ordinary (or common) spiritual necessity is that in which any sinner finds himself in ordinary circumstances;
2) grave spiritual necessity is that when a soul finds herself threatened in spiritual goods of great importance (e.g., faith and morals);
3) spiritual necessity almost extreme is the status of a soul which, without someone else’s help, could be rescued only with great difficulty;
4) extreme spiritual necessity is that status of a soul is situated which, without the help of someone else, could not be able to be saved or would be able to do so with such difficulty that her salvation would be considered morally impossible;
5) grave general (or public) spiritual necessity is that when several souls find themselves threatened in spiritual goods of great importance (e.g., faith and morals). Canonists and theologians commonly adduce as examples of grave general or public spiritual necessity epidemics and the public spreading of a heresy [emphasis added].(6)
B. Today's State of Grave General Spiritual Necessity
Today a state of grave general (or public) spiritual necessity exists because many Ctholics are threatened in faith and morals by the public and undisputed spreading of neo-modernsim or self-styled "new theology," already condemned by Pope Pius XII as the assembly of errors which "threaten to destroy the foundations of the Catholic Faith,"(7) a revival of that modernism previously condemned by Pope St. Pius X as "the synthesis of all heresies."(8)
This public diffusion of errors and of heresies was dramatically denounced by Pope Paul VI who went so far as to speak of the "auto-destruction" of the Church(9) and of the "smoke of Satan in the temple of God,"(10) and was admitted by Pope John Paul II at the beginning of his pontificate on the occasion of a Congress on missions to people:
There is need to admit realistically and with a deep and sober sensibility that Christians today, for the most part, are dismayed, confused, perplexed and even frustrated; ideas conflicting with revealed and constantly taught Truth have been scattered by handfuls; true and real heresies in the sphere of dogma and morals have been spread, creating doubts, confusions, rebellions; the liturgy has been violated; immersed in intellectual and moral "relativism," and therefore in permissiveness, Christians have been allured by atheism, by agnosticism, by a vaguely moralistic enlightenment, by a socialistic Christianity, without defined dogma and without objective morals.(11)
There is, therefore, a state of grave public or general necessity: grave, because faith and morals have been threatened; public or general, because these spiritual goods, indispensable to salvation, have been threatened among a large part of the Christian people. The situation has grown worse after 20 years of Pope John Paul II:
It was believed [Pope Paul VI once acknowledged] that after the Council there would have come a sunny day in the history of the Church. There came, on the contrary, a day of clouds, of storm, of doubt.(10)
Under these "clouds," in this "storm," amidst these "doubts," souls nevertheless must direct their course to the harbor of eternal salvation in the brief time of trial allotted to them. Who can deny that today, generally, many souls live in a state of "grave spiritual necessity?"
1. 1st Principle: the Grave Necessity of Many is Equated with the Grave Necessity of the Individual
It is the common doctrine of theologians and canonists that the grave necessity of many (either general or public) must be equated with the grave necessity of the individual (P. Palazzini, Dictionarium Morale et Canonicum, vol.1, p.571). This is a fundamental principle because it means that that which is lawful in the extreme necessity of the individual is lawful in the grave necessity of many. Theologians explain the reasons for this:
1) because among many persons in grave necessity individual souls in the state of extreme necessity are not lacking, e.g., in an epidemic souls not capable of an act of perfect contrition are not lacking and that in order to be saved, therefore, have need of sacramental absolution. Likewise, if a heresy has been spread, souls unable to defend themselves from the sophisms of the heretics are not lacking and hence are in danger of losing their faith;(12)
2) because the grave spiritual necessity of many is a threat as well to the common good of Christian society. Not only is there not a spiritual necessity of many which does not become extreme for individual persons, but "in such kind of necessity the Christian religion itself and its honor are very nearly always in grave danger."(13)
The common good must be considered in danger not only when 1)many effectively suffer harm, but also 2)when they are able to suffer it. In the first application to our case, people lose the faith; in the second, they are able to lose it if, in fact, only one objective cause exists which renders this damage possible.(14) The spread of errors and heresies already condemned by the Church is sufficient for judging the danger to the common good. These expose the old generations to the loss of faith and deprive the new generations of the integral transmission of doctrine. Both old and young are robbed of the goods due to them by the hierarchy according to the norms of divine law, natural and positive, and also according to the norms of ecclesiastical law (1917 Code of Canon Law, can. 682; 1983 Code of Canon Law, can. 213), doctrine, and the sacraments, the rites of which today have been left to "creativity," as denounced by Pope Pius XII:
Private individuals, therefore, even though they be clerics, may not be left to decide for themselves in these holy and venerable matters [Mediator Dei (1947), available from Angelus Press. Price: $2.50].
This is enough to say that today not only do many souls live in the state of grave necessity. The "double end which the Church pursues: the good of the religious community and the eternal salvation [of souls]"(15) has been compromised and "the very sense and scope of the whole life of the Church [Pope Pius XII]"(16) and, hence, the common good, is at stake.
2. 2nd Principle: The Grave General Necessity without Hope of Help on the Part of Legitimate Pastors Imposes an Obligation of Assistance Upon Clerics
Who is responsible for helping souls in the state of necessity? By way of justice (ex officio) it belongs to the legitimate pastors, but if, for any reason, their help happens to be lacking, this duty falls, by way of charity (ex caritate), upon anyone who has the possibility of offering help.(6) St. Alphonsus and Suarez observe that the power of order adds to the duty of charity a duty of state, that is, the duty of the sacerdotal state -- instituted by Our Lord precisely for assisting the spiritual needs of souls.(17)
Note that the duty of charity imposed by the need of souls is a duty under pain of mortal sin. In fact, the greatest commandment, the commandment of charity, obliges coming to the aid of one’s neighbor in necessity, especially spiritual, and demands it under pain of mortal sin in extreme or near-extreme necessity of the individual and in the grave necessity of many, which is equivalent to it.(18) Rev. Fr. E. Genicot, S.J., writes that:
...it can be a grave [thus "sinning mortally by omitting it" --Ed.] obligation to aid people who otherwise, through the efforts of heretics and unbelievers, would lose the faith, especially because at times it is morally impossible for the more simple to recognize their sophisms and hence many will probably be in extreme necessity.(19)
This duty of charity in some cases can oblige also at the risk of one’s own life, reputation, and goods. St. Alphonsus says that grave public or general spiritual necessity obliges in this way and that therefore:
...one is held at the risk of life to administer the sacraments to people who otherwise would be in danger of losing the faith.(20)
Suarez is of the same mind:
If I knew that a heresy is being preached among the people by heretics, I would be held to oppose myself to it even in spite of peril to me.(21)
At his time, Billuart writes:
...[I]f a heretic perverts a whole community with a false doctrine, a private individual [e.g., the simple faithful or the priest who is not officially invested with the care of those souls --Ed.] is held, when he is able to do it, to obstruct it at the risk of his life. If, in fact, anyone is bound to assist at the risk of life the common temporal good, [how much] greater reason is the spiritual good. All the more in the case where many individuals are found in extreme necessity.(22)
a.) Today's State of Grave General Necessity Without Hope of Help on the Part of Legitimate Pastors
The grave general or public necessity for the souls of today is without hope on the part of the legitimate pastors because these generally are swept away or paralyzed by the neo-modernistic course of the Church. Contradiction to revealed truth is championed by the hierarchy or it is silent or in collusion.
...[I]deas conflicting with revealed and constantly taught Truth, true and real heresies in the sphere of dogmas and morals [through which] Christians today are dismayed, confused, perplexed,...(11)
The Church finds herself in a time of unrest, of self-criticism, it could even be said of auto-destruction. It is almost as if the Church assaults her very Self [Pope Paul VI].(9)
This last admission amounts to saying that today the Church and souls are attacked by the very ministers of the Church as at the time of Arianism, when "the priests of Christ were contending against Christ."(23)
Romano Amerio in Iota Unum [available from Angelus Press. Price: $24.95] has been able to document the doctrinal deviations of the Vatican Council II with conciliar texts, acts of the Holy See, papal allocutions, declarations of cardinals and bishops, pronouncements of Episcopal conferences, and articles from L'Osservatore Romano.
That is to say, traditional Rome condemns neo-protestant Rome with "official or unofficial disclosures of the Church hierarchy"(24) arriving at the conclusion that:
...the doctrinal corruption has ceased to be a phenomenon of little esoteric circles and has become a public action of the ecclesial body in sermons, books, schools, and catechisms.(25)
In Iota Unum Romano Amerio illustrates the renunciation on the part of the Holy Father to exercise the power received from Christ Our Lord in order to condemn error and extirpate the ones erring.(26) Pope Paul VI admitted:
So many expect from the Pope outspoken actions and energetic decisions. The Pope cannot consider any other possibility [of action] than that of confidence in Jesus Christ, for Whom His Church matters more than anything else. It will be to up to him to calm the tempest.(9)
Fine and good, but this does not exempt Peter from maintaining the place of Christ in the government of the Church by taking hold of the rudder again and straightening it out!
Regarding the pontificate of Pope John Paul II, the following declaration of the prefect of the Congregation of the Doctrine of the Faith, Joseph Card. Ratzinger, to the Chilean Episcopal Conference (1988) says it all:
...[T]he myth of Vatican harshness in the face of progressivist deviations has been shown to be an empty speculation. Basically, as of today, only admonitions have been issued [which are] in no case fully canonical in the proper sense.(27)
The abandonment of utilizing supreme papal authority in the face of error and the ones erring endorses the abandonment of every other authority in the Church. Cardinal Ratzinger continued at the same episcopal conference:
The same Bishop, who, before the [Second Vatican] Council, used to have an irreproachable professor expelled for somewhat uncouth speech, is in no position to remove, after the Council, a teacher who is denying openly some fundamental truth of the Faith.
Now, whenever souls are not able to hope for help from the legitimate pastors, there is imposed upon anyone having the possibility the duty under pain of mortal sin of offering help to Catholics in large part tempted by atheism, by agnosticism, by a sociological Christianity, without defined dogma and without objective morals, and this duty falls first of all upon the bishops and then the priests, because the failure to help souls in the state of spiritual necessity is a matter not only contrary to the precept of charity, but is also a matter "directly inconsistent with the episcopal and sacerdotal state,...in direct conflict with the episcopal and sacerdotal state (Suarez)."
b.) The Duty of Temporary Substitution on the Part of Bishops
This duty of assistance is especially imposed upon the Bishops. Cardinal Journet writes that the papacy and the episcopate:
...are two forms, one independent...; the other subordinate to one and the same power that comes from Christ and is ordered to the eternal salvation of souls.(28)
In plain words, the pope and bishops are in the Church through divine positive law as husband and wife are in the family through divine natural law. The bishop is subordinate to the pope, just as the wife must be to her husband, but both ordered to the same end, that is, the good of the Church and the salvation of souls. As the duty is imposed upon the wife to substitute (within the limits of her capabilities) for her husband if, with or without fault, hs is delinquent in his office, so the duty is imposed upon bishops to substitute (within the limits of their capabilities) for the pope if, with or without fault, does not provide for the necessity of souls.
3. 3rd Principle: The Obligation of Assistance is Coextensive with the Power of Order (But not of Jurisdiction). The Power of Jurisdiction Springs from the Necessity of the Faithful.
In necessity one is bound to offer help, while it is needed, within the limits of one's possibilities, which, for a priest or bishop, means within the limits of their own power of Order. It is on account of this that in the extreme necessity of the individual and in the grave necessity of many, any priest is bound under pain of mortal sin to give sacramental absolution, even if deprived of jurisdiction.(6) St. Alphonsus writes that even:
...the excommunicated vitandus, if he can validly administer the sacraments, is bound to administer them in danger of death on account of divine and natural precept to which the human precept of the Church would not be able to oppose itself.(29)
In brief, as long as the extreme necessity of the individual or the grave necessity of many demands it, one can lawfully, indeed, one must under pain of mortal sin do all that he is able to do validly in virtue of the power of order. The necessary jurisdiction is acquired at the request of souls. The 1917 Code of Canon Law (can. 2261, §§2,3) states that the faithful can "on account of any just cause" demand the sacraments from an excommunicated priest [whom the Church has deprived of jurisdiction] and at that time the one excommunicated, so requested, can administer them. Fr. Hugueny, O.P. remarks that "the demand [of the faithful] gives to the excommunicated priest the power of administering the sacraments."(30) This means that, in necessity, the exercise of the power of order to the full extent necessary is called into act not by the will of the hierarchical superior, but directly by the state of necessity. "The action otherwise prohibited...is rendered licit and permitted by the state of necessity." [Catholic Encyclopedia, on "Necessity (State of)"].
In such extraordinary circumstances, the jurisdiction lacking is said to be supplied by the Church. The Council of Trent (Sess. XIV, c.7) [Denzinger, 903] assures us that it is contrary to the mind of the Church that souls be lost by reason of jurisdictional reservations or limitations:
But lest anyone perish on this account, it has always been piously observed in the same Church of God that there be no [jurisdictional] reservation at the moment of death [i.e., grave necessity of the individual thus equated with grave necessity of many --Ed.].(31)
And Pope Innocent XI, cutting off every argument on the subject, establishes definitively that in necessity the Church supplies jurisdiction lacking even to heretical, infamous, and excommunicated vitandi priests.32
The thought and practice of the Church has as its principle that in necessity there is imposed, through natural and positive law, a grave duty of charity and that against the divine and natural law the Church does not have any power. In addition to St. Alphonsus already quoted above, Suarez writes, "Justice or charity command avoiding...harm to neighbor, and to this [divine] mandate human law cannot be reasonable opposed."(33) St. Thomas Aquinas says that "the disposition of human law cannot ever infringe upon the natural law and the law of God" (ST, II-II, Q.66, A.7).
This is valid above all for human ecclesiastical law which is meant to facilitate the exercise of charity, not obstruct it. Fr. Cappello writes that it is certain that the Church supplies jurisdiction in order to provide either for the extreme necessity of the individual or "for the public or general necessity of the faithful."(34) The reason, says St. Alphonsus, is that otherwise many souls would be lost and therefore it is reasonably presumed that the Church supplies jurisdiction.(35) In other words, as in material necessity things revert to their primary end, which is the benefit of all men in general, so in spiritual necessity the power of Order reverts to its primary end, which is that of providing for the necessity of all souls in general, and the limitation (or total deprivation) of jurisdiction arising from ecclesiastical laws vanishes.(36) St. Thomas Aquinas explains.
In virtue of the power of order, any priest has power indifferently over all [men] and for all sins. The fact that he is not able to absolve all from all sins depends on the jurisdiction imposed by the ecclesiastical law. But since necessity is not subject to law [c. Consilium de Observ. Ieiun., De Reg. Iur. (V Decretal.) c.4], in case of necessity, he is not impeded by the discipline of the Church from being able to absolve even sacramentally provided that he has the power of order [Supplement, Q.8, A.6].
a.) The Doctrine on "Supplied Jurisdiction" is Applied Regarding a Bishop Who in an Extraordinary Necessity Consecrates Another Bishop. The Primacy of Jurisdiction of the Pope.
The doctrine on supplied jurisdiction is ordinarily treated in regard to the sacrament of Penance because the lack of jurisdiction renders confession not only unlawful but also invalid. This doctrine, however, can also be applied to other areas through analogy.(37) As a priest in the extreme necessity of the individual or in grave public necessity without hope of help from the legitimate pastors can and must absolve sacramentally "given that he has the power of order" (St Thomas, op. cit.), so a Bishop, if a grave and general necessity of souls without hope of help from the legitimate pastors demands it, is able and duty-bound of transmitting the episcopacy, given that he has the power of order.
Fr. Cappello says that it is certain that the Church supplies jurisdiction in order to provide for the "public or general necessity of the faithful" in all those cases "in which she has manifested either expressly or at least tacitly being willing to supply it."(38) Now, it is evident from history that the Church has manifested, at least tacitly, her will to supply jurisdiction through the consecration of other bishops in case of grave general or public spiritual necessity. Recent history records that "clandestine" bishops were consecrated without Pontifical approval in order to provide for the grave general necessity of souls. Longer ago, during the Arian crisis, St. Eusebius of Samosata and other bishops, not only consecrated but even established other bishops in episcopal sees,(39) and the Church has not hesitated to proclaim his sanctity.
Cardinal Billot writes that Our Lord instituted the primacy, but left in some way the limits of episcopal power undefined, precisely because:
...it would not have been fitting that those things which are subject to change would be unchangeably fixed by divine law. Some things are indeed subject to change because of the variety of circumstances and of times and because of greater or lesser facility of recourse to the Apostolic See among other such-like things [De Ecclesia Christi, Q.XV, §2, p.713].
History confirms that the state of necessity extended not only the duties of bishops, but also their power of jurisdiction. Dom Grea, whose attachment to the pope is above all suspicion testifies (De l’Eglise et de sa divine consitution, vol. I) that not only at the beginning of Christianity did the "necessity of the Church and the Gospel" demand that the power of the episcopal order be exercised in all its fullness without jurisdictional limitations, but that in successive ages extraordinary circumstances required "even more exceptional and more extraordinary manifestations" of episcopal power (ibid., p.218) in order "to apply a remedy to the current necessity of the Christian people" (ibid. and ff.), for whom there was no hope of aid on the part of the legitimate pastors nor from the Pope. In such circumstances, in which the common good of the Church is also at stake, the jurisdictional limitations vanish and "that which is universal" in episcopal power "comes directly to the aid of souls" (ibid., p.218):
Thus in the 4th century St. Eusebius of Samosata is seen passing through the Oriental Church devastated by the Arians and ordaining Catholic Bishops for them without having any special jurisdiction over them (op. cit. p.218).
Palazzini recalls that:
...today jurisdiction [over a diocese] is conferred [upon bishops] directly and expressly by the Pope...Formerly, however, it used to derive more indirectly from the Vicar of Christ as if from itself it flowed from the Pope onto those bishops, who were in union and peace with the Roman Church, mother and head of all churches [emphasis added].(40)
Jurisdiction "as if from itself" seems to have flowed from the Pope in the history of the Church whenever a grave necessity of the Church and of souls demanded it. In such extraordinary circumstances, says Dom Grea, the episcopacy proceeded "resolute in the tacit consent of its Head rendered certain by necessity" (op. cit. vol.I, p.220). Dom Grea does not say that the consent of the pope rendered the bishops certain of the necessity. On the contrary, the necessity rendered them certain of the consent of the pope. Precisely why did the necessity render the consent of their Head "certain," consent that in reality those bishops were ignoring? -- Evidently because in necessity the positive judgment of Peter is owed. If from Christ, on the strength of his primacy, Peter has the power of extending or restricting the exercise of the power of episcopal order, from Christ he also has the duty to extend or restrict it according to the necessity of the Church and of souls. In the exercise of the power of the keys, Christ remains always the "principle agent" and "no other man can exercise [the power of the keys] as principle agent" (St. Thomas, Supplement, Q.19, A.4), but only "as instrument and minister of Christ" (ibid., Q.18, A.4). The keys of Peter are also "keys of ministry," and therefore not even Peter can use the power of the keys arbitrarily, but must be attentive to the divine order of things. The divine order is that jurisdiction flows to others by means of Peter, yes, but such that it is supplied "in a manner sufficient for the salvation of the faithful" (St. Thomas, Contra Gentiles, Bk.4, c.72). Therefore, if Peter prevented it from being supplied sufficiently for the need of souls, he would act against the divine order and would commit a most grave fault (St. Thomas, Supplement, Q.8, AA.4-9ff.).
Primacy is none other than the fullest possession of that "public power of governing the faithful so that they may attain eternal life."(41) It is the fullness of that power of jurisdiction which is "granted not for the advantage of the trustee, but for the good of the people and for the honor of God" (ibid., Q.8, A.5, ad.1) and:
...no principle of law and no sense of equity stands when that which has been salutarily instituted for the advantage of men is turned to their harm [Digesto, cit. in ST, II-I, Q.96, A.6; II-II, Q.60, A.5, ad.2].
Therefore, Dom Grea writes that the extraordinary manifestations of episcopal power do not call into question the doctrine on the primacy, because necessity without hope of help from the legitimate pastors takes the "extraordinary action" of the episcopate back to "the essential laws of the hierarchy" which are not at all weakend by the ordinary jurisdictional laws.
Illustrating the hierarchical constitution of the Church, St. Thomas writes:
...[H]e who has universal power [i.e., the Pope --Ed.] can exercise upon all the power of the keys. Those, [i.e., the bishops --Ed.], on the other hand, who under him have received a distinct power, are not able to use the power of the keys on just anyone, but only on those who have fallen to them by lot, save the cases of necessity (Supplement, Q.20, A.1).
That means that the hierarchical constitution of the Church, and hence the primacy, is not put into question by "action otherwise prohibited and which is rendered licit and permitted by the state of necessity."(42)
b.) Refutation of Objections
In connection with the case of Archbishop Lefebvre, those eager to save the papal primacy (which, when the state of necessity is involved, is not in question) have protested to include the bishops' duty to help within the strict limits of the power of jurisdiction. For example, according to a little work published by the Fraternity of St. Peter,(43) the problem posed by the episcopal consecrations of Archbishop Lefebvre must be dealt with not only from the standpoint of the power of order, but also from the aspect of the power of jurisdiction. Hence it is in the "order of things willed by Christ Himself" that it belongs always and only to the Supreme Pontiff "to elevate the inferior...to the level of successor of the Apostles while conferring on him a limited jurisdiction" (Du sacre episcopale contra la volonte du Pape, p.15). Archbishop Lefebvre did not do this. He specified clearly his intention was to transmit only the power of order, not that of jurisdiction. This book argues that in no case, not even in the case of necessity, can a bishop ordain another bishop without papal mandate. The rigor of this exclusion is illustrated by the authors using an example from the sacraments:
Thus he who does not have water for baptizing is not able to baptize the dying child with orange juice [and] he who is not a priest is not able to give absolution to one dying even if he would have need (ibid., p.57).
This is incompetent theology and horrible logic! We leave the response to St. Thomas:
Baptism owes its efficacy to the consecration of the sacramental matter [and therefore no one will ever be able to baptize with orange juice --Ed.]...On the other hand, the efficacy of the sacrament of Penance [just as of the sacrament of Holy Orders --Ed.] derives from the consecration of the minister (Supplement, Q.8, A.6, ad.3).
Therefore, no one but a priest can absolve, not even in the case of necessity, because only the priest has the power of order. And, not having the power of order, he doesn't have the duty to do it. On the contrary, he who has the power of order functions validly and in the case of necessity, when there is need, is lawfully able to, indeed must, do all that he is able to do validly, that is, a priest must absolve and a bishop consecrate another a bishop "given that he has the power of order" (St. Thomas, op. cit.). The laws limiting the power of episcopal order are not invalidating or incapacitating laws, that is, those that render the act null or render the subject incapable of accomplishing it validly [which are rather divine laws governing the matter and minister of the sacraments --Ed.], but are jurisdictional laws and therefore ecclesiastical. St. Alphonsus says that concerning the matter and the form of the sacraments the Church has no power, but concerning jurisdiction the Church is able to supply and is presumed to supply certainly for the good of souls.(44)
In the whole history of the Church no one can be found baptized with orange juice. What is found, on the other hand, are bishops nominated, consecrated, and instituted though "Peter being unadvised" (Suarez) and even during the period of a vacant see.(45) Such a thing could not have happened if it were included in the "order of things willed by Christ Himself" that it belongs always and only to Peter to nominate and institute bishops and "in no case" to another bishop. If it was really such, the "order of things willed by Christ Himself" would have been repeatedly violated by the Church through the centuries, which is indefensible.
The authors of Du sacre episcopale contre la volonte du Pape, confronting historical proof that bishops consecrated bishops without the pope’s express approval, assert (p.63ff) that this demonstrates "the Church knows how to be realistic" and the Council of Nicea (325), while designating the metropolitans as competent in the appointment and installation of bishops, speaks "especially of the difficulties of a geographic nature" (p.64). The assertion is a contradiction. Regarding a question of the "order of things willed by Christ Himself," the Church is not able to be "realistic." It is not allowed to the Church to be "realistic" about the minister or about the matter of the sacraments and thus has never been able for "geographic reasons" that a priest ordain a bishop(46) nor that in the countries where grapes aren't grown Mass be able to be celebrated with matter different from wine. If, therefore, the Church, concerning the appointment and installation of bishops, has been "realistic" and taken account of the "difficulties of a geographic nature," it is a sign it is not in the "order of things willed by Christ Himself" that the nomination and installation of a bishop belongs always and only to the Roman Pontiff. It is not true that "in no case" -- not even in the case of necessity -- can one bishop nominate and institute another. As in the day, for example, when the Arian heresy was threatening the whole Church, so also in our day in Eastern Europe. As long as grave necessity without hope of help for souls and for the Church demanded, bishops have consecrated other bishops not only validly but also lawfully, despite failure to receive a mandate from the Pope. These bishops have exercised their episcopal power not only validly but also licitly because the necessity of the Church and of souls demanded it. It is significant that some theologians hypothesize that the Church tacitly supplies jurisdiction also to the schismatic Orthodox bishops, so that with the consecration of other bishops as well as with the ordination of other priests, the necessity of so many souls is provided for.(47) Therefore, the problem of the episcopal consecrations of Archbishop Lefebvre, must certainly be dealt with not only from the standpoint of the power of order, but also from the aspect of the power of jurisdiction, without exclusion of the Catholic doctrine of "supplied jurisdiction" in extraordinary circumstances. In the Church, jurisdiction is for souls and not souls for jurisdiction. The erroneous course taken by the authors of Du sacre episcopale contre la volonte du Pape leads them to conclude that "the question of the consecrations is a fundamentally dogmatic matter and therefore [emphasis added --Ed.] unchangeable in its solution, whatever may be the circumstances," and consequently, unconstrained application of the principle "positive law does not oblige in a grave inconvenience" seems too rapid a conclusion to justify the episcopal consecrations (op. cit., p.7).
The fact here is that "grave inconvenience" as it applies to Archbishop Lefebvre is not treated here. But, his absolute moral impossibility to obey either the law or the legislator is hastily brushed aside with the "therefore" of the authors' statement: "It is a fundamentally dogmatic matter and therefore unchangeable in its solution [emphasis added].”
A disciplinary law [and such are the jurisdictional laws which regulate the exercise of the power of order --Ed.], even if fundamentally dogmatic, does not lose its nature of a disciplinary law and become a dogmatic question and "therefore unchangeable in its solution."
In canon law, there are laws "proposed" by the Church (e.g., the norms of divine natural and positive law, among which is the canon on papal primacy), and laws "established" by the Church (among which are the norms restricting the exercise of the power of episcopal order, e.g., the papal reservation on episcopal consecrations).(48) Law constituted by the Church is fundamentally dogmatic because dogma is the presupposition and the guide of the canonical norm,(49) but the canonical norm remains quite separate and distinguishable from its dogmatic foundation. The distinction is made by looking at the initial legislator of the norm.(50) It is evident that papal primacy is of divine law, because it was initiated by Our Lord Jesus Christ, but the papal reservation on episcopal ordinations is an ecclesiastical law because it was initiated directly by the Pope himself. It is for this reason that, as the following quote exemplifies, the modification of ecclesiastical discipline is possible.
By the 11th century..., because of the abuses that arose on the part of the Metropolitans at times, the consecration of bishops gradually began to be reserved in some places to the Supreme Pontiff, and then by the 15th century reservation became universal [and only in the Latin Church].(51)
You see that episcopal reservation is fixed in time, having been introduced belatedly in the Church motivated by abuses and not from divine law. Certainly, the Pope instituted this reservation in virtue of his primacy, and the Primacy is therefore the dogmatic foundation of this canonical norm, but it is not lawful on account of this to identify the canonical norm with its dogmatic foundation and thus conclude the norm is "unchangeable" on the same level as its dogmatic foundation! This amounts to making void every distinction between divine law and human ecclesiastical law, and, between dogmatic laws and jurisdictional laws. Declaring a canonical norm "unchangeable in its solution, whatever the circumstances may be" only because it has a "dogmatic foundation" means rendering unchangeable all or most of Canon Law and absurdly annulling the doctrine on causes excusing from the obligation of the law!
Since Our Lord Jesus Christ had instituted the papal primacy but has not directly determined the limits of episcopal jurisdiction and has left these instead to the Roman Pontiff, it is certain that the papal reservation on episcopal ordinations is not of divine law, but ecclesiastical law, and hence is not "unchangeable whatever the circumstances may be." On the contrary, we invoke the following clause applicable to all ecclesiastical law, that is, law constituted by the Church, which otherwise must be followed except:
...for the common good and the salvation of souls prudently examined in a particular and extraordinary case; [a clause which] being universal and arising from the nature of things through force of reason, is omitted from the particular determination of law, without, however, really ceasing to prescribe the matter and obligation determined by every human law.(52)
1 Motu Proprio of July 2, 1988.
2 Brisbois Apropos des lois purement penales in Nouvelle revue theologique, 65 (1938), p.1072
3 V. can. 20 of the Pian-Benedictine Code and F. M. Cappello, S.J., Ius suppletorium in Summa iuris canonici, vol. I (Roma, 1961), p.79.
4 V.E. Eichmann-Kl. Morsdor, Trattato di diritto canonica, and G. May, Legittima difesa, resistenza, necessita.
5 St. Thomas Aquinas, Summa Theologica, Suppl, Q.8 A.6; v., also P. Palazzini, Dictionarium morale et canonicum, under the word, “caritas” (erga proximum)
6 See, for example, P. Palazzini, Dictionarium morale et canonicum, under the word “caritas”; Billuart, De charitate, diss. IV, art.3; Genicot, S.J., Institutiones Theologiae moralis, vol.I, 217, A and B, etc.
7 Pope Pius XII, Humani Generis, 1950 (Kansas City: Angelus Press).
8 Motu proprio, Nov. 18, 1907.
9 Discourse of Pope Paul VI at the Lombard Seminary in Rome, Dec. 7, 1968.
10 Discourse of Pope Paul VI, June 30, 1972.
11 L’Osservatore Romano, Feb. 7, 1981.
12 V.E. Genicot, S.J., Institutiones Theologiae Moralis, vol. I, 217B; Billuart, De caritate Diss., IV, art.3; St. Alphonsus, Theologia Moralis, Book 3, n.27.
13 F. Saurez, De charitate disput., IX, sect.II, n.4. 14 V. Roberti-Palazzini, Dizionario di teologia morale, ed. Studium, under the word, “supplied jurisdiction.”
15 Naz, Dict. Droit Canonique, under the word “canon law,” col.1446.
16 Discourse (in French) to the Second World Congress of the Apostolate of the Laity, Oct. 1957.
17 St. Alphonsus, Theologia moralis, 16, tract 4, n.625, and, Opere Morali, ed. Marietti (Torino, 1848), tract.XVI, cap.VI, nn.126-127.
18 I Jn. 3:17; S.T., II-II, Q.32, A.1, and A.5, ad. 2; Q.71, A.1; Billuart, De caritate, dissert.IV, art.3.
19 E. Genicot, S.J., op.cit., vol.I, n217, B and C.
20 Theologia moralis, 1. 3, tract 3, n.27.
21 F. Suarez, De charitate, disput.9, sect.II, n.4.
22 De caritate, D dissert.IV, art.3.
23 St. Jerome, Adversus Luciferianos.
24 Romano Amerio, Iota Unum (Kansas City: Angelus Press, 1996), p.2.
25 ibid., p.716.
26 ibid., pp.143ff.
27 Il Sabato, July 30/Aug. 5, 1988.
28 Card. Journet, L’Eglise du Verbe Incarne, vol.1.
29 St. Alphonsus, Theologia Moralis, 1, VI, tract 4, n.560.
30 Somme Theologique, t. XIII, La Penitence, p.420.
31 Suarez (De poenitentia disp. XXVI, sect. IV n. 6), it is asked if this constant and common custom guarded by the Church may not be of Divine institution. In every case-they conclude-the Church would not be able to abolish it, because this would be to use power “not for building, but for destroying.” (ibid.)
32 St. Alphonsus, De poenitentiae sacramento, tract XVI, ch.V, n.92.
33 F. Suarez, De Legibus, 1, VI, c.VII, n.13.
34 F. M. Cappello, Summa Iuris Canonici, vol.I, p.258, n.258, §2; see also, P. Palazzini, Dictionarium, at the word “iurisdictio suppleta.”
35 St. Alphonsus, De poenitentiae sacramento, tract XCI, c.V, n.90.
36 St. Thomas, ST, II-II, Q.66, A.7; cf. II-II, Q.32, A.7, ad.3.
37 V. P. Palazzini, Dictionarium morale et canonicum at the word, “iurisdictio suppleta.”
38 F. M. Cappello, S.J., Summa iuris canonici, vol.I (Rome, 1961), p.252.
39 V. Manlio Simonetti, La Crisi ariana nel IV secolo (Institutum Patristicum Augustinianum, Via S., Uffizio 25, Roma), 1975.
40 Dictionarium morale et canonicum, at the word “Episcopi.”
41 ibid. at the word “iurisdictio.”
42 Catholic Encyclopedia, at the word, “necessity (state of).”
43 Du sacre episcopale contre la volonte du Pape, joint essay of the Fraternity of St. Peter.
44 De poenitentiae sacramento, tract XVI, c.V, n.91.
45 Card. Journet, L’Eglise du Verbe Incarne, vol.I, p.528, note 2.
46 V. Salaverri, De Ecclesia in summa Theologiae (BAC, Madrid).
47 Card. Journet, op. cit., vol.II, pp.656-657. Fr. Tito Centi, O.P., in note 1 to the ST of St. Thomas, ed. Salani, II-II, Q.39, A.4, he wirtes: “We have an indication in the fact that the Church does not demand a general confession of those schismatics who return to unity nor convalidation for their practicable matrimonial impediments.”
48 V. P. Palazzini, Dictionarium morale et canonicum, at the word, “fontes iuris canonici”; Naz, Dictionnaire Droit canonique, at the word “droit canonique.”
49 Naz, loc. cit.
50 E. Genicot, S.J., Instititutiones theologiae moralis, vol.I, n.85.
51 V. P. Palazzini, Dictionarium, cit. at the word, “mandatum apostolicum.”
52 L. Rodrigo, Praelectiones theologico-morales comillenses, II, tract., De Legibus (Sal terrae, Santander, 1944), n.393, 2nd, p.294 (cit. in, Aequitas canonica, of F. J. Urrutia, S.J., Periodica de re morali, canonica,liturgica, vol.73, p.46, note 21, Pontifical Gregorian University).
II. Solution of the Problem posed by the Pope's "No"
A. The Pope's "No"
We saw in the first installment of this article that a bishop who experiences a state of grave general necessity of souls and consecrates another bishop "given that he has the power of Order" (St. Thomas Aquinas, Supplement, Q.20, A.1, op. cit. in, "The 1988 Consecrations: Part 1") is not questioning the primacy of jurisdiction of the pope. We have seen that he has every right to presume support for such an act required by extraordinary circumstances "in order that adequate provision be made" (ST, op. cit. in Part 1) for the salvation of souls and for the common good. The salvation of souls is in fact the supreme law of the Church and it is certain that the Church "supplies" the jurisdiction lacking whenever it is a question of providing for the "public and general necessity of the faithful" (F.M. Cappello, S.J., Summa Juris Canonici, vol. I, p.258, n.258, §2, op. cit. in Part 1).
It makes no difference to what we have just said if recourse to the pope is made materially impossible by external circumstances, as in the historical cases recalled by us [in Part 1].
But it is the pope himself who is favoring or promoting a course for the Church infected by neo-Modernism which threatens the goods fundamental to souls, goods indispensable for the salvation of souls, e.g., faith and morals. If the pope himself is the cause or partial-cause, and even, given his supreme authority, the ultimate cause of the grave and general spiritual necessity in which there is no hope of help from the lawful pastors, then what effect will recourse to the pope obtain in such circumstances? He will be physically accessible, but morally inaccessible. Recourse to him will be certainly physically possible but morally impossible, and if it be attempted, it will result naturally in the pope’s saying "No" to the act which the extraordinary circumstances require "in order that adequate provision be made" (ST, op. cit. in Part 1) for the grave general necessity of souls. Any different behavior on the part of the pope presupposes, in fact, repentance and a humble admission of his own responsibility given that the act in question -- i.e., the consecration of bishops -- would not be required if the pope himself was not in some measure co-responsible for the state of grave and general necessity.
Therefore, it remains for us to ask if the subject in such circumstances is bound to obey the "No" of the pope despite the harm threatening so many souls. In other words, does the "No" of the pope exonerate him from the duty under pain of mortal sin imposed by divine law upon whomever has the possibility to provide help for souls in the state of grave and general necessity where there is no hope of help from lawful pastors? This is the question that finds its answer in the Catholic doctrine on the state of necessity. This will become clear as we explain the fourth, fifth, sixth, and seventh principles of the Church's teaching on this point. [The first, second, and third principles were discussed in Part 1 --Ed.]
1. 4th Principle: In necessity the duty to help is independent of the cause of the necessity and hence is binding be it the superior himself who is placing souls in the state of necessity
In the state of necessity the duty to provide help arises independently of the cause of that necessity, because "charity does not look where the necessity comes from, but is only interested in the fact that there is necessity."(1) Thus, in the example we gave above in the sphere of natural law, the wife has the duty to supply for her husband even if it be the husband himself who is placing the family in the state of necessity ("The 1988 Consecrations: Part 1").
Likewise, the duty sub gravi [under pain of mortal sin --Ed.] of helping souls in the state of grave necessity is binding even if it is the bishop of the diocese who is spreading or favoring Modernism, or, similarly, if it is the pope promoting or favoring Modernism in the universal Church. On the contrary, as we have already seen, it is precisely this circumstance that gives rise to the grave duty of charity because then the state of necessity of souls is without any hope of help from those who ex officio should be providing for people's ordinary and extraordinary needs.
These circumstances, however, will have the effect of rendering the duty of help more difficult and perhaps even heroic on account of the easily foreseeable consequences. It will be denied that there is any state of necessity! The rebuke implied in the act of helping the people will draw down upon whoever does so revulsion and unjust accusations. And, since we are dealing with the person of the pope himself, the subject runs into "even graver danger" because "from the abuses of lesser prelates recourse can always be had to the pope,"(2) but against the pope the only recourse is to God (St. Catherine of Siena).
2. 5th Principle: It is the character of the state of necessity to suspend the superior's power of binding, and if, nevertheless, he attempts to bind, what he commands is not binding
Further applying the example already given regarding natural law, this principle is illustrated by the case of a husband who not only placed his children in necessity or failed to provide for them, but, who, moreover, prevented his wife from providing for them as far as was in her power. It is obvious that in such a case the husband's power to bind would be suspended, and if he attempted to bind, his command would not be binding upon his wife.
The fact that in the case of Archbishop Lefebvre the superior is the pope does not nullify this principle. The Vicar of Christ first and foremost has the duty to provide for the needs of souls, and if he does not provide for them (or, worse, if he himself is the cause or part-cause of the grave and general state of spiritual necessity), that does not entitle him to prevent others from providing as far as they can for the needs of souls. This is especially applicable if the duty to supply is rooted in their own sacerdotal or, still more, episcopal state.
The authority of the pope is indeed unlimited, but from below, not from above. From above, papal power is limited by divine law, natural and positive. The authority of the pope is "monarchical...and absolute within the limits, however, of divine law, natural and positive" and for that reason "the Roman Pontiff himself cannot act against divine law or disregard it."(3) Now, in the state of necessity, divine natural and positive law imposes a duty of charity under pain of mortal sin upon whoever is able to provide help, and in the state of spiritual necessity it imposes this duty above all on bishops and upon priests (as well as on the pope). The pope, as like any other superior, does not have the power to oppose this duty (Suarez: "deest potestas in legislatore ad obligandum" De Legibus, L.VI, cap.VII, n.11).
That is why it is said that "the state of necessity carries its own dispensation with it because necessity is not subject to law" (ST, I-II, Q.96, A.6). This is not to mean that in the state of necessity it is lawful to do whatever one wishes, but that "the action otherwise prohibited is rendered lawful and permitted by the state of necessity."(4) This is in order to safeguard higher interests than obedience to the law or to the Superior. In such a case it is not within the power of any superior to demand the observance of the law in the usual way, because to no superior (and still less to the pope) is it granted to exercise authority harmful to anyone else, especially if that harm is spiritual and involves many souls and violates one's duty of state, especially that of a priest or bishop.
Not even God, the Supreme Legislator, is bound in the state of necessity. "That is why Christ Himself excuses David, who in grave danger ate the breads of proposition which the laity were forbidden to eat by Divine Law."(5) According to this principle, not only do human laws cease to oblige in a state of necessity, but even divine-positive and affirmative divine-natural law cease (e.g., "Honor thy father and mother"; "Remember to keep holy the Sabbath Day"). The only law binding in the state of necessity is negative divine-natural law (e.g., "Thou shalt not kill," etc.). This is because negative divine-natural law prohibits actions that are intrinsically evil and hence forbidden because they are evil, as opposed to actions which are evil only because they are forbidden, such as the consecration of bishops without pontifical mandate.
3. 6th Principle: It is the character of necessity to place the subject in the physical or moral impossibility of obeying
It is certain that God binds nobody in a state of necessity, but the human legislator "can say 'no' without reason and in violation of natural and eternal law"(6) and therefore they can in fact forbid an action required by the state of necessity. But, since the pope's "No" is powerless to do away with the grave general necessity of souls and hence the associated duty sub gravi to go to their help, the subject, especially if he is a bishop or priest, then finds himself in the moral and absolute impossibility of obeying, because he could not obey without himself sinning and harming others. Hence, it is the character of the state of necessity "to create a sort of impotency whereby it is impossible to do something commanded or not do something forbidden."(7)
This is not, in fact, the case of authority not being bound to oblige because "summum ius summa iniuria," or one which issues an inopportune command lacking in prudence, but which nevertheless people could be bound to obey all the same in view of the common good. This is, on the other hand, the case of authority that cannot oblige, because its command is opposed to a precept of divine and natural law "more grave and obliging."(8) In such a case to obey the law or the legislator would be "evil and a sin" (Suarez, De Legibus, L. VI, c.VII, n.8). St. Thomas calls obedience in such a case "evil" (ST, II-II, Q.120, A.1). Cajetan refers to it as a "vice" (Cajetan in 1.2, q.96, a.6). Hence, refusal to obey becomes a duty (i.e., inoboedientia debita).(9)
The reality of such a case is not that the subject is disobeying. It is better said that he is obeying a higher and more compelling command issuing from divine authority, which "commands us to regard higher interests."(10) Human authority, in fact, "is neither the first nor the only rule of morality."(6) Earthly authority is a "norma normata," that is to say, a rule itself regulated by divine law, and hence when human authority, "contrary to natural and eternal law,"(6) says "No," then disobeying man in order to obey God becomes a duty.(11)
4. 7th Principle: He who, constrained by the state of necessity, does not obey, is not questioning the lawful exercise of authority
For there to be disobedience, the command or prohibition must be lawful. This is the case when the Roman Pontiff or the Ordinary have the power to make the command or prohibition and, at the same time, the subjects are bound to obey the command or prohibition.(12) But, we have seen: 1) that even for the pope the principle holds that, when the application of a law "would be contrary to the common good or to natural law [and in our case even divine-positive law --Ed.]...it is not in the power of the legislator to oblige,"(13) and, 2) that the state of necessity, especially the necessity of which we are speaking, creates in the subject "a condition of impotency or impossibility [in this case morally and absolutely --Ed.] of doing a thing commanded or not doing a thing forbidden."(7)
Therefore, the command or prohibition of a superior which, by reason of extraordinary circumstances, results in harm to souls and the common good, as well as being contrary to the state of the subject (cf. Suarez, De religione, LX, cap.IX, n.4), loses its character of lawfulness and absolves the subject from his duty to obey, "...nor are those who behave in such a way, to be accused of having failed in obedience, because if the will of leaders is repugnant to the will and the laws of God, these leaders exceed the measure of their power."(14)
We have already quoted St. Alphonsus that in the state of necessity there is imposed a "divine and natural law to which the human law of the Church cannot be opposed," and hence not even the command of the pope. The primacy of jurisdiction of the pope, therefore, is not in any way called into question by a violation of a jurisdictional law (as we have already seen), nor is it called into question by disobedience motivated by a state of necessity. In fact, the priest or bishop who, constrained by necessity, does not obey the pope is not thereby denying his own subordination to the pope outside the case of necessity, and so he is not refusing authority in its lawful exercise. Similarly, a wife is not denying the authority of her husband outside of the case of necessity, in which she has the duty to supply for him against his unreasonably opposed will.
St. Thomas says that whoever acts in a state of necessity "is not setting himself up as a judge of law" or of the legislator, nor is he even claiming that his point of view is better than that of authority, but he is merely "judging the particular case in which he sees that the words of the law [and/or the command of the legislator --Ed.] must not be observed," because their observance in this particular case would be gravely harmful. Hence, the state of necessity frees the subject from the accusation of arrogating to himself a power that does not belong to him (ST, I-II, Q.96, A.6, ad.1,2). G. Gerson, for his part, reminds us that "contempt of the keys must be evaluated on the basis of legitimate power and the legitimate use of power."(14)
Hence, a priest who does not obey the pope forbidding him to absolve in a state of necessity, or a bishop who does not obey the pope forbidding him to consecrate bishops required by the grave spiritual necessity of many souls threatened in their faith and morals and without hope of help from their lawful pastors, cannot be accused of "contempt of the keys." This is so because the pope's action against divine law (natural and positive) is not making "lawful use" of his authority.
The primacy of the pope means blind submission "without examination of the object" exclusively "in matters of faith and morals," and when the pope expresses himself at that level on which his authority is infallible; otherwise, submission to the pope would be subject to the moral norms which regulate obedience. Hence, if the pope exceeds the "measure" of his power, the subjects who obey "God rather than man" are not to be accused of having failed in obedience (cf. Leo XIII, Diuturnum Illud, available from Angelus Press. Price: $0.75).
In the case we are considering, Archbishop Lefebvre did not question the right of the Vicar of Christ to exercise control, by virtue of his primacy, over the power of the episcopal order. He simply questioned whether the papal control over episcopal consecrations was able, in the present extraordinary circumstances, to be respected without grave harm to many souls and without grave fault on his own part. These are circumstances in which, as Pope John Paul II himself recognized, "ideas opposed to the revealed and constantly taught truth are being scattered by handfuls," when "true and genuine heresies are being spread in the realm of dogma and morals," and when Christians "in large part...lost, confused, perplexed, while being tempted by atheism, by agnosticism, by a vaguely moralistic humanism, by a sociological Christianity without defined dogmas and without objective morals,"(11)...are generally without hope of help from their lawful pastors.
Likewise, Archbishop Lefebvre did not question the Pope's power to command bishops in the interests of the Church and of souls, but he simply questioned whether in the present extraordinary circumstances he could obey the Pope without grave harm to the Church and to souls, and without himself committing a grave sin, since he was under the grave duty of supplying, a duty imposed by charity and rooted in his episcopal state. And, in materially violating the disciplinary norm and the command he had received, he took care to affirm the dogmatic foundation of the primacy of the Holy Father and confine himself strictly within the limits of Catholic doctrine on the state of necessity. This was done in such a way that Cardinal Gagnon himself announced that "Archbishop Lefebvre has not in fact made the claim, 'I have the power to act in this realm.'"(15)
To maintain that by resisting the Pope's "No" Archbishop Lefebvre was denying the primacy of the Pope, one would have to claim that whoever resists a harmful command on the part of authority is denying authority itself, which is false.
These things having been said, we may now judge the position of those critics of Archbishop Lefebvre who would agree that the pope ought never to forbid an action necessary to save a man in peril of physical death, yet who simultaneously claim the pope has power to forbid an action necessary to help souls exposed to danger of eternal spiritual death. They defend his power [to prohibit an action] in order to safeguard the very primacy that is granted to the pope to save souls, not to damn them.
Gerson says that they are "weak-hearted" who think "that the pope is a god who has all power in heaven and on earth,"(2) but the critics of Archbishop Lefebvre make the pope -- or so it seems to us -- more than a god, because not even God issues any command harmful to souls, nor does He insist on being obeyed when souls are being harmed. In reality, these unjust critics are making the primacy of Peter into the supreme law of the Church, which it is not, because that primacy has for its purpose the saving of souls. These critics are bringing papal primacy down to the level of a tyranny and the obedience due to the pope to the level of slavery, and they are making obedience the greatest of all virtues, which it is not, at least according to Catholic doctrine, for which obedience, even to the pope, is subordinate to the exercise of the theological virtues, charity being in the first place.(16) St. Thomas, answering the objection that "sometimes to obey we must omit doing what is good," replies that "There is a good which a man is bound to do necessarily, such as loving God or other similar things. And that good may in no way be neglected out of obedience" (ST, II-II, Q.104, A.3, ad.3) [emphasis added]. Among these "other similar things" there are in the first place the duties of one's state of life (especially if one is a Catholic bishop) and the love of neighbor, contained as a secondary object within the love of God. In fact, everything in the Church, with its hierarchical constitution, the primacy of Peter and the laws that control the power of Order, have charity as their final purpose, and if "necessity is not subject to law" (ST, cit.), it is because it is subject to the supreme law, which is charity. To the law of charity are subject even the Vicars of Christ who have, yes, the primacy of jurisdiction and hence the right to control all other jurisdiction within the Church, but:
...by the divine, indeed even natural, precept of charity, they are bound in this to provide sufficiently for the needs of the faithful (Suarez, De poenitentiae sacramento, disput. XXVI., Sect. IV, n.7).
B. A Word on Epikeia
That which is called by the Church "necessary" epikeia, or "epikeia without recourse to the superior"(17) rests upon the four principles cited above in this second part of our theological study. Epikeia is being taken here in its broad and correct sense in which it is to be identified with equity, which is the highest form of justice (ST, II-II, Q.120, A.1). This true epikeia is a virtue concerning precisely "duties arising in particular cases out of the ordinary" (ST, II-II, Q.80), and which therefore comes to be identified in Canon Law with the norms of "cessation 'in itself' of the law in a particular case" and of "causes excusing" observance of the law and/or obedience to the lawmaker.(18) [Epikeia (or equity) is a favorable and just interpretation not of the law itself but of the mind of the legislator, who is presumed to be unwilling to bind his subjects in extraordinary cases where the observance of the law would cause injury or impose too severe a burden. --Ed.]
In his Dictionary of Canon Law, Naz writes that for St. Thomas Aquinas:
...the coming into play of epikeia is subordinate to the existence of a right. In fact, in certain cases, the law loses its power to bind -- as where its application would be contrary to the common good or to natural law -- and in such a case it is not in the power of the legislator to bind or to oblige.(19)...There is a place for epikeia because the will of the legislator either is not able or is not bound to impose the application of the law to the case in question.(20)
The state of necessity in the case of Archbishop Lefebvre is precisely the case in which the lawmaker cannot impose the application of the law because it has become, by force of particular circumstances, contrary to the common good and to the divine natural and positive law. On his part, under the pressure of a precept of divine natural and positive law, "...the subject [e.g., Archbishop Lefebvre --Ed.] not only may, but he is bound not to observe the law, whether he asks or does not ask for permission to do so from the superior."(21)
Regarding seeking permissions from the superior, Suarez explains (speaking precisely of the pope) that here, "it is not a question of interpreting the will of the superior, but [a question] of his power" in order to know what is not necessary to ask the superior, because it is permitted to make use of "the doctrinal rules" or "principles of theology and law,"(22) given that "one knows with more certitude the power [of the superior] which is not free, rather than his will, which is free [emphasis added]."(23) For that reason the subject, having prudently examined the circumstances and been informed by the "doctrinal rules" or by the "principles of theology and law" that it is "beyond the power of the legislator"(24) to bind anyone to respect the law when it causes grave harm to so many souls, and that to obey in such a case would be "evil and a sin,"(25) he may not -- indeed, he must not -- submit to the law or to the command "on his own authority,"(26) "by his own judgment."(27) Hence, by his own initiative, he refuses submission "without recourse to the superior,"(28) that is to say, without any dispensation or approval on the part of the said superior. The reason, writes Suarez, is:
that in such a case the authority of the superior cannot have any effect; indeed, even if he were to will that the subject, after having had recourse to him, should observe the law, the latter would not be able to obey him because he must obey God rather than man and hence in such a case it is out of place ("impertinens") to ask for permission.(29)
Such would be the case of the wife who, faced by the grave necessity of her children, does not need the consent of her husband to fulfill her duty to supply, and even were her husband to forbid her to do so, she would not owe him obedience, and hence it would be out of place to ask for his consent, knowing him to be hostile.
Asking if the danger of harm to oneself or to others excuses from obeying, Suarez replies that
...one does not presume in the lawmaker that he has the will to bind in such a case and even if he had, it would be without effect. On this point all doctors are agreed who treat of obedience and of laws.(30)
For that reason, when it is established for certain that the law in a particular circumstance has become unjust or contrary to another command or virtue which is more binding, then the law ceases to oblige and on his own initiative he can disregard the law without having recourse to the superior,(31) given that the law in that case could not be observed without sin nor could the superior bind his subject to respect it without sin.(32)
There remains, however, the duty to avoid scandal of neighbor, and for that reason every opportune and humble means must be attempted with regard to the Supreme Pontiff. But if a humble insistence serves no purpose, then it is necessary to exercise a manly and courageous liberty.(2)
C. Refutation of More False Objections
Hence it is not true that "it is only permitted to use epikeia if the legislator is inaccessible," as we read in the tract, Du sacre episcopal contra la volonté du Pape (p.49), published by the Fraternity of St. Peter. What it says is true for epikeia in the strict or improper sense, but not for epikeia in the broad and proper sense. In the case of its improper (or popular) sense, epikeia presumes that authority -- out of its kindness -- does not wish to oblige, although it has the power to do so and hence, if the lawmaker is accessible, there is the duty to ask him, given that it is a question of "his will which is free" (Suarez, cit.). On the other hand, epikeia in the broad and proper sense concerns those cases in which authority cannot oblige, even if it wishes to do so, and the subject finds himself in the moral impossibility of obeying. Hence, epikeia is "necessary" (Suarez), and therefore recourse to the legislator is per se not obligatory. Indeed, it must be left out whenever it is foreseen that the superior would try to make his command binding despite the harm to the person making the request or to anyone else. In such a case, in fact, we are dealing not with the will of the superior, but with his "power, which is not free" (Suarez, cit.).
Even less true is what we read in De Rome et d'ailleurs that a "state of necessity" arises when it is impossible to contact the superior, which presupposes a certain urgency in the decision to be taken.(34) This is true for epikeia in the improper or popular sense, but even then it is true only in part because the state of necessity does not arise from the impossibility of contacting the superior, but it exists independently of that impossibility of contacting him, and it persists independently of an eventual refusal from the superior.
To settle the question, we quote Fr. Tito Centi, O.P.:
Moralists have sought to fix the criteria to be laid down for the application of epikeia. In substance, these criteria come down to the three following cases: a) when in a particular situation, the prescriptions of the positive law are in opposition to a superior law which binds one to regard higher interests [i.e., epikeia in the proper sense]; b) when, for reason of exceptional circumstances, submission to the positive law would be too burdensome, without there resulting a good proportionate to the sacrifice being demanded; c) when, without becoming evil as in the first case and without imposing an unjustified heroism as in the second case, the observance of the positive law runs into special and unforeseen difficulties which render it, as it turns out, harder than it should have been according to the intention of the legislator.(35)
The grave spiritual necessity of many souls comes under the first case "a)" above, the case of positive law which by the force of extraordinary circumstances becomes "evil" because "it is in opposition to a superior law binding one to regard higher interests" (i.e., epikeia in the proper sense --Ed.). The authors of the tract, on the contrary, like the writer of the article in the above-mentioned publication, seem to admit only the second and the third cases, "b)" and "c)" (i.e., epikeia in the improper or popular sense), which have nothing to do with the case of Archbishop Lefebvre. In the first case "a)," which is the case of Archbishop Lefebvre, epikeia coincides with equity, and, hence involves the moral impossibility of obeying and is, as we have already seen, a right [besides being a duty]. On the other hand, in the second and third cases noted in "b)" and "c)," epikeia is simply identified with clemency or moderation in the application of laws and in the exercise of authority.(18)
We are in exceptional circumstances and, therefore, must ascend to higher principles which are not preached every day and which, therefore, are unknown to many, but which, nevertheless, are able to be found succinctly summarized in any treatise on the general principles of law or moral theology. Thus for example, in the Institutiones Morales Alphonsianae of Fr. Clement Marc we read:
A place is given to epikeia whenever the law makes itself harmful or too burdensome. In the first case [i.e., harmful], the superior really could not oblige and hence epikeia is necessary [(§174) which is the case as it concerns us here --Ed.].
In Regarding Principles of Moral Theology (III, n.199), Noldin says:
It is said that the purpose of the law ceases "contraire" [through contrary custom --Ed.] when its observation is harmful. If the purpose of the law in a particular case ceases "contraire," the law ceases [to oblige]. The reason is that if the purpose of the law ceases "contraire," then one has the right to use epikeia.
Finally, any manual explaining the principles of Canon Law deals with the cessation "ab intrinseco" of the law, that is to say, with the law that ceases to oblige out of the simple fact that it is in such-and-such a case harmful, and not because the lawmaker decrees that it should cease, or grants a dispensation from it. Such is exactly the case of the state of necessity, which is the strongest reason excusing one from obedience and strict observance of the law.(36) This is especially true when this state of necessity arises from the duty, rooted in one’s state, to help many souls in grave spiritual necessity, because "the salvation of souls is, for spiritual society, the ultimate end towards which all its laws and institutions are oriented."(16) This is true for the entire hierarchy of the Church, top to bottom.
The conclusion of our study is that either one denies the state of necessity -- the way chosen by the Vatican -- or, if one admits there is a crisis, then one must approve the action of Archbishop Lefebvre. His decision, no matter how out of the ordinary it may seem, must be judged in relation to the out-of-the-ordinary situation in which it was carried out. Therefore, "it is necessary to judge [it] on the basis of higher principles than ordinary laws" (ST, II-II, Q.54, A.4). From these principles which we have laid out over the two parts of this theological study, it follows that:
The fact that the Vatican has denied there is any state of necessity does not annul the grave necessity in which so many souls are presently to be found. Rather, its denials confirm that this state of necessity is, at least for the time being, without any hope of relief from the Holy See. For that reason, to the authors of Du sacre episcopal contre la volonté du Pape who object that "St. Eusebius [of Samosata] acted without the pope’s consent but not against the pope’s consent," we reply that only a question of fact is at stake, not of principle. We concede that St. Eusebius was not faced with the "No" of a pope who promoted and favored Arianism, and demanded respect for laws which would have deprived of help souls placed in grave spiritual necessity. But, had St. Eusebius found himself in that position, he would have had to follow the moral principles recalled above and to fulfill, not "against" the pope's "No" but despite the pope's "No," the most serious duty of charity laid upon his episcopacy by the grave and general necessity of souls.
The authors of the tract criticize what they call arguments of an "illuminist" or "charismatic" kind, meaning by this those who have made with simplicity an act of confidence in the uprightness of Archbishop Lefebvre. They are theologically wrong to do so. St. Thomas writes:
In cases that happen rarely, and in which it is necessary to depart from the ordinary law...a virtue of judgment is needed based upon these higher principles, a virtue which is called gnome and which implies a particular perspicacity of judgment (ST, II-II, Q.51, A.4).
This special "perspicacity of judgment," says St. Thomas, can be possessed only by virtue of holiness:
The spiritual man receives from the habit of charity the inclination to judge rightly of everything according to divine laws, arriving at his judgment by means of the gift of wisdom, even as the just man arrives at his judgment in accordance with the rules of law through the virtue of prudence (ST, II-II, Q.60, AA.1,2).
In this continuing study we are leaving to the side the sanctity of Archbishop Lefebvre to confine ourselves to the general principles of theology and Canon Law, so that the truth is clear to all those admitting there is a crisis in the Church. This truth is that in the present extraordinary circumstances, one need not believe in obedience at all costs (even if it cost the Faith or the salvation of souls). Nor need one accept the non-provable "sedevacantist" theses. There is a third way: to observe what the Church teaches concerning the "state of necessity." That is exactly what Archbishop Lefebvre did.
1 Suarez, De caritate disp. IX, sectio II, n.3.
2 G. Gerson, De contemptu clavium et materia excommunicationum et inrregularitatum, considerations VII-XII, Opera, Basilea 1489, prima pars, f33, quoted in La scomunica di Girolamo Savonarola of Fr. Tito Centi, O.P., ed. Ares, Milano.
3 P. Palazzini Dictionarium moral et canonicum under “episcopus.”
4 Enciclopedia Cattolica under “stato di necessita.”
5 H. Noldin S.J., Summa Theologiae moralis, vol.I, De Principiis L.III, q.8, 203.
6 Robert-Palazzini, Dizionario di teologia morale under resistenza al potere injuisto.
7 Dictionnaire, Droit Canonique under “nécessité,” col., 991
8 Suarez, De Legibus, L.VI, c.VII, n.12.
9 P. Palazzini, Dictionarium morale et canonicum under “oboedientia.”
10 Tito Centi, O.P., La Somma Teologica, ed. Salani vol.XIX, nota 1, p.274.
11 Roberti-Palazzini, Dizionario cit. Resistenza al potere inguisto; v. Leo XIII, Libertas.
12 P. Palazzini, Dictionarium, cit. under “inoboedientia.”
13 Naz, Dictionnaire Droit Canonique under “epikie.”
14 Leone XIII, Diuturnum Illud.
15 Interview in 30 Days, March, 1991.
16 P. Palazzini, Dictionarium cit. under “oboedientia.”
17 F. Suarez, De Legibus, 1. VI, c.VIII, n.1.
18 V. Roberti-Palazzini, Dizionariao di Teologia morale, ad. Studium, under “equita.” See also: “aequitas canonica” cit., and Naz, Dictionnaire Droit canonique under “equite.”
19 Naz, Dict. cit. “epikie,” col.366.
20 Naz, loc. cit.
21 Suarez, De Legibus, L.VI, c.VII, n.11.
22 Suarez, op. cit. n.4.
23 Suarez, op. cit. n.6.
24 Suarez, De Legibus, L.VI, c.VII, n.11.
25 Ibid. L.VI, c.VIII, n.8.
26 Ibid. L.VI, c.VIII, n.1.
27 ST, I-II, Q.80.
28 Suarez, De statu perfectionis/De voto oboedientia, L.X, c.IV, n.15.
30 Suarez, De statu perfectionis/De voto oboedientia, L.X, c.IV, n.15.
31 Suarez, De Legibus, L.VI, c.VIII, n.1.
32 Suarez, op. cit. n.2.
33 Naz, Dictionnaire Droit Canonique under “epikie,” col. 369ff.
34 De Rome et d’ailleurs, Sept.-Oct., 1991, p.17.
35 La Somma Teologica, ed. Salani, vol. XIX, nota 1, p.247.
36 Naz, Dict. Droit Canonique under “excuse,” col.633.
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