Cover page of the special edition of the review Sodalitium for January 2001, no 51, dedicated to the dossier on the “Canonical Commission of the Society of Saint Pius X”. In the foreground: Mgr Tissier de Mallerais, one of the four bishops consecrated by Mgr Lefebvre in 1988 and the president of this commission. In the background can be made out his coat of arms, adorned with the lily of France and the Sacred Heart. Superimposed: the seal of the Apostolic Tribunal of the Roman Rota.
In epigraph, a phrase which seems to fall from the lips of the young bishop:«It is true that our verdicts replace the verdicts of the Roman Rota»,as simply as that!
Sodalitium no 51, French edition, in pdf format
MGR LEFEBVRE’S SECRET
An atomic bomb has just gone off in our Catholic society, triggering a seismic shock of incalculable magnitude, capable of disorienting minds and disturbing souls well beyond the boundaries of our traditionalism, even to shaking the pillars of Saint Peter’s. We felt its first tremors when we read number 50 of Sodalitium, June-July 2000. The editor announced that the Institute ofOur Lady of Good Counsel was putting together «not without a profound sadness, a voluminous dossier on the “canonical tribunals” of the Society of Saint Pius X.» What was it about? The rest of the editorial was going to tell us:
Since 1991, from the lifetime of Mgr Lefebvre, the Society of Saint Pius X has arrogated over its members (and potentially over all Catholics) the “power to bind and to unbind”, usurping the exclusive powers of the Holy See. A tribunal which sits in the General House of the Society in Switzerland grants dispensations from marriage impediments (which would render the union invalid), annuls marriages, grants exemptions from religious vows, lifts ecclesiastical censures, including excommunications (...). It does so in a wholly invalid manner, thereby placing men’s souls in an inextricable situation: the vows it unbinds are not unbound, the marriages it annuls are not annulled, and those which are celebrated after its “declaration” of nullity are invalid, as are those that have been celebrated with its non-existent “dispensation”.
Not without some cruelty the author describes this “tribunal” as an “operetta-style Roman curia”, a “parallel Holy See”. The Abbé Michel Simoulin, former Rector of the University Institute of Saint Pius X in Paris, former Director of the Seminary at Econe, and currently the Superior of the Italian District of the Saint Pius X Society, attempted to deny this in his monthly newsletter Roma felix for November 2000:
Dear faithful,
I do not know what is going on, but for some time now a number of friends of the Society have been asking me questions about the so-called “tribunals” established by the Society to dissolve marriages, religious vows, etc. It seems that certain people are sowing doubts and ill-feeling by making out that the Society has thereby usurped the powers of the Pope and the Roman Curia: which if true would involve the Society declaring that it no longer believes the Pope to possesses the primacy of jurisdiction,effectively behaving as though the See were vacant.
And yet, last 8 August in Saint Peter’s Basilica, Mgr Fellay forcefully repeated his invitation to us to pray for the Vicar of Christ, the successor of Peter. This pilgrimage was an open proclamation of our fidelity to the See of Peter, and I do not see why anyone should doubt this.
When people speak about “tribunals” instituted by the Society, I am sorry to have to say that these are the product of a somewhat disordered imagination. Mgr Lefebvre had in fact asked for commissions to be instituted, composed of learned priests and experts in moral theology and canon law, in order to respond to requests made by priests, religious and the faithful. Given that we often cannot trust the answers given by the diocesans tribunals, everyone can now submit their problems and their cases of conscience to these commissions, whose members, once the case has been examined, give a response which is nothing more than an opinion or a recommendation, never a declaratory verdict having the force of law! The commissions are in no way a permanent organisation; they simply meet from time to time when requests are made by those who feel dissatisfied with the responses given by the dioceses. That is all.
He is wasting his breath! The dossier published in December in number 51 of Sodalitium leaves none of this weak defence standing. It is divided into two parts, as indicated in the editorial:
In the first part certain internal documents of the Society of Saint Pius X are published (documents which are therefore unavailable to the public and even to the faithful of the Society); these concern the creation, in 1991, of a canonical Commission invested with vast powers of jurisdiction, the Canonical Commission of Saint Charles Borromeo. To replace the authority of the Pope and the Holy See, the Society has instituted, as you will read, veritable ecclesiastical tribunals authorised – by the very same authorities of the Society – to grant dispensations, to annul marriages, etc. The publication of these documents will perhaps be regarded as an unacceptable indiscretion; however we felt authorised to disclose them, firstly because the faithful have the right to know of the existence of these tribunals to which they must have recourse and which can judge them, and secondly because they will thus be in a position to evaluate in all objectivity the reasoning behind them.
It is therefore to these same authorities of the Society that we will now hand over, by publishing for example what Mgr Tissier de Mallerais wrote to defend and justify the existence of these tribunals.
The second part of this file consists of a critical study of these documents.
The author of the second part is Father Francesco Ricossa, the editor of the review, well known to our readers and friends for the sincere praise that his scholarly works appear to us to deserve, and also, it should be said, for the sharp polemics that have taken place between us (cf. English CRC no 269, Aug-Sept 1994; no 274, February-March 1995; no 309, May 1998, p. 32; no 310, June 1998, p. 27-30). Today, once again, we will not be stinting in our praise for the work carried out by Father Ricossa for this special edition, the repercussions of which in every way will be considerable. It is a bomb in the Roman Church. It cannot be handled without precautions. That is why I could think of no better way of utilising this immensely important document than that of reproducing it as exactly as possible, despite omitting several passages, particularly the “notes”, which will be of particular interest to specialists.
As usual, we are given some rough treatment in this article: I am proud of it. On the battlefield of the great controversy agitating our Catholic world, this hostility is an expeditious way of confronting the other part directly. What is at stake is the future of the various schools of thought and of the great movements that will result among the Catholic elites. Some of these have retained the tradition of dogmas, rites and laws, while others invent novelties; parties form, divide and multiply... all this for the praise of God’s glory and the salvation of souls.
Should one follow Mgr Lefebvre or take what appears to be the more secure path, that of Roman discipline? Or perhaps other intermediate paths? To clarify our religion, Father Ricossa arranges the combat of the leaders on which our fate will depend. But how can we make a battle of it when it is a question of recovering the holiness and unity of our Catholic communion under the banner of the Immaculate and the standard of Christ Our Lord, our universal Saviour and our King?
We leave Don Ricossa to initiate us into the mysteries of this red-hot dossier:
For some time now we have been receiving a small Peruvian bulletin entitled Resistencia catolica and edited by one of the Saint Pius X Society faithful, Mr Julio Vargas Prada.
It was with astonishment that we read in this bulletin (no 187, Nov-Dec 1999) a denunciation of the creation by the Society of Saint Pius X of veritable canonical tribunals. The Peruvian Vargas Prada and the Brazilian Orlando Fedeli, both of whom had at the time supported Mgr Lefebvre in his decision to consecrate bishops, now see in these tribunals, the existence of which they had discovered through an allusion made in the Society’s Argentinian review Jesus Christus (no 43, Jan-Feb 1996, p. 17), a concrete danger of schism.
It was essential to check the veracity of the facts. We finally came into possession of two documents of an exceptional gravity: Ordinances concerning the powers and faculties enjoyed by the members of the Priestly Society of Saint Pius X, dated 1997, and certain documents of the Society published in Cor unum, n. 61, October 1998, p. 33-46, which seek to justify these innovations .
– Cor unum is the internal bulletin of the Society of Saint Pius X, reserved only to its own members, and we have published these documents without any authorisation to do so by the review. But it appears to us to be a matter of duty to proceed with their publication. According to the texts in question, the faithful of the Society of Saint Pius X, religious and priests affiliated with it, and potentially all Catholics, are “subject” to these tribunals of which they have no knowledge and to their judges. These unwitting subjects have the right to know about the existence of a tribunal of this kind, about its judges and its doctrinal justifications: a semi-secret tribunal is, in our opinion, incompatible with Catholic morals, not to speak of natural morality.
THE ORDINANCES
The first document in question is a small volume of 79 pages entitled “Ordinances concerning the powers and faculties enjoyed by the members of the Priestly Society of Saint Pius X”, promulgated in 1997 by the Superior General of the Society, Mgr Bernard Fellay, to replace a similar collection of “Ordinances” published on the authority of Mgr Lefebvre in 1980.
This imitation “Code of Canon Law” was accompanied by a letter written by Mgr Fellay to the members of the Priestly Society of Saint Pius X, and preceded by “preliminaries” which explain its principle and basis.
Dear colleagues,
Mgr Lefebvre, considering the needs of our apostolate, so similar to those of the missions in Africa, gave us in 1980 a collection of faculties similar to those used for many decades in mission lands.
Over the last fifteen years, certain circumstances have changed, as for example the possibility of having a more frequent episcopal visitation, or, on the contrary, the quasi-impossibility of having recourse to Rome to obtain dispensations or equitable judgements on marriage. Hence the justification for this renewed edition of the Ordinances.
These new ordinances come into effect on 18 May 1997, on the feast of Pentecost.
Given on the feast of the Presentation of Jesus in the Temple, 2 February 1997.
Bernard Fellay, Superior General
PRELIMINARIES
OBJECT OF THE LAW
– The end and object of ecclesiastical laws, and a fortiori of powers and faculties, is none other than what concerns the worship of God and the salvation of souls (cf. Leo XIII, Encyclical Immortale Dei, cf. Prümmer, vol. 1, n. 181).
– The New Code of Canon Law promulgated on 25 January 1983, pervaded by ecumenism and personalism, seriously sins against the very purpose of the law. Therefore in principle we follow the Code of 1917 (with the modifications subsequently introduced).
However, in practice and on certain precise points, we can accept anything in the New Code which corresponds to a homogeneous development, to a better adaptation to circumstances, to a useful simplification. Generally speaking we also accept that which we cannot refuse without misaligning ourselves with the officially received legislation where the validity of acts is concerned. And in this latter case, we reinforce our discipline to bring it closer to that of the Code of 1917 (cf. Cor unum, n. 41, p. 11-13).
SUPPLIED JURISDICTION
– Canon law provides for certain cases where the Church makes up for the priest’s lack of jurisdiction: “the Church supplies jurisdiction not as a personal benefit, but for the bonum animarum commune [the common good of souls]” (Cappello, 1, n. 252). The Church expressly supplies jurisdiction in three cases: the danger of death (can. 882), common error (can. 209) and positive probable doubt whether of law or of fact (can. 209) (cf. Noldin, III, n. 346-347; Cappello, I, n. 254-258).
– Owing to the fact that the hierarchy (cf. can. 108 § 3) has in large part distanced itself from the Catholic faith, generally speaking the faithful are unable to receive spiritual aid from it without endangering their faith. There can be no doubt, therefore, that the Church generously extends to the faithful what she grants in danger of death and in other cases of emergency, and that for this reason, owing to the analogia iuris [analogy of law] (can. 20) and the æquitas canonica [canonical equity], she makes up for the lack of jurisdiction of faithful priests (cf. can. 209, 2261...) when they are unjustly deprived of the jurisdiction they would have in normal times either by right (e.g. novus ordo, can. 967 § 2), or by delegation.
– Characteristics of this supplied jurisdiction.
( 1) It has more of a personal than a territorial character; (2) it is not habitual but is exercised “per modum actus” [on a temporary basis] (cf. Cappello, I, n. 252); (3) it depends on the needs of the faithful, taking into account the law of necessity (cf. Conférence aux Cercles de la Tradition, Paris, 10 March 1991); but (4) it exists even in cases where there is in fact no strict necessity; for there is a presumption of common danger and therefore an analogy with can. 21, permitted by can. 20, and as there will generally exist a probable doubt regarding faith, jurisdiction will be supplied in accordance with can. 209.
– Those who possess supplied jurisdiction.
These include all bishops and all priests faithful to tradition (even the excommunicated, cf. can. 2261, when that term is used as an argument “ad hominem”), for the licit or valid exercise of acts of the episcopal or sacerdotal ministry.
– Hierarchy in supplied jurisdiction.
Absolutely speaking, with regard to the faithful, simple priests have no less supplied power than a prior or district superior. But as a matter of practicality, in order to preserve the hierarchical dimension that belongs to the spirit of the Church and to assign more serious cases to superior authority, certain powers are reserved to the higher ranks as they are in the normal hierarchy, in accordance with the following rules:
* Priors and priests in charge of chapels are equivalent to private priests, such as military chaplains.
* District Superiors, seminaries and independent houses as well as the Superior General and his assistants, although in theory they only have jurisdiction over their subjects (priests, seminarians, brothers, oblates and members of their household), are equivalent to military Ordinaries, with regard to the faithful whose priests have the care of souls (sic).
* The bishops of the Society, though deprived of any territorial jurisdiction, nevertheless possess the suppletory jurisdiction necessary to exercise the powers attached to the episcopal order and certain acts of ordinary episcopal jurisdiction.
CANONICAL COMMISSION.
BISHOP RESPONSIBLE FOR THOSE IN RELIGIOUS LIFE.
These two authorities were created in 1991 to continue after his death the office that Mgr Lefebvre had fulfilled in a suppletory manner in this area from 1970 to 1991. It was Monseigneur who provided for and specified the role of these authorities in his letter of 15 January 1991 to the Superior General:
[This text will be found below.]
DELEGATED POWERS AND FACULTIES.
– Powers previously delegated by the Holy See.
For some time, and most recently in 1950 and 1960, the S. C. of Propaganda have granted local ordinaries in mission lands wide-ranging faculties called “decennial faculties”, in particular the faculty of delegating several of their powers to priests in their territory.
In 1961, Mgr Lefebvre, the then archbishop of Dakar, promoted the application of these faculties in a small booklet which even then bore the title “Ordinances, etc.” The text of the decennial faculties of 1950 and their application can be found in the book Vingt-cinq ans de pastorale missionaire by Father Gréco (1958), prefaced by Monseigneur and specially recommended by him.
On 30 November 1963, in his Apostolic Letter Pastorale munus, Pope Paul VI granted somewhat similar faculties to all residential bishops.
– Mgr Lefebvre, as the Bishop and Superior General of the Priestly Society of Saint Pius X, although no longer a local Ordinary as he was in Dakar, considered himself to possess a supplied jurisdiction permitting him, in the interests of the faithful, to grant his priests similar faculties. He promulgated these on 1 May 1980 in his Ordinances for the use of the Society, following the formula facultatum decennalium of 1960.
– The present edition of the ordinances takes up the former text but subdivides it in a more developed manner, taking into account the existence of auxiliary bishops in the Society.
– There have also been added powers and faculties relating to marriage certificates (cf. Cor Unum, n. 42, p. 44-56), dispensations from vows and the lifting of censures, along with useful precisions regarding cases where there is a danger of death and cases of emergency.
– The faculties granted to priests are not only for priests who are members of the Society, but for all priests who reside for a prolonged period of time in our houses (...).
There follow eight chapters dealing with fasting and abstinence, the obligations of the clergy, certain particular obligations, delegations of powers and indulgences, marriage impediments, transgressions and sanctions. Father Ricossa omits the first four chapters and passes straight on to what strictly concerns the most alarming subject: «Chapter V. Marriage impediments. Powers of dispensation in ordinary cases.» He publishes this chapter in its entirety. It is a laborious mixture of the old and the new canon law, the relative proportions of each being determined by «Mgr Lefebvre’s experience». But by what authority do they do this? That is the whole question.
Before we go on to examine this matrimonial legislation, it is only too apparent that these “Ordinances”, from their very first version of 1980, constitute a usurpation of the powers of jurisdiction reserved to the Pope. Father Ricossa’s demonstration of this is inexorable: Mgr Lefebvre, being no longer a mission territory “Ordinary” at the time, but a bishop without jurisdiction, that is without any pastoral power over souls, could not possibly delegate to anyone a power which he himself no longer possessed. Thus all confirmations and marriages celebrated by priests of his Society were, beyond a shadow of doubt, invalid!
And what can we say of the bishops consecrated by Mgr Lefebvre in 1988 against the wishes of the Pope? They did not enjoy any power of jurisdiction either. Nevertheless, they went ahead and usurped it by invoking a “provision” of the Church in accordance with the maxim “Ecclesia supplet” [the Church supplies], but extending it well beyond the cases envisaged by canon law. Two documents, taken from Cor unum, the internal bulletin of the Priestly Society of Saint Pius X, no 61 (October 1998), reveal how Mgr Lefebvre and his successors proceeded.
The first document is a letter from Mgr Lefebvre, dated 15 January 1991, to the Superior General of the time.
Econe, 15 January 1991.
Dear Father Schmidberger,
Many thanks for your good wishes and your prayers on the feast of Saint Marcel […].
As for the problem of the Commissions supplying to a certain extent for the shortcomings of the Roman Congregations which are directed by prelates imbued with the revolutionary principles of the Council, it seems to me that we should start very modestly, acting on needs as they arise, and that we should offer this institution as a service to help priests in their ministry and to solve difficult cases for nuns, or to provide authorisations that require a supplied episcopal power.
Rome is not only failing in her duty, but is making judgements according to false principles, as in the case of mixed marriages, marriage annulments!…
For the moment, I would advise that an initial, specifically canonical Commission be set up with a president, ideally a bishop, two advisers and a secretary. It could be named after a canonist saint: the Commission of Saint Pius V, or Saint Bellarmine, or Saint Charles Borromeo, and to it would be sent consultations and requests.
The secretary will examine the cases, present them and submit them to the judgement or at least the study of three judges, who will meet every three months or more frequently at the request of the president and study and answer the cases.
This Commission will be appointed by the General Council, but it may call upon a Dominican or a well known expert either in a permanent capacity as a counsellor or on an occasional basis.
This would be a first step and experience will show what is appropriate in the future.
The Commission would give an account of its work to the General Council one or twice a year.
This Commission should be announced in a letter communicated to all priests of Tradition who remain Catholic and to all societies of Tradition, both men and women.
THERE IS NO OBJECTION TO THE FAITHFUL KNOWING OF THE EXISTENCE OF THIS COMMISSION [my emphasis].
“As long as the present Roman authorities are imbued with ecumenism and modernism, as long as their decisions and the New Code of Canon Law are influenced by these false principles, it will be necessary to establish substitute authorities, faithfully keeping the Catholic principles of Catholic Tradition and Catholic Law. This is the only way of remaining faithful to Our Lord Jesus Christ, to the Apostles and to the deposit of faith transmitted to their successors who remained faithful until Vatican II.”
Some examples of cases to be submitted:
– mixed marriages - dispensations
– marriage annulments
– lifting of excommunication in the external forum
* for those who take part in abortion, either physically or legally
* or for other reasons.
– dispensations from religious vows
– authorisation for exorcisms
– consultations.
The choice of the permanent secretary residing at the General House is significant, even though he has no powers of decision.
Hoping that I may still be of use to you in these responses, yours very devotedly in Jesus and Mary.
Marcel Lefebvre
The second document allows us to see just how far, in only seven years, things had progressed along the path opened up by Mgr Lefebvre. We owe this text to the intervention of Mgr Tissier at a canonical session held at Econe on 24 August 1998. It permits Father Ricossa to accuse the Abbé Simoulin of lying in the editorial published in the review Roma felix. In the passage that we quoted above, the Abbé Simoulin denies:
1o that the Society of Saint Pius X has set up “tribunals”;
2o that the commissions instituted by the Society return “a declaratory verdict having the force of law”. They are simply meant to be consultative bodies which give “nothing more than an opinion or a recommendation”;
3o that these commissions have “thereby usurped the powers of the Pope and the Roman Curia”.
«These three denials are lies», affirms Father Ricossa. As proof of this, we have the statements made by Mgr Tissier de Mallerais. What the Abbé Simoulin calls «so-called tribunals» are the explicit object of Mgr Tissier’s intervention on that same 24 August 1998. In fact Mgr Tissier jumps straight into the question of their legitimacy and status in relation to the ecclesiastical tribunals which he calls “novus ordo” tribunals, “modernist” tribunals, “official” tribunals.
LEGITIMACY AND STATUS
OF OUR MATRIMONIAL TRIBUNALS
Status questionis ( (sic) [state of the question]sic) [state of the question]
Annulments granted by the “Novus Ordo” ecclesiastical tribunals are often dubious. Do we have the right to make up for them by means of tribunals operating from within the Priestly Society of Saint Pius X?
Monsignor Lefebvre had foreseen the creation of a Canonical Commission, particularly to resolve matrimonial cases following a first judgement given by the District Superior. The authority of our founder suffices for us to accept these legal proceedings in the same way that we accepted the episcopal consecrations of 1988.
But that does not dispense us from attempting to provide a doctrinal justification for the existence and operation of our matrimonial tribunals.
We will see that the main reason, as was the case with the episcopal consecrations, is the case of necessity of the traditional faithful.
I. THE NEW MATRIMONIAL LEGISLATION
1. New definition of marriage:
a) Object of matrimonial consent: This is no longer strictly defined as “jus in corpus, perpetuum et exclusivum in ordine ad actus per se aptos ad prolis generationem” [a perpetual and exclusive right over the body ordered to acts which are of themselves suitable for the procreation of children] (can. 1081 § 2), but vaguely described as “mutua traditio et acceptatio viri et mulieris ad constituendum matrimonium” [a mutual giving and accepting of man and woman for the purpose of establishing a marriage](New Code, can. 1057 § 2). The object of the consent is thus improperly extended to aspects of marriage which, although integral to it, are nonetheless secondary, namely the “totius vitae consortium” [partnership of their whole life] (New Code, canon 1055).
b) Inversion of the two ends of marriage. The Code of 1917 says: “finis primarius, procreatio et educatio prolis; finis secundarius: mutuum adjutorium et remedium concupiscentiae” [the primary end is the procreation and raising of children; the secondary end is mutual assistance and a remedy for concupiscence] (can. 1013, § 1). The New Code says: “...ad bonum conjugum atque prolis generationem et educationem” [to the well-being of the spouses and to the procreation and upbringing of children] (can. 1055, § 1).
Consequently, according to the new legislation, the community of life becomes a part – indeed the principal part – of the object of matrimonial consent, and with it the interpersonal relationship between the spouses, that is their cohabitation, good understanding and mutual development.
Now, according to the traditional conception, all this lies outside the object of the matrimonial contract, as Pius XII reaffirmed against the innovators in 1944 by having inscribed in the Acta Apostolicae Sedis a verdict of the Sacred Roman Rota [AAS 36 (1944), 172-200], which recalls the hierarchy of the two ends of marriage and reminds us that “the sharing of domicile, bed and board does not belong to the essence of marriage” even though it pertains to the integrity of the conjugal life (cf. Les Enseignements Pontificaux, Le mariage, Solesmes, Desclée, 1960, appendix n. 24-29).
2. New defects of consent render marriage invalid:
It is obvious that if the “bonum conjugum” [the well-being of the spouses] and the “totius vitæ consortium” [partnership of their whole life] form part of the object of the matrimonial contract, then any defects which, ab initio, render the common life of the spouses impossible – and no longer solely the surrender of the jus ad corpus [right to the body] – will render the matrimonial contract null and void. Whence the introduction in the new legislation of new impediments to the marriage contract.
Of course, the Church can always, by positive provisions, add new impediments to marriage, but these should be 1o positive provisions and not a change in the nature of things, and consequently of the essence of marriage; 2o provisions which determine impediments with such a degree of precision that it is easy to make judgements on their presence without fear of abuse. However, that is certainly not the case here; there has been a change in the essence of marriage and the door lies open to every abuse, as we will see.
* New Code, can. 1095, n. 2: “Sunt incapaces matrimonii contrahendi: (...) 2° qui laborant gravi defectu discretionis judicii circa jura et officia matrimonialia essentialia mutuo tradenda et acceptanda” [The following are incapable of contracting marriage: (...) 2o those who suffer from a grave lack of discretionary judgement concerning the essential matrimonial rights and obligations to be mutually given and accepted].
Traditionally, the only things that render marriage null on the level of the understanding are:
Ignorance of the fact that marriage is “a permanent partnership between a man and a woman ordered to the procreation of children” (can. 1082 § 1); and such ignorance is not presumed after puberty.
Error concerning “the unity or indissolubility or sacramental dignity of marriage”, if such error determines the will (New Code, can. 1099, codifying traditional jurisprudence).
That summarises everything very clearly. But this “defectus discretionis judicii” [lack of discretionary judgement], this immaturity of judgement, implies that personal fulfilment – or rather interpersonal fulfilment – is an essential obligation of marriage, whereas it is in fact something that lies outside the traditional object of the matrimonial contract and concerns the subjective aspect of the matrimonial bond. Admittedly, the growing lack of maturity in young people often renders marriage unviable and imprudent, but to establish an incapacity on the grounds of a lack of maturity is to invoke a personalist, subjective conception of the marriage contract and to open the door to abuses. Only a stricter impediment of age would serve as an objective remedy…
* New Code, can. 1095, n. 3: “sunt incapaces (...) 3o qui ob causas naturæ psychicæ obligationes matrimonii essentiales assumere non valent” [the following are incapable (…) 3o those who, on account of causes of a psychological nature, are unable to assume the essential obligations of marriage].
Traditionally the Church recognises only physical inability: impotentia [impotence] (can. 1068 § 1) which makes it impossible to render the “jus in corpus in ordine ad actus per se aptos...” [right over the body ordered to acts which are of themselves suitable…] (can. 1081 § 2). The only mental incapacity is amentia vel dementia [amentia or dementia], which render the subject radically incapable of contracting (cf. can. 1081 § 1 “inter personas jure habiles” [between legally fit parties]).
Certainly, cases of mental unbalance due to the erosion of family life are frequent today, and it is these that make permanent unions so precarious. But who will determine what degree of unbalance makes such a union radically impossible? John Paul II himself had to remind canonists that such psychic disorders must be “a serious form of anomaly which (...) must substantially undermine the capacity of understanding and/or willing of the contracting party” (Address to the Roman Rota, 5 February 1987, AAS 79 (1987), 1457).
Nevertheless, in the way it is formulated, canon 1095, n. 3, leaves the door wide open to abuses.
* New Code, can. 1098 : “Qui matrimonium init deceptus dolo, ad obtinendum consensum patrato, circa aliquam alterius partis qualitatem, quæ suapte natura consortium vitæ conjugalis graviter perturbare potest, invalide contrahit.” [A person contracts invalidly who enters marriage inveigled by deceit perpetrated in order to secure consent, concerning some quality of the other party which of its very nature can seriously disrupt the partnership of conjugal life.]
Before the New Code, fraud was never admitted as matter for annulment; and this was to protect the permanence of the marriage bond.
But authors accept that the Church could introduce it (by a provision of positive law). This would be less illegitimate where the fraud jeopardizes the primary end of marriage e.g. fraud concerning sterility of one of the spouses; and this is what the New Code does: sterilitas, non dirimit, sed dolus circa sterilitatem [sterility does not invalidate, but fraud concerning sterility does] (cf. can. 1084 § 3). But canon 1098 is much too broad: fraud concerning drunkenness, drug addiction, nay even irascibility are supposedly causes for annulment! We see here the conciliar personalist inspiration of this new canon. And to reformulate it in a Catholic sense is no business of ours.
3. Practical consequences
a) 80% of annulments granted by novus ordo tribunals are granted in virtue of canon 1095! and they are therefore invalid judgements since they are based on a regulation that is incapable of regulating. Some commentators even speak of “Catholic divorce”, so easy is it to obtain such judgements.
b) In cases where the grounds for annulments are serious but difficult to prove, the tribunal opts for canon 1095 of the New Code as an easy solution.
The objection could be made: Yes, but since in fact the marriage in these cases is actually invalid, why not take advantage of the verdict of nullity even if it is not correct? To this we must answer: in order to certify someone’s state of freedom (enabling them to remarry), a valid judgement is necessary, not a private assessment supported by an invalid judgement.
II - SITUATION OF THE FAITHFUL
1. The faithful do not have the right to go to novus ordo tribunals, for that would be to run a great risk of receiving an invalid annulment, of remarrying in good faith and living in sin, in canonical concubinage!
2. They may not, in an attempt to remarry, take it upon themselves to judge the nullity of their own marriages, nor may they content themselves with the private assessment of a priest friend: that would be to open the door to subjectivism and disorder, exposing the marriage bond to contempt and augmenting the evil.
3. They have the right in justice to be sure of the validity of the sacrament received a second time and therefore of the validity of the declaration of nullity, and to be protected against personalist errors which invalidate these verdicts. Who then will render them justice?
4. Faithful priests and bishops are duty bound to defend and protect the marriage bond imperilled by the new legislation. How will they fulfil this duty?
To summarise: the faithful, not finding anyone to turn to, are in a state of necessity, and faithful priests and bishops have a duty to come to their aid.
In this situation, the faithful bishops (Dom Licinio in Campos) and our Canonical Commission founded according to the general principles of law which govern the life of the Church, possess supplied powers to judge matrimonial cases.
III - DOCTRINAL BASIS OF OUR SUPPLETORY POWERS
1. Can. 20 (New Code, can. 19): If a particular case is not expressly provided for by law, it must be resolved by taking the norm “a legibus latis in similibus; generalibus juris principiis cum aequitate canonica servatis; jurisprudentia et praxi Curiae Romanae; communi constantique doctorum sentential” [from laws enacted in similar cases; from the general principles of law observed with canonical equity; from the jurisprudence and practice of the Roman Curia; and from the common and constant opinion of learned authors]. (Wernz-Vidal: “jus ergo suppletorium est jus applicandum in particularibus casibus, cum circa illud non habeatur in codice prescriptum quod peculiari illi casui sit applicandum”[therefore a suppletory law is a law to be applied in particular cases, when the rule to be applied in an extraordinary case is not found in the law]. n. 180)
2. Application - three things are involved:
a) Parallel situations, i.e. the practice of the analogia legalis [analogy of law] (Wernz-Vidal n. 181):
“per quam juris dispositio pro aliis casibus applicatur simili de quo lex non disponit” [through which the provision of the law for other cases is applied in a similar way to what the law does not provide for].
Here the parallel situation is the case when it is impossible to have recourse to the bishop to grant a dispensation for a diriment impediment of ecclesiastical law: in the “danger of death” or “quando omnia sunt parata ad nuptias” [when everything is ready for the wedding], the parish priest or confessor may grant a dispensation (can. 1044-1045). This means the Church gives them, by supply, jurisdictionad casum [for the particular case].
b) jurisprudence of the Roman Curia: A response from the Commission for the Interpretation of the Code, dated 29 July 1942 (AAS 34, 241), allows the provision of can. 1045 to be extended to the case of urgent necessity where there is “periculum in mora” [danger in delay] (cf. can. 81).
c) epikeia and the opinion of doctors regarding canons 1043 sq., but which also applies elsewhere:
Cappello, Tractatus, De Sacramentis, III, n. 199: “Si finis legis cesset contrarie pro communitate, i.e. si damnum commune inde sequatur, lex non urget, quia merito censetur suspendi ex benigna mentis legislatoris interpretatione.” [If the end of the law would be detrimental to the community, i.e. if damage to society would ensue from it, the law does not oblige, because it is rightly thought to be suspended in accordance with a benign interpretation of the mind of the legislator.]) Now, this is the case with the obligation to have recourse to modernist tribunals. But though this obligation should cease, the obligation to have recourse to some tribunal remains!
3. From the conjunction of these elements, we conclude that our canonical commission, in view of the current impossibility of having recourse to the official tribunals, has the power to judge matrimonial cases. (Were it not for the fact that the Holy See is as modernist as the tribunals, one might say that it had given us this power as a matter of canonical equity).
It is even more serious to dispense from a diriment impediment (which changes the condition of the person, making him capable rather than incapable of contracting marriage ) than it is to declare a marriage invalid (which does not change the condition of the person, but merely notes a state of affairs that has existed ab initio); it is a declarative power of jurisdiction only. So if supplied jurisdiction gives us the power to grant dispensations, then a fortiori it must also give us the power to judge.
4. The institution of marriage tribunals within the sphere of Tradition is especially justified by the fact:
a) that their authority will be more easily accepted than that of private opinion,
b) that they will remove the necessity of nullifying doubtful or contrary private opinions,
c) that judges and legal proceedings are needed in order to proceed prudently according to the spirit and letter of the law,
d) that in the current situation of necessity, the individual priest receives supplied jurisdiction for what a priest can normally do by himself and not for what he cannot normally do. But judging matrimonial cases is not normally done by a priest but by the bishop or the authorities he has delegated.
In all this the rule “as much as needed but no more” applies: the Church supplies jurisdiction on behalf of the faithful inasmuch as it is necessary and no more than is necessary.
IV. EXERCISE OF THE RIGHT OF JUDGING MATRIMONIAL CASES
(by our Canonical Commission and the priests designated by it)
As we have said, our jurisdiction in these cases is a supplied jurisdiction. Its properties are as follows:
1. It is not habitual, but is only exercised ad casum per modum actus [case by case, on a temporary basis]. Consequently we do not have standing tribunals, nor are their members appointed by the Canonical Commission ad universas causas [for cases in general], but rather ad hoc [for a particular case] every time; even though, for reasons of practicality, the judges and the defenders of the bond are always the same; for competent persons are needed.
2. It is not territorial, but personal.
3. It depends on the needs of the faithful, that is it lasts as long as the state of common need lasts, even if per impossibile [supposing the impossible] an official tribunal judging in accordance with traditional norms could be found.
4. It is a true jurisdiction and not an exemption from the law and from the obligation imposed on the faithful to obtain a verdict. Therefore, we have the power and the duty of handing down true verdicts which have potestatem ligandi vet solvendi [the power of binding and loosing]. Our verdicts therefore have an obligatory character. The proximate reason for this is that we must be able to tell the faithful what they must observe, quod debent “servare”.
Our verdicts are not mere private opinions, for such opinions are insufficient where the common good is at stake; and the common good is at stake in every case where the matrimonial bond is in dispute. To resolve doubts, authority in the external forum is necessary.
5. This jurisdiction does not usurp any of the powers the Pope has of divine right.
It is true that our verdicts of the third instance replace the verdicts of the Roman Rota, which acts in the Pope’s name as a tribunal of the third instance. But this is not a usurpation of the Pope’s divinely endowed authority, for the reservation of this third instance to the Pope is merely a matter of ecclesiastical law!
6. Finally our verdicts, like all our acts of supplied jurisdiction, and like the episcopal consecrations of 1988, 1991, etc., will ultimately need to be confirmed by the Holy See.
PRACTICAL RULES CONCERNING MARRIAGE ANNULMENTS
Pastoral charity aims at the sanctification of souls: prima lex salus animarum [the salvation of souls is the highest law]; but pastoral prudence does not impose unbearable burdens on souls. (cf. Mt 23.4).
Consequently the pastor seeks to put souls in a position of truth regarding God’s laws and the validity of marriage, but he will sometimes prefer to leave souls in good faith if they err in good faith about their matrimonial situation, when it is to be feared that they would refuse to regularise it and would thus live in bad faith.
On the other hand marriage annulments given by official tribunals (which may be called “novus ordo” verdicts) cannot be considered either as ipso facto null and void or as valid without examination. Whence ensue the following rules:
1. A novus ordo verdict can neither be accepted nor rejected a priori. Its validity depends on the criteria used. It must therefore be examined in jure.
2. The priest must never advise anyone to go to a novus ordo tribunal, lest this give rise to an invalid declaration based in jure on the erroneous or dubious criteria of the New Code.
3. If the person has not remarried, but still has doubts over or contests the validity of the first marriage or informs us that the annulment case has been submitted to the novus ordo tribunal or that the said tribunal has given an executory verdict of nullity, the priest must warn him/her that novus ordo annulments are not sufficient proof of nullity of marriage and that he/she cannot remarry until they have submitted their case to the examination of our Canonical Commission.
4. If the person, after a novus ordo annulment, has already remarried, the priest will leave him/her in good faith if he/she is in good faith. To this end:
1o he will never publicly speak of novus ordo annulments,
2o he will never interrogate the faithful on this matter,
3o if asked by a person who has only a negative doubt, the priest will reassure him/her.
5. If a remarried person has a positive doubt concerning a novus ordo annulment, the priest must help him/her resolve the doubt. To this end he will:
1o warn the person of the possibility of an invalid novus ordo annulment;
2o explain that, for this reason and in accordance with our practice, the case has to be presented to the Canonical Commission.
6. In order to present cases for the examination of the canonical office, the priest will:
1o present a summary explanation of the case;
2o communicate, where applicable, the novus ordo verdict or at least the tribunal document that indicates the caput nullitatis [the grounds of nullity];
3o transmit the details of the case (and the final novus ordo verdict) to the canonical office who will send the priest the questionnaire that will be used to establish the introductory libellus of the case;
4o but he will not take sides in the matter, either for or against.
7. The case can only be introduced if the party concerned agrees to be morally bound by the decision. That is why the priest will ask him/her to swear to and sign the following promise:
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I the undersigned .................. at the time of submitting the case of my marriage with .................. to the Canonical Commission of the SSPX promise:
1o (if such is the case) not to attempt any marriage or any civil union before the definitive verdict.
2o to conform myself to the verdict of the tribunal and consequently, if it is negative, not to remarry, or (if such is the case) no longer to consider my second partner as my spouse.
3o not to approach an official ecclesiastical tribunal to have it examine or judge my case.
All this I promise and swear on the Holy Gospels upon which I set my hand.
Dated ........................ At ........................
Signature
(delete where not applicable)
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8. For as long as the tribunal designated by the Canonical Commission has not returned an executory verdict of “declaration de nullitate matrimonii” [declaration of nullity of marriage], the marriage contracted after a novus ordo annulment (if such be the case) is presumed valid and, consequently, the spouses of the second marriage may ask for and render their marital dues, and the sacraments may not be refused them.
9. But once the annulment proceedings have commenced in our tribunal, then should the party involved, having been warned not to remarry before our final verdict permits, remarry or contract a civil union, the sacraments must be denied them and, depending on the judgement of the superior who has convened the tribunal, the procedure may be suspended.
One has only to compare this text of Mgr Tissier with the editorial of Abbé Simoulin cited above (p. 19) to see that the latter is not telling the truth on any of the three points highlighted by Father Ricossa: 1o on the existence of the “tribunals” instituted by the Society of Saint Pius X, 2o on the nature of the responses given by these tribunals, and 3o on the usurpation of power resulting from them.
1o «Every time the Abbé Simoulin speaks of the tribunals of the Society to deny their existence», writes Father Ricossa, «he writes “tribunals” with quotation marks, and he uses the adjective “so-called” to characterise them as a figment of our imagination.» However, Mgr Tissier «himself on at least twelve occasions used the words tribunal and tribunals, without putting quotation marks around them, in reference to the Commission which he chairs and in opposition to the tribunals of John Paul II, which are defined as “novus ordo” tribunals, “modernist” tribunals, “official” tribunals.»
2o As for maintaining that the canonical commissions of the Society provide for cases submitted to them «nothing more than an opinion or a recommendation, never a declaratory verdict having the force of law», this is certainly not the language of a canon lawyer! As Father Ricossa points out: «A verdict is never a law, but the application of a law.» A detail in itself highly revealing of the truly bizarre character of this improvised “magistrature”. And yet the members of these commissions believe themselves to be invested with «true jurisdiction», as can be seen in point IV 4 of Mgr Tissier’s exposition. And as can be seen even more clearly in the fact that the faithful of the Society who have recourse to the Canonical Commission make a sworn “promise” in which they pledge to conform “to the verdict of the tribunal”... of the Society!
3o From the first two points derives the third: there can be no doubt that «the Society seeks to replace and supply “the powers of the Pope and the Roman Curia”». Mgr Lefebvre himself wrote in his letter of 15 January quoted above (p. 22) that the Commissions were to supply «to a certain extent for the shortcomings of the Roman Congregations». And Mgr Tissier in his turn does not hesitate to declare: «It is true that our verdicts of the third instance replace the verdicts of the Roman Rota, which acts in the Pope’s name as a tribunal of the third instance.»
So true is this that the faithful of the Society undertake, by the formulary reproduced in our inset (p. 25), not to approach «an official ecclesiastical tribunal to have it examine or judge their cases». To make such a pledge, observes Father Ricossa, «implies the negation of the primacy of the Pope’s jurisdiction, which belongs to him by divine right».
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SOCIETY OF SAINT PIUS X ~ DISTRICT OF FRANCE
OFFICE OF CANONICAL AFFAIRS
Abbé Francis PIVERT
Le Moulin de Pin
53290 Beaumont Pied de Boeuf
Telephone 43.98.74.63
Fax 43.98.70.38.
Our ref: Marriage
Father
Priory of
DISPENSATION FROM MIXED RELIGION
Considering the IMPEDIMENT of mixed religion,
Considering that it is not possible to have recourse either to the local Ordinary or to Rome,
Considering that marriage cannot be deferred without great harm to the contracting parties,
Considering the canonical regulations indicated by Mgr Lefebvre in time of crisis,
Considering the guarantees provided by the bride and groom-to-be,
Considering the serious reason invoked, namely ..........................................
...............................................................................................................
WE Abbé Francis Pivert, the undersigned,
in the name of District Superior and by delegation,
DISPENSE ............................................ and ............................................
from the impediment indicated, in order that they may licitly contract marriage according to the laws of the Church.
Ad cautelam we also dispense them from the impediment of disparity of religion.
Given at ........................ on ........................
Seal Signature of priest
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Translation of a formulary for dispensation from the impediment of mixed religion, granted by the Abbé Pivert who considers that «it is not possible to have recourse either to the local Ordinary or to Rome».
Father Ricossa concludes: «We are truly sorry to have had to demonstrate that the assertions contained in Roma felix are untrue, especially as the author of this editorial is a zealous priest. But he could not be in ignorance of the true situation because, as district superior, it is he who would have to be the judge in the second instance of these tribunals whose existence he denies!»
«Pouring oil on wounds works better than vinegar.» These are the words of Saint Bernadette, based on her experience as a nurse... and as a patient! The wound that John Paul II, from the very first days of his reign, was confident of quickly curing, has only become more septic in the Church’s side. A concern to restore rather than to vanquish will lead us to an attentive study of the commentary given by Father Ricossa, in the second part of number 51 of Sodalitium, concerning the documents presented in the first part which we have just read: the “ORDINANCES” promulgated initially by Mgr Lefebvre then by Mgr Fellay, Mgr Lefebvre’s letter and Mgr Tissier’s exposition.
We have long been deploring the frightful «mess» in which traditionalism has become ensnared – divided, broken and on the road to ruin for the last twenty-five years (What a mess! English CRC no 76, July 1976; “Traditionalism” examined, “What a mess!” English CRC no 310, June 1998, p. 27-30).
Far from setting ourselves up as judges in our turn, we can only invite all souls making their way to God to turn to the Immaculate, the Mother of every one of us, for ever!
(to be continued)
Abbé Georges de Nantes
