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The letter of His Exc. Most Rev. Bishop Bernard Tissier de Mallerais, in answer to the question posed by Prof. Orlando Fedeli regarding the legitimacy of the existence of tribunals to judge marriage cases, in the Society of St. Pius X, contains essentially the following:
1) The diocesan or interdiocesan tribunals of first and second instance are not instituted by Rome, but by the local bishops, according to their ordinary power, as in the person of bishop they are the ordinary judge of marriage cases.
2) Consequently, upon instituting its own tribunals, the Society of St. Pius X does not usurp the power of the Pope, but simply–by analogy–the power of the local ordinary [bishop].
3) The reason for the analogous application of judicial powers to the superiors of the SSPX rests on the state of need of the faithful, for a true seriousness in the cases of judgment of nullity.
4) In such cases, the tribunals of the Church, by following the new [1983] Code of Canon Law (that contains novelties in matrimonial matters), and by being imbued with a personalist ideology, would pronounce judgements either doubtful or completely invalid.
5) Likewise by virtue of the state of need of the faithful, the powers of the Holy Roman Rota apply by analogy to a tribunal of the Society of St. Pius X, for judgements pronounced in the third instance.
6) It is a question therefore, of a supplied jurisdiction of a personal nature (and not territorial) and attached to the act itself (and not ordinary).
7) If there was doubt regarding the supplied jurisdiction, canon law considers it, according to can. 144 of the 1983 Code of Canon Law (Can. 209 of the 1917 Code of Canon Law)
"In errori communi de facto aut jure, itemque in dubio positivo et probabili sine juris sine facti, supplet Ecclesia pro foro tam externo quam interno, potestatem regiminis executivam."
[The Church supplies jurisdiction for both the external and the internal forum, in common error and in a positive and probable doubt of fact as well as of law.]
If we understand well the structure of the argumentation enumerated above, in order to grasp better the essential points, we will summarize as follows:
The tribunals of the Church, by the reasons exposed in item 4) above, would be giving judgements either doubtful or completely invalid, thus creating a situation of danger for the salvation of souls, and therefore there is a real state of need for the Faithful (a state of law).
Therefore it would be the duty of the Society of St. Pius X (whose bishops were legitimately ordained, although without canonical mission – and therefore having a full power relative to the threefold office of teaching, sanctifying and governing) to supply that state of need by instituting tribunals to judge marriage cases, found to have a supplied jurisdiction which is personal and attached to the act itself (and not territorial nor ordinary). That supplied jurisdiction would permit the analogous appropriation of including even the powers of the Holy Roman Rota for judgements pronounced in the third instance. Although there was doubt about the legitimacy of that supplied jurisdiction, canon law, in case of doubt, would grant the right according to can. 144 of the 1983 Code of Canon Law.
Therefore we can emphasize the fundamental points of the argument:
1) The personalism, the problems of the 1983 Code of Canon Law, the slackening of the tribunals for marriage cases, all constitute a danger for the salvation of souls and therefore a state of need of the faithful is created in matrimonial matters.
2) The state of need of the faithful in matrimonial matters justifies the creation of tribunals for marriage cases that pronounce judgements in the first, second and third instances, with the powers of the Holy Roman Rota.
3) In a situation of possible doubt as to the legitimacy of such supplied jurisdiction, can. 144 of the 1983 Code of Canon Law applies, guaranteeing that the Church supplies the right of jurisdiction attached to the act itself, and of a personal character.
These fundamental points evidently are not independent; on the contrary it is clear that point 1) is the premise of 2) and that 3) is invoked to guarantee the implication of 2), in case there was a doubt. Thus, the refutation of point 1) by itself alone would be sufficient for the complete refutation of the entire reasoning of His Excellency. However, we are going to analyze all three points independently in turn.
It is curious, meanwhile, that in support of the fundamental implication of 2) there is not given any justification; but only canon 144 is invoked in case there is a doubt. However such an omission is surprising; inclusively admitting the validity of the premise (the state of need) and also admitting the possible analogous application of the canon cited, it lacks the central nucleus of a reason why.
The argument lacks the justification precisely that a bishop loyal to the Church and that recognizes John Paul II as Pope can set up a tribunal with the same powers of the Roman Rota by virtue of the laxity of the existing tribunals. It is necessary to show that such an act is not schismatic (therefore if every bishop, in the conditions cited, could set up such a tribunal, the (legal) unity of the Church would be destroyed! Or would it be that only the Society of St. Pius X is given such a right? And why?) It is necessary that the SSPX show –when acting in a materially schismatic way – that it was compelled to act this way because of the absolute impossibility of any other solution.
For greater depth, and for the perfect understanding of the arguments of His Excellency, it is necessary to remember here – briefly – some of the concepts used above:
First the expression "state of need" [or necessity]. According to the canonists:
"Whatever is not allowed according to the law, necessity makes it allowed." [Dom Oscar of Oliveira Ainda: "quod non est licitum in lege necessitas facit licitum".]
The expression in question could be used in a sense different and complementary to the above analysis: state of need of the faithful (or danger for souls). In this case, the expression signifies an extreme spiritual state of need in which, without the help of someone else, the faithful would suffer a serious danger of damnation. [Cardinal Palazzini, Dicionário Morale Canonicum, under the subject of "necessitas"].
Secondly the expression "supplied jurisdiction". Here we have to consider two cases: normal situations in the life of the Church and extraordinary situations. It is well to recall the canon cited by His Excellency, canon 144 of the 1983 Code of Canon Law:
"In errori communi de facto aut jure, itemque in dubio positivo et probabili sine juris sine facti, supplet Ecclesia pro foro tam externo quam interno, potestatem regiminis executivam."
[The Church supplies jurisdiction for both the external and the internal forum, in common error and in a positive and probable doubt of fact as well as of law.]
This canon treats explicitly of the supplying of power. In normal situations in the life of the Church (the only case in which this canon can be applied exactly), it has the purpose of safeguarding the normal exercise of executive power, when the elements necessary to guarantee with absolute certainty the validity of an act are lacking.
It is a question of a
"supplied jurisdiction [that] can be employed in the exercise of neither the legislative power nor of the judicial power, but only in concrete actions by virtue of the executive power. Thus, for example, positive and probable doubts cannot exist, neither upon exercising the legislative power… nor when it is a question of the exercise of the judicial power, where the moral certainty of the judge upon dictating the sentence is always required."
[Comentario Exegético al Código de Derecho Canónico, Vol. I, Eunsa, Ediciones Universidad de Navarra, S.A. Pamplona ]
Still, in the case of normal situations in the life of the Church, there are two conditions where supplied jurisdiction is possible: common error (of fact or of law) and probable and positive doubt (of fact or of law). The common error (that refers to the recipient of the power in question) consists of a wrong judgment upon the existence of a power that affects all or the majority of the faithful of a place or of a specific concrete community. The doubt (that affects the one actively using the power) refers mainly to situations in which the one performing the administrative act lacks sure judgment upon the existence of the power [to perform the act].
In the second case, where there is an extraordinary situation in the Church, that canon can only be interpreted and applied in an analogous way. In situations in which an explicit law is lacking, in the 1983 Code of Canon Law the appropriate canon is found to be canon 19, which says:
"If on a particular matter there is not an express provision of either universal or particular law, nor a custom, then, provided it is not a penal matter, the question is to be decided by taking into account laws enacted in similar matters, the general principles of law observed with canonical equity, the jurisprudence and the practice of the Roman Curia, and the common and constant opinion of learned authors."
Canon 19 mentions the "general principles of law" and "laws enacted in similar matters." Thus, for the best understanding of the arguments, let us indicate the general principle of law invoked in the letter of His Excellency:
The salvation of souls is the highest law.
And the similar case in which, by way of analogy, canon 144 was cited:
The probable and positive doubt (on the part of the bishops of the Society of St. Pius X) of the legitimacy of the creation of a tribunal for the marriage cases with the powers of the Holy Roman Rota.
For greater convenience we reproduce here the first argument:
1) The personalism, the problems of the 1983 Code of Canon Law, the slackening of the tribunals for marriage cases, all constitute a danger for the salvation of souls and therefore a state of need of the faithful is created in matrimonial matters.
This is essentially a question of knowing whether a laxist tribunal places the souls that approach it in serious danger of damnation.
If in a catholic marriage there is doubt regarding the existence of the matrimonial bond and at the same time there is perfect awareness of the serious doctrinal relaxation in moral matters on the part of the bishops, the procedure to follow is simple and conforms well to the general principles of law and constant and common opinion of learned authors: that the married couple seek the counsel of a priest in whom they have confidence and who has competency in the matter, and that they follow his advice of entering or not entering into a process of nullity. In a case where such a priest does not exist or in the case where the married couple does now know of such a priest, they should remain married, despite their doubt, accepting with generosity the sacrifice of such situation. If such a married couple is not aware of the state of crisis of the hierarchy and of the laxity of the tribunals, neither can they be attributed a fault by accepting the judgements of a tribunal of the Church, although such judgements can be doubtful or completely invalid.
Throughout the history of the Church in diverse circumstances, many faithful have found it impossible to approach an ecclesiastical tribunal to remove doubt upon the existence of matrimonial bonds, or they were forced to distrust the doctrinal integrity of a tribunal: the laxity – although serious and far-reaching – of a tribunal does not make it illegitimate and does not threaten the salvation of souls.
The avalanche of requests for annulments that has been verified in recent years is truly a reflection of the real doctrinal state of abandonment in which the faithful are found. The laxity of the tribunals is thus only a secondary aspect of the true spiritual devastation that today desolates the Church.
Those conscientious catholics, who are well aware of the crisis in the Church, of the protestantization of the Mass, of the general apostasy and who would be the only ones who would use a tribunal of the Society of St. Pius X, are the ones who, in truth, are the least in need of such tribunals: it suffices that the SSPX advise them whether or not they should begin a process of matrimonial nullity.
The second argument is:
2) The state of need of the faithful in matrimonial matters justifies the creation of tribunals for marriage cases that pronounce judgements in the first, second and third instances, with the powers of the Holy Roman Rota.
Let us suppose – independently of the previous considerations – that in fact there is a real state of need in matrimonial matters and that the salvation of the faithful is seriously in danger. In such a case, the proposed solution is not proportional to the problem: the danger to souls would easily be avoided if the Canonical Commission of the Society of St. Pius X would simply be a commission of experts (as it was in the past [translator’s note]) that gives opinions on each concrete case that is presented to it.
In the case of a marriage situation, where it would seem that the statement of nullity could not be granted, the Commission would advise the married couple not to enter into a process before the ordinary ecclesiastical tribunal.
If the situation would be the opposite, the married couple would be advised to open the process of nullity, that would certainly be granted given the laxity of the tribunals.
The lack of proportion in the analogy made by the SSPX is flagrant: if the faithful are in state of need in matrimonial matters, and therefore it is legitimate to create tribunals with the powers of the Roman Rota, then, as it is undoubtedly certain that the faithful are in state of need in matter of doctrine, the SSPX should create a Commission for the Doctrine of the Faith, with the powers of the Congregation for the Doctrine of the Faith, censuring the official documents of the Church, excommunicating, and promulgating other documents. And the same argument would apply for all the instruments of government of the Church.
The solution proposed by the SSPX, of creating tribunals that pronounce judgements in three instances, with the powers of the Roman Rota creates inevitably the suspicion that it is a matter of an indirect schismatic act. [See the subject "schisme" in the Dictionnaire de Théologie Catholique, and further comments below.
In point of fact, as the Holy Roman Rota is a tribunal in which the judges have a power of jurisdiction which is vicarious and not delegated, (and so it acts in the name of the Pope and not in its own name [translator’s note]), and which makes binding judgements (in the third instance), the possession of the powers of that tribunal is an appropriation of the powers of the Pope, or at least an appropriation of the instruments of government immediately dependent on the power of the Roman Pontiff. And, such an appropriation – although it is invoked by analogy for a supposed right of supplied jurisdiction from the Church – aims in a direction more serious: if the instruments of government immediately dependent of the Pope can legitimately be appropriated, it is because the Pope no longer has any legitimate authority to exercise through the instruments of government in question, according to the will of Christ.
That is to say, as it is Christ, ultimately, Who supplies the jurisdiction, then there exists a supposed vacancy of Papal power in matrimonial matters. And, the power being a Papal one, it cannot be partially vacant: the application of the powers of the Rota, by analogy, being invoked by the supplied jurisdiction of the Church, is the logical equivalent of saying that the Pope is no longer Pope.
Here it is well to remember the Gospel passage (Jn. 19:10-11) where Jesus is before Pilate:
"Pilate then said: "Do you not answer? Do you not know that I have the power to free you and the power to crucify you?" Jesus answered: "You would have no power over me if it had not been given to you from above; for this reason those who have delivered me to you have the greater sin."
And so, the Incarnate Word Himself recognized the legitimacy of the most wicked of tribunals: that of Pontius Pilate, which in fact possessed the power that it claimed to have and for that reason the ones who handed Jesus over had greater sin. The sentence pronounced by Pilate was invalid, but his tribunal was recognized as legitimate by the Incarnate God.
Is a tribunal of the Church able to pronounce a more wicked and invalid judgement than that of the tribunal of Pontius Pilate? And if Christ affirms the legitimacy of the tribunal that condemned Him to death, how can we deny the legitimacy of the laxist tribunals of the Church?
Besides, the SSPX cannot create their own tribunal without finally declaring (explicit or implicitly) the illegitimacy of the existing ecclesiastical tribunals. That is: no-one can create an alternative tribunal (with supplied jurisdiction) unless the power by which the ordinary tribunals exercise their activity (wicked or not) has been suppressed. The supplying of jurisdiction is precisely the act of supplying that which is lacking. In the perspective of the SSPX, the relations have been inverted: the tribunals of the Church, although they continue exercising their activity, they do it without legitimacy, without the power which supported them and which originates with Christ. The Society of St. Pius X, that was considered part of the Catholic Church, no longer acts as part of the Church, but acts as all of the Church.
And it is the refusal to act as part of the Church that precisely characterizes the schism.
It is a matter of the analogous interpretation of canon 144 of the 1983 Code of Canon Law. Recalling the third argument:
3) In a situation of possible doubt as to the legitimacy of such supplied jurisdiction, can. 144 of the 1983 Code of Canon Law applies, guaranteeing that the Church supplies the right of jurisdiction attached to the act itself, and of a personal character.
Already we have seen that canon 144 concerns the supplied jurisdiction of the executive power in situations where there is not absolute certainty of the validity of an administrative act. We saw that supplied jurisdiction could be employed neither in the exercise of legislative power nor in the exercise of judicial power. However, as we also commented, such restrictions are imposed in normal circumstances in the life of the Church, and what truly is invoked in the third argument is an analogous interpretation, one that would be valid for extraordinary situations.
Given the enormous flexibility possible before the fact in an analogous interpretation, and given the evident dangers of deceit, [that is, due to the general apostasy, it would be possible to suppose that the Pope has lost the pontificate and that the See is vacant, and under the norm "the Church supplies", employed by analogy, a new Pope could be elected] it is necessary first to understand the "analogy of law" and that we must have recourse to laws "in similar situations".
Previously we resorted to can. 19 of the 1983 Code of Canon Law, as a possible guide for this task. It is good to restate it:
"Si certa de re desit expressum legis sive universalis sive particularis praescriptum aut consuetudo, causa, nisi sit poenalis, dirimenda est attentis legibus latis in similibus, generalibus iuris principiis cum aequitate canonica servatis, iurisprudentia et praxi Curiae Romanae, communi constantique doctorum sententia."
["If on a particular matter there is not an express provision of either universal or particular law, nor a custom, then, provided it is not a penal matter, the question is to be decided by taking into account laws enacted in similar matters, the general principles of law observed with canonical equity, the jurisprudence and the practice of the Roman Curia, and the common and constant opinion of learned authors."]
Although this canon does not refer to the situation that we are considering, that of an extraordinary situation, it does give some elements that can orient us to fill in what is not expressly stated in the law:
1) laws given in similar cases.
2) general principles of law.
3) observed with canonical equity.
4) the common and constant opinion of learned authors.
Point 1) presupposes that resemblance of matter exists between that supposed in the law and that supposed in the case, and the belief that parity of reason exists among the one and the other. But, in the case that we are considering there is not resemblance of matter: in canon 144 (matter supposed in the law) the matter is positive and probable doubt upon an administrative executive act; and in the matter supposed in the case, it is a matter of probable and positive doubt upon a judicial act.
The general principles of law should be applied with canonical equity. By canonical equity is understood perfect justice that goes beyond the written law, to give a solution that can be applied with justice to the concrete case in question. But, the creation of a marriage tribunal with the powers of the Roman Rota against the rights of the Pope does not apply with justice to the concrete case if:
A) the Society of St. Pius X recognizes that John Paul II is Pope.
B) the appropriation of the powers of the Pope is, as minimum, an act suspect of being schismatic.
C) there are solutions more in conformance with the justice of the case, such as for example the creation of a commission of concepts and counsel. (As was previously in existence [translator’s note])
The common and constant opinion of learned authors is not that of permitting extreme acts except when all other resources are shown to be ineffective: the solution of a problem should not be the occasion of more serious damages than those caused by the problem itself: to remedy a situation of laxity in tribunals for marriage cases the unity of the Church is put at risk, and this places before the faithful, who had matrimonial doubts, more acute doubts in matters of faith.
For a better understanding of the implications of the act of creating tribunals with the powers of the Roman Rota, we should recall here some notions that can be seen with greater depth in the article "Schisme", in the Dictionnaire de Théologie Catholique. From the theological point of view schism is a sin against charity. Schism can be a sin against charity directly, by hatred, or indirectly, by sinning against the effects of charity. One of the effects of charity is peace (or unity) and one can sin against unity by thoughts (discord), words (dispute) or actions (war, revolution or schism).
Ecclesiastical unity (against which the schismatic act is directed) is a unity in the order of relation. This relation is seen under a double aspect:
1) relation of connection among the members: that is the spiritual communion of the members among themselves.
2) relation of the members with the leader: this relation carries out ecclesiastical unity when the leader gives to each one what is proper to him and when the members receive from the leader the regulation of their activities.
If ecclesiastical unity has this double aspect, breaks in unity can be of two ways:
1) breaking the connection among the members: being denied to be member,
2) breaking the connection of the members with the leader: refusing to recognize the legitimate authority of the leader.
At the same time, each one of these breaks can be double:
A) When the root of the break is the will: it is a matter of pure schism, where, in perfect orthodoxy and warning, there is refusal of being submitted to the unity of the Church and of its leader.
B) When the root of the break is the intelligence: it is a matter of mixed schism, where some heresy exists mixed with the break of unity.
Pure schism, at the same time, can be constituted in a direct refusal of submission, when the will is directed to that refusal as its explicitly and immediate desired objective. Or it can be constituted in an indirect refusal, when the will is directed toward something that, thus desired, implies break of communion.
Here, the autonomous creation of tribunals to judge marriage cases by the Society of St. Pius X, with the powers of the Roman Rota, constitutes an act contrary to the effects of charity: it goes against the connection of the members with the visible leader of the Church. (This is made worse by the oath required, on the part of those who seek out the tribunals of the SSPX, of never seeking out a tribunal of the Pope [translator’s note])
It is an act that goes against ecclesiastical unity, breaking it, and therefore it can be considered (at least in principle) as an act of indirect pure schism. The argument that it is not an explicit desire of separation from the Church, is not pertinent in this case, to the degree which, although not directly desired, that separation is the logical consequence of the acts of appropriation of Papal power in the formation of a parallel tribunal.
We cannot accept the tribunals of the Society of St. Pius X, as they are appropriating the exclusive power of the Pope based on a wide interpretation of the principle "the Church supplies." In fact, instead of a truly analogous application of that principle, such a wide extension of this principle practically justifies any schismatic act.
If each bishop disagreeing with the laxity of the tribunals sets up a tribunal with the powers of the Roman Rota, pronouncing binding judgements in the third instance, with full autonomy, we would have a many-headed Church and the unity of the Church would be destroyed. (Seriousness in legal unity implies its visibility, a characteristic note of the true Church [translator’s note])
If the bishops of the SSPX declare themselves faithful and submissive to the legitimate authority of Pope John Paul II and still they maintain the legitimacy of their act of appropriation of Papal power in this way, we do not see why other bishops faithful to the Pope, likewise indignant with the laxity of the tribunals (and certainly they exist!) cannot, also legitimately, set up their own Roman Rota...
One cannot stop deeply regretting the existence of these tribunals that objectively are schismatic, completely unnecessary, totally unjustifiable and which give us the moral obligation of rejecting them and of rejecting likewise the Society of St. Pius X in name of the true, holy, one, and only Apostolic Roman Catholic Church, under the rule of Pope John Paul II.
Cardinal Torquemada, in his Summa de Ecclesia, indicated various remedies to resort to in case of the calamity that a Pope be a motive of scandal: repeated warnings, direct resistance to the bad acts, etc... But all those remedies can be ineffective. If so, a most supreme resource exists, never ineffective, at times terrible as death, secret as love. That resource, the saints knew it: it is prayer. [See L’Eglise du Verbe Incarné, Cardinal Journet.] Although the present situation is not mainly of moral scandal, but of doctrinal impasses, more than ever we should invoke the aid of God and implore to the help of the Virgin Mary, remembering serenely that, in the end her Immaculate Heart will triumph!
Paulo Agozzini Martin