REGARDING THE LEGAL STATUS OF
THE SSPX WITHIN THE CATHOLIC
LETTER FROM REV. DR. DENZIL MEULI, S.T.D., U.J.D., Ph.L., LL.B., Advocate for the Holy Roman Rota, Barrister for the High Court of NZ JULY 21 2001
(RIP)Rev. Fr. Meuli can be reached at:
4 Rangiwai Road
Mount Saint Mary's Church Titirangi
Auckland 1007 New Zealand
Extracts from lengthy reply to a slanderous e-mail:
... ...A rigorous construing of Ecclesia Dei Adflicta (any imputation of crime or application of penalty is to be treated with rigour according to the Regula Juris : 'Odia restringi, et favores convenit ampliari) does not lead to the conclusion that they (leaving aside for the moment who they may be) are in schism.
Further, the term schism is, at large, misunderstood. Schism is the total rejection of the authority of the Pope. Impossible to predicate that of those who dutifully pray for the reigning Pontiff at the appropriate place in the Canon of the Mass. Impossible to predicate that of consecrators who publicly proclaim the conferral of jurisdiction to be to them ultra vires, beyond their powers and not to be within their intention.
Concerning that, in the matter of the consecration of a bishop, account is to be had of a major distinction, viz. that between the power of order and the power of jurisdiction. These powers have different causes. The power of order, namely, the power to confirm and ordain, comes from the sacrament of holy order while the power of jurisdiction, according to the teaching of Pius XII in Mystici Corporis, comes from the Pope. It is, in his words: 'received from the Sovereign Pontiff himself.'
For a bishop to confer the power of order without a papal mandate is not a schismatic act. The Code makes that limpidly clear. According to circumstances it may or may not be disobedience. If it turns out to be disobedience, according to further circumstances, it may or may not turn out to be punishable.
It is a totally different issue for a bishop to attempt to confer the power of jurisdiction, as distinct from the power of order. An attempt to confer the power of jursidiction would be to arrogate to oneself a power belonging to the Pope alone and hence would be a rejection of Papal authority. That is patently a schismatic act. That did not take place. As was affirmed in the public declarations of the ordaining Prelates, any intention to attempt to confer jurisdiction was expressly excluded.
Archbishop Marcel Lefebvre and his co-consecrator Bishop Castro de Mayer were at pains to make known that they were about to confer orders, not jurisdiction. They acknowledged that to confer jurisdiction was beyond their power, and outside their intention even if it were within their power.
The relevant canon is 751. The defining word in that canon is detrectatio, by which is meant a refusal of all submission. It is precisely this all-encompassing rejection which differentiates schism from disobedience.
An example will aid comprehension. One can disobey one's parents, even in serious matters, and not reject their authority. That is, one can disobey but still recognize that they are one's parents with legitimate authority over one even while disobeying them. That is no more than disobedience. Schism would be to reject the totality of their parental authority.
Telephone: +64 9 817 7582
Cardinal Rosalio Lara, President of the Pontifical Commission for the Authentic Interpretation of Canon Law, points out that the Code of Canon Law makes this same distinction. In commenting on the consecrations by Msgr Lefebvre in the 10 July 1988 issue of La Repubblica, he states:
'The act of consecrating a bishop (without a papal mandate) is not in itself a schismatic act. In fact, the Code that deals with offences is divided into two sections. One deals with offenses against religion and the unity of the Church, and these are apostasy, schism and heresy. Consecrating a bishop without a pontifical mandate is, on the contrary, an offense against the exercise of a specific ministry.'
In case that is not clear, Cardinal Lara is stating that schism is one thing, and dealt with in its part of the Code, viz. 'Offences against Religion and the Unity of the Church,' whereas consecration without papal mandate is another thing, and dealt with in its own part of the Code, viz. 'Usurpation of Ecclesiastical Functions'.
The 'Usurpation of Ecclesiastical Functions' is not a rejection of Papal Authority, hence the characterization of any such usurpation as 'schism' is mistaken. It is a fiction, not supported by the law.
In his Apostolic Letter Ecclesia Dei Adflicta the Holy Father writes of the subject act of disobedience in the following terms:
'In itself this act was one of disobedience to 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.'
But then, remarkably, the Holy Father draws a conclusion not found in the premises. He writes:
'Hence (my emphasis) such disobedience - which implies in practice a true repudiation of the Roman
primacy - constitutes a schismatic act.'
That utterance is supported neither by the premises nor by the law. What may be the explanation of this anomaly? Either the Holy Father is using the term schism loosely, that is to say, equivocally, or he is simply mistaken. It does not appear that he is using the term equivocally. Were he using it equivocally it would be inapproprate to cite, as he (or perhaps the editors of the AAS) does, those canons of the Code of Canon Law, which refer to schism as it is understood by the Code.
But then, how can he be mistaken? That is easily explained. The Holy Father is a professional philosopher (he taught philosphy for decades), he is a theologian, he is an acclaimed litterateur. He is no jurist.
For the accurate presentation of the law in any writing of his he relies on his advisers. They have served him badly. The mistake they made is so clamorously obvious the suspicion arises that they had an agendum of their own.
...A propos, Cardinal Oddi, then Prefect of the Sacred Congregation for the Clergy, when asked if assisting at Mass in a SSPX Chapel satisfied the obligation for Sunday Mass wrote, with nary a word about 'disunity', tragic or otherwise:
Dear Mrs Keenan, I have your letter of January 11th and thank you for it. According to the new Code of Canon Law, 'The obligation of assisting at Mass is satisfied wherever Mass is celebrated in a Catholic rite either on the day of obligation itself or in the evening of the previous day.' (Canon 1248.1) I hope that settles your doubts. In the meantime, I send you and your loved ones my blessing ....etc. (signed: Cardinal Oddi)
...But what about that excommunication? This about that excommunication. It is no less a fiction than the charge of schism. To begin with there has never been a condemnatory sentence imposed on the presumed excommunicati. So far only a declaratory statement has been issued stating that the men were excommunicated latae sententiae by reason of the violation of penal law forbidding the consecration of bishops without papal mandate.
A declaratory statement is no more than that, viz. a statement making an assertion. It doesn't make that which is asserted true. If that which is asserted is true it is true not from the assertion but from some other source of legal consequences. In itself it has no more juridical weight than a similar statement made by the corner grocer. It is its provenance that determines its clout. If it comes from a court in session, lawfully seized of the subject matter and is condemnatory then it is a judicial sentence with consequences, one of which is the right of contestation, that is, the right of appeal.
The subject declaratory statement was made by Cardinal Gantin, prefect of the Congregation for the Bishops and is revealed in the text to be no more than an advertisement of the material elements of the matter. It is described as a decree but is devoid of the notes characteristic of a legally binding decree, for example, a clear identification of the court in session whence it emerges. It was issued 1st July 1988.
Despite that deficiency it could be argued by someone determined to pursue the matter that it is, nevertheless, valid, but the exercise would be in vain since the decree repeats the self-same error to be found in the Apostolic Letter Ecclesia Dei Adflicta, viz. it confounds two distinct institutions in law. It confuses Title I with Title III of Part II of Book VI of the Code.
Title I concerns itself with 'Offences Against Religion and the Unity of the Church' (Canons 1364 to 1369). Title III concerns itself with 'Usurpation of Ecclesiastical Offices' (Canons 1378 to 1389). What the minions of the law have equivalently done is, as it were, to uplift Canon 1382 (which deals with consecration without papal mandate) from Title III and to insert it in Title I (which deals, amongst other offences, with schism).
After this bit of foolishness they then stated that the accused was guilty of schism, thereby misnaming the offence and proceeded to predicate the penalty for schism of a man who was guilty, if he was guilty, of something altogether different, namely, usurpation.
The incompetence thereby demonstrated is a bit difficult to credit. There is no dearth of Canon lawyers in these congregations. Had the minions done it correctly they could still have got a putative excommunication out of the exercise, since excommunication is also the penalty, as from 1951 by Decree of the Holy Office to cover the rise of the Nationalist Church in the People's Republic of China, for a consecration without papal mandate. Whatever the reason they simply did not do it correctly.
It is not germane to this present argumentation but it is instructive to note that in the same above-mentioned decree of Cardinal Gantin the same mess was made of the excommunication of the Co-consecrator Bishop Castro de Mayer. The few lines given over to him state simply that he had incurred the penalty envisaged by Canon 1364:1, i.e., the penalty for schism, whereas, similar to the situation of Archbishop Lefebvre, the supposed offence was not schism but usurpation.
Penal law is, as is only fitting, very exacting. Unless you get it right, first time, you are out of court. Odia restringi, et favores convenit ampliari.
To complete the picture, let us suppose that consecration without a papal mandate is in very fact a schismatical act and that therefore the perpetrator of the consecration incurs excommunication latae sententiae, i.e. automatically, then it must be ascertained whether the perpetrator is liable to the penal sanction envisaged for the consecration without papal mandate.
Canon 1323 states that no one is liable to a penalty who, when violating a law or precept, violates it under
certain defined circumstances. These circumstances are contained in seven subsections of which subsections 4 and 7 are relevant.
Subsection 4 exempts from penalty, one who acted by reason of necessity. In the common estimation of man, necessity arises when there is a crisis. Cardinal Ottaviani speaks of 'a spiritual crisis without precedent' (Ottaviani Intervention p.54 TAN). Cardinal Ratzinger states that there is 'a crisis of faith and of the Church' (The Ratzinger Report). In his From My Life he writes: 'I am convinced the ecclesial crisis in which we find ourselves today depends in great part on the collapse of the liturgy.' Paul VI on three separate occasions gave expression to his grief at the collapse of the Church. (If you want details, ring me: 64 9 817 7582)
The people who vociferously deny the state of emergency are the very people who brought that state about, the state, to give an example, that sees only 8% of the population of the Pope's own diocese inside a church of a Sunday. The state, to give another example, that sees in the U.S.A. between 1963 and 1993 Mass attendance plummeting from 71% to 25%, a decline of 65%.
That means twenty-four million fewer Catholics in the U.S. attend Mass now than was the case before the Council. Seventy percent (70%) of U.S. Catholics do not believe in the real presence. I mention the USA not to single it out but because the statistics of that country are readily available.
Subsection 7 exempts one who through no personal fault thought that there was a necessity. It should be obvious - I hope it is - that subsections 4 and 7 fit the case perfectly. But if somebody is of another opinion and wishes to press the matter give me your argumentation in writing, supported by documentation, and I shall deal with it. .....”
ABOUT THE AUTHOR
Rev. Dr. P.D. Meuli, born 22 September 1926, entered the national seminary, Mosgiel, New Zealand in 1951.
He transferred to the Urban College for the Propagation of the Faith and to the Urban University, Rome, in 1953 where he obtained a Licentiate in Theology and a Licentiate in Philosophy in 1956 and 1959 respectively. December 27, 1956 he was ordained to the priesthood. He secured a Doctorate in Theology at the Gregorian University in 1959, returned to New Zealand to work in parishes in the Auckland diocese. He graduated Bachelor of Laws from the Auckland University Law School in 1976 and was admitted as a Barrister and Solicitor of the Supreme Court of New Zealand the same year. He returned to Rome to enter the Lateran University School of Canon and Civil Law in 1976 and graduated in 1980 Doctor in Utroque Jure, Summa cum Laude after defending the thesis: 'The Status and the Defences of the Unborn Child in Common Law'. A three year course of studies in law was then undertaken in the school of the Sacred Roman Rota leading, in 1983, to the qualification 'Rotal Advocate' licensed to appear before the Sacred Roman Rota and the Signatura Apostolica. This was followed by an administrative law course given by the Sacred Congregation for Sacraments and Divine Cult. From 1980 to 1985 he was attached to the Regional Tribunal located in Bologna, Italy where he functioned as Defender of the Bond.
In 1985 he returned to New Zealand and parish work. In 1987 he became acquainted with the arguments of Patrick Henry Omlor, particularly Mr Omlor's 'Questioning the Validity of the Masses using the new, all- English Canon.' From then on Father Meuli was in turmoil until he returned to the Immemorial Mass, the Mass for which he had been ordained. By the kindness of the then Ordinary (Bishop Denis Browne) of the Diocese of Auckland, this was greatly facilitated. In 1989 a small church was detached from the jurisdiction of the parish wherein it is located and placed under Father's care. This singular apostolate was designated: 'Alternative Ministry.' There, to this day (November 2006), 17 years later, Mass is celebrated and the sacraments administered according to the traditional Roman Rite. www.scribd.com/…/Meuli-Letter-Re…
A brilliant piece of prevarication. This is how canon lawyers explain why no means yes. "One can disobey one's parents, even in serious matters, and not reject their authority." -even though such disobedience is, ipso facto, a rejection of parental authority through deliberate choice of action. TL:DR, Thirty years later, they're to justify consecrating their own bishops sans Papal approval. …More
A brilliant piece of prevarication. This is how canon lawyers explain why no means yes. "One can disobey one's parents, even in serious matters, and not reject their authority." -even though such disobedience is, ipso facto, a rejection of parental authority through deliberate choice of action. TL:DR, Thirty years later, they're to justify consecrating their own bishops sans Papal approval. Great lulz for those with a legal frame of mind.