Bishops Against the Pope
The Motu Proprio "Ecclesia Dei" and the Extension of the Indult
Neri Capponi, D.Cn.L., LL.D.
The Pope's clear intent in issuing "Ecclesia Dei" was to make the old Mass <freely>
available to anyone who preferred it, argues a noted canonist
In order to be able to better highlight the range of the motu proprio <Ecclesia Dei> and
the possible legal impact of its verbal expressions, we must take a step backwards and
consider the first document in the lengthy and sad saga of the liturgical revolution: the
Constitution <Missale Romanum> of Pope Paul VI.
At the eve of Vatican II there existed a strong anti-legal feeling in various parts of the
Church, a feeling which gained momentum during the Council. This reaction was
understandable because the law, like all good things, can be overdone and it had been
definitely overdone in the forty-five years that preceded Vatican II. The reaction, of
course, went to the opposite extreme and, above all, lasted far too long, creating
injustice and confusion-which always happens when the law is confused and
ambiguous. This anti-legal attitude infected the Council and produced documents that
often are good sermons, but not always clear and definite in their enactments.
This anti-legal attitude also affected laws which were promulgated after the Council,
including <Missale Romanum>. This Constitution seems merely to propose a new form
of the Mass, but it lacked clauses that would show the legislator's wish to be obeyed;
nor did it seem to abolish anything, substituting clearly the new for the old.
Paul VI was what in the States is known as a "liberal," a diplomat, not a theologian, and
certainly not a liturgist. He had a strong leaning for ecumenical relations with the
Protestant world, which might be achieved more readily if the Catholic liturgy were a
bit softened so as to make it less different from the Protestant one. He also had absolute
trust in the council [<Consilium>] for the reform of the liturgy, for all practical
purposes headed by Archbishop Bugnini.
I personally think that Paul VI realized that a revolution of the liturgy must not seem to
be imposed directly and starkly like any other law: probably he did not wish to abolish
the old Mass completely, but thought that it would slowly die out of its own accord.
Add to what I have said that Paul VI was in sympathy with the antilegal movement,
and the result is the ambiguous document which goes under the name of <Missale
Romanum>.
<Missale Romanum> probably intended to abrogate-that is, abolish by total
substitution-the bull <Quo Primum> of 1570 by St. Pius V, which codified and
consolidated the immemorial and universal custom that had regulated the Roman
liturgy through the centuries from the time of Gregory the Great at the end of the sixth
century. <Quo Primum> had further reinforced (but not replaced) the immemorial and
universal custom and had conferred upon the old Mass the privilege of absolute
priority over all other forms of celebration of the Mass. To <Quo Primum> (after
<Missale Romanum>) we can, in any case, apply Canon 21: <In dubio revocatio legis
praexistentis non praesumitur, sed leges posteriores ad priores trahendae sunt et his,
quantum fieri potest, conciliandae>, which for all practical purposes means that if the
old Mass has lost its privileged position, it nevertheless continues to exist and the
faithful have a right to it.
But what is worse (from the point of view of the liturgical revolutionaries) is that
<Missale Romanum> forgot to explicitly abolish (as the law required) the immemorial
and universal custom on which, before <Quo Primum> (and later together with it),
rested the old Mass, which therefore continues to exist although it is perhaps no longer
protected by a written law. This was noted by scholars, but even then no
supplementary law was passed to abolish that custom. Some people have thought that
this was so because, apart from the fact that Paul VI had probably not really wanted to
abolish the old Mass outright, he was alarmed by the resistance to the changes due also
to their brutal implementation.
A Contradictory Indult
You all know that the struggle for the old Mass was carried on until John Paul II heard
the cries of woe coming from the People of God who had been deprived of their
birthright, and on October 3, 1984 he promulgated the indult <Quattuor abhinc annos>
in which he allowed bishops to grant the old, or Carolingian-Gregorian Mass (I do not
like the term "Tridentine") to those faithful who would request it.
An indult is a measure by which somebody invested with authority in the Church can
grant, in order to favor the salvation of souls (which is the purpose of canon law, before
which all laws must bow), an exception to the law (derogation); it is akin to
dispensation, but with a wider scope. An indult, therefore, presupposes the existence of
a law which has to be relaxed, in our case a law which had forbidden or abolished the
old Mass. As we have seen, such a law does not exist, and therefore an indult is a
misnomer in our case, since the faithful, even today, have a right to the old Mass on the
basis of the non-abolished immemorial custom. But to have recognized this would have
been tantamount to officially denying the liturgical policy of Paul VI and indeed
repudiating Montini himself, with incalculable consequences-a thing that no pope can
do after so short a time, apart from the fact that the present Pope is officially committed
to the new Mass. For this reason it was good and practical policy on the part of the
faithful to accept the indult and work with It.
We will now have to examine the indult more closely, as the enactments of <Ecclesia
Dei> are based on it. The key phrases of the 1984 indult underline, once more, that the
Church exists for the salvation (or, better still, the sanctification) of souls and that
nothing must impede or retard it, but that all pastors who are truly such must, like the
Lord himself, love and indeed give their lives for their sheep. The indult must be
linked, therefore, with Canon 83, pare. 1 of the new Code on the duties of bishops, and
especially with Canon 387 which underlines the bishop's pastoral mission. Canon 387
says explicitly: "<Episcopus dioecesanus, cum memor sit se obligatione teneri
exemplum sanctitatis praebendi in caritate, humilitate et vitae simplicitate, omni ope
promovere studeat sanctitatem christifidelium secundum uniuscuiusque propriam
vocationem.>" This work of direct sanctification, "in charity and humility," and which
must take account of each of the faithful's particular vocation, is therefore the sole
responsibility of the bishop, not of other bodies like episcopal conferences, synods or
councils. This special episcopal duty is underlined in the indult, which gives particular
force to the enactments of Canon 387 and excludes all other prelates or bodies (except,
of course, the Holy See) from its application.
It is obvious that the intent of the Holy Father, as expressed in the first part of the
document, is flatly contradicted by the second part, obviously prepared by the
bureaucrats of the Congregation of Divine Worship, which is a veritable orgy of
restrictive rules. The document is obviously contradictory and ought to have called for
a second clarifying document that never materialized, as one bishop after another, often
intimidated by their episcopal conference or by their clergy, proceeded to interpret the
indult in a most restrictive way, fulfilling therefore the wishes of the Congregation of
Divine Worship.
Three Key Principles of Canon Law
We now come to the events of 1988. I will not dwell on these sad events that ended
with the final break between Archbishop Lefebvre and the Holy See, and the
excommunication of the French bishop for his unlawful consecrations (and for the
crime of schism). Neither will I go into the tedious question whether Lefebvre really
did or did not incur the penalty of excommunication, as the question is now academic
and only marginally affects our subject.
The outcome of the Lefebvre affair was the motu proprio <Ecclesia Dei> in which the
Pope gave new form to the 1984 indult. What prompted the Pope was firstly the hope
that a widening of the terms of the indult might bring back some of the Lefebvrites, and
secondly, perhaps, the knowledge of how little the bishops had implemented the 1984
indult.
Before we examine the motu proprio <Ecclesia Dei>, let us explain three principles of
canon law which will help to interpret the document.
The first notion concerns what we mean when we say that the law must always be
interpreted according to the "mind of the legislator." This means that in canon law what
the legislator wants is more important than what he seems to have said. As the great
canonist Suarez says: "As concerns the intention or mind of the legislator, it must be
considered that from it depends not only the substance but also the effectiveness of the
law....The mind of the legislator is the soul of the law, so that as in a living being the
substance and workings of life depend above all from the soul, so in the case of the law
it depends from the mind of the legislator." (<De Legibus>, L. III, c. XX, n. 1).
The second principle concerns the so-called <finis legis>, i.e. the purpose for which the
law has been enacted. If, for example, the purpose of the law as an expression of the
mind of the legislator is in danger of being defeated because of enactments badly
worded or apparently in contrast with the aforesaid purpose, those enactments would
have to be interpreted to serve what the legislator wishes to achieve.
The third principle that we must keep in mind is that it is immaterial in which form or
fashion the legislator expresses himself as long as he makes it clearly known that he is
acting as a legislator.
Did <Ecclesia Dei> Grant a Privilege?
Let us now examine the motu proprio <Ecclesia Dei> in its relevant clauses. It is
undoubtedly, among other things, a legal document; it promulgates a law. The Pope
says: "I wish to manifest my will," and then goes on to say: "by virtue of my Apostolic
Authority I decree the following"; in the context of this law he legally sets up a
department of the Roman Curia called the Commission <Ecclesia Dei> with powers
and faculties of its own. The mind of the legislator and the purpose of the law are to
pacify the Church after the Lefebvre affair and give ample and complete satisfaction to
the wishes of those faithful "who feel attached to some previous liturgical and
disciplinary forms of the Latin tradition." Eminent prelates and jurists, among them
Cardinal Mayer, first president of the Commission <Ecclesia Dei>, have concluded that
the Pope had conceded a "privilege" to those same faithful. Cardinal Mayer wrote two
official letters on the subject: one to the chairman of the Ecclesia Dei Society of
Australia, and one to the Judicial Vicar of the Vancouver Regional Tribunal. The same
opinion, although surrounded by caveats, was expressed by Mgr. Re, deputy Vatican
Secretary of State, in a letter of his to Dr. Eric de Saventhem, then President of the
International Federation of Una Voce.
What is a "privilege" in canon law? The word "privilege" comes from the Latin <lex
privata>, or "law or rule for private persons," as opposed to a general law or law for
everybody. How does the Code define a privilege? Canon 76, pare. 1 states:
"<Privilegium, seu gratia in favorem certarum personarum sive physicarum sive
iuridicarum per peculiarem actum facta, concedi potest a legislatore necnon ab
auctoritate exsecutiva cui legislator hanc potestatem concesserit.>" The "private law" or
privilege is an instrument which the legislator uses to fulfill the spiritual needs of
certain faithful who would be penalized by the indiscriminate application of the
general law. It is a recognition by canon law that the law is an imperfect, albeit
indispensable, instrument for the attainment of the public good. The State may ignore
such individual or particular necessities, but the Church cannot, as her job is to save
each individual soul.
The Code goes on to specify how a privilege must be interpreted in either of two ways:
in a restrictive or in a broad and favorable way. Canon 77 so states: "<Privilegium
interpretandum est ad normam can. 36, para 1; sed ea semper adhibenda est
interpretatio, qua privilegio aucti aliquam revera gratiam consequantur.>" Canon 77,
although it clearly says that no privilege can be emptied of all meaning and have no
effect whatsoever, does refer, on the matter of interpretation, to Canon 36 pare. 1 which
so states: "<Actus administrativus intellegendus est secundum propriam verborum
significationem et communem loquendi usum; in dubio, qui ad lites referuntur aut ad
poenas comminandas infligendasve attinent aut personae iura coarctant aut iura aliis
quaesita laedunt aut adversantur legi in commodum privatorum, strictae subsunt
interpretationi; ceteri omnes, latae.>"
The new Code therefore confines strict interpretation to cases that concern either
criminal law or the rights of third parties where privileges are concerned. But certain
canonists, probably still under the influence of the old legislation, maintain that such
strict interpretation must somehow be extended to all privileges that constitute an
exception to an existing law. They therefore make a distinction between privileges in
the strict sense of the word as defined by Canon 76 (which are enacted in favor of
individual bodies or persons, and very often are exceptions to existing laws), and
privileges in the broad sense of the word, i.e. privileges which are the result of a law, or
are part of a law.
This distinction is important because whereas privileges in the strict sense of the word
are often exceptions from the observance of the law and must, like all exceptions, be
interpreted strictly or restrictively, the special law and, even more so, a general law or
law concerning the universal Church but containing exceptions in favor of certain
people must be interpreted in a broad and favorable manner because they embody the
general solicitude of the Church for the salvation of souls; they are part of a general
policy, not particular favors accorded to this or I that party. Some canonists further
maintain that only the special clauses contained in a general law must be interpreted in
a broad and favorable way because they form part of a certain policy; they therefore
consider a special law on the same plane as a particular privilege. But the great canonist
Van Hove (<De Privilegiis>, n. 201) opposes this interpretation, because he says that a
law is a law and, whether special or general, it has the same characteristics, must enjoy
the same treatment and therefore must always (be it special or general) be interpreted
in a wide and favorable way. I must here, though, register the opinion of the great
canonist Reiffenstud (<Ius Canonicum>, I, I, tit. III, pare. V, n. 138, p. 139), who says
that even a privilege granted as an exception from the law (a privilege in the strict
sense of the word) is subject to a wide and generous application if it concerns "Divine
worship." The reason is easy to understand: "Divine worship" is not only something we
do for our pleasure but it is an essential obligation, directly connected with the
salvation of souls.
I will now quote to you what Cardinal Mayer said to the Chairman of the Ecclesia Dei
Society of Australia in a letter dated May 11, 1990. In this letter Cardinal Mayer
criticizes the Congregation for Divine Worship for sabotaging the Pope's intentions,
and then proceeds to explain the privilege granted by <Ecclesia Dei> while at the same
time suggesting that the old Mass was never really abolished (!):
1. It should be noted that the somewhat pejorative language of <Quattuor abhinc
annos> with regard to "the problem of priests and faithful holding to the so-called
Tridentine Mass" was completely avoided in the Apostolic Letter <Ecclesia Dei>. In the
latter document issued by the Supreme Pontiff himself reference is simply made to
"those Catholic faithful who feel attached to some previous liturgical and disciplinary
forms of the Latin tradition" (5, c) and "those who are attached to the Latin liturgical
tradition" (6, c). It would seem unduly prejudicial to continue referring to allusions in
the earlier document of the Congregation for Divine Worship and the Sacraments
which have been superseded by a papal Motu Proprio.
2. Hence insisting that only the "aspirations" of those who have difficulties in adjusting
to the Missal promulgated by Pope Paul VI qualify as "rightful" and categorizing others
as arising "from poor theology, self-interest, facile nostalgia, or some other aberration"
seems considerably removed from the benevolent dispositions and pastoral
considerations of our Holy Father in writing his Apostolic Letter of 2 duly 1988 in
which he states that:
respect must everywhere be shown for the feelings of all those who are attached to the
Latin liturgical tradition by a wide and generous application of the directives already
issued some time ago by the Apostolic See for the use of the Roman Missal according to
the typical edition of 1962 (<Ecclesia Dei> 6, c.).
3. While it is clear that the new <Ordo Missae> remains normative for the entire Latin
rite and there is no intention of changing the status of this Mass, this should not be
construed as denying that there can be a "right" to the celebration of the Holy Sacrifice
of the Mass according to the earlier Missal. Certainly, no one has the right to the
acquisition of a privilege, but once a privilege is duly granted the subject indeed <has
the right> to benefit from it (cf. C.l.C. #77). In <Quattuor abhinc annos> the celebration
of the 1962 Order of Mass was presented as a privilege which might be requested from
the competent authority (b). In <Ecclesia Dei>, however, the Roman Pontiff spoke of
the 1962 Order of Mass in terms of its "lawfulness" (<auctoritas>) and "richness"
(thesaurus cfr. 5, a) and qualified the desire both to celebrate and to assist at this Mass
as a "legitimate aspiration" (<appetitio> cf. 5, c.). Hence a privilege in the canonical
sense of the term was granted to the faithful by the Supreme Legislator of the Church
(cf. C.I.C. #76. 1).
4. It is perhaps a moot point to argue that "the mind of the Holy Father is not to
perpetuate the Tridentine Mass as an alternative liturgy but to accommodate those
people who rightfully merit accommodation." It might equally be argued that the Holy
Father's mind was not to abrogate the use of the earlier Roman Missal either. The
experience of this Pontifical Commission is that it is a relatively small proportion of the
faithful who desire the use of the earlier Missal, but that where it is made available to
those seeking it, it is an efficacious means to help them enter into the Eucharistic
Sacrifice.
The Pope's Intent
What are our conclusions on the subject?
We must first of all realize that there was already from the beginning of the liturgical
revolution a group of faithful who were by law exempted from saying the new Mass:
infirm or aged priests (General Instruction <De Constitutione Apostolica "Missale
Romanum" gradatim ad effectum deducenda>, October 20, 1969). This is a real case of a
privilege accorded to a portion of the People of God through a general law of the
Church. With the famous 1984 indult, bishops were also authorized to add other
faithful to the already existing group of aged or infirm priests who had a right to the
Mass. The motu proprio <Ecclesia Dei>, by establishing the right to the old Mass of the
faithful who "felt bound" to "some previous liturgical and disciplinary forms of the
Latin tradition" (and therefore not only the Mass), enlarged the group of those who had
a right to the Mass by giving these faithful also the automatic right to belong to that
group. This right, both to the old Mass, to the whole of the old liturgy (other
Sacraments included), and to belong to the group of faithful who enjoy this privilege, is
accentuated by <Ecclesia Dei>. It would here be too technical to analyze whether the
1984 indult and the motu proprio <Ecclesia Dei> are to be considered extensions of the
general law embodied in the General Instruction of 1969, or a special species of
legislation. As we have seen, whatever the nature of the measure (even a mere
exemption of the law or privilege in the strict sense of the word), whenever it deals
with "Divine worship" it must be given a wide and favorable application.
For this reason I maintain that when the motu proprio <Ecclesia Dei> enacts that the
rules contained in the 1984 indult must be given a "wide and liberal application," this
not only reflects the mind of the legislator but is inherent in the very nature of the
special law which was enacted (or an extension of special clauses of a general law
already enacted; cf. General Instruction of 1969). For this reason the motu proprio
<Ecclesia Dei> has swept aside the conditions that limited the concessions under the
1984 indult (and which contradicted the real mind of the legislator as manifested in the
first part of the document), and therefore requests for celebrations of the old liturgy
must be given the widest and most favorable fulfillment.
Of course when we speak of rights in the Church (including therefore the right
accorded by the motu proprio <Ecclesia Dei>) we must always keep in mind the second
paragraph of Canon 223: "It pertains to ecclesiastical authorities, for the common good,
to regulate the rights that belong to the faithful." We must also remember that the
matter concerns the liturgy, and as the bishop, according to Canon 835, para. 1, is "the
regulator, promoter and custodian of the liturgical life of the Church entrusted to his
care," the bishop's involvement in these deliberations is always necessary. But this
involvement must never end up in a denial, except in the case of extraordinary
circumstances where the bishop's assent might involve serious damage to the welfare of
the community, circumstances which must be thoroughly and convincingly
demonstrated, as one would have to do if one had to suspend civil rights in a secular
state.
Bureaucratic Barriers
On the basis of what I have told you, we have recently (after the usual farcical denials)
started a case in Rome before the highest court in the Catholic Church, the Supreme
Tribunal of the Apostolic Signatura. We petitioned the court that a privilege was
involved and that the bishop was therefore obliged to grant the Mass. For practical
reasons the plaintiffs, under Canon 1483, had appointed one of themselves as a proxy
or agent, who engaged an attorney in Rome to defend the case. The case received a first
admission by the Chancery of the Tribunal and no objections were raised because only
the proxy and not all the plaintiffs (whose mandates were duly registered) had
personally engaged the attorney. The case proceeded under the two-tier system of the
Signatura-the prelates belonging to the inferior tier judging on the admissibility of the
case, which, if admitted, is then judged by a panel of cardinals and archbishops.
Unfortunately the plaintiff who acted as proxy died and had to be replaced by another
plaintiff who was duly registered, and no objections were raised by the Chancery. The
Promoter of Justice (a kind of high-court state attorney) declared himself in favor of the
admission of the case (a rare thing), when suddenly the inferior court decided that the
case had become extinct with the death of the first plaintiff-proxy. The court, in flagrant
opposition to the law and after the event (as no objections had previously been raised),
decided that proxies could not be admitted and the first plaintiff proxy was acting only
in his own name and not in the name of the other plaintiffs, whose names were then
cancelled from the case. As the case was rejected on this blatantly illegal procedural
quibble, I feel even more sure that we are right in maintaining that the motu proprio
<Ecclesia Dei> has consolidated, if not created, a privilege: somebody got cold feet and
saw to it that the plaintiffs were thrown out on the next pretext available!
I must mention here that even those who during the preliminaries of the case did not
agree with the privilege theory did, however, maintain that after the motu proprio
<Ecclesia Dei> requests for the old Mass could not be thrown out just like that. In the
words of one eminent jurist and high official: "This decree [<Ecclesia Dei>] certainly
does not give the faithful any right to the Mass but most certainly imposes on diocesan
bishops the duty to follow certain criteria in taking their decisions; if not through a
definite procedure, at least with particular caution and concerns. Otherwise these
words of the Roman Pontiff would be empty and without effect ("<verba illa...inania et
vana essent>" ); or at least no reason or scope (<ratio>) could be given to the text and
context of those Apostolic Letters." Whichever way you see it, from the motu proprio
<Ecclesia Dei> onwards you just cannot be pushed aside with a shrug or insults!
What if the concerted efforts of Curia officials, episcopal conferences and priests'
councils should prevent the Pope's intentions from having any effect? In that case
remember that, even as Cardinal Mayer himself infers, the old Mass was never
abolished, that the present Holy Father's intention is to give the faithful liturgical
freedom. So never give up hope, and remember that the force of prayer can move
mountains. If your intention is good and your love for the old liturgy is not tainted by
selfishness (which includes resentment for an unjust treatment), but is motivated by the
love of God and the honor of His Church, God, in His own good time, will grant you
what you ask. . .
**********************************
Count Neri Capponi consults for the Archdiocese of Florence in canon law matters, and
has served as advocate to the Roman Rota and the Apostolic Signatura. This article is
adapted from an address given at Fort Lee, New Jersey, last year to a one-day seminar
on liturgical issues sponsored by Keep the Faith and Christifideles.
This article is taken from the Winter 1996 issue of "The Latin Mass", published by the
Foundation for Catholic Reform, 1331 Red Cedar Circle, Fort Collins, CO 80524-2005.
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