This
issue of the Angelus English-Language edition of
SISINONO is the second installment of the
second half of a double study regarding the “state of necessity”
invoked by Archbishop Lefebvre to justify his consecration
of four bishops on June 30, 1988. In our issues of SISINONO
of July
and September
of 1999, we discussed the theological
aspects. Starting with the November
1999 we are discussing the canonical
aspects. These remarks are for those who admit the existence
of an extraordinary crisis in the Catholic Church but do
not know how to justify the extraordinary action of Archbishop
Lefebvre on June 30, 1988 when lacking permission from Pope
John Paul II, he transmitted the power of episcopal orders
to members of the Fraternity founded by him.
CANONICAL
STUDY – PART 2
II.
A CONTESTED EXCOMMUNICATION
A.
The Facts and Some Solid Points
1. The
Facts
In
his "Thesis for a Licentiate" in Canon Law which
was argued and approved with the highest grade (July, 1995)
at the Pontifical Gregorian University, Rev. Fr. Gerard
Murray, an American priest who has no connection with the
Society of Saint Pius X, held that the excommunication latae
sententiae, declared at the time against Archbishop
Lefebvre, Bishop de Castro Mayer, and the four bishops consecrated
by Archbishop Lefebvre without pontifical mandate, is not
valid according to strict canonical law , nor is the connected
accusation of schism valid in the formal sense. As of yet,
his thesis for the licentiate has not been published, but
a summary of it and an interview with its author is available
in the American magazine, The Latin Mass.1
Two
facts must be mentioned: 1) Fr. Murray
made a partial retraction of his own thesis (Summer, 1996);
and 2) the Pontifical Council for the Interpretation
of Legislative Texts has published its opinion that the
excommunications were justified. Though the council is entrusted
with interpreting the laws of the Church, it is not a font
of law itself and its opinion, in any case, was anonymous.
The "Murray Thesis" is not even considered for,
it said, "It is impossible to evaluate the Murray Thesis
because it has not been published and the two articles [of
the magazine- Ed.] which appeared about it are confused."2
Could
it be that the thesis is contrary to the public policy of
the Gregorian University? Since it has never been made available
in the original, we are forced to discuss the arguments
based on what appears in the magazine articles, despite
the fact that the pontifical council asserts they are "confused."
Without a doubt, a scholarly analysis would have considered
the thesis of Fr. Murray, but the council's denial has silenced
its viewpoint. On the other hand, Fr. Murray published his
retraction one year before the appearance
of the opinion attributed to the Pontifical Council. Why
on earth would this council have to say anything regarding
arguments already formally, even if partially, retracted
by their author?! - Retracted, by the way, even before a
wider public with authoritative knowledge had been able
to read it.
2. Solid
Points
1.
Whatever may be the changes of opinion of Fr. Murray
about his own work and the motives for not publishing
it, the fact remains that the thesis had been approved
with the highest grade by the professors of the Gregorian
University, conferring on this work exceptional value.
This approval must be held in due regard.3
2.
The extract of the "Murray Thesis" which
appeared in The Latin Mass is sufficient to understand,
namely, that the American priest, with Code of Canon
Law in hand, denies - or if you prefer, places into
doubt - the validity of the excommunication ipso iure
applied to Archbishop Lefebvre because he acted in a state
of necessity without bringing into being any schism. According
to Fr. Murray, it is necessary to recognize that, on the
basis of the canon law in force, the excommunication of
Archbishop Lefebvre is substantially invalid and the schism
does not exist. It is thesis undoubtedly courageous and
above all founded on law, even if we may not agree with
the hypothesis of Fr. Murray that Archbishop Lefebvre
was able to have been mistaken in good faith about the
existence of the state of necessity which authorized him
to proceed with the consecrations. In any case, the partial
retraction of Fr. Murray concerns only the admissibility
of the state of necessity, not the existence of a schism
in the formal sense.
B. Precedents
Fr.
Murray is not the first to maintain the invalidity of the
unjust excommunication declared against Archbishop Lefebvre
and the non-existence of the so-called "schism"
imputed to him. We recall the reader to the canonical study
of the German canonist, Rev. Fr. Rudolf Kaschewski, which
appeared in Is Tradition Excommunicated? [available
from Angelus Press. Price: $7.95], on the aspect of the
episcopal consecrations without papal permission.4
This study, published shortly before the episcopal consecration
of Archbishop Lefebvre and by an author independent of the
Society of Saint Pius X, demonstrates unequivocally that,
on the basis of the 1983 Code of Canon Law, the episcopal
consecration without pontifical mandate cannot be punished
with excommunication. In fact, the author writes at the
conclusion of his essay:
Therefore,
the widely spread opinion that the consecration of one
or several bishops without papal mandate would cause an
automatic excommunication and would lead to schism is
false. Due to the very terms of the law itself, an excommunication
for the aforementioned case could not be applied, neither
automatically nor by sentence of a judge.5
The
article appearing in the original Italian SISINONO
of July 1988 (XIV) 13, titled "Neither Schismatics
nor Excommunicated" [reprinted in Is Tradition Excommunicated?,
pp.1-39] demonstrates how, in the case of the episcopal
consecrations for the Society of Saint Pius X, all five
of the conditions required for taking advantage of the law
corresponding to the state of necessity had been realized.
They are namely: 1) the existence of the state
of necessity; 2) attempts having been
made to remedy it with ordinary means; 3)
the "extraordinary" action not being based
on an act intrinsically evil nor harmful to neighbor; 4)
having remained within the limits of the requirements actually
imposed by the state of necessity; and 5)
never having put into question the power of the competent
authority, the consent of which it would have been able
to presume in all legitimacy in normal circumstances.6
Though
the Vatican officially denies its existence, a bleak picture
of the real state of necessity in the present-day Catholic
Church was painted by Joseph Cardinal Ratzinger in his speech
to the Chilean Episcopal Conference (July 13, 1988) on the
latest developments of the "Lefebvre case." The
discourse, printed by the weekly Il Sabato of July
30, 1988, was reproduced by the Italian edition of SISINONO,
November 15, 1988, (XIV) 17, with the title, "Cardinal
Ratzinger Demonstrates the State of Necessity in the Church."
The
same Cardinal Ratzinger states in his discourse that Rome
is not carrying out its necessary and indispensable functions
and the bishops do not make use of or have made it utterly
impossible to make use of that power which by divine right
they possess in the Church for the eternal salvation of
souls. It is the same Cardinal Ratzinger documenting that
state and that law of necessity, to whom His Excellency
Msgr. Lefebvre made his appeal when on June 30 he took
advantage of a juridical competence outside of the ordinary.7
The
passage of the speech of the Cardinal to which reference
is made is the following:
Criticism
for the choices of the post-Conciliar period is not tolerated:
but, where the ancient rules, or the great truths of the
faith - for example the bodily virginity of Mary, the
divinity of Jesus, the immortality of the soul, etc.
- are at stake, we do not react at all or we do it with
extreme moderation. I myself was able to see, when I was
a professor, how the same bishop who before the Council
had expelled an irreproachable professor for his somewhat
uncouth speaking, was not able to remove, after the Council,
a teacher who was openly denying some fundamental truth
of the Faith. All this drives many people to wonder whether
the Church of today is really that of yesterday, or if
it has been changed into another without informing them…."8
We
have to help us the essay "Neither Schismatics nor
Excommunicated," the work of Fr. Kaschewski, Dr. Georg
May's "The Disposition of Law in Case of Necessity
Within the Church," [see both in Is Tradition Excomunicated?,
pp.1-39; 111-113], the discourse of Cardinal Ratzinger,
together with an article on the correct idea of tradition
and with three appendices have finally been combined into
one volume entitled Is Tradition Excommunicated? [available
from Angelus Press, Price: $7.95]. Nor can we forget the
careful study of Fr. Gerard Mura, Les sacres episcopaux
de 1988. Etude theologique, which we mention
in the competent synthesis published in French by the magazine
Sel de la Terre, in four issues, in 1993 and 1994.9The
salient contribution of this study, which is built on a
prevalently theological plane, is on the thesis that "the
pontifical prohibition for the celebration of the consecrations
ought to be maintained as null and not having happened"
because "contrary to the common good of the Church,
a factor for the defense of the faith; defense of the faith
which, aware of the state of necessity in which the Church
exists, was demanding the consecrations done by Archbishop
Lefebvre.
The
book of the American Catholic lawyer, Charles P. Nemeth,
The Case of Archbishop Marcel Lefebvre: Trial by Canon
Law [Angelus Press, Kansas City, 1994. Price: $9.95],
must be mentioned. It presents a strictly juridical analysis
which denies the validity of the excommunication and of
the accusation of schism, reaching the same conclusion as
Fr. Kaschewski.10
We
have wished to mention these precedents also in order to
draw attention to the fact that Fr. Murray concludes to
a point substantially similar to Fr. Kaschewski's. It can
be said, in fact, that Fr. Murray applies them to a concrete
case. In our mind this shows that the tone of the norms
of the Code of Canon Law is clear enough to have
de facto permitted the establishment of opinions
that are "on the same beam." As laid down by strict
law, the excommunication could not be declared nor could
the censured act be maintained as schismatic.
III.
JURIDICAL TERMS CONCERNING THE QUESTION
A.
Excommunication
Let
us consider the strictly juridical terms concerning the
question so the reader is able to get the clearest picture
possible.
Archbishop
Lefebvre has been condemned for having consecrated four
bishops without papal mandate. On this argument let us follow
the commentary of Fr. Kaschewski:
1.
Episcopal consecration occupies the highest place in the
hierarchy of consecrations:…The bishop enjoys two powers:
I) the power of Order (in which is included the power
to consecrate priests and bishops); and 2) the power of
Jurisdiction, which he cannot exercise if he is not in
possession of a diocese. The episcopal power is a power
of divine right which confers on the bishop a proper authority
and assures him of a juridical-constitutional autonomy
which not even the pope can suppress or modify.11
This
autonomy which the bishop enjoys depends on the nature of
his power, which springs directly from Our Lord because
bishops are the successors of the Apostles and hence enjoy
that power which was conferred personally by Christ.
The
autonomy of the episcopal power, nevertheless, does not
mean independence. The submission of bishops to the authority
of the Pope was affirmed in a very clear manner by the 1917
Code of Canon Law (Canon 329,§1):
Bishops
are the successors of the Apostles and through divine
institution are at the head of the local church, which
they govern with ordinary power under the authority of
the Roman Pontiff.12
In
the 1983 Code of Canon Law, as a consequence of the
democratic applications that Vatican II wished to exercise
in the Church, the principle of submission to the pope,
even if present, is stated in an ambiguous manner (e.g.,
in Canon 375,§1). Yet, while maintaining a millenary practice
(from Gregory VII on), even the 1983 Code of Canon Law
affirms that it is forbidden to consecrate a bishop
without episcopal mandate, that is, without the previous
authorization of the pope. And in fact the text of Prof.
Kaschewski continues thus:
2.
It is licit for no one to consecrate a bishop without
Pontifical mandate (1983 Code of Canon Law, Canon
1013). He who acts contrary to this canon incurs excommunication
latae sententiae reserved to the Apostolic See
(1983 Code of Canon Law, Canon 1382). One incurs
latae sententiae excommunication ipso facto
[by the fact itself], that is, at the very moment the
offense is committed, and it is not necessary that the
penalty be inflicted through a decree. For the illicit
consecration of a bishop the [1917 Code of Canon Law]
threatened only suspension [See 1917 Code of Canon
Law, Canon 2370; "They are suspended by the law
itself until the Apostolic See shall have dispensed them."
- Ed.]. Only with the decree of the Holy Office
(August 9, 1951), in consequence of the tragic turn of
events of the Church in the Chinese Communist Republic
[where bishops of the Chinese "Patriotic Church"
were being appointed by the governing communists - Ed.],
was the penalty of ipso facto excommunication introduced,
reserved to the Holy See specialissimo modo [in
a most special manner-Ed.]13
The
1983 Code of Canon Law does not give the definition
of excommunication, which must be taken from the 1917
Code of Canon Law (see Canon 2257ƒƒ.). It consists in
the (external) "exclusion" from the "communion
of the faithful." It belongs to that class of penalties
called censures which are: excommunication, interdict,
and suspension (1917 Code of Canon Law, Canon 2255,§1).
Censures are "medicinal" penalties because they
are meant to serve as a medicine for the one being disobedient
so that he may be convinced of his error and make amends.
At the moment in which the offender or "contumacious
one" recedes from his disobedience, the penalty ought
to be remitted for him.14Medicinal
penalties are distinguished from those called "vindictive"
[a.k.a. "expiatory" in the 1983 Code
of Canon Law - Ed.] which have instead as their essential
purpose not the correction of the offender, but the restoration
of the violated juridical order.15
The
effects of excommunication are grave because it involves
the prohibition of administering and receiving the sacraments.
Yet, it is an administrative type of sanction that can be
removed by the same authority that has inflicted it. Moreover,….
...the
communion from which one is excluded is not that internal
[communion], inhering in the soul and embracing the goods
of the theological life, as grace and the virtues of faith,
hope and charity , by nature invisible, but those external
visible goods, entrusted to the Church and ordained to
produce the internal spiritual goods or the other external
goods that are inseparably connected to the internal goods
(e.g., sacraments, sacrifice, ecclesiastical power,
etc.). Radical or ontological communion, which
makes us members [by means of baptism - Ed.] of
the Mystical Body of Christ is not called into question
by excommunication. 16
B.
Unjust Excommunication
Rev.
Fr. Gerald E. Murray
A species
of excommunication used to exist and still does exist among
theJews17
and St. John tells us that those Jewish leaders, who were
favorable to Jesus, did not dare to declare that He was
the promised Messias, for fear of being expelled from the
synagogue, that is, of being formally excluded from the
community of believers by decree of the proper authority.18
The
possibility exists therefore that excommunication may be
inflicted unjustly. The "excommunications" which
the unbelieving Pharisees and persecutors were threatening
or preparing to inflict upon the disciples of Our Lord,
are an example of unjust excommunication:
They
will put you out of the synagogues: yea, the hour cometh,
that whosoever killeth you, will think that he doth a
service to God. And these things they will do to you;
because they have not known the Father, nor me (Jn. 16:2,3).
Another
well-known example is the excommunication inflicted by Pope
Alexander VI on Savanarola.19
C.
Excommunication Latae Sententiae and Ferendae
Sententiae
There
are two types of excommunication: I) latae sententiae
is that excommunication where a sentence has been passed;
and 2) ferendae sententiae, an excommunication where
a sentence needs to be passed. These classifications give
the two most general categories of the penal law of the
Church, which find application even in the case of excommunication.
A canonical penalty is called latae sententiae when
"one incurs it by the very fact of having committed
a crime."20
This means that the penalty inheres, so to speak, in the
criminal deed, without having to wait for a judge or a superior
to inflict it by means of a sentence or a decree. On account
of this it is said that excommunication latae sententiae
is applied automatically. The application of the penalty
therefore has only declarative value, because the decree
or the sentence which contains it is limited to declaring
the existence of it. This is so much the case that the juridical
effects of the latae sententiae penalty are produced
"from the moment in which the criminal deed was completed"
(1917 Code of Canon Law; Canon 2232,§2) and not from
the moment of the sentence or declaration.
The
excommunication ferendae sententiae" is, on
the contrary, that which "must be inflicted by the
judge or by the superior."21
"This occurs as a rule after a trial. In this case,
the sentence or the decree are constitutive of the
penalty: they are not limited to declaring the existence
of a penalty that already inheres in a certain behavior,
but they cause it to come into being, they constitute the
term of the trial, which could, in fact, also be concluded
with an absolution. Therefore, the juridical effects of
the ferendae sententiae" penalty are produced
"from the moment of the sentence or decree," and
not from the moment in which the deed was committed. No
retroactivity exists here. In contrast to the situation
in the latae sententiae penalty, in the former case
of the ferendae sententiae penalty there cannot be
a penalty without a trial and consequent sentence or decree.
The difference is not small. The difference is so great
that the 1917 Code of Canon Law specifies that "the
penalty must always be understood ferendae sententiae,'
unless it is explicitly affirmed that it must be understood
as latae sententiae.22
D.
Imputability and Latae Sententiae Penalties
Every
modern penal law takes into consideration the subjective
element of the offense. In order that someone may be
able to be considered punishable, it is not enough that
he has committed the criminal act, but it is necessary that
he be imputable, that is to say that the breaking
of the law can be ascribed to him as an action of a subject
capable of understanding and willpower. In other words,
that the subject acted with a will freely directed to a
determined end. In order that there be full imputability,
it is necessary that the subject has acted with the intention
of offending [animus laedendi] or, as the Roman jurists
used to say, "with an evil intent." In fact Canon
1321,§2 of the 1983 Code of Canon Law says: "A
person who has deliberately violated the law or precept
is bound by the penalty prescribed in that law or precept…..
A weakened
form of imputability is that which considers not the malice,
but the fault, understood as the disposition of the subject
who does not show the animus laedendi, but a simple
"omission of due diligence." The distinction is
clear from the second sentence of Canon 1321,§2 of the 1983
Code of Canon Law, the first part of which we quoted
above: "...If, however, the violation was due to the
omission of due diligence, the person is not punished unless
the law or precept provides otherwise." In the case
of a culpable violation of the norm, the punishability can
be lessened.23
In
the law of the Church the subjective element has always
enjoyed a particular importance. This is derived from the
very character of the religious and moral conception that
the Church has practiced, defended, and developed through
its own juridical system.
In
order that the subject be punishable he must be imputable.
The 1983 Code of Canon Law states:
No
one can be punished for the commission of an external
violation of a law or precept unless it is gravely imputable
by reason of malice or of culpability (Canon 1321, §1).24
The
full imputability of the penalty is valid, therefore, for
whoever has deliberately violated the law with full
consciousness and intention. For such a motive, the 1983
Code of Canon Law demands that, in the case of latae
sententiae penalties which, as we have defined them,
are applied without a judgment, malice and full imputability
are always presumed.
The
condition of malice is required by Canon 1318 of the 1983
Code of Canon Law, which says:
A
legislator is not to threaten latae sententiae penalties,
except perhaps for some outstanding and malicious offenses
which may be more grave by reason of scandal or such that
they cannot be effectively punished by ferendae sententiae
penalties. He is not, however, to constitute censures,
especially excommunication, except with the greatest moderation,
and only for the more grave offenses.25
The
invitation of the Code to prudence and to caution
in a matter so delicate is substantiated in the specification
of three conditions necessary for the imposition of latae
sententiae penalties: 1) there must clearly
be malice on the part of its author; 2)
the offense must provoke grave scandal among the faithful;
3) the offense must not be punishable
through ferendae sententiae penalties.26
For
the purposes of our discussion, it is of interest that the
Code of Canon Law desired to place the accent on
the presence of malice as a necessary requisite for the
imposition of a latae sententiae penalty. But malice
can be demonstrated only if the subject is fully imputable,
since only to a fully imputable subject can the moral fault
of having deliberately wished to violate the law be attributed.
Therefore, if full imputability is lacking, the latae
sententiae penalty of excommunication cannot be legally
applied.
The
requirement of full imputability of the offender naturally
comes into play in every malicious crime. This is a general
principle of every modern penal system. All the more is
it valid for latae sententiae penalties, given their
exceptional character. And, in fact, Canon 1324,§1 [1983
Code of Canon Law], in ascribing ten circumstances attenuating
imputability, delineates in §3 of the same canon that in
all ten cases "...the offender is not bound by a latae
sententiae penalty ."27
E. Attenuating
Circumstances and Exemptions
Attenuating
circumstances do not eliminate imputabulity, but they do
reduce it. They prevent the imputability from be characterized
as "full." As a consequence of this, a mitigation
is had of the penalty already established or the substitution
of it by other sanctions, for example penances. Penances
are not technically penalties by definition, but replace
or increase them [1983 Code of Canon Law; Canon 1312,§3).
Canon 1324 states in §1:
The
perpetrator of a violation is not exempted from the penalty,
but the penalty prescribed in the law or precept must be
diminished, or a penance substituted in its place, if the
offence was committed by: 1° one who had only an imperfect
use of reason; ……
The
list of nine other attenuating circumstances follows the
first listed in the above quote.28
Among these nine other attenuating circumstances two are
of interest to us: Numbers 5 and 8. Number 5 considers the
case of one who was "compelled by grave fear, even
if only relative, or by reason of necessity or grave inconvenience,
if the act is intrinsically evil or tends to be harmful
to souls."29
The meaning of this part of Canon 1324 means that whoever
has completed an action "intrinsically evil or tends
to be harmful to souls," not deliberately, but only
on account of having been forced or from grave fear, necessity,
or grave inconvenience, is entitled to have take these circumstances,
which attenuate his imputability, taken into consideration.
This requires that the penalty not be imposed in its fullness
and/or it be substituted by another type of sanction, as
for example, a penance.
But
why doesn't the attenuating circumstances of Number 5 of
Canon 1324 eliminate all imputability? - Because
the action to which they have felt forced to perform was
itself "intrinsically evil" or tending to be "harmful
for souls." Given this nature of the action, it necessary
that a form of sanction be maintained in view of the common
good. Among the penalties which cannot be maintained.
however, is excommunication.
In
Number 8 of Canon 1324 on attenuating circumstances, there
is considered, on the other hand, the case of one "who
erroneously, but culpably, thought that some one of the
circumstances existed which are mentioned in Canon 1323,
Numbers 4 or 5."30
It reads:
No
one is liable to a penalty who, when violating a law or
precept acted only under compulsion of grave fear, even
if only relative, or by reason of necessity or grave inconvenience,
unless, however, the act is intrinsically evil or tends
to be harmful to souls; [or] acted, within the limits
of due moderation, in lawful self-defense or defense of
another against an unjust aggressor.
Besides
these two circumstances, Canon 1323 of the 1983 Code
of Canon Law gives five other circumstances that exempt
the agent from all imputability, rendering the application
of the penalty impossible. The exemptions
mentioned are those according to which the law has been
violated through grave fear even if relative, necessity,
and grave inconvenience when the act performed is not intrinsically
evil or does not tend to be harmful to souls or has been
performed through legitimate defense.31
Therefore, for that which regards the state of necessity
[the category which is important for us to analyze - Ed.],
when a norm has been violated with an act intrinsically
evil or harmful for the salvation of souls, there is had
a circumstance only attenuating, sufficient however for
excluding the application of excommunication which ought
to be substituted for by another penalty or by a penance.
On the other hand, if the norm was violated with an act
neither intrinsically evil nor harmful for souls, then imputability
absolutely does not exist and neither can a penalty nor
another form of sanction be inflicted. If the subject erroneously
thought himself to be within the conditions
given in Numbers 4 and 5 of Canon 1323 [1983 Code of
Canon Law], namely of being forced to act in a state
of necessity [or through grave fear, grave inconvenience,
or legitimate defense - Ed] without his action constituting
something wicked in itself or harmful for the salvation
of souls, then he has a claim on the attenuating circumstances.
This means that even if the action warrants excommunication,
this cannot be declared because it must be
substituted by another penalty or by a penance. When the
error of judgment takes place without fault on the
part of the acting subject, then, rather than laying claim
to an attenuating circumstance, the subject has claim to
an exempting circumstance:
No
one is liable to a penalty who, when violating a law or
precept thought, through no personal fault, that some
one of the circumstances existed which are mentioned in
Numbers 4 or 5 [1983 Code of Canon Law; Canon 1323,
n.7].
Causidicus
(edited by Rev. Fr. Kenneth Novak)
[This
article continues in a second episode the canonical
aspect of the double study of the 1988 Episcopal Consecration
of Archbishop Lefebvre. The SISINONO issues of
July
and September
(1999) dealt with the theological aspect. The third
installment of the canonical study will appear in the
March 2000 issue of SISINONO. - Ed.]
1.
See "Gaps in the New Code?" an interview with
Fr. Gerald E. Murray followed by a detailed enough exposition
of his thesis, "Schism, Excommunication, and The Society
of St. Pius X" edited by Steven Terenzio on pp.50-55
respectively in The Latin Mass (Fall, 1995). For
another interview with Fr. Murray see 30 Days, n.4,
April, 1995, pp.17,18.
2.
Mise au point du Conseil Pontifical pour I'interpretation
des textes legislatifs in La documentation catholique,
79 (1997), 2163, of July 6, 1997, pp.621-623. The retraction
of Fr. Murray is found in The Latin Mass (Summer,
1996; pp.54,55). The Mise au point has been translated
into Italian in Il regno-Documenti, n.17 ,1977, pp.528,529.
The Letter to Friends and Benefactors, #53 of the
Society of Saint Pius X (Sept. 23, 1997) points out that
the Mise au point and a simultaneous document from
the Congregation of the Faith on the canonical situation
of the "lefebvrists" presented by Msgr. Brunner
are in reality anonymous documents without date nor protocol
number. For these reasons an obligatory value cannot be
granted to them. These documents are evidence of the persistent
hostility of the French and Swiss episcopates towards the
Society of Saint Pius X.
3.
This has been emphasized by Fr. Michel Beaumont in the article
"L'abbé Gerald Murray se fait taper sur les doits,"
which appeared in an issue of Fideliter (1997), pp.41-46,
strongly critical of the "retraction" of the American
scholar: "But this is the explicit approbation given
by the highest academic instance, the Pontifical Gregorian
University of Rome, which confers on this work an exceptional
value." This value is not able to be lessened in light
of its retraction otherwise we would have to say that the
professors of the Gregorian must retract their scientific
approval! (Fr. Albert O.P. "La these de l'abbe Murray"
in Le sel de la terre, n.24, Spring 1998, pp.50-67).
4.
See Is Tradition Excommunicated?, "The Episcopal
Consecrations: A Canonical Study," pp.l03-110. [Available
from Angelus Press. Price: $7.95].
5.
Is Tradition Excommunicated? cit., p.110.
6.
SISlNONO, Ne schismatici ne excomunicati; Albano
1997, p.28ƒƒ.
7.
SISINONO, October 1988 (XIV, 17,p.4).
8.
Op. cit, p.1.
9.
Le sel de la terre (1993) 4, pp.27-45; 5, pp.44-87;
7, pp.25-57; (1994) 8, pp.28-44. The original is in German:
"Bischofsweihen durch Erzbischof Lefebvre. Theologische
Untersuchung der Rechtmassigkeit" ["The Episcopal
Consecrations of Archbishop Lefebvre: A Theological Examination
of their Legitimacy"], Zaitzkofen, 1992.
10.
The book is interesting for its numerous comparisons between
the 1917 Code of Canon Law and the 1983 Code of
Canon Law. The 1917 Code of Canon Law is also
called the Pian-Benedictine Code because it was compiled
through the initiative of Pope Pius X and promulgated under
Pope Benedict XI (Sept. 15, 1917). The 1917 Code of Canon
law is known for its conceptual and systematic vision.
11.
Kaschewski. French translation in La tradition excommuniee,
cit., pp.51-57, p.51.
12.
"Episcopi sunt Apostolorum successores atque ex
divina institutione peculiaribus ecclesiis praeficiuntur
quas cum potestate ordinaria regunt sub auctoritate Romani
Pontificis."
13.
Kascewski, op. cit., p.4; French translation cit.,
pp.51-52
14.
See Commento al Codice di Diritto Canonico [a.k.a.,
Commento] edited by Msgr .Pio Vito Pinto, Urbaniana
University Press, Rome, 1985, pp.771, 772; see Del Guidice
Istituzioni di diritto canonico, 12th revised ed.
in collaboration with G. Catalano, Milan, 1970, p.488ƒƒ.
15.
See Commento cit. p.777; Del Giudice op. cit,
p.488 ƒƒ.
16.
Commento, p.772.
17.
See "Das Mosaïsche-Rabbinische Strafgesetze und Strafrechtliche
Gerichts Verfahren ["The Mosaic-Rabbinical Penal Law
and Penal Procedure"] edited by Head Rabbi Hirsch B.
Fassel, Gross-Kanischa, 1870, reprinted anast., Scientia,
Aalen, 1981, sec.lI, §13, p.12.
18.
Jn. 12:42-43. An Old Testament reference is found in Prov.
22:10: "Cast out the scoffer and contention shall go
out with him, and quarrels and reproaches shall cease."
19.
See the biography of R. Ridolfi, Vita di S. Girolamo
Savonarola, Firenze, 1974, 5th ed., pp.283ƒƒ
20.
Canon 2217, §1, 2° [1917 Code of Canon Law]:
'Poena dicitur...latae sententiae, si poena determinata
ita sit addita legi vel praecepto ut incurratur ipso facto
commissi delicti; ferendae sententiae, si a iudice vel superiore
infligi debeat." The penalties latae sententiae
and ferendae sententiae are considered also in the
1983 Code of Canon Law, but for their definition
it is necessary to go back to the former 1917 Code of
Canon Law. The "fixed" penalty is that established
especially by a norm addressed to all [law] or individually
specified persons [precept]: "Poena dicitur: Determinata
si in ipsa lege ver praecepto taxative statuta sit'
[Canon 2217, cit.l, 1°].
21.
Canon2217,§2, 2°, 1917 Code of Canon Law, cit.
22
Canon 2217 cit., §2, "Poena intelligitur semper ‘ferendae
sententiae,' nisi expresse dicatgur eam esse latae sententiae
vel ipso iure contrahi, vel nisi alia similia verba adhibeantur."
The concept is reaffirmed in the 1983 Code of Canon Law,
which in Canon 1314 reassumes the exposition of the 1917
Code: "Poena plerumque est 'ferendae sententiae’, ita
ut reum non teneat, nisi postquam irrogate sit; est autem
'latae sententiae, ' ita us in eam incurratur ipso facto
commissi delicti, si lex vel praeceptum id expresse statuat."
[See p.753 of the Commento cit.: "The penalty is generally
ferendae sententiae, such that it does not oblige the guilty
one if it has not afterwards been inflicted; but it is latae
sententiae such that it is incurred through the very fact
of the offense having been committed, if the law or the
precept expressly establish it."] On the declarative
and constitutive significance of the act of the condemned,
see Commento cit., p.489.
23.
The whole of Canon 1321 of the 1983 Code of Canon Law
reads: "1) No one can be punished for the commission
of an external violation of a law or precept unless it is
gravely imputable by reason of malice or of culpability.
2) A person who deliberately violated a law or precept
is bound by the penalty prescribed in that law or precept.
If, however, the violation was due to the omission of due
diligence, the person is not punished unless the law or
precept provides otherwise. 3) Where there has been
an external violation, imputability is presumed, unless
it appears otherwise." [On this canon and its relation
to the 1917 Code see Commento, cit., pp.758-759.
The definitions present in the 1917 Code are clearer: cf.
1917 Code of Canon Law, Canons 2199; 2200.]
24.
The canon has already been reported in its entirety in footnote
§13.
25.
This canon re-echoes Canon 2241, §1, of the 1917 Code
of Canon Law: "Censures, especially latae sententiae,
most of all excommunication, are not to be inflicted, except
moderately and with great circumspection."
26.
Examine Commento, cit., on p.756.
27.
Commento states: §3 [of Canon 1324 of the 1983
Code) articulates a general principle that every diminution
of imputability frees from latae sententiae penalties
otherwise demanding full imputability [cf. Canon
2218,§2 of the 1917 Code.] When it is a question
of latae sententiae penalties, the judgment of whether
one of the causes (cited in Canon 1324) exists is the concern
of the delinquent himself. This is different from what happens
in ferendae sententiae penalties in which there is
a judge to establish whether or not the cause exists [Commento,
cit., pp.765-766]. If §3 of Canon 1324 states a general
principle, this ought to be valid then for all cases in
which a latae sententiae penalty is foreseen, even
for apostasy, heresy, and schism [1983 Code, Canon
1364,§1). Lacking full imputability, they would never be
able to be punished by incurring a latae sententiae
excommunication.
28.
“Violationis auctor non eximitur a poena, sed poena lege
vel praecepto statuta temperari debet vel in eius locum
paenitentia adhiberi, si delictum patratum sit: lº
ab eo, qui rationis usum imperfectum tantum habuerit."
See also Commento, cit., pp.763 ƒƒ.
29.
See Commento, cit., p.762: "The general principle
of Canon 125,§2 [1983 Code under "Title VlI:Juridical
Acts" - Ed.] decrees that an act performed as a result
of fear which is grave and unjustly inflicted is valid unless
the law provides otherwise. However, in a penal matter whether
absolute or relative, having taken into account the subject
who places the threat and whoever undergoes it, it frees
from every penalty."
30.
“...ab eo, qui per errorem, ex sua tamen culpa, putavit
aliquam adesse ex circumstantiis, de quibus in can. 1323,
nn.4 or 5."
31.
"...metu gravi, quamvis relative tantum, coactus
egit, aut ex necessitate vel gravi incommodo, nisi tamen
actus sit intrinsece malus aut vergat in animarum damnum.
"
Courtesy of the Angelus
Press, Kansas City, MO 64109
translated from the Italian
Fr. Du Chalard
Via Madonna degli Angeli, 14
Italia 00049 Velletri (Roma)
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