This study by Fr. Thomas C. Glover, JCD is extracted from the book, Is Tradition Excommunicated?, though first published in the November 1988 issue of The Northern Catholic. Fr. Glover is an English Oratorian and Doctor of Canon Law who worked at the Vatican for many years. He also served as a professor of Canon Law at the SSPX’s Econe seminary.
Voices are heard saying that Archbishop Lefebvre and Bishop de Castro Mayer, together with the four bishops they consecrated on June 30, 1988, have been excommunicated for schism. The same voices also say that all the priests of the Society of St. Pius X, and all the laity who support them or attend their Masses, are automatically excommunicated for schism. Generally, they ignore the fact that there are plenty of traditional priests running Mass centers who are not members of the Society of St. Pius X, and include these as schismatics and so excommunicated. The facts do not support them.
There is no dispute that the episcopal consecrations took place without a pontifical mandate─that is, without the pope's permission and indeed against his express wishes. Canon 1382 states that a bishop who consecrates another without a pontifical mandate incurs excommunication latae sententiae, and the priest who allows himself to be consecrated a bishop incurs it likewise. Excommunication is of two types: latae sententiae and ferendae sententiae. The first type is often called automatic, as the delinquent incurs it simply by committing the offense specified in the law, whereas the second type requires the intervention of a judge or superior to impose the penalty.
On July 1, 1988, the Prefect of the Sacred Congregation of Bishops (the old Consistorial Congregation) issued a decree declaring that all six bishops were excommunicated. As the penalty is latae sententiae, this is not a condemnatory sentence imposing a penalty but a declaratory sentence saying that the penalty has been incurred by the violation of the penal law in question. To many, this will seem the end of the matter: the six bishops broke a law of whose existence all were aware and which carries with it automatic excommunication. This is not so.
First, no penalty is ever incurred without grave moral imputability (Canon 1323.7). This means, in the moral theologian's terminology, subjective mortal sin. The archbishop has made it clear many times that his primary purpose in consecrating successors is to ensure a future supply of traditional priests to provide the laity with Mass and the sacraments. He acted only after years of thought, and many months of protracted negotiations with the Holy See; and a similar intention and careful consideration can be discerned in the other five bishops. Even if the final decision is judged a mistake, it cannot amount to subjective mortal sin.
Secondly, Canon1323.4 states that even where an offense carrying a penalty has been committed, the penalty is not incurred if the act was performed out of necessity─unless it be something intrinsically evil or damaging to souls. Again, it is clear that it was the necessity of providing for a future supply of traditional priests which caused the archbishop and his co-consecrator to act as they did, after all hope for a "reconciliation" with Rome had proved groundless.
There is a very old "rule of law" (Regula iuris 15) which gives the benefit of any doubt in cases of penal law: Odia restringi, et Javores convenit ampliari. In other words, if there is a doubt whether a penalty has been incurred in a particular case, it means that is has not been incurred. It is not, therefore, necessary to prove that the Consecrations were morally innocent and done under necessity; it is enough to show sufficient serious arguments to establish that there is a doubt. So the six bishops are not excommunicated under Canon 1382.
But the decree of the Sacred Congregation for Bishops goes further by declaring the six bishops to be schismatics and so also automatically excommunicated under Canon 1364.1. It further warns the faithful that if they support "the schism of Archbishop Lefebvre, they too will be ipso facto excommunicated." This charge involves a large and unjustified mental leap. It is made by the pope in his apostolic letter Ecclesia Dei of July 2, 1988. Speaking of the consecrations, he writes:
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. Hence such disobedience─which implied in practice the rejection of the Roman primacy─constitutes a schismatic act."
It does nothing of the sort. Schism, defined in Canon 751, means refusal of subjection to the supreme pontiff or refusal of communion with other members of the Church. A mere act of disobedience to a superior does not imply denial that the superior holds office or has authority. The child who says, "I won't!" to his mother does not deny that she is his mother; the soldier ordered to polish his buttons by his officer, who instead smokes a cigarette, is not denying the validity of the Queen's commission. Again, for the charge of "schism" to stick, it must be certain beyond all reasonable doubt. In a word, the six bishops have not incurred excommunication for schism, so those who adhere to them cannot be excommunicated either. There is indeed more muddled thinking here.
The phrases "followers of Archbishop Lefebvre," "Lefebvrist Mass centers," "Lefebvre priests" are frequently used. They imply that Archbishop Lefebvre is the head of the Society of St. Pius X. He is not. Fr. Schmidberger has been superior general for five years and has district superiors under him. Even if the six bishops had been excommunicated for illegal consecrations and schism, it would not in itself affect the others. If a retired Benedictine bishop were to be excommunicated, it would not mean that Benedictines throughout the world, and those who hear Mass in Benedictine churches, were excommunicated. Excommunication is a penalty for those who commit certain crimes with full moral guilt, not a contagious disease!
The point may seem academic: to support a schismatic against the pope and "adhere" to him is to join in his schism. But we have shown that the charge of schism will not stick. Even if it did, it would not automatically involve the laity who attend Mass centers in excommunication. Canon 844.2 allows the faithful to seek the Sacraments of Communion, Penance and Extreme Unction even from non-Catholic ministers (provided their orders are valid) if it is physically or morally impossible to go to a Catholic minister. This canon has caused great scandal among traditional Catholics but it is, of course, accepted by the pope! Even the old Code allowed access to an excommunicated priest in certain cases of necessity.
And there is no doubt that it is often physically impossible to receive traditional sacraments, except from a priest who supports the actions of Archbishop Lefebvre. This does lead to another point. Traditional Catholics have become used to defending their actions, justifying their attendance at Masses not authorized by the local bishop, and so on. This article is written in a similar strain, showing on the basis of canon law that the six bishops are not excommunicated either for illegal consecrations or schism, and in consequence, that other traditional priests and lay people are not excommunicated either. But it is a mistake to leave the question on this defensive note.
It is for the pope and bishops to justify their actions. They have abandoned the traditional rites of Mass and the sacraments─they have allowed heresy to be taught and abuse to abound throughout the Church. Traditional Catholics have merely remained faithful to what the Church has always taught and done, and this fidelity to Tradition is the sole cause of all their problems with authority. We now have the ludicrous episode of the Holy See condemning six bishops in the Church who are clearly Catholics! There may be plenty of others, but their Catholicism is no longer manifest, and their attitude over the past 20 years puts it in doubt.
It is now for the pope and those who claim to be "faithful" to him to explain their actions and to show that they are still Catholics. The six bishops involved in the events of June 30 have made their orthodoxy clear.