An article written by Fr. Peter Scott and originally published in the October 1997 issue of The Priests' Bulletin, an in-house for the priests of the United States District
Questions regarding the St. Charles Borromeo Canonical Commission
How can the Society’s St. Charles Borromeo Canonical Commission be considered "competent" concerning that which law reserves to the Holy See?
A first principle, which is quite clear, is that the Canonical Commission is not a canonically erected body and that, consequently, it does not possess ordinary jurisdiction over the faithful any more than do the district superiors. Consequently, there can be no question of it being "competent" in the technical, juridical sense of the word, with one having the ordinary jurisdiction to decide or handle certain questions or situations.
The comparison between the Canonical Commission and the Holy See, on the one hand, and between the District Superior and the Ordinary of the place, on the other, confirms this interpretation. There is no direct correlation between the powers of one and the other, but a pure analogy. The analogy is based upon the impossibility of recourse to the Ordinary and to the Holy See (not perhaps always, but at least in general). Clearly a priest should not be left, in such an instance, just to do what he wants, simply because he has personal supplied jurisdiction.
Does not the establishment of such a commission make us look schismatic, as our accusers maintain?
To keep the spirit of the Church means to keep to its prudence and its rules as much as possible, even in the difficult circumstances that we find ourselves. This means that we should have recourse to our superiors, just as we would if they really had jurisdiction. This will safeguard the use of personal, supplied jurisdiction and keep it within the mind of the Church. It follows from this that neither the District Superior, nor the Canonical Commission, can technically give a dispensation using the power of Ordinary Jurisdiction. They can only grant the authorization for a priest to dispense in the act of administering the sacrament. This is what is clearly explained on our M-15 form, which is based upon the application of Canon 1044 (in the 1983 Code, Canon 1079), in the case of the extraordinary form of marriage.
Does not the Commission make a claim to the pope’s primatial authority by claiming to take care of matters reserved to the Holy See?
Clearly the Canonical Commission does not have the pope’s primatial authority to govern, nor does it ever claim to do so. It is a sharing in the Superior General’s authority to guide and direct the members of the Society in their use of the personal, supplied jurisdiction, which they have in the administration of the sacraments, in the case of impossibility of having recourse. Canon 2254, °3 of the 1917 Code admits that this might be the case and grants the priest hearing confessions the authorization to dispense from censures. Canon 1357 of the 1983 Code does not speak of this, but it does not abrogate or deny it either. Consequently this prevision still exists. I believe that a clear case can be made for the Canonical Commission, itself to be the subject of supplied jurisdiction in individual cases (it would then be personal for each case). But this is not at all necessary to explain this Commission’s decisions to guide the priests in the administration of the sacraments.
Is it not wrong for the Society’s District Superiors to be given the power to treat of similar cases as diocesan bishops in Canon Law?
The Regulations [of the SSPX] do not say that District Superiors receive a "power" equivalent to local Ordinaries. They simply indicate that they are expected to give advice and decision on similar cases to those concerning which the Ordinary has the power to grant dispensation. The further proof of this is that many of those cases—which are "du ressort de", that is to say that they belong to the domain of the District Superior—are those for which dispensation is not at all required for the validity of the sacraments.
It is for reasons of prudence, and to keep the traditional mind of the Church, that the priests are asked to submit the case to the District Superior’s judgment, e.g., under 18 year olds entering marriage, or the impediment of mixed religion. It is not necessarily that the District Superior has a "power" or jurisdictional authority over the faithful that other priests do not have. Again, a case could be made that supplied jurisdiction over individual cases extends to the Superior, who is to prudently judge the case, but this is not necessarily implied by the Regulations, nor is this hypothesis necessary to the present practice of the Society.
How can the Society grant dispensation from the obligations of Holy Orders? Is not the impediment to marriage arising from Holy Orders reserved to the Holy See (canon 1078, °2; °1 of the 1983 Code)?
The question of dispensation from the obligations of Holy Orders is a very difficult one. With respect to the order of the subdiaconate, it is certainly impossible to have recourse to the Holy See for dispensation from the vow of chastity and recitation of the office, which the subdeacon binds himself to. The Novus Ordo does not recognize these obligations. A dispensation from nothing makes no sense. Hence, we are obliged to take care of it ourselves. Just recently, a Fraternity of St. Peter seminarian informed me that he will soon be ordained a subdeacon. But, he explained to me, he would not be taking any obligations—of chastity or of reciting the office—upon himself, and that he would still be free to leave the seminary and get married if he so desired!
The case with the diaconate is different, since the Novus Ordo acknowledges that the deacon is a cleric. But is he really bound to celibacy if he wants to remain a deacon for life? A recent article in Origins, Vol. 27. no. 11 (August 28, 1997) explained how the Congregation for Divine Worship and the Discipline of the Sacraments was authorized, by Pope John Paul II on February 10, 1997 to laicize and dispense from vows of celibacy even priests who are under 40 years of age without any truly exceptional reasons, and simply provided that grave scandal is present. It is this loosening of the law, and undermining of priestly celibacy, which is a grave scandal. It was likewise approved on March 22, 1997, by the pope, to grant dispensations to ordained, widowed, permanent deacons to marry again simply in view of the great and proven usefulness of their ministry. Of course, such a "cleric" would maintain his public function as a deacon. The consequence is that the dispensation, of a previously unmarried deacon, whether to continue his function or to be laicized, will be considered as of no great importance, and easily granted. Furthermore, it is clear that, out of a spirit of opposition to the work of Tradition, any dispensation of a deacon ordained in Tradition would be granted automatically and without due consideration.
How different must our attitude be towards a deacon desirous of returning to lay life, and how much more exigent should we be! How could we possibly separate, as the modernists do, the vow of chastity and the continuing to function as a deacon? So great is in fact the difference, that it does not make sense to send such a deacon to the Congregation for Divine Worship and the Discipline of the Sacraments to obtain an automatic and hence meaningless dispensation. To do so would be to abandon all possibility of preventing such a deacon from abandoning his diaconate.
Hence, with respect to regularizing the marriage of an ordained subdeacon or deacon, it would seem that, we are in the impossibility (moral) of having recourse to the local Ordinary, and that, consequently, if all else were to fail, the dispensation could be granted by the priest who performs the marriage (cf. canon 1079, °2 in the 1983 Code and canon 1044 in the 1917 Code). In such an important matter, he would have the moral duty of following the recommendations of the Canonical Commission, which, as the Ordonnances say, would be extremely reluctant to authorize this, in accord with the pre-Vatican II practice of the Holy See.
Can the Society’s Canonical Commission dispense from religious vows?
Clearly if these vows were made in a community not affiliated with our priestly society, dispensation is to be obtained, either from the Superior General of that community, or from the Holy See, depending on the case.
However, the problem lies with the vows made in traditional communities. As far as we are concerned, these are public vows and a diriment impediment to marriage. As far as Rome is concerned, they are private vows (for they do not recognize the traditional communities as such), and, according to the New Code, they do not constitute an impediment to marriage at all. How can we ask Rome, or the local Ordinary, to grant a dispensation from an impediment, which they maintain does not even exist? Clearly, we are again in the situation of impossibility of having recourse, and supplied jurisdiction applies, in the act of performing the marriage. To prevent abuses, it is totally reasonable to expect the Society to set up some kind of authority to regulate this. This is the Superior General for members of the Society of St. Pius X, or the bishop with responsibility for the religious communities for those who have made public vows in those communities.
What about the case of the impediment of crimen?
Dispensation of this impediment is reserved to the Holy See (canon 1078, °2, 2, and canon 1090 in the 1983 Code). In such a case, our priests could theoretically write to the Holy See. But it would be only through the deception of letting it appear that we were diocesan priests and not of the Society of St. Pius X, that we could obtain such a dispensation (for they do not accept the fact that we can do marriages; cf. The validity of confessions and marriages in the chapels of the SSPX). I do not believe that such a deception would be the right thing to do, nor that we would be obliged to go through with it. It is simply better to be honest and admit that we are in the impossibility of having recourse.
Should this function of supply of the Canonical Commission be explained as a part of our regular marriage preparation instruction?
I do not believe that all these details need to be explained to future spouses when explaining the impediments of marriages. It suffices to say that we are obliged to use the previsions of Canon Law for cases in which it is impossible to have recourse to the Holy See, or to the local Ordinary.
Can the traditional priests absolve reserved censures, and if so how?
There are five excommunication’s reserved to the Holy See and three reserved to the local Ordinary. What do the priests of the Society do in the case of reserved censures, that is of censures or punishments which are automatically applied by the Church (latae sententiae) and whose lifting is restricted either to the local Ordinary or to the pope (the Sacred Penitentiary). The difficulty, in having recourse, is that the local Ordinary generally will not accept the validity of our confessions, because he will not admit the existence of reasons justifying the use of supplied jurisdiction for the hearing of confessions by the priests of the Society.
When it is possible to have recourse, then we do so. This possibility is admitted in the Regulations; for the alternate recourse to the District Superior, or Canonical Commission, is only counseled. Several of our priests have had recourse to the Sacred Penitentiary for such serious and sacrilegious matters as direct violation of the seal of confession, or desecration of consecrated Hosts. However, this presumes that one does not say that one is a priest of the Society of St. Pius X, which does not seem to be the most honest, up front and correct way to handle the situation.
A special difficulty arises with the three excommunications which are presently reserved to the local Ordinary, especially those who participate in abortions or those who participate in sins of heresy, schism and apostasy. Since the local Ordinary knows who we are and does not accept our right to hear confessions, we cannot have recourse to him. We have, on occasion, had recourse to the Sacred Penitentiary. On occasion it has given the authorization to absolve from the censure. However, it will usually refer the priest back to the local Ordinary, who has the power to grant the dispensation. Again, we are in the case of the impossibility of having recourse.
In all such cases we have the right to provoke the urgent case, if it does not already exist. For if the penitent judges that it would be very hard to go without absolution and without the state of grace, then the priest has the right to give absolution (Canon 2254 of the 1917 Code and Canon 1357 of the 1983 Code). He has then one month to have recourse to the Ordinary or to the Sacred Penitentiary.
Even after one month, we are in the moral impossibility of having recourse to obtain the authority to dispense. However, given the crisis in the Church, the faithful have the right to come to us for the sacraments. Consequently, we are able to use the provision of Canon 2254, °3, which states that, in the extraordinary case in which there is an impossibility of having recourse to the competent authority, then the priest can himself absolve from the censure, provided that he gives a suitable penance. Although this particular detail is not mentioned in the 1983 Code, it is in no way abrogated or denied. Consequently, it still exists, and we are within our rights to make use of it.
How can the Society’s Canonical Commission grant valid annulments, and if it were to try to do so, would not this be a schismatic act?
Clearly marriage is not just an individual matter or sacrament. It is a social act instituted for the good of society and for the good of the Church. That is why the Church has the right to legislate and why marriages need to be public facts. This is also why an annulment can only be granted by a tribunal with jurisdiction from the Church, in order that the subsequent marriage be a public, juridical and unquestionable fact.
It would seem to follow from this that our tribunals could not grant annulments, for they do not have jurisdiction, and that the public juridical nature of the subsequent marriage could be questioned. What are we to do then? It is manifestly clear that we cannot refer the faithful to diocesan tribunals, for they will almost always be given a decision in favor of an annulment, and that generally on the basis of Canon 1095, 3 which is thoroughly personalist and liberal and states that whoever is not able to understand and assume all the obligations of marriage (and how many young people are really able to do that when they are married?), cannot enter into a valid marriage. The marriage is valid if the couple mature together and the marriage succeeds. If not, it is invalid.
The problem is that the vast majority of people who receive such a judgment are unwilling to hear anything to the contrary. Once told by the Novus Ordo that they are not married, they are unwilling to accept our judgment or analysis of the case. Consequently, they enter into a putative marriage, which is really an adulterous union. To send the faithful to the modernist tribunals is to participate in this sacrilege.
What are we to do then? Nothing at all? Refuse them the Sacrament of Matrimony, which they have not yet received? Tell them that they have no choice but to live in sin, regardless of how good a case for an annulment they might have? The zeal for the salvation of souls forbids such a hard-hearted attitude to those who have already suffered a great deal and who desire the consolation of their religion.
The answer is contained in the principle given by Archbishop Lefebvre at the beginning of the Regulations:
Inasmuch as the present Roman authorities are imbued with ecumenism and modernism, and as their decisions and the new laws are in their ensemble influenced by these false principles, we must provide authorities to supply for these defects, which authorities will adhere to Catholic principles of Catholic Tradition and of Catholic law. This is the only way to remain faithful to Our Lord Jesus Christ... (January 15, 1991).
Marriage tribunals are one of these institutions that we are obliged to erect for the salvation of souls, given the failure of the modernist hierarchy to fill these needs of souls. The marriage tribunal, as its principal objective, has to establish, with moral certitude, that two persons are free to marry. If we have the right to perform marriages (and hence the supplied jurisdiction), then it follows that we have right to determine with certitude who is free to marry. On occasion, this will necessitate the study of the validity of a previous marriage, due either to defect of canonical form, or defect of intention, or some other prerequisite for a valid marriage.
If it can be established, with moral certitude, that any Catholic tribunal would accept, from a study of the documents, that a marriage is and always was null and void, then a person is morally free to remarry. It is true that he is not juridically free in the most technical sense, being declared as such by a tribunal having jurisdiction. But since it is morally impossible to have recourse to the diocesan tribunals, it is likewise morally impossible to obtain such a juridical freedom. Hence our duty to intervene, for the salvation of souls. The Society’s marriage annulment tribunal is thus supplied with jurisdiction in each particular case, both to make a statement of moral certitude for the good of souls (i.e., there never was a marriage in the first place), and to give a decree stating this fact.
Although this decree might lack the technical force of law, because of the fact that the Society’s tribunals do not have a regular canonical erection, it will nevertheless be a statement having authority amongst traditional Catholics, and one which would have authority amongst all Catholics, should the crisis in the Church come to an end. Furthermore, it will guarantee the validity of any subsequent marriages. For this validity does not depend upon the legal status of the decree. The reason for this is that a prior marriage is only a diriment impediment to marriage, when it is truly valid. A second marriage, entered into before the certitude of nullity of the first marriage has been established by authoritative judgment, is illicit but not invalid, presuming that it is later established that the first marriage was indeed null and void (cf. canons 1069, °2 & 1987 of the 1917 Code and canons 1085, °2 & 1684, °1 of the 1983 Code). It follows from this that, a second marriage is certainly valid when the certitude of nullity IS established by an authoritative judgment, even though such a judgment might lack the due legal form. Furthermore, given the present circumstances in the Church, a subsequent marriage is not only valid. It is also licit.