Thursday 23 December 2021

RORATE CÆLI: Article: "Legal Considerations on the motu proprio Traditionis Custodes" - Restrictions demand strict interpretation

RORATE CÆLI: Article: "Legal Considerations on the motu proprio Traditionis Custodes" - Restrictions demand strict interpretation

Article: "Legal Considerations on the motu proprio Traditionis Custodes" - Restrictions demand strict interpretation

  by Fr. Pierre Laliberté, J.C.L.*

1. Principles

The motu proprio "Traditionis Custodes" was issued by Pope Francis on 16 July 2021, along with an accompanying letter.

As a restrictive decree, this present motu proprio of Pope Francis should be interpreted strictly, in accord with the legal maxim Regula Juris 15 (odiosa restringenda, favorabilia amplificanda). Interestingly, there is no vacatio legis on the document either.

Pope Francis indicates in the first paragraph that the bishops constitute the principle of unity of the particular churches and govern them through the proclamation of the Gospel. As the specified end of the document is the "constant search for ecclesial communion", it would also appear that hermeneutically, this document should be interpreted in a way which genuinely fosters ecclesiastical communion between the faithful, priests, and bishops, and does not promote negative feeling and ill-will amongst any members of the Christian faithful who are attached to the traditional liturgical forms.

It is worthwhile to indicate what this motu proprio does not place restrictions upon. No mention whatsoever is made of the pre-conciliar Breviarium Romanum, Pontificale Romanum and Rituale Romanum. No express abrogation is made of any notable document concerning the traditional Roman Missal, and such abrogation should not therefore be implied. The traditional Missal remains, as it always was, never abrogated. The rights established by Quo Primum, by the theological and liturgical tradition of the Western rites, and immemorial custom remain intact. No mention is made of the traditional rites of the various religious communities (Dominican, Carmelite, Praemonstratensian, etc.) nor those of the ancient sees (Ambrosian, Lyonnais, etc.). There is no indication that the right of a priest to celebrate privately according to the 1962 missal is in any way infringed.

When read in comparison with the extensive granting of rights conceded by Summorum Pontificum and clarified and expanded by Universae Ecclesiae, when there is no express revocation of these rights indicated by Pope Benedict XVI, one must conclude canonically that they still exist. 

There is a serious lack of clarity in this document which this brief analysis will attempt to address, and it is evident that its ambiguities will be, sadly, taken advantage of by those with less than a genuine love for the Church, her faithful people, and her heritage.

2. Documentary Analysis

Article 1, discussing the liturgical books promulgated by Sts. Paul VI and John Paul II, indicates that they are the "unique expression of the lex orandi of the Roman Rite." In the absence of any indication to the contrary, one must conclude that the status of the Extraordinary Form liturgical books remains intact.

Article 2 recognizes the diocesan bishop as the "moderator, promoter, and guardian of the whole liturgical life of the particular Church." This is true and has always been the case. This article merely recognizes that the bishop regulates the general liturgical life of the diocese, which encompasses also the use of the pre-conciliar Missale Romanum, and to authorize its use, just as a bishop would authorize the right of any priest to celebrate the liturgy.

In considering Article 3, it is worthwhile to note that the provisions of this article refer to the "Missal antecedent to the reform of 1970." Strictly understood, the Missal antecedent to the reform of 1970 is the editio typica of 1965 with the alterations of Tres abhinc annos of 4 May 1967. This is not the 1962 Missal. To this author's knowledge, the 1965 missal is used hardly, if ever.

Article 3, number 1 asserts that "these groups do not deny the validity and legitimacy of the liturgical reform dictated by Vatican Council II and the Magisterium of the Supreme Pontiffs." This should not pose a problem, as the fundamental principle of the liturgical reform, antecedent to any changes, as indicated in Sacrosanctum Concilium 4, remains that "in faithful obedience to tradition, the sacred Council declares that holy Mother Church holds all lawfully acknowledged rites to be of equal right and dignity; that she wishes to preserve them in the future and to foster them in every way."

Article 3, number 2 notes that the bishop of the diocese is to designate one or more locations where the faithful adherents of these groups [which celebrate according to the Missal antecedent to the reform of 1970] may gather for the Eucharistic celebration, not taking place in the parochial churches and not erecting new personal parishes. This remains unclear legally, as it could merely be implied as a restriction placed upon the 1965 editio typica. While the text indicates that these groups may gather "not in the parochial churches and without the erection of new personal parishes", there remain any number of other locations where such celebrations may take place.

Article 3, number 3 indicates that the bishop can establish the days on which Eucharistic celebrations are permitted according to the 1962 Missal. There is no indication given that the right of a priest to do so is infringed. The bishop also can make such a designation. And as is the case in virtually all communities where the Extraordinary Form is celebrated, the readings are typically proclaimed in the vernacular according to the provisions established in Universae Ecclesiae 26: "As foreseen by article 6 of the Motu Proprio Summorum Pontificum, the readings of the Holy Mass of the Missal of 1962 can be proclaimed either solely in the Latin language, or in Latin followed by the vernacular or, in Low Masses, solely in the vernacular." Number 4 indicates that a priest should be appointed who is "suited for this responsibility", and gives examples of the positive characteristics which should be inherent in such a priest.

Article 3, number 5 and 6 descibe how the bishop is to positively guide the growth of such communities and parishes, namely to ensure that they are "effective for their spiritual growth" and to "determine whether or not to retain them." Of course, the accent here is on the positive: bishops should encourage the effectiveness of the growth of such communities and parishes. The following subsection notes that there is also no strict forbidding of bishops to authorize the establishment of new groups, but rather merely to "take care" not to authorize their establishment.

Article 4 establishes a distinction between those ordained subsequent to 16 July 2021 who "should" submit a request to the diocesan bishop, who will consult the Apostolic See, and those ordained previously. There is no indication that these newly ordained priests must do so, and no indication of penalties to which they would be subject if they were not to do so. This is a hortatory, not a compulsory, statement. Similarly, those ordained prior to 16 July 2021 are also encouraged in article 5 to request from the diocesan bishop the faculty to continue to celebrate according to the traditional Missal. Again, these two (2) articles should be read in a way which, in accordance with the express aims of the present motu proprio, would foster the positive growth and understanding in communion between priests and their bishops.

Article 6 asserts that the institutes of consecrated life and societies of apostolic life previously under the purview of the Pontifical Commission Ecclesia Dei now are under the jurisdiction of the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life, and article 6 asserts the competence of the Congregation for Divine Worship and the Discipline of the Sacraments, as well as the aforementioned Congregation, over the observance of these provisions.

While the final article of this motu proprio appears rather sweeping in its abrogation of "previous norms, instructions, permissions and customs that do not conform to the provisions of the present Motu Proprio", it should be reiterated that the provisions of this present motu proprio are restrictions which demand strict interpretation.

*Pseudonym for a Priest and Canon Lawyer in the Latin Church

RORATE CÆLI: IMPORTANT ARTICLE: LEGAL CONSIDERATIONS ON THE RESPONSA ON TRADITIONIS CUSTODES - "Congregation cannot make authoritative interpretations. Juridical status of document highly questionable, does not have legally binding force."

RORATE CÆLI: IMPORTANT ARTICLE: LEGAL CONSIDERATIONS ON THE RESPONSA ON TRADITIONIS CUSTODES - "Congregation cannot make authoritative interpretations. Juridical status of document highly questionable, does not have legally binding force."

IMPORTANT ARTICLE: LEGAL CONSIDERATIONS ON THE RESPONSA ON TRADITIONIS CUSTODES - "Congregation cannot make authoritative interpretations. Juridical status of document highly questionable, does not have legally binding force."

As a consequence, this Congregation cannot make authoritative interpretations. Responses, in particular this document, are neither general decrees nor instructions (canons 29-34). Such responses to dubia are not binding executive decisions. While the CDWDS has noted that their responses are official and represent the mens Congregationis, they should be seen as just that - an expression of the mind of the Congregation. Since these Responsa do not appear to have been approved "in forma specifica" by the Holy Father, they would not have binding force, and would only bind those who posed the dubia. Despite this document being "consented to" by the Holy Father, the juridical status of this document is highly questionable, and thus cannot be considered as having legally binding force. Some have even stated that the document is "vox et praeterea nihil."
Beyond the futility of attempting to ban the classical texts of the Roman Rite by brute force, the texts, as Fr. John Hunwicke notes, have an auctoritas which stems from their theological value, and thus cannot be suddenly revoked at legislative fiat. The theology of St. Bernard of Clairvaux, the writings of St. John of the Cross or Ste. Thérèse de Lisieux, the art of the great cathedrals - all of these monuments of the Catholic heritage cannot be revoked at will - a fortiori by those who do not possess legislative powers. Sheer force of will cannot ban sacred texts and prayers which have formed minds and wills unto sanctity.

It's Time to Occupy the Churches - OnePeterFive

It's Time to Occupy the Churches - OnePeterFive

It's Time to Occupy the Churches

This past summer, just before the God of Surprises ordained it be revealed that Grindr users' location data is accessible to the public, Pope Francis issued something unsurprising to traditional Catholics who didn't have their heads in the sand – Traditionis Custodes. I've heard and read a lot of things along the lines of this: "Now is the time to show our bishops how obedient we are. We all need to write letters to them thanking them for allowing us to have the Old Mass these past several years."

I was struck, however, when one commentator compared this to submission to an abusive father. Who would submit to abuse from such a wicked father, especially if your brothers and sisters were also suffering? What if your children were attacked by an abusive father? Would you sit by and try to grovel with such a man?

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We have been beaten by our own father in the name of mercy and marginalized in the name of unity. Abusing his office, he has transgressed our rights to the ancient Mass – what our forefathers bled and died to pass down to us.

As a friend recently remarked to my wife and I, "Traditional liturgy is our birthright." I refuse to beg and grovel for what rightly belongs to my brethren and me by inheritance, just as I don't thank art museum curators for refraining from spray painting graffiti all over the Renaissance sculptures.

And to any traditionalist Catholics who did send boot-licking letters to their shepherds (perhaps with an extra donation "just to show how devoted and appreciative we are") – it didn't work. On December 18, the Prefect of the Congregation for Divine Worship Archbishop, Arthur Roche, published his own iteration of "The Beatings Will Continue Until Morale Improves." This document further restricts the celebration of sacraments such as ordinations, baptisms and Confirmations in the old rite.

The Psalmist has some words for Trads during these dark times:

And they repaid me evil for good: and hatred for my love. (Psalm 108)

Blessed be the Lord my God, who teacheth my hands to fight, and my fingers to war… Send forth lightning, and thou shalt scatter them: shoot out thy arrows, and thou shalt trouble them. (Psalm 143)

Judge thou, O Lord, them that wrong me: overthrow them that fight against me. Bring out the sword, and shut up the way against them that persecute me. (Psalm 34)

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Instead of trying to appease our enemies, traditional Catholics need to go to war with them. We have every reason in the world. My family discovered our diocesan TLM a dozen years ago. We have since donated sacrificially to it out of love year after year. We contributed to the new high altar and reredos; we took on our parish coffee hour with another family; we started to wake up early every week to bring our sons to serve the Solemn High Mass (they chide us if we move a bit too slowly for them Sunday mornings, fearing that they won't get to the sacristy in time).

My wife and I have always been careful about detracting from the Holy Father within earshot of our children – we want to inculcate a healthy piety for the office of the Roman Pontiff even as we have a healthy understanding of its limits (and the sins of the occupant!).

Two days after Traditionis Custodes was published, my family and I attended a TLM parish at one of our usual summer vacation spots. The priest there made his comments public about the Motu Proprio. On the car ride back to our rental condo, we finally explained to our kids how Pope Francis doesn't like the Latin Mass and was trying to put an end to it. My children, in their innocence, were flabbergasted.

I imagine that my sons had assumed they were doing something good and noble every week as they buttoned up their cassocks, and hearing about the Motu Proprio was like finding out that their dad wasn't proud of them. There are times for righteous anger. If that incident didn't make my blood boil, I'd be something other than a man.

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The enemies of Tradition detest what you and your family hold most dear, and they've made it clear that there will be no detente with us. We should reject out of hand any notion of assisting at "reverent" Novus Ordos with the idea that they'll reward us once we show them we can play nice.

If you have a chip on your shoulder, leave it there. If you don't, get one.

The fact that Pope Francis and the bad guys from Windswept House hate what we do should only embolden us further.

And unless your bishop is one of those ignoring the directives of the Motu Proprio and its evil update, let him know you're a hair trigger-pull away from writing every check you make out in the name of your pastor with a note in the memo reading "Snow Plow Fund" or "Major Repairs." And when you do give, keep in mind that you're a nervous bureaucrat's pen stroke away from having  your parish and community destroyed.

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One particular section of Roche's Dubia response reveals much about their motivation: they allow a parish church to substitute for the TLM "when it is not possible to find a church." But, they stipulate, the "celebration should not be included in the parish Mass schedule, since it is attended only by the faithful who are members of the said group."

It clarifies further that the "provisions are to "remind [the faithful] that this is a concession to provide for their good… and not an opportunity to promote the previous rite."

They are afraid of us.

This means, quite obviously, that we should keep promoting the TLM more than ever. Invite family members to see their nephews and grandsons serve. Take photos, and use every social media outlet we have at our disposal. We have the Modernists on their heels, and all of the momentum is on our side. Our enemies know that they can't promote their Mass the way that we can, ours. They know that their days are numbered. Their Novus Ordo funerals might very well double as funerals for the Novus Ordo itself.

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Roche's explanatory note tells us what we already knew implicitly – beauty is like kryptonite to these philistines. We have the high altars, the columns of altar boys in their smart cassocks and surplices, the magnificent vestments made with love. We have Victoria's O Magnum Mysterium and gold patens. When confronted with Pope Francis' trademark scowl, we answer with my eldest son's freckled expression of pride as he finally achieves his promotion to Thurifer. Ours is the Church ancient and enduring. Theirs is in decline. Assail them with beauty and truth. They will be converted or lose their relevance.

But don't ever, ever, think you will please God by showing them how meekly you're willing to whimper as they beat you. The Holy Mass gives glory to Jesus Christ, who was crucified for our sins. We don't imitate Him by being complicit in its destruction. Rather, we must drive the moneychangers out of the temple and overturn their tables (John 2:15).

This is how our forefathers endured the abuse of the 1970s and passed down to us the Latin Mass. They didn't lay down and grovel. They fought like men of God.

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On April 12, 1977, Parisian traditionalists got sick of worshipping in the community hall the petty New Church bureaucrats relegated to them for the celebration of their banned Mass. So they did what any decent, God-fearing Catholics should – they processed into the church of St. Nicholas with priests, occupied it, and stayed there. Every living Trad should know by heart the exchange that occurred between the parish clergyman of St. Nicholas du Chardonnet and one of the occupying priests.

'By what right do you come here?' asked one of the parish clergy.

'We come,' replied Mgr. Ducaud-Bourget… 'In Nomine Domini.'[1]

When the police were called by the conciliar priests to expel the invaders, the police showed that they knew more about liturgy than the Congregation for Divine Worship does today. The police did nothing because, as they told the Novus Ordo priests about the Trads: "They're saying Mass and praying, that's what a church is for!"

They also displayed that they were inhabiting a more Catholic, and less officious France, when a group of progressive clergy went to a police precinct to complain about the takeover. Requesting to speak with the officer in charge they were told he was unavailable, as he was attending Latin Mass at St. Nicholas.

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If you're a traditionalist Catholic and think these early Trads went too far, consider for a moment how much of your hard-earned money, time and love you've given to your own parish community. Then consider the fact that it was because of all this righteous "disobedience" that our forefathers fought to pass down the Latin Mass that you now enjoy. They fought and were vindicated by the popes after Paul VI. They fought so hard that the popes were forced to reckon with them and give them the Latin Mass. It is only due to their fight that you have the Latin Mass at all. If you grovel now, our children will be deprived of what is rightfully theirs – the ancient Roman Rite of all the saints and doctors.

Think of our fathers. Think of your children. And fight like a man.

Deus Vult!

Photo by Alison Girone, used with permission. 

[1] Michael Davies, The Remnant Newspaper, April 30 1977