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The Legal Status of the Traditional Latin Mass
Was the Traditional Latin Mass suppressed in 1969 when the New Mass was promulgated? Was it rendered illegal until the ‘Indult’ of October 3, 1984? Absolutely not. The following study proves it without difficulty. It consists of two parts: first, one needs to define the canonical notions of law, of custom and of privilege, three capital notions which will be used in our demonstration. Secondly, these notions will be applied to our case in a scholastic fashion: the thesis is stated and all its parts subsequently explained and proven. All the canons quoted come from the 1917 Code of Canon Law which was in vigour in 1969. Moreover, this is strictly a legal study of the legitimacy of the Traditional Mass; we are not considering the numerous other aspects of the act promulgating the New Mass on April 3, 1969.
I - IMPORTANT NOTIONS
A) Law
1) Definition
A law is an "ordinance of reason for the common good made by him who has care of the community, and promulgated." St Thomas, 1-2, q.90, a.4.
2) Promulgation
Promulgation is the official publication of a law which makes it possible for the subject of the law to learn of it. "The promulgation is necessary for the law to obtain its force." St Thomas, 1-2, q.90, a.4.
3) General and particular laws
Canon 13 §1: "All those for whom general laws are made are bound by them everywhere."
A general law is one which is not limited to a particular territory, it is a universal law of the Church. While these general or universal laws bind everywhere, they do not always bind every individual Catholics but only those for whom they are made (e.g. clerics).
A particular law is one which is made for a particular territory or for certain persons. (For example, St Patrick’s Day, March 17, is a holyday of obligation in Ireland and Australia).
4) Cessation of the law
There are three ways in which legislation can cease to apply:
a. abrogation i.e. abolished completely. If a law is abrogated the new legislation must say so specifically and clearly.
b. derogation i.e. the previous legislation still remains in force but is modified in some ways. It is a partial abrogation.
c. obrogation This is the substitution of new legislation which automatically replaces previous legislation without any specific words of abrogation.
d. Principles - Canon 22.
1. If the later law is equally general or equally particular with the former one, then the later law repeals the former one in only three cases:
i. if it contains an explicit statement to that effect, a repealing clause;
ii. if it is directly contrary to the former law so that it is evidently impossible for the two to stand together;
iii. if it deals with the entire subject matter of the former law.
In all other cases, or if the matter is doubtful (c. 23), the two laws stand together and are to be reconciled as far as possible.
2. If the later law is particular and the former general, the later law prevails for the particular place or persons to whom it applies. This is a general principle not stated in the canon but understood.
3. If the later law is general and the former one particular, no repeal is effected unless the later general law expressly repeals the former particular one.
e. Doubtful revocation of a law - Canon 23.
In doubt the revocation of the former law is not presumed but later laws are to be considered in connection with earlier ones and as far as possible to be reconciled with them. The reason for this rule is that law is for the common good and hence the repeal of a law is considered an odious thing, not to be presumed, nor admitted without proof.
B) Custom
1) Notions
Custom may be considered in two ways: as a fact and as a legal norm.
As a fact, custom means a practice or way of acting which is common in a certain community,
As a legal norm, it means a norm or law introduced by such practice. It is an unwritten law, founded upon the common practice in the community and approved by the superior.
Custom is the best interpretation of law (can. 29), especially if laws are doubtful or uncertain.
A custom can be relatively recent or very ancient. Some are called "centenary and immemorial customs."
2) Cessation of custom Canon 30
a) It can cease intrinsically if the matter of the custom changes in relation to honesty or the common good.
b) It can cease extrinsically
i. By a legitimately approved contrary custom;
ii. By a law which removes the custom;
iii. By direct revocation by the competent superior;
iv. By neglect.
c) Precisions on the cessation of customs
i. A general law removes a general custom, a particular law a particular custom, when they are contrary to each other even if there is no mention of them.
ii. For a general law to remove a particular custom, it is necessary that it expresses this custom by name or that it has a clause such as "notwithstanding any custom whatsoever".
iii. To remove a centenary custom, a particular clause is required - "notwithstanding any custom whatsoetever even centenary and immemorial". This clause is required even for the revocation of a general custom by a general law.
iv. A new custom removes an earlier one if it is totally opposed to it, if not totally opposed, they must be reconciled.
C) Privilege
1) Notions (Canon 63)
A privilege is a special disposition lawfully made by competent authority granting to some person or persons a right which is contrary to or beyond the common law.
A privilege can be granted by law, by a particular indult, or orally.
2) Cessation of privileges
There are five modes of cessation:
by revocation of the competent superior
by renunciation of the privileged person
by extinction
by prescription or by tacit renunciation
by privation.
Note: A privilege is to be regarded as perpetual unless the contrary appears (canon 60).
II - THE LEGAL STATUS OF THE TRADITIONAL MASS
Thesis:
Major: The Traditional Mass in the Tridentine rite
1) is a general law - with the Bull Quo Primum
2) is a perpetual privilege - with the clauses included in Quo Primum
3) is a centenary and immemorial custom.
minor 1: Now, to be abolished, all these three legal grounds must be abolished together.
minor 2:
a) Now, Paul VI with the Constitution Missale Romanum of April 3, 1969, did not abolish any of the three legal grounds.
b) He merely derogated to the prohibition to offer the Holy Mass in any other way than imposed by St Pius V.
Conclusion:
Therefore,
a) the Traditional Mass in its Latin Tridentine rite is perfectly legal. Pope Paul VI did not abolish it.
b) The Constitution Missale Romanum merely derogated to Quo Primum by promulgating a new rite of Mass.
Proof of the Major
The Bull Quo Primum makes of the Tridentine Mass a General Law:
"We specifically command each and every Patriarch, Administrator and all other persons of whatsoever ecclesiastical dignity, be they even Cardinals of the Holy Roman Church, or possessed of any other rank of pre-eminence, and We order them by virtue of holy obedience to sing or to read the Mass according to the rite and manner and norm herein laid down by Us, and henceforward to discontinue and utterly discard all other rubrics and rites of other missals, however ancient, which they have been accustomed to follow, and not to presume in celebrating Mass to introduce any ceremonies or recite any prayers other than those contained in this Missal.
"Consequently, it is Our will, and by the same authority We decree, that one month after publication of this Our Constitution and Missal, priests of the Roman Curia shall be obliged to sing or to read the Mass in accordance therewith; others South of the Alps, after three months; those who live beyond the Alps, after six months or as soon as the Missal becomes available for purchase."
The Bull grants a perpetual privilege:
"Furthermore, by these presents and by virtue of Our Apostolic authority We give and grant in perpetuity that for the singing or reading of Mass in any church whatsoever this Missal may be followed absolutely, without any scruple of conscience or fear of incurring any penalty, judgment or censure, and may be freely and lawfully used. Nor shall Bishops, Administrators, Canons, Chaplains and other secular priests or religious of whatsoever Order or by whatsoever title designated, be obliged to celebrate Mass otherwise than enjoined by Us. We likewise order and declare that no one whoever shall be forced or coerced into altering this Missal; and this present Constitution can never be revoked or modified, but shall forever remain valid and have the force of law, notwithstanding previous constitutions or edicts of provincial or synodal councils, and notwithstanding the uses of the churches aforesaid, established by very long and even immemorial prescription, saving only usage of more than 200 years." Quo Primum.
Moreover, the Traditional Mass is a centenary and immemorial custom:
"We resolved accordingly to delegate this task to a select committee of scholars; and they, having at every stage of their work and with the utmost care collated the ancient codices in Our Vatican library and reliable (original or amended) codices from elsewhere, and having also consulted the writing of ancient and approved authors who have bequeathed to Us records relating to the said sacred rites, thus restored the Missal itself to the pristine form and rite of the holy Fathers. When this production had been subjected to close scrutiny and further amended, We, after mature consideration, ordered that the final result be forthwith printed and published in Rome" Quo Primum.
Proof of the first minor
This is the result of the notions set above in the first part. One legal ground is sufficient for the legality of the Traditional Mass.
Proof of the second minor
a) Now, Paul VI with the Constitution Missale Romanum of April 3, 1969, did not abolish any of the three legal grounds.
This is the conclusion of Missale Romanum: "It is Our will that these decisions and ordinances should be firm and effective now and in the future, notwithstanding any Constitutions and Apostolic Ordinances made by Our predecessors, and all other decrees including those deserving of special mention no matter of what kind"
1. It did not abrogate the general law promulgated by Quo Primum:
"It is Our will that these decisions and ordinances..." Nowhere in Missale Romanum is it decided and ordered that the Bull Quo Primum itself or the general law promulgated by the Bull have been abrogated, let alone the Mass which St Pius V codified with this Bull.
2. It did not suppress the perpetual privilege.
The word 'privilege' is not present in Missale Romanum. Therefore it is not revoked according to canon 70: "A privilege is regarded as perpetual unless the contrary appears".
3. It did not suppress the centenary and immemorial customs.
The clause necessary to suppress centenary and immemorial custom "notwithstanding any custom whatsoever even centenary and immemorial" is no where to be found in the Constitution Missale Romanum.
b) He merely derogated to the prohibition to offer the Holy Mass in any other way than imposed by St Pius V.
As seen above (see Proof of the Major), St Pius V forbade the use of any other Missal for the reading or singing of Mass. Pope Paul VI derogated to this prohibition by his new Mass. Let it be noted that he has the power to do so. It does not mean however that it was morally right or wise to do so nor that the new Missal is doctrinally sound.
Conclusion.
If any one disputes this conclusion, let him prove it by quoting the name of the Pope who did abrogate the Bull Quo Primum and the centenary and immemorial custom, together with the title of the document, the date, and the specific words of abrogation used. If there were a doubt about the abrogation, then canon 23 should be used: In doubt the revocation of the former law is not presumed but later laws are to be considered in connection with earlier ones and as far as possible to be reconciled with them.
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The Juridical Status of the Tridentine Mass
The American review, The Remnant, in its letters to the editor section on April 15, 1998, published a letter of Mgr. Camille Perl, secretary of the Ecclesia Dei Commission, to one of his correspondents from Ohio. It is a letter of great interest, since it summarises with clarity the position of the Commission on the juridical status of the traditional Mass.
Mgr. Perl's Thesis
What does Monsignor Perl say?
"...we wish to point out that the effect of law was removed from the Bull Quo Primum by the Apostolic Constitution Missale Romanum issued by Pope Paul VI in 3 April 1969. At the conclusion of that document promulgating the new Roman Missal, the Pope stated:
'It is our will that these decisions and ordinances be firm and effective now and in the future, notwithstanding any Constitutions and Apostolic Ordinances made by our predecessors, and all other decrees including those deserving of special mention, no matter of what kind.'
The legal basis for the celebration of the traditional Latin Mass today does not derive from the Bull Quo Primum, but from the documents Quattuor abhinc annos (1) and Ecclesia Dei (2) which were issued under the initiatives of Pope John Paul II."
Thus, the traditional Mass would be forbidden and could not legally be celebrated except by derogation, in the case foreseen by the two documents just cited (Quattuor abhinc annos of 1984 and Ecclesia Dei of 1988).
Such then is the thesis of the Ecclesia Dei Commission: an official thesis, a position largely admitted in the traditional milieu.
An Erroneous Thesis
Now, this thesis is incorrect. In effect, it is not possible to base an abrogation of the bull Quo Primum either on the paragraph which Mgr. Perl cited from the Constitution Missale Romanum, or on any of its other paragraphs, or on other Roman documents, or on an automatic process of substitution, as invoked by some canonists.
The Analysis of Father Raymond Dulac
Mgr. Perl's argumentation has often been presented since the publication of the Constitution Missale Romanum...and has been as often refuted.
Here is the refutation of it given by Fr. Raymond Dulac (3) in two articles which appeared in the review Itineraires #146 (September/October 1970).
Fr. Dulac cites the beginning of the Latin text of the last paragraph of Missale Romanum: "Nostra HAEC autem STATUTA et PRAESCRIPTA nunc et in posterum FIRMA ET EFFICACIA esse et fore VOLUMUS." Then he explains:
"For sure, the six words which we have just emphasised would express a will to oblige. But they lack the essential: the Pontiff does not say what are, in precise details, the laws and the prescriptions which he declares to will 'firmly and efficaciously'!
The 'Haec' which means to demonstrate them, designate them, refers to all that which precedes. But, in all that comes before, one finds (on page 9 of the typical edition) only two precise prescription: the three new Canons and the phrase 'quod pro vobis tradetur' added to the words of the consecration of the bread. Now (without speaking of the expression of will, statuimus -- jussimus being in the past tense, which is a strange way of speaking in a text which would mark an actual and lasting decision):
1. The use of the three new canons is presented as purely optional.
2. As for the addition 'quod pro vobis tradetur,' the two motives given (the 'pastoral reasons'; the 'convenience of concelebration'!) are so doutful in themselves that the doubt falls back on the precription itself, if it were one.'" (4)
So we can establish that the Apostolic Constitution Missale Romanum enacts neither obligation nor interdiction.
Juridical Significance of the constitution Missale Romanum
Finally, how can we characterise, on the juridical level, the constitution Missale Romanum, which is the foundational act of the new Mass?
It constitutes a derogation of the general rules posed by the bull Quo Primum for the celebration of the Mass of the Roman Rite:
"The bull Quo primum tempore of Saint Pius V is not at all abrogated in its totality by Paul VI's constitution Missale Romanum of April 3, 1969. That constitution brings nothing more to the obligation of the Tridentine Missal than, at the very most, particular derogations. (5)"
Disinformation which has lasted for
thirty years
Let us draw from these remarks some conclusions.
* If the bull Quo Primum has not been abrogated, then it constitutes, today as yesterday, the legal base for the celebration of the traditional Mass of the Latin rite.
* In these conditions the letter, from the Congregation for Divine Worship, Quattuor abhinc annos of October 3, 1984, does not have juridical signification (to authorise in a restrictive manner what was never forbidden does not make any juridical sense); it has a bearing in the psychological sense, on the level of human relations: that of lessening a little the constraints coming from what we must and do well to call an abuse of power by the bishops. The same is true of the part of the motu proprio Ecclesia Dei which pertains to the celebration of the traditional Mass.
* We are, then, in the presence of a veritable disinformation lasting almost thirty years, and bearing on a question of great importance.
Fr. Dulac was proposing the hypothesis of this as far back as 1970, in an article entitled "Bearing Witness" in Itineraires #146.
"One can ask the question: for what reason the Pontiff in 1969 did not will to abrogate a law of four centuries, a law which he praises greatly, a law, which he doesn't criticize at all, a law, which, at its origin, sanctioned an ancient CUSTOM, already, in its essential part, of a thousand years; a law, finally, clothed, in its terms, in the most solemn formalities? He did not at all wish to abrogate it, and, nevertheless, he seems to substitute it with another. It is certainly an important question.
There is a still more important issue: why did he NOT SAY clearly that he did not will to abrogate? Why did he leave to the "specialists" the care and perhaps the peril of denouncing it? Why did he allow to be born, in some souls, the frightful suspicion: 'Everything happens as if one did not dare to impose an obligation, while letting everyone believe the contrary'?"
Notes:
(1) Letter of October 3, 1984 of the Congregation for Divine Worship. It authorised the bishops to give permission to celebrate the traditional Mass under very limited conditions; it is what is called "the Indult".
(2)Motu proprio Ecclesia Dei adflicta of John Paul II (2 July 1988). See especially its paragraph relating to the traditional mass: "One must everywhere respect the spiritual desire of those who feel ties to the Latin liturgical tradition, in making a large and generous application of the directives given in their time by the Apostolic See, for the use of the Roman Missal according to the typical edition of 1962 (Letter Quattuor abhinc annos of 3 October, 1984)."
(3) Priest of the diocese of Versailles, died in 1987, formed in the French seminary in Rome from 1920 to 1926, in the great epoch of Fr. Le Floch; collaborator of the reviews Pensee Catholique, Itineraires and Courier de Rome
(4) Fr. Dulac, canonical consultation summary of the new order of Mass, Itineraires, #146. P.98.
(5) Fr. Dulac, "La bulle Quo Primum", Itineraires, April 1972.
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