The following Roman canonists, among others, who hold some of the highest positions in the Church, have publicly declared their finding that the decree of excommunication of the SSPX bishops was always null and void under Canon Law: Castillo Cardinal Lara, J.C.D., President of the Pontifical Commission for Authentic Interpretation of Canon Law; Edward Idris Cardinal Cassidy, President of the Pontifical Council for Christian Unity; Alfons Cardinal Stickler, former Prefect of the Vatican Archives and Library; Fr. Patrick Valdini, J.C.D., Dean of the Faculty of Canon Law; Fr. Rudolf Kaschewski of Germany; Count Neri Capponi, D.Cn.L., Ll.D, Professor of Canon Law; Professor Geringer, J.C.D. [MOF]: On the legal definition of schism. Much use is made of this word against the traditionalists. But it is a precise legal term, and cannot be thrown around willy-nilly. Here is the definition in the Catholic Encyclopedia (1908): *Not every disobedience is a schism; in order to possess this character it must include besides the transgression of the commands of superiors, denial of their Divine right to command" * i.e. *A schism is not a refusal to obey authority, but a denial that the visible, ostensive authority exists.* To declare that a state of emergency exists, and to appoint emergency bishops pro tem, sine locus, [for the duration of the emergency, without a diocese or other 'regular' place in the Church] may or may not be justified, but it is not schismatic. Mgr Lefebvre et al do not deny the Divine right to command. By the principle of double effect, the lesser of two evils was to ensure the continuation of faithful bishops within the framework that had stood the test of time, as against the mortal imprudence of the experimentations that have led directly to the loss of discipline that now overwhelms us on every side. There can be cases where an act of refusing to comply with a command, even of lawful authority, can be objectively "the lesser of two evils". the faithful son must sometimes say, "Father, in this one case, the matter is so perilous that I cannot go along with that". That does not thereby say "You are not my father".
Arcbishop Lefebvre, with consecrated four new bishops 30 June 1988. Bp de Castro Meyer, of Brazil, who had been preparing his own priests since the 50s by warning them that a Modernist crisis was looming, joined him in the consecration. Two days later an article appeared in the Italian newspaper ‘’Osservatore Romani”, signed by Cdl Gantin, announcing that Lefebvre, de Castro mayer and the four new bishops were excommunicated. quoting Canon 1364 §1 "a schismatic act incurs automatic excommunication." This document, despite the widespread impression to the contrary, did not constitute a legally-binding “instrument”: [i] Cdl Gantin was not the authorised person responsible for this particular alleged breach of discipline; [ii] the article had no Protocol Number, which would have validated it as a legally-binding, official document; Consider Traffic Laws. If a Traffic Warden writes me out a ticket, I am legally obliged to pay the fine. But if I get a scribbled note on a scrap of note-paper, or see it only in the “Personal “ column of the local newspaper, no court would be able to enforce it [iii] Even more seriously, it presumed that the consecrations constituted an act of schism, which is not the case; Rev. Fr. T. Glover , an Oratorain Canonist, who worked for the Vatican for many years, did not mince his words when he commented on this: *“… catapulting a mere ‘act of disobedience’ into a "schismatic act" involves a "large and unjustified mental leap", the result of muddled thinking."* Fr P. Valdini, Dean of the Faculty of Canon Law at the Catholic Institute of Paris, is one of many senior canonists who has pointed out that Mgr Lefebvre did not commit a schismatic act by the consecrations, for he did not deny the Pope's primacy. "It is not the consecration of a bishop which creates the schism. What makes the schism is to give the bishop an apostolic mission." Which is something Mgr Lefebvre never did (Question de Droit ou de confiance, L'Homme Nouveau, Feb.17, 1988). [iv] And it ignored the paragraphs of Canon Law citing Cases of Necessity (Canons 1321, 1323, 1324) which justified Mgr Lefebvre’s decision.
25/4/12 #2 Necessity Canon Law 1321
Here are the relevant paragraphs of canon law, invoking the “Case of necessity”, with my commentary: Can. 1321 §1. *No one is punished unless* the external violation of a law or precept, committed by the person, is gravely imputable by reason of *malice or negligence.* [MOF: which was certainly not the case with Mgr Lefebvre. No-one has seriously suggested that Mgr Lefebvre was ever negligent, or that he was motivated by malice.] §2. [MOF: n/a here] Can. 1323 The following are not subject to a penalty when they have violated a law or precept: 4/ *a person who acted coerced by grave fear,* even if only relatively grave, *or due to necessity* or grave inconvenience unless the act is intrinsically evil or tends to the harm of souls; [MOF: Mgr Lefebvre acted out of grave fear for the future of the Church, seeing the wholesale invasion of heretical ideas into all other seminaries. He had tried to tell these things to Pope Paul VI but the latter did not appear to see the dangers. Yet as an archbishop Mgr Lefebvre was not free to wash his hands of the situation. In acting as he did he was but following in the steps of S. Athanasius in the 4th Century.]
[contd] 5/ a person who acted with due moderation *against an unjust aggressor* for the sake of legitimate self defense or defense of another; [MOF: The sanctions imposed on Mgr Lefebvre, and the order to close his seminary in the middle of the year, along with the illegal blocking of his right to appeal, given that at no time ever was the seminary or the SSPX accused of heretical teaching – this at a time when it had become the norm in other seminaries – certainly support the claim of ‘unjust aggression’ from the Modernist bishops who had the Pope’s ear.]
[contd] 7/ a person who without negligence thought that one of the circumstances mentioned in nn. 4 or 5 was present. [MOF: Note well. this canon lays down that, if Mgr Lefebvre *thought* that the situation was one of emergency, even if he was *wrong*, he was protected from any penalty. Please note well that this marks a critical change from the previous Code of Canon Law. Previously, the sanction would be applied automatically following an external act contravening the Law. The accused could then appeal the case. The onus would be on the accused to plead extenuating circumstances, which could then be weighed and judged by the tribunal. But the New Code of Canon Law, promulgated by Pope Paul II in 1983, makes the imposition of the penalty contingent on the state of mind of the accused. Now the onus is on the accuser to show that the accused *did not think he was exempt.* Compare traffic laws. It is illegal to break the speed limit. A driver exceeding the limit is liable to the penalty. He is free to dispute it in court (speedometer was not working; he was driving his child to hospital with an emergency illness) – which could be judged by the courts. But the New Code, if applied to speeding, would mean that the driver was subject to the penalty *only* if he didn’t think it necessary to be going that fast! The onus is now on the accuser to *prove* that the driver knew – or thought – he had no excuse. It is the majority opinion of expert Canonists that this law is unworkable: firstly because it makes the law dependent on the mental state of the accused, and secondly because the loopholes are so wide that it becomes practically impossible to convict anyone at all.]
[contd] [Be it noted that Mgr Lefebvre opposed the New Code of Canon Law when it was being mooted! But once it was promulgated he accepted the Pope’s decision! The subsequent attempt to apply a double standard – huge leniency towards Liberals who taught contraception, abortion, homosexuality, divorce, married or women priests, dismissal of scripture, etc etc, while attempting to ‘throw the book’ at the Traditionalists who were doing nothing except what the Church had always done – simply lacked credibility.] Can. 1324 §1. The perpetrator of a violation is not exempt from a penalty, but the penalty established by law or precept must be tempered or a penance employed in its place if the delict was committed: 5/ by a person who was coerced by grave fear, even if only relatively grave, or due to necessity or grave inconvenience if the delict is intrinsically evil or tends to the harm of souls; [MOF: As we have seen, Mgr Lefebvre acted out of grave fear for the future of the Church, seeing the wholesale invasion of heretical ideas into all other seminaries. It cannot be maintained with credibility that Mgr Lefebvre’s actions were either intrinsically evil or tending to the harm of souls, unless we say the same about St Athanasius, which nobody has ever done]
6/ by a person who acted without due moderation against an unjust aggressor for the sake of legitimate self defense or defense of another; [MOF: As we have seen, Mgr Lefebvre still acted circumspectly. He did not usurp anybody else’s authority. He did not ordain priests for another bishop’s diocese, far less did he declare another bishop deposed and consecrate another in his place, *as did S. Athanasius and S. Eusebius during the Arian Crisis.* He carried out his duties as a bishop].
[contd] 7/ against someone who gravely and unjustly provokes the person; [MOF: Since no good reason has ever been offered why Mgr Lefebvre should have abandoned his priests, seminarians and laypeople to the prevalent chaos, the provocation could rightly be said to be grave and unjust.]
8/ by a person who thought in culpable error that one of the circumstances mentioned in can. 1323, nn. 4 or 5 was present; [MOF: this becomes laughable. Notice that the actual Law of the Church has now bent over so far backwards in favour of the accused that the latter is exempted from excommunication – though liable to a lesser penalty – if he thought *wrongly that the situation was one of necessity, or that he was being unjustly treated, even if it was his own fault that he did not know better.*] §3. *In the circumstances mentioned in §1, the accused is not bound by a latae sententiae penalty.* [MOF: It is crystal clear that these canons can in no way justify the latae sententiae (i.e. automatic) excommunication published by Cdl Gantin in the italian newspaper l’Osservatore Romane. The very promulgation is invalid, as it lacked a vatican Protocol number. Consider Traffic Laws again. If a Traffic Warden writes me out a ticket, I am legally obliged to pay the fine. But if I get a scribbled note on a scrap of note-paper, or see it only in the “Personal “ column of the local newspaper, no court would be able to enforce it.] This is why the alleged excommunication was never accepted either by senior canonists or by the majority of Mgr Lefebvre’s followers – and I suggest, with respect, that it is why it was quietly dropped by Pope Benedict.