A Reply to a Conservative Catholic Canon Lawyer

A Traditionalist Response to Rev. John Huels

Rev. John Huels, a canon lawyer, has written a canonical opinion regarding the legal status of the Tridentine Mass in which he argues that, by virtue of its codification in the bull, Quo Primum, the immemorial Roman rite of Mass became purely a subject of positive human law and thus exists now only by virtue of Indult. This opinion is grounded in several unwarranted presuppositions that are not just offensive to the Catholic Faith, but wholly incompatible with it. It offends the Catholic sense in its moral and doctrinal first principles. It is an old saying that when the only tool you have is a hammer, everything looks like a nail, but after more than thirty-five years of this bunk from conservative canon lawyers, it is very hard to attribute their opinions to stupidity rather than moral and doctrinal depravity.

The purpose of this critical review is to expose these presuppositions of the Conservative Catholic canon lawyer for what they are and to defend the right that every Catholic has to worship according to the traditions of his rite whether the local ordinary likes it or not.

Since Vatican II three distinct classifications of people who call themselves Catholic have developed: the Liberal Catholic, the Conservative Catholic and the Traditional Catholic. The distinctions between these groups are best illustrated by their relationship to Catholic Tradition.

The revelation of the Catholic Faith is grounded in Sacred Scripture and Tradition. Tradition is classified as being either Divine or Ecclesiastical. Divine Tradition is further distinguished as being dominical if it is given directly by Our Lord, or apostolic if it is from the apostles. Divine Tradition is sometimes called intrinsic tradition. Ecclesiastical Tradition is sometimes called extrinsic tradition.

Ecclesiastical Tradition (ET) develops according to two principles: Divine Tradition (DT) and human nature. Both of these are immutable, and consequently the development of ET within any Catholic rite will contain elements that are immutable. The proof for this will follow. Suffice for now to know that the ET encompasses Church councils, magisterial acts, religious orders and various types of spirituality, liturgical worship, canon law, the Roman curia, and everything that makes the Church materially visible. It is by the ET, the heritage of all Catholics, that the Faith can be known and communicated. It is that by which the Church can be recognized.

The Liberal Catholic (i.e. modernist) rejects the immutability of all Tradition. The Conservative Catholic accepts DT but rejects that any of ET is immutable; that is, he treats ET as entirely a disciplinary matter. The Traditional Catholic accepts DT and recognizes that it is a matter of Catholic Faith that elements of ET are immutable. What this means is that since it is the ET that makes the Church visible, in the practical field, in the external forum, the Liberal Catholic is indistinguishable from the Conservative Catholic. Fr. Huels, as a Conservative Catholic, asserts the unspoken presupposition that the ET of the Church are purely disciplinary in nature and then structures a canonical defense in support of this destruction.

There have been twenty‑one ecumenical councils in the history of the Church. The Second Vatican Council is unique among ecumenical councils in that it renounced any claim of infallibility. Vatican II restricted itself to "pastoral" concerns and yet still spoke of doctrinal matters adopting the use of imprecise non‑theological language in so doing. The confusion caused by the council continues among Traditional Catholics. For example, it is a dogma of Divine and Catholic Faith that Divine Revelation was completed with the death of the last apostle (Lamentabili, St. Pius X). Yet Pope John Paul II said in Ecclesia Dei, “Indeed, the extent and depth of the teaching of the Second Vatican Council call for a renewed commitment to deeper study in order to reveal clearly the council's continuity with tradition, especially in points of doctrine which, perhaps because they are new, have not yet been well understood by some sections of the church” (emphasis mine). Regardless of what the future historical judgment of Vatican II will be, it remains a fact that both Pope John XXIII and Pope Paul VI repudiated any claim to infallibility for this Council. The Council itself in its "theological note" also denied any claim to infallibility. Yet it is this Council that has provided the theoretical justification for the destruction of nearly every single ET in the Latin Rite.

The previous twenty councils dealt with dogmatic, and/or liturgical, and/or disciplinary questions. The Council of Trent 1545‑1563, which dealt with all three questions, was called chiefly for “the extirpation of heresy and the reform of morals” (Council of Trent, Third Session). The problem that is of immediate concern is the confusion created by Liberal Catholics by obscuring the distinction between the dogmatic and disciplinary matters of the ecumenical councils. Liberal Catholics have also erroneously treated liturgical matters exclusively as disciplinary questions. In so doing the Liberal Catholic goal is to marshal obedience as a weapon against Truth. Let me explain. The following opinion is condemned by Pope St. Pius X; “The dogmas of the faith are to be held only according to a practical sense, that is, as preceptive norms for action, but not as norms for believing” (Lamentabili). The Liberal Catholic wants dogmas which are in the category of truth‑falsehood to be regarded in the same sense as disciplinary laws, precepts, injunctions, commands, etc. which are in the category of authority‑obedience. This distinction is essential for any Catholic to know if he is to profess and defend the Catholic Faith.

A dogma is the infallible expression of Catholic doctrine in the form of a categorical proposition that is proposed by the Catholic Church as being a divinely revealed truth which must be believed on pain of heresy and separation from the Catholic Church. These dogmas according to St. Pius X are not “symbols” of the Truth but “absolutely contain the Truth” (Pascendi). Again in Lamentabili, St. Pius X condemned the following error, “The dogmas which the Church professes as revealed are not truths fallen from heaven, but they are a kind of interpretation of religious facts, which the human mind by a laborious effort prepared for itself.”

On the other hand, disciplinary laws, precepts, injunctions, commands, etc. are part of human positive law and subject to all the limitations of human law. The authority is derived from the free human will of the legislator alone and not from the nature of the subject matter itself. A law may have nothing whatsoever to do with truth‑falsehood. St. Thomas lists three principal conditions which must be met for any human law to be valid: 1) It must be consistent with the virtue of Religion; that is, it must not contain anything contrary to Divine law, 2) It must be consistent with discipline; that is, it must conform to the Natural law; and 3) It must promote human welfare; that is, it must promote the good of society (Manual of Moral Theology, Dominic Prummer, O. P.).

What St. Thomas stresses is that no Catholic can be obedient to any human law, precept, injunction, command, etc. that violates the virtue of Religion or is contrary to the good of society. Religion is the principal subsidiary virtue under the moral virtue of Justice. Religion is the primary virtue that rules the virtue of Obedience and determines whether an act of obedience is a virtue or a sin. It was obedience to their lawfully constituted superior, Lucifer, which brought one third of the angels down to Hell for violating the virtue of Religion. It was obedience to their lawfully constituted superiors, the Pharisees, which brought the punishment upon the heads of the Jews for rejecting Jesus Christ in violation of the virtue of Religion.

The most commonly accepted etymology of the word religion (Lactantius) is from religare, “to bind.” Lactandus said that we are “bound to God by bonds of piety.” Religion is the “moral virtue that inclines rational creatures to give due worship to God as their supreme Creator” (Manual of Moral Theology, Prummer). Religion is necessitated by Natural law, Divine positive law, and human positive law. Its chief acts are devotion, prayer, adoration, sacrifice, use of the sacraments, vows, oaths, adjuration, sanctification of certain days, piety, reverence, etc. Almost all of these acts can be quantified to one degree or another. There is not a single act of Religion that has not suffered violence at the hands of Liberal Catholics over the past thirty‑five years. The problem is that there is not a single act of Religion that the Conservative Catholics have not repudiated when "obliged" out of "obedience" to do so. The Conservative canon lawyer has played his part in providing a legal rationalization to excuse this supine and cowardly behavior of the Conservative Catholic.

Therefore it is necessary for Catholics to make a clear distinction between dogmatic and disciplinary matters so that they never deny truth from the motive of “obedience.” There are three sure signs that distinguish dogmatic decrees in the category of truth/falsehood from disciplinary decrees in the category of authority/obedience. One is by grammatical and logical construct. Since a dogma is a categorical proposition its contrary statement can be logically formulated. This is not the case with laws, precepts, commands, injunctions etc. The second way is even easier. Alponse Cardinal Strickler in his article for The Latin Mass magazine, "The Attractiveness of the Tridentine Mass," states that only dogmas can be anathematized while disciplinary laws cannot. A third way is that the matter is authoritatively referred to as a “dogma of faith.”

The Conservative Catholic professes that all ETs are disciplinary in nature. He believes this because Liberal Catholics told him so. St. Pius X in his encyclical, Pascendi Dominid Gregis, exposes the errors of the modernist (i.e. Liberal Catholic) and defends ET by saying:

“They (the modernists) exercise all their ingenuity in an effort to weaken the force and falsify the character of Tradition, so as to rob it of all its weight and authority. But for Catholics nothing will remove the authority of the second Council of Nicea, where it condemns those ‘who dare, after the impious fashion of heretics, to deride the ecclesiastical traditions, to invent novelties of some kind.... or endeavor by malice or craft to overthrow any one of the legitimate traditions of the Catholic Church’; nor that of the declaration of the fourth Council of Constantinople: ‘We therefore profess to preserve and guard the rules bequeathed to the Holy Catholic and Apostolic Church, by the Holy and most illustrious Apostles, by the orthodox Councils, both general and local, and by every one of those divine interpreters, the Fathers and Doctors of the Church.’ Wherefore the Roman Pontiffs, Pius IV and Pius IX, ordered the insertion in the profession of faith of the following declaration: ‘I most firmly admit and embrace the apostolic and ecclesiastical traditions and other observances and constitutions of the Church’” (emphasis mine).

Understand this; it is a dogma and therefore of Catholic Faith that at least some of the ETs are immutable. So important are these ETs that the Pope in his coronation oath literally invokes a curse upon himself from almighty God if he should forsake any of the “received traditions.”

There is no ET more venerable than the Roman Rite Mass. And if any of the ETs are immutable, a fortiori, the Roman Rite Mass must be one of them. In the previously cited article by Alfons Cardinal Strickler, he lists some of the dogmas that directly bear upon the Roman Rite Mass. There are others of stronger tone that he avoids. The “law of prayer is the law of belief” is not simply a theological aphorism but a dogmatic truth. Listen to the words of Pope Pius XI from Divini cultus.

“Since the Church has received from her founder, Christ, the duty of guarding the holiness of divine worship, surely it is part of the same, of course after preserving the substance of the sacrifice and the sacraments, to prescribe the following: ceremonies, rites, formulas, prayers, chant ‑ by which that august and public ministry is best controlled, whose special name is Liturgy, as if an exceedingly sacred action. And the liturgy is an undoubtedly sacred thing; for, through it we are brought to God and are joined with Him; we bear witness to our faith, and we are obligated to it by a most serious duty because of the benefits and helps received, of which we are always in need. Hence a kind of intimate relationship between dogma and sacred liturgy, and likewise between Christian worship and the sanctification of the people. Therefore, Celestine I proposed and expressed a canon of faith in the venerated formulas of the Liturgy: ‘Let the law of supplication establish the law of believing. For when the leaders of holy peoples administer legislation enjoined upon themselves they plead the course of the human race before divine Clemency, and they beg and pray while the entire Church sighs with them’” (emphasis mine).[i]

St. Pius X in Pascendi says “every society needs a directing authority to guide its members toward the common end, to foster prudently the elements of cohesion, which in a religious society are doctrine and worship; hence, the triple authority in the Catholic Church, disciplinary, dogmatic and liturgical” (emphasis his). Note carefully that the purpose of the “directing authority” (i.e. disciplinary) is to direct the Church “toward the common end” which are “doctrine” (dogmatic) and “worship” (liturgical).

Pope Pius XII, in Mediator Dei, said regarding the error of liturgists: “they wander entirely away from the true and full notion and understanding of the Sacred Liturgy, who consider it only as an external part of divine worship, and presented to the senses; or as a kind of apparatus of ceremonial properties; and they no less err who think of it as a mere compendium of laws and precepts, by which the ecclesiastical Hierarchy bids the sacred rites to be arranged and ordered.”

What is clear from the above quotations, and directly contrary to what Rev. Huels affirms, is that at least some of the ETs of the Church are dogmatic in nature and that the liturgical authority of the Church is in its own category. This category has elements that are both disciplinary and dogmatic. Further, the disciplinary power of the Church can only be validly employed in the promotion of true doctrine and worship. It is a very serious mistake when Conservative Catholics follow the lead of Liberal Catholics and regard liturgical matters as exclusively disciplinary in nature or believe that disciplinary measures can legitimately be used to spread error and corrupt worship, such as “communion in the hand”:

“If anyone shall say that the received and approved rites of the Catholic Church accustomed to be used in the solemn administration of the sacraments may be disdained or omitted by the minister without sin and at pleasure, or may be changed to other new rites by any church pastor whomsoever : let him be anathema”(emphasis mine) (Council of Trent, Den. 856).

Rev. Huels further errs by affirming that the “so-called Novus Ordo, or new rite of Mass of Paul VI, is not really a new creation, but a revision of a previous rite.” He here makes the unfounded and gratuitous assertion that the Novus Ordo is essentially the same in kind as previous liturgical developments in the history of the Church but only of greater degree. Firstly, there is not one single historical precedent for a liturgical revision in the nature of the Novus Ordo. Furthermore, Paul VI referred to the Novus Ordo as a “new rite” in his decree of promulgation and in the general instruction for its implementation. John Paul II has also referred to the Novus Ordo as a new rite. The mason and author of the Novus Ordo, Archbishop Annibale Bugnini, General Secretary of the Consilium, referred to his Novus Ordo as “.... a recasting, and in certain points... a truly new creation.” His compatriot, Rev. Joseph Gelineau, S.J., described by Bugnini as the “great master of the international liturgical world,” said that the “Roman Rite as we knew it no longer exists.” Msgr. Klaus Gamber said, “At this critical juncture, the traditional Roman rite, more than on thousand years old, has been destroyed.”

The bull, Quo Primum, was promulgated by Pope SAINT Pius V at the direction of the dogmatic Council of Trent. It is manifestly false to say that one pope cannot bind another because every pope is bound by truth. Would the Conservative Catholic argue that the current Pope is not bound by the dogmatic decrees that touch on the Blessed Virgin Mary's Immaculate Conception or her Assumption? He begs the question by his unwarranted assumption that the Roman Rite Mass is exclusively a disciplinary matter. What is particularly supine about the Conservative Catholic is that this assumption is not his own but has been put in his head by the Liberal Catholic (i.e. modernist) without his knowing it.

Quo Primum is a disciplinary decree but it is also much more. Its subject matter is the immemorial Roman Rite Mass, the richest and most central ET in the Latin rite. In disciplinary laws, commands, precepts, etc. the authority is not derived from that nature of the thing itself but emanates from the free will of the human legislator. When the authority is derived from the nature of the thing itself or from Divine revelation it is not properly speaking a human law. In this Bull St. Pius V appeals both to his own will (for example, when he grants “by virtue of Our Apostolic authority" the perpetual right as an addition to immemorial custom) but he also appeals to the “decrees of the Holy Council of Trent”:

“If anyone shall say that the received and approved rites of the Catholic Church accustomed to be used in the solemn administration of the sacraments . . . may be changed to other new rites by any church pastor whomsoever : let him be anathema” (Council of Trent, Den. 856).

This explains the official title of the Roman Missal, that is, “The Roman Missal restored according to the decrees of the Holy Council of Trent, published by St. Pius V.” It employs the strictest form and strongest language in the promulgation of law (i.e. disciplinary), but it also employs language that is imposing the dogmatic formulations from Trent. The primary purpose of the Council of Trent as stated in the documents themselves is the “extirpation of heresy and the reform of morals.” It is this purpose for which the Roman Rite Mass was restored and codified. Let me emphasize it again, the Bull Quo Primum cannot be purely disciplinary because the very nature of the subject is not purely disciplinary.

Pope John Paul II stated in Ecclesia Dei that “To all those Catholic faithful who feel attached to some previous liturgical and disciplinary forms of the Latin tradition, I wish to manifest my will to facilitate their ecclesial communion by means of the necessary measures to guarantee respect for their rightful aspirations. In this matter I ask for the support of the bishops and of all those engaged in the pastoral ministry in the church.” Here a proper distinction is made between “liturgical and disciplinary” categories. The Pope also acknowledges the “rightful aspirations” of Traditional Catholics and therefore professes his “will” to perform his duty to “guarantee respect” for these rights. Further, the Pope is not granting an Indult. An Indult is "a faculty granted by the Holy See to bishops and others to do something not permitted by the common law of the Church" (Catholic Dictionary, Attwater). Hence, a "rightful aspiration" cannot be the subject of an Indult. Finally, the document is not addressed to Conservative Catholics because they are not “attached to some previous liturgical and disciplinary forms,” but rather they are attached only to the will of the present legislator.

As to this “rightful aspiration”, from where does it come? All rights are derived from duties and this is no exception. The duty is imposed by God Who is holy and whose worship must be holy. The right of the Roman Rite Mass is guaranteed by immemorial custom which is nothing more than the outward manifestation of received Tradition and itself is the primary source and interpreter of law. St. Thomas says that, “Custom has the force of law, abrogates law, and interprets law.” Since it is the primary source and interpreter of law, it is offensive to common sense and Catholic principles to affirm as Fr. Huels does that the codification of custom, (i.e.: the codification of the Roman Rite Mass), destroys the very foundation on which that codification is based. The power of immemorial custom is such that Rev. Dominic Prummer, in Manual of Moral Theology, states that "Many of the disciplinary decrees of the Council of Trent have been abrogated by custom." He also says that, “a law cannot revoke customs which have existed for a hundred years or from time immemorial” and that “a general law cannot destroy particular customs.” Furthermore, "A general law revokes completely or partially all previous contrary general legislation, but it does not revoke particular laws unless this is explicitly stated" (Manual of Moral Theology). The same principle holds true for the perpetual right granted in Quo Primum by St. Pius V. This perpetual right has never been abrogated, but even if it ever should be, the immemorial custom cannot loose its force because it is grounded in dogma.

St. Pius X was previously quoted referring to the “triple authority in the Catholic Church, disciplinary, dogmatic, and liturgical.” This corresponds to the governing, teaching and sanctifying power of the Church. The power of jurisdiction concerns the governing of the Church. It concerns matters of discipline. It is the teaching and the sanctifying power of the Church that is concerned with matters of dogma. The purpose of the jurisdiction is to protect and facilitate the teaching and sanctifying work of the Church by its legislative, judicial and coercive powers. Just as no parent has the parental authority to command what is manifestly unjust in violation of the virtue of Religion, no bishop possesses the jurisdictional authority to forbid the Roman Rite Mass. And should he ever do so, as most local ordinaries have done, let it be known that he “will incur the wrath of Almighty God and the Blessed Apostles Peter and Paul” (Quo Primum).

For those Conservative Catholics who have a certain attachment to the novelties of the day in the Novus Ordo Church, well, there they should stay with all their Liberal Catholic confederates. But understand this, the Novus Ordo Church is already dead. It is dead because it cannot reproduce itself. Without ETs it is impossible to fully possess the Catholic Faith or to pass it on to their children.

Why is this so? St. Thomas distinguishes two aspects to the virtue of Faith. The first is the interior submission of the mind and will to the revelation of God on the authority of God. The second is the exterior manifestation of this interior assent. Both are necessary to the virtue of Faith without which, “it is impossible to please God” (Heb. 11:6). For as St. Paul said, “For, with the heart, we believe unto justice; but, with the mouth, confession is made unto salvation” (Rom. 10:9-10). The “confession unto salvation,” the “exterior” aspect of Faith, is manifested by acts of the virtue of Religion. This is why St. Thomas says that no valid human law can violate the virtue of Religion because to attack the virtue of Religion is indirectly an attack against the virtue of Faith. Acts of Religion are all part of the ETs of the Catholic Church that the Conservative Catholic erroneously treats as purely disciplinary matters that can be summarily abrogated. “Wherefore the Roman Pontiffs, Pius IV and Pius IX, ordered the insertion in the profession of faith of the following declaration: ‘I most firmly admit and embrace the apostolic and ecclesiastical traditions and other observances and constitutions of the Church’” (St. Pius X in his encyclical, Pascendi). Conservative Catholics cannot pass on the Faith because they have rejected the very means by which the Faith is passed on. And this very means that they have rejected is an essential element of the Faith.

There may be a few Conservative Catholics who have managed to keep their families in the Faith, but that is a rare thing indeed and only because they have maintained at least some ETs such as an old catechism or the family Rosary. But Conservative Catholics as a whole have failed, and failed miserably, to pass on the Faith to the next generation. They can do no more than stand about looking stupid when the Catholic sanctuary is desecrated with the worship of idols, all with the blessing of the local ordinary. Conservative Catholics in their complacency have done nothing but aid and abet Liberal Catholics in the destruction of the Faith while falsely maligning Traditional Catholics with charges, of despair and schism and canonical irregularities. Traditional Catholics, who alone are animated with true Hope, take to heart most seriously the charge of Pope Leo XIII:

“To recoil before the enemy, or to keep silence when from all sides such clamors are raised up against the truth, is the part of man either devoid of character or who entertains doubts as to the truth of what he professes to believe. In both cases such mode of behavior is base and insulting to God, and both are incompatible with the salvation of mankind. This kind of conduct is profitable only to the enemies of the Faith ‑for nothing emboldens the wicked so greatly than the lack of courage on the part of the good. Christians are born for combat, whereof the greater the vehemence, the more assured, God abiding, the triumph: ‘Have confidence; I have overcome the world!’” Leo XIII Sapientiae Christionae

Like the Pharisees who made void the law of God by their human inventions, our modern conservative canonists have ignored the moral requirement that no human law can violate the virtue of Religion, they have ignored the doctrinal teaching of St. Pius X and Pius XII regarding ET and liturgical norms, they have ignored the dogmatic treatment of ET by the Councils of Nicea and Trent and, they are indifferent as to the necessary relationship of human law to the common good and its proper end. The judgment of God will be less severe for a civil lawyer who has defended the legal right to abortion than for a canon lawyer who has defended the destruction of the Church’s ET by her modernist enemies. The former has defended the killing the bodies of innocent children. The latter has defended the killing of their souls.

David Drew

Leading Canonist and Liturgical Scholar Renders Canonical Opinion
Regarding The Use Of The Tridentine Rite Without Indult

Fr. John Huels’ reputation as a leading canonist and a liturgical scholar needs no introduction. Speaking as one of Fr. Huels’ former students, I am indebted to him for much of what I know about canon law. Thus it is with great joy that I write a brief introduction to the following piece.

Over the past year, many have asked me to address the questions concerning the Ecclesia Dei indult. In response to these requests, I initially set out to research and write a canonical opinion refuting many of the errors circulating on this topic. Before I could finish, however, Fr. Huels sent me the following canonical opinion he wrote for the 2001 edition of CLSA Advisory Opinions.

Fr. Huels writes with a scholarly precision, a canonical insight and a clarity of thought I may never master in my own canonical writings. There is nothing I can either add or dispute in his following canonical opinion. Therefore, rather than draft my own response to the questions posed, I opted to present Fr. Huels’ canonical opinion – permission for which I thank Fr. Huels and the Canon Law Society of America. Apart from filling in the canonical short-form employed by canonists when writing for canonical publications (ie. changing “c.” to “canon” and “CIC 83” to “1983 Code of Canon Law”), the entire text to Fr. Huels’ canonical opinion is reprinted as it appears in Roman Replies and CLSA Opinions 2001.

----- Peter Vere, JCL

False Opinions On The Use Of The Tridentine Rite

I have read canonical opinions published in certain circles arguing that older versions of the Roman Rite liturgy may still be lawfully used without an indult, and I would like to hear your own views. Briefly, they argue: (1) the 1570 bull of Pope Pius V, Quo primum tempore, contains a “perpetual indult” allowing the “Tridentine” rite of the Mass to be celebrated forever; (2) Pope Paul VI did not properly promulgate the new Missal of 1970; and (3) the Missal of Pope Pius V may be celebrated in virtue of immemorial custom. In these same circles, others claim that those who have indults permitting the use of the 1962 Roman Missal may use other editions before 1962. They argue: (4) indults are favors that must be interpreted broadly; and (5) Cardinal Mayer gave informal permission to a European “indult community” to use the pre-Pius XII rites for Holy Week.

OPINION

None of these opinions is correct. Although liturgical law is found mainly outside the Code of Canon Law (canon 2), it is still ecclesiastical law and all the normal rules of law apply to it. I will respond to the five arguments in the order that you presented them.

1. Pius V’s bull, Quo primum tempore, did not grant a “perpetual indult,” or privilege. This was a legislative act, universal law requiring the use of Missale Romanum in the whole Latin Church, except for those dioceses and religious orders that had their own liturgies for at least 200 years. It was not a privilege for any individual, group, or particular territory. Laws enacted by one legislator can be revoked by a successor (canon 20), as Paul VI did with respect to the use of the Missal of Paul VI. The so-called Novus Ordo, or new rite of Mass of Paul VI, is not really a new creation, but a revision of the previous rite, popularly called the Tridentine Rite Mass.

2. Paul VI’s 1969 apostolic constitution, Missale Romanum, was properly promulgated as law in the Acta Apostolicae Sedis (61: 217-222), in keeping with canon 9 of the 1917 Code of Canon Law (1983 Code of Canon Law canon 8). The constitution required the use of the newly revised Roman Missal and abrogated previous law that had required use of the Tridentine rite Mass. The pope declared that his constitution had the force of law “now and in the future,” and he expressly revoked contrary law, including “the apostolic constitutions and ordinances issued by our predecessors and other prescriptions, even those deserving special mention and amendment.” Moreover, the March 26, 1970, decree of the Sacred Congregation for Divine Worship promulgating the editio typica of the revised Roman Missal contained the phrase “Anything to the contrary notwithstanding.” This general formula revokes: (1) all contrary universal laws; (2) all contrary universal customs, except those that are centenary or immemorial; (3) all contrary particular factual customs, but not particular legal customs observed for at least 30 years.

3. It is correct that the general formula revoking the Tridentine Rite of Mass did not affect immemorial and centenary custom. However, the observance of the Rite of Mass of Pope Pius V was not a custom. It was imposed by law. A custom is introduced by the community (canon 23), whereas a law is introduced by the legislator. The use of the Roman Missal was decreed by universal law in 1570, and the Missal was revised in different ways by legislative acts of subsequent popes in 1604, 1634, 1888, 1920, 1955, 1960, 1961, 1964, 1965, and 1967. Although many of the ceremonies and details of the Mass of the Roman Rite largely developed through customs in the ancient and medireview Church, by 1570 the legal authority for the Rite of Mass was clearly that of papal law, not custom.

Theoretically, it is possible for a capable community to induce the contrary legal custom of observing a former Rite of Mass (if this were to be judged reasonable in a certain situation, as canon 24, §2 requires). However, I do not believe any community has grounds to assert that it has already formed such a custom, as this requires thirty continuous years of observance. The second edition of the Roman Missal published in 1975 interrupted any contrary (factual) customs that had begun since 1970, and thirty years had not yet elapsed since the promulgation of the third edition in 2000, which also interrupted the formation of contrary (factual) customs. Thus, the thirty-year period for any contrary factual custom to become legal must begin anew from the date that the third edition took effect, although this too could be interrupted in various ways, as discussed by the commentators.

4. Many priests have an indult to celebrate the 1962 Rite of Mass, but the indult is quite specific in requiring the use of the 1962 Roman Missal. To suggest that earlier rites may be used is unfounded. That would not be broad interpretation, because broad interpretation must stay within the meaning of the words. An interpretation is illicit if it changes the proper meaning of the words of the indult (canon 36, §1). The proper meaning of “the 1962 Missal” is clear, and must be interpreted as such. Moreover, canon 36, §2, explicitly states that administrative acts (such as an indult) must not be extended to cases other than those expressly stated.

If, however, a community is using a pre-1962 version of the Missal because it could not obtain a copy of the 1962 Missal, then there is no deliberate violation of the indult on account of the excusing cause of physical or moral impossibility. Such a community, acting in good faith and not out of ideological obstinacy, could well be left in peace, in my opinion, as there are no significant differences in the actual rite.

5. Finally, you mention that Cardinal Mayer (presumably in his capacity as the head of the competent dicastery of the Roman Curia) gave “informal permission” for a certain community in Europe to use the pre-Pius XII rites for Holy Week. I do not know the nature of this informal permission, but I presume it is the oral permission mentioned in canon 59, §2. Assuming the Cardinal was acting within his competence, the community in question can use this old rite. However, it must be able to prove that it received this permission if challenged by the diocesan bishop or other competent authority (canon 74). Moreover, the alleged permission was given only to one community, and cannot be used by any other.

(c) 2001, This article is re-printed with the permission of the Canon Law Society of America through the Office of the Executive Coordinator, The Catholic University of America, Caldwell Hall, 431, Washington, DC 20064.

A Reply to a Conservative Catholic Canon Lawyer

A Traditionalist Response to Rev. John Huels

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