With yesterday's article in mind, I thought this detailed review would be important.
The quote below is very telling as we find ourselves in that exact situation with the Novus Ordo Missae and Traditionis Custodes.
If a pope (to speak only of the highest religious authority) has the power to loose what another pope by the same power has bound, then he should use this right only for the gravest possible reasons: reasons which would have prompted his predecessor to revoke his own law. Otherwise, the essence of supreme authority is itself eroded by successive contradictory commands.
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The legitimacy of Quo Primum
Does Quo Primum, the 1570 papal bull of St. Pius V which guaranteed the right of every Latin Rite priest to say the Roman Mass, still have force of law?
Foreword
This canonical study of Fr. Raymond Dulac was written in 1972, thus at the beginning of the struggle to have the legal rights of Quo Primum recognized against those who claimed that the papal bull had been abbrogated; hence the traditional Roman Mass had been abolished and could only be offered with special permission.
Thankfully, In response to Bishop Bernard Fellay's request to Pope Benedict XVI to "free the old Mass", the legal rights of the Roman Mass were finally re-affirmed on July 7, 2007 via the motu proprio, Summorum Pontificum.
Nonetheless, contention on the full legal implications (and application) of both Quo Primum and Summorum Pontificum (and likewise Pope Benedict's subsequent Universae Ecclesiae) persist, thus proving the continued importance of this article.
The jurisdiction of the bull, Quo Primum of Pope St. Pius V
Biography of Fr. Dulac
This article was written by Fr. Raymond Dulac, who had studied at the French Seminary in Rome with Archbishop Lefebvre and was a doctor of theology and canon law. In addition to contributing to several French-language journals, such as Itineraires (of which this piece appeared in issue n. 162), he also founded the Courrier from Rome (Mail from Rome). Fr. Dulac was also one of the first professors at the SSPX's seminary in Econe.
The English translation of the following excerpts from Fr. Dulac's article are taken from Michael Davies' Pope Paul's New Mass.
I. Preliminary remarks
If the bull decrees a true law, it will be a human law whose authority is derived neither from the nature of things nor from Divine revelation, but emanates from the free will of the human legislator.
1. This legislator must manifest as clearly and fully as possible the nature and extent of his will:
2. He must state that he is laying down a true law, creating a juridical obligation, not simply expressing a wish, a recommendation, a "directive," or even perhaps a formal expression of his will which stops short at declaring itself as the imposition of a command on those subject to him.
- He must define the law’s scope in respect of time, place, and persons.
- Where necessary, he must lay down precise instructions for discharging the obligations contained in his legislative decree: what it commands, what it permits and, perhaps, certain privileges which it concedes.
- Where the legislation applies to subject matter which is not entirely new, the legislator must state precisely the relationship of the new law to previous law or custom.
a. Only partial derogation?
b. Total abrogation?
- Since the unwritten law of custom possesses a particular force peculiar to itself, he must state explicitly how much of it the new law maintains and how much it suppresses.
For the formal, official expression of these various intents, there are certain "legal rules," a set vocabulary, a propria verborum significatio, well known to jurists. The Church has never failed to observe them as singular guarantees against both arbitrary despotism and anarchy. It has been reserved for the "post-conciliar Church" to scorn them, and with them what its representatives call "legalism"; that is, a clear, honest, straightforward expression of intent on all subjects—dogmatic, ethical, disciplinary.
An "up-to-date" member of the hierarchy no longer dares to command, but speaks in ambiguous terms to give the impression of doing so. Thus he is able to retreat or advance, according to his assessment of the situation, without ever losing face. This is because he is hiding behind a mask. This new authority has given itself a new name: it calls itself service. Self-service would have been more apt! Everyone does as he wishes, from the highest to the lowest.
II. The bull decrees a true law
1. It is a law carrying a juridical obligation expressed in traditional legal terms.
2. This law is not simply a personal decree of the Sovereign Pontiff, but most certainly an act of the Council (of Trent). St. Pius V referred explicitly to the "decrees of the Holy Council of Trent," which had given him this task after the Fathers had manifested their wishes with precision. This explains the official title of our missals: "The Roman Missal restored according to the decrees of the Holy Council of Trent, published by St. Pius V." The Council decreed its restoration, the pope ordered its publication.
3. The will of the legislator is invested with varied nuances which are given in detail in the lengthily enunciated final sentences, concerning which we have pointed out that this is not merely done for the sake of emphasis. As an excellent exercise in respectful attention, the reader can easily place each of these eleven terms alongside a corresponding provision of the bull. The eleven terms are:
4. Hanc paginam Nostrae permissionis, statuti, ordinationis, mandati, praecepti, concessionis, indulti, declarationis, voluntatis, decreti et inhibitionis... [This notice of Our permission, statute, ordinance, command, direction, grant, indult, declaration, will, decree and prohibition...—Ed]
5. The bull specifies minutely the persons, time, and places to which its provisions apply.
6. The obligation is confirmed by express sanctions.
7. The pope does not promulgate a new missal with his law; he restores the existing one. Nevertheless, he states clearly where that which existed before has been subjected to partial derogation or total abrogation. In this respect, the final Non obstant section is precise, specific, and rigorous, not simply making general mention of the former laws and customs now to be abolished, but listing each one of them by name.[1]
III. The bull respects established rights
It is characteristic of a truly great leader that the more firm he is in imposing obligations, the more scrupulous will he be in respecting rights: not simply the general and absolute rights of the abstract "person," but the historic rights of individuals and particular communities, even when acquired solely by custom.
Pope Pius V thus confirms two rights:
- That of churches or communities which have enjoyed the use of their own missal, approved since its institution.
- That of a missal similarly distinct from the Roman one, which can claim to have been in use for over two hundred years.
This confirmation of existing rights (...nequaquam auferimus) is not to be confused with the "permission" or with the "indult" which follow. The pope is confirming existing rights which he is content to maintain in his bull.
IV. The bull makes allowance for personal preferences
After confirming the right of religious orders, chapters, etc., to the peaceful possession of their own missals, Pius V permits such communities to renounce them in favor of his own, "si iisdem magis placeret"; if his own missal pleases them more. But on one condition, that this preference is approved by their bishop or superior as well as by "the whole chapter." Here again, the pope, while favoring his own missal in certain cases, does not wish to infringe established rights, and indeed, allows them priority. In this respect we must bear in mind that these particular missals are fundamentally identical with the Roman one, presenting purely minor variations.
V. The bull grants a privilege
This is an important point to which no one, so far as we know, has made particular reference.
1. The "contemporary mentality" (according to Bugnini) wishes to ignore privileges: considering exceptions to the common law as displaying an aristocratic mentality unworthy of an age which is simultaneously egalitarian and totalitarian. This age recognizes only rights and grievances or "wrongs."
2. The "post-Conciliar Church," living in that kind of world, offers two contributions of its own: transitory "experiences" and legalized law-breaking (imposition of the vernacular, Communion in the hand, laymen helping themselves to the chalice, general concelebration, etc.).
3. The Catholic Church, for Her part, personalized Her laws and sometimes allays or smoothes them by custom and privilege. Is this aristocratic? Let it be so, and so much the better! It displays remarkable conformity with the Gospel, which is a law of grace and consideration.
4. St. Pius V conceded, as we have seen, exceptions to the norms laid down in his missal. Now we see that, in addition to the obligation which the bull imposes, he adds a privilege which favors his own missal. This privilege is to be effective in all cases and at all times. "Furthermore, by virtue of the terms of these presents, in virtue of Our Apostolic Authority, We grant and concede..." and in this respect we wish to make seven observations:
- What stands out in this section of the bull is the use of the verbs "concedimus et indulgemus" which introduce it: their correct signification is of a favor which attains the legal status of a "private law." As, in the present case, the privilegium adds itself to the law; it must be understood as conferring a new authority upon it which takes precedence in all cases, present and in the future, where the law of Quo Primum might be made the object of a derogation. Therefore, even where the law ceased to bind, the privilege would still exist.
- The importance of this privilege is emphasized by the words "in virtue of Our Apostolic Authority," which the pope invokes before conferring it.
- This privilege is granted without exception to every priest, secular and regular, in every church, for every form of Mass.
- No superior may impede the use of this privilege for any reason, either privately or publicly.
- Those accorded the privilege cannot be obliged by anyone whatsoever, to use another missal ("a quolibet cogi et compelli"), or to implement even the slightest modification to the Missal of Pius V.
- This concession has no need of any additional permission, agreement, or consent. The bull states: "by the terms of these presents," which are thus considered adequate to suffice.
- Finally, it is a matter of a perpetual privilege ("etiam perpetuo").
This final statement leads us to a question which affects each and every legislative disposition of the bull: to what extent can a pope bind his successors? This is a great and delicate question, which will be limited in this instance to the case under discussion. It is obviously not a question of the pope as interpreter of the Divine Law, which is immutable, but of the pope in respect of ecclesiastical law.
VI. Is the bull valid forever?
1. Here one principle stands out: "Par in parem potestatem non habet": Equals have no power over each other. No one, therefore, can constrain his equals. This is particularly true of the supreme power. This is essentially the same power exercised through its different holders. It is necessary to give the most careful consideration to the full import of this principle. If a pope (to speak only of the highest religious authority) has the power to loose what another pope by the same power has bound, then he should use this right only for the gravest possible reasons: reasons which would have prompted his predecessor to revoke his own law. Otherwise, the essence of supreme authority is itself eroded by successive contradictory commands.
When philosophers discuss "divine power" they make use of a distinction which is infinitely more applicable in the case under discussion: what God can do in virtue of "absolute power" and what He can do in respect of His "regulated power."[2]
The matter has not been decided when one can say, for example: "Paul VI could validly abrogate the bull of St. Pius V." It remains to be shown that he is doing so legitimately.
Now this matter of lawfulness touches the very form and foundation of the new law—in the first place, involving the question of the mutability of law itself. Divine law contains the proof of its own universality and immutability within itself. But ecclesiastical law, like all human law, must add supporting evidence to its intrinsic proofs, even if this evidence is of the most obvious kind—purely conventional to begin with, but which by public consent eventually prevents the law from becoming arbitrary and artificial.
2. As to the form, the bull Quo Primum possesses all the conditions necessary for perpetuity. We have adequately demonstrated this by illustrating the terms used by the legislator.
3. As to content, its perpetuity is confirmed by three characteristics:
- The aim in view, which is that there, should be but one missal so that the unity of Faith may be protected and manifested by unity of public prayer.
- The method of its establishment, which is neither that of an artificial creation devised from a number of possibilities nor even a radical reform, but the honest restoration of the ancient Roman Missal: the honest restoration of a well-proven past being the best guarantee of a tranquil future.
- Its authorship, which is that of a pope acting with all the force of his Apostolic authority, in exact conformity with the express wish of an Ecumenical Council—in conformity with the uninterrupted tradition of the Roman Church—and, so far as concerns the principal parts of the missal, in conformity with the Universal Church.
4. Each of these characteristics taken separately, and still more when taken together, assure us that no pope can ever licitly abrogate the bull of St. Pius V, even if we admit that he can do so validly and without betraying either the Deposit of Faith or any fundamental law of the Church.
5. It seems indisputable to us that Pope Paul VI has not, in fact, made any such abrogation, even if one thinks only of the legal formulas that would be required, and which are lacking in his act.
6. Unfortunately, however, it seems equally indisputable that Pope Paul VI does favor the de facto abolition of the Roman Missal, whether by deliberate will, or connivance, or tolerance, or by constraint due to obscure pledges from which he cannot free himself—or which make him their prisoner.
7. He who resists the failings of a pontiff for a day serves the eternal papacy.
VII. Counsels concerning a respectful resistance
Four and a half years ago, publicly and in writing, we gave our first counsels concerning the reasons for, and legitimate means to be used in, resistance to the liturgical revolution authorized by the reigning pope. It was in September 1967, two years before the "promulgation" of the new Ordo Missae, but at a time when the portents of revolution were so clear as to confer upon the ordinary priest and layman the right and duty of such resistance.
Since then we have had occasion to reassert that position. Had it been erroneous or a source of scandal, it is unbelievable that neither the Holy See, nor the bishops, nor their "theologians," should not have condemned or at least refuted the arguments put forward. It is equally incredible that to date [this was written in January 1972—Ed] the author has not once been called upon to retract them.
We therefore offer the following criteria for conduct:
First Rule: The Missal of Paul VI cannot be said to be obligatory in any strictly juridical sense which would impose its use and exclude that of the "Roman Missal restored by the decree of the Council of Trent and published by order of St. Pius V."
Second Rule: The bull Quo Primum Tempore of St. Pius V has not been totally abrogated by the constitution of Paul VI, Missale Romanum, of April 3, 1969. At most, Pope Paul’s constitution derogates only certain particular details of the Tridentine Missal which will not be discussed in detail here.
Third Rule: Even if it is supposed that these derogations of Pope Paul are strictly obligatory, the fact remains that they leave intact the three privileges contained in the bull of St. Pius V, which have not been expressly abrogated by the present pope, and express abrogation is required by the principles of law.
The three privileges are:
- The right of every priest to avail himself of the perpetual privilege discussed in Section V above.
- The right of every priest to use, in preference to the Missal of Paul VI, the Tridentine Missal, which ratified a custom developed over the 15 preceding centuries and the centuries which followed.
- The freedom of religious to keep the missal of their Order, or to use that of St. Pius V, in preference to the Pauline missal. (NB: Religious belonging to Orders with their own missal have a right to demand that their chaplain should use their own missal even if he does not wish to do so).
As a consequence, the faithful too have the right to partake of the first two freedoms, through their priests on whom these freedoms have been directly conferred. They may, therefore, legitimately ask their priest or their bishop to insure that Masses are regularly celebrated in the Tridentine rite.
We are so certain of this doctrine that we feel able to add this final recommendation: If—and God forbid—any superior of whatever rank should presume to deny to priests, religious, or faithful the exercise of these rights, they may and should denounce to the competent authority, by every legitimate means, this infraction of the bull of St. Pius V, as an "Unlawful Abuse of Their Authority".
Footnotes
1 Contrast with Pope Paul’s Missale Romanum, particularly in regard to its non obstant section.
2 Fr. Dulac is probably referring to the Summa Theologica, I. Q.25, A.5, ad 1. While God has the power to do anything, once He has willed to do it in a certain manner, and no other, He necessarily excludes other options, e.g., having made the human soul immortal, His power to annihilate it is naturally regulated or "ordered" by this decision. He could not annihilate something which He had intended to be immortal without contradicting His original intention. God’s "regulated power" is His power as submitted to His wisdom. Fr. Dulac wishes us to see the papacy as a continuing office and to appreciate that only the gravest possible reasons could compel such a manifest self-contradiction as the granting of a perpetual privilege by one incumbent, and its revocation by a successor.
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