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The Legal Status of the Tridentine Mass

by Michael Davies,

Foreword - Reverend Thomas C. Glover, J.C.D.,

Professor of Canon Law, Seminary of St. Pius X

FOREWORD

Nothing has caused more anguish in the Catholic Church since the Second Vatican Council than the changes in the rite and language of Mass. Not only have the changes aroused perplexity and alarm on doctrinal grounds, but many Catholics have been puzzled by the legal status of the traditional and new rites of Mass. It is to throw some light on the legal aspects of the changes that Mr. Davies, already well-known for his writings on the Council and on liturgy, has written this pamphlet.

Canon law is a specialized subject: even in the past most priests received only very limited instruction in it during their seminary courses, and lay people had little cause to concern themselves with it at all. It is not surprising that in the minds of many Catholics there is utter confusion on the legal status of the rites of Mass. There are those who believe that St. Pius V's Bull Quo Primum makes any alteration in the rite of Mass unlawful, there are many more who assume that Paul Vl's Apostolic Constitution Missale Romanum forbade the old Mass and imposed the new. Neither thesis will withstand examination.

No Pope can bind his successors in disciplinary matters, and St. Pius V's Bull was disciplinary. It had a very close connection with the dogmatic decrees of the Council of Trent, and gave renewed legal force to a rite of Mass largely unchanged for many centuries. It is right to stress the risk of imprudence in subsequent tampering with the rite, described by Cardinals Ottaviani and Bacci as presenting an insurmountable barrier against heresy, but the Bull remains disciplinary. The strong wording and prohibition against future changes were customary at a time when Church government was far less centralized than it is today, and was not aimed at future Popes. The Bull itself implicitly acknowledges the possibility of change when it decreed that even in the future no priest shall be coerced with canonical penalties for using the Missal.

The Constitution Missale Romanum, on the other hand, does not remove this privilege for priests - indeed, it neither orders the use of the new Missal nor forbids the use of the old one.

The essential arguments about the new Mass are moral, not legal. They must be examined, not in isolation, but in the context of the doctrinal and disciplinary revolution which has taken place in the Church since the Council.

It is worth remembering that the Council's document on liturgy ordered a cautious revision of all the sacred rites so that their essential meaning should be made clearer. It was reasonable to expect that any significant change in the Missal would stress the propitiatory sacrifice and transubstantiation, and, implicitly at least, the need for an ordained priest in order to have Mass at all. These points were indeed perfectly clear in the traditional Mass text so that the need for a reform was far from clear.

When the new rite appeared it did not make these points clearer, but, on the contrary, it obscured what was clear before, to such an extent that some Protestants have declared that they find the new Mass acceptable as the prayers which they found objectionable in the old Missal have been removed.* This change, flatly contradicting what the Council ordered, has also come about when the very doctrines at the heart of the Mass are being challenged, not just from outside the Church, but by Modernist theologians of great prestige who remain, at least nominally. Catholics.

Faced with such a spurious reform, in the context of general confusion in the Church amounting to chaos. Catholics have the right and indeed the duty to hold fast to what the Church has always taught and done. This must be a safe way and the only safe way. This is the whole point in traditional Catholicism: it is not a matter of individual Catholics following their own preferences or of speculative theologians of a certain school disputing with others. The criterion is not a Roman version of the Protestant private judgment, but the tradition of the Catholic Church, divinely guaranteed.

It is important to offer a corrective for those traditional Catholics who, rightly appalled at what is going on around them, have been led by an understandable lack of information to over-react, some even to the point of suggesting that the new rite of Mass is intrinsically invalid. It is even more important to help those loyal Catholics who have been misled into believing that they are obliged to attend the new Mass and avoid the old, and to refute those Modernists who, for all their noisy proclamation of liberty, really seek to impose their own preferences in place of the traditions of the Church and to do so in the name of obedience, falsely claiming to have the support of Canon Law for their actions. Mr. Davies' present pamphlet is admirably designed for these purposes.

Thomas C. Glover, J.C.D. Professor of Canon Law, Seminary of St. Pius X.

*See Pope Paul's New Mass, Chapter XII,

The Legal Status of the Tridentine Mass

Michael Davies and Neri Capponi, D. Cn.L., LL.D.

Did Paul Vl's promulgation of the new Mass somehow abolish the right of priests to offer the Tridentine Mass that Pius V established "in perpetuity"? This article appeared in "The Latin Mass", Vol. 3, No. 3, May-June 19994.

Since the introduction of the new Mass in 1969, many traditional Catholics, including some priests, have maintained that the Bull Quo Primum Tempore of Pope St. Pius V precluded anyone, including his successors in the Chair of Peter, from making any change whatsoever in the 1570 edition of the Roman Missal, and that the Missal of Pope Paul VI is therefore illicit. This opinion is not simply wrong; it also makes traditional Catholics appear ridiculous to anyone with a modicum of knowledge about the legal language used in Church documents. Father Fr. Thomas Glover, JCD, formerly professor of canon law at Econe, explains:

Canon law is a very specialized subject: even in the past, most priests received only very limited instruction in it during their seminary courses, and lay people had little cause to concern themselves with it at all. It is not surprising that in the minds of many Catholics there is utter confusion on the legal status of the rites of Mass. There are those who believe that St Pius V's Bull Quo Primum makes any alteration in the rite of Mass unlawful ...No Pope can bind his successors in disciplinary matters, and St. Pius V's Bull was disciplinary. The strong wording and prohibitions against future changes were customary at a time when Church government was far less centralized than it is today, and were not aimed at future Popes.

Pope versus Pope

A fundamental legal principle is that an equal cannot bind an equal: therefore, as Fr. Glover has explained, no pope can bind his successor in disciplinary matters. Each pope is the supreme legislator during his pontificate, and no predecessor can prevent him from using his authority in disciplinary matters. This means that clauses in papal documents stating, for example, that they have the force of law in perpetuity, or that they can never be revoked or modified, that they shall for ever remain valid and have the force of law, apply only to clerics up to and including cardinals.

Such phrases are common to hundreds of bulls, as can be discovered by anyone able to obtain access to a bullarium (a collection of bulls). The word "bull," incidentally, is derived from the leaden seal with which papal and royal documents were authenticated.

A bull can be defined as an apostolic letter with a leaden seal. The Jesuits were suppressed by Pope Clement XIV in 1773 with the Brief Dominus ac Redemptor, which used identical and similar phrases to those found in Quo Primum, including the stipulation that the order could never be restored at any time in the future; but Pope Pius VII saw no incongruity in doing precisely this in 1814.

Although Pope Paul VI had the strict legal right to revise the Roman Missal, it does not follow that he was right to break with the practice of all his predecessors of never introducing any drastic change in the rite of Mass. This has been the unbroken tradition of all the churches (including the Orthodox) that can trace their origins back to the Apostles. The sixteenth-century Protestant Reformers were the first to break with this tradition and introduce radical liturgical reforms - with the objective, of course, of bringing their public worship into line with their heretical beliefs.

Msgr. Klaus Gamber, in his book The Reform of the Roman Liturgy: Its Problems and Background, raises the question of whether Pope Paul VI exceeded his authority in abolishing the traditional rite and replacing it with a new one, as opposed to simply revising the existing Missal, which is all that the Second Vatican Council mandated. But before discussing whether Pope Paul VI misused his authority in promulgating a new Missal, let us examine the legal status of the Tridentine Mass following that promulgation.

The Legal Status of Quo Primum

Did the Apostolic Constitution Missale Romanum of April 3, 1969, make the use of the Missal promulgated by St. Pius V illegal without a papal indult such as the one obtained by Cardinal Heenan in 1971 permitting the continued use of that Missal England and Wales? (The New Order of Mass {Novus Ordo Missae} was not actually promulgated by Missale Romanum but three days later on April 6, by a Decree of the Sacred Congregation of Rites. There are three ways in which legislation, including liturgical legislation, can cease to apply:

1. It can be abrogated; that is, abolished completely. If a law is abrogated the new legislation must state this specifically and clearly. There is not one word in Missale Romanum or the decree of promulgation abrogating either Quo Primum or the Missal of St. Pius V.

2. It can be derogated. This means that the legislation still remains in force but has been modified in some way. This would mean at the very least that the prohibition against the use of any Missal but that of St. Pius V could not be said to apply to the Missal of Pope Paul VI. It has been argued by the French canonist, Fr. Raymond Dulac, that whatever the extent to which Quo Primum has been derogated, the perpetual privilege permitting every priest to use the Missal of St. Pius V is still valid.

3. It can be obrogated. Obrogation occurs when new legislation by the authorized legislator is evidently intended to replace the existing law, even though it contains no specific words of abrogation. A strong case can be made that the new legislation of Pope Paul VI obrogated Quo Primum, and this could even include the perpetual privilege.

Let us assume for the sake of argument that this is indeed what happened, and then examine the consequences. Would it mean that priests should celebrate the Traditional Mass only under the terms of the current Vatican legislation? By no means.

Customs and Uses

The Bull Quo Primum was the first written legislation in the Roman Rite governing the celebration of Mass. Until 1570 the celebration of Mass was governed by what is known as customary law, ex consuetudine. The method of celebrating Mass in a particular country, district, or even city was protected or regulated by "immemorial custom." There was no rigid uniformity in the Roman Rite apart from the use of the Roman Canon, and clear differences occurred in many places. The way Mass was celebrated either in Rome, Lyons or Salisbury was evidently different, but not different enough to constitute distinct rites of Mass, as is the case with the Ambrosian Rite in Milan or the Mozarabic Rite in Toledo.

The correct name to be given these variations is "use." Thus in England and Wales there were the Uses of Salisbury, Hereford, York and Bangor. Some religious orders such a; the Dominicans had the their own variations of the Roman Missal.

Respect for established customs and traditions has always been a primary characteristic of what Dietrich von Hildebrand termed the sensus catholicus, which might best be translated as "the Catholic instinct." The true Catholic attitude was well expressed by St. Thomas Aquinas when he quoted the dictum: "It is absurd and a detestable shame, that we should suffer those traditions to be changed that we have received from the fathers of old" (Summa Theologica. I-II , Q.96, Art.4). St. Pius V manifested an authentic Catholic respect for tradition in Quo Primum, allowing missals which had been used continuously for a period of 200 or more years to be retained.

The Missal of Si. Pius V did no more than codify the rite of Mass that had been in use in Rome for centuries with very little change. The ordinary of the Mass in the first printed edition of the Roman Missal in 1474 is identical to that found in the Missal of 1570. As with all the other missals in use throughout the Roman Rite, the Roman Missal had been regulated by customary law until the written legislation of Quo Primum, and it certainly constituted an immemorial custom.

This raises the interesting question as to the status of an immemorial custom that becomes regulated by written law. It is the consensus of canonists that if an immemorial custom becomes regulated by written law, the latter does not take the place of custom but is added to it in such a way that the subject matter becomes controlled both by the preceding customary law and by the subsequent written law, but with no abrogation of the customary law which still continues to regulate the matter in question. Thus, at least until 1969, every priest of the Roman Rite was entitled to use the Missal of St. Pius V for two reasons: (1) because it constituted an immemorial custom; (2) in virtue of the perpetual indult contained in the Bull.

This raises a further question as to the status of an immemorial custom if the written law that had come to regulate it should lapse, which is the situation of the traditional Mass if Quo Primum has indeed been obrogated. It is our view that it would revert to its original status of an immemorial custom, and be protected by customary unless the legislator abrogated it by specific mention. Neither Pope Paul VI nor Pope John Paul II has made any such specific mention. We conclude that at least by virtue of established custom all celebrants should be free to use the Missal of St. Pius V, and all the faithful lo take pan in it.

On October 28, 1974, the Sacred Congregation for Divine Worship issued a notice signed by Cardinal Knox and Archbishop Bugnini denying that the Tridentine Mass could be celebrated under "any pretext of custom, even immemorial custom." But if a customary right exists, it continues to exist even in the face of a gratuitous denial of its existence by a Roman Congregation. This must be seen as a deliberate attempt to deceive the faithful on the part of Archbishop Bugnini, as must his denial that Protestant observers took an active part in the composition of the New Mass.

Justice and Church Law

This brings us to a final question. Would the right to celebrate the traditional Mass deriving from immemorial custom definitely be lost if a pope should abrogate it specifically? A very good case can be made for saying that it would not, based on the extent to which such an act would be unjust. Every ruler, the pope included - one might say especially the pope, is bound to rule justly. Justice is the cardinal virtue which prompts us to give each man his right or due. When a ruler does not legislate justly, his subjects are not bound to obey as the binding force of a law depends upon its justice. The consensus of Catholic theologians and canonists is that a law is unjust if:

1. it is not conducive to the public good

2. it is too burdensome for those subject to it, which means that it is impossible to carry out, or is too difficult or distressing.

All the objective evidence makes it clear that the post-Vatican II liturgical reform has not been conducive to the public good. The pastoral benefits that were supposed to flow from it have failed to appear. This is stated unequivocally by Msgr. Gamber: "The pastoral benefits that so many idealists had hoped the new liturgy would bring did not materialize. Our churches emptied in spite of the new liturgy (or because of it?), and the faithful continue to fall away from the Church in droves." And again: "In the end, we will all have to recognize that the new liturgical forms, well-intentioned as they may have been at the beginning, did not provide the people with bread, but with stones."

It can hardly be claimed that enforcing changes that constitute the pastoral equivalent of providing stones in place of bread is conducive to the public good. The subjects for whom the law has been enacted have every right to resist it for this reason alone. Countless faithful Catholics who would normally be the last to question any decision of the Sovereign Pontiff most certainly find the new liturgy not simply distressing and difficult but impossible to accept, and it is consequently unjust.

Canon 214 of the 1983 Code of Canon Law states that the faithful have a right to worship according to the prescriptions of their own rite. Many of the faithful of the Roman Rite find it impossible to recognize what takes place in their parish churches each Sunday as their own rite. Cardinal Ratzinger has remarked: "Today we might ask: is there a Latin Rite any more? Certainly there is no awareness of it. To most people the liturgy appears to be something for the individual congregation to arrange."

The Cardinal's observation that the traditional Latin (or Roman) rite no longer exists does no more than confirm the brutally frank acceptance of this fact in 1976 by Fr. Joseph Gelineau, one of the most influential members of the commission which composed the new Mass:

The Roman Rite as we knew it no longer exists. It has been destroyed." Msgr. Gamber testifies to the destruction of the Roman Rite several times in his book: "The real destruction of the traditional Mass, of the traditional Roman rite with a history of more than one thousand years, is the wholesale destruction of the faith on which it was based, a faith that had been the source of our piety and our courage to bear witness to Christ and his Church, the inspiration of countless Catholics over many centuries.

Did this constitute just treatment of his subjects by Pope Paul VI, who was not simply their ruler but their shepherd? What would one say of a shepherd who drove his flock away from lush green pastures where sheep had fed in peace and flourished for a thousand years to the barren rocky slopes of hills where wolves lurked?

The New Mass and the Council

Msgr. Gamber also insists in his book that the abolition of the traditional Order of Mass by what constitutes a New Order, a Novus Ordo Missae, is a flagrant contravention of what the Liturgy Constitution of the Council actually ordered:

Unfortunately, and in summary, the Council's urging in Article 23 that "there must be no innovations unless the good of the Church genuinely and certainly requires them" has been widely ignored... Although the argument is used over and over again by the people responsible for creating the new Mass, they cannot claim that what they have done is what the Council actually wanted. The instructions given by the Liturgy Commission were general in nature, and they opened up many possible ways for implementing what the Commission had stipulated, but one statement we can make with certainty is that the new Ordo of the Mass that has now emerged would not have been endorsed by the majority of the Council Fathers (emphasis added).

The stipulation of Article 23 of the Liturgy Constitution reflects very closely the principle laid down by St. Thomas Aquinas for changing any law: "Don't!" His explanation could have been based on witnessing the effects of the contemporary liturgical revolution:

Human law is rightly changed, in so far as such change is conducive to the common weal. But, to a certain extent, the mere change of law is of itself prejudicial to the common good: because custom avails seeing that what is done contrary to general custom, even in slight matters, is looked upon as grave. Consequently, when a law is changed the binding power of the law is diminished, in so far as custom is abolished. Wherefore human law should never be changed, unless, in some way or other the common weal be compensated according to the extent of the harm done in this respect. Such compensation may arise either from some very great and very evident benefit conferred by the new enactment; or from the extreme urgency of the case, due to the fact that either the existing law is clearly harmful. Wherefore the jurist says that "in establishing new laws. there should be evidence of the benefit to be derived before departing from a law which has long been considered just." (Summa Theologica, I-II, Q. 97, Art. 2)

Every priest of the Roman Rite should, to quote Quo Primum, feel free to offer the traditional Mass "without any scruple of conscience or fear of incurring any penalty, judgment or censure." At least by virtue of established custom, all celebrants should be free to use the Missal of St. Pius V, and all the faithful to take part in it.

 An Interview with Michael Davies
From Sursum Corda magazine