http://www.remnantnewspaper.com/Archives/2010-1031-mccall-fellay.htm

At the heart of the recent Angelus Press conference to celebrate the 40th Anniversary of the Founding of the Society of St. Pius X (October 15-17), His Excellency Bishop Bernard Fellay delivered an inspiring and comprehensive assessment of the Society’s situation, both past and future.  His two-hour address, combined with his sermon at the Pontifical High Mass, synthesized the themes and recollections of the event as a whole.
Although from the eternal perspective perhaps not the most important aspect of the conference, His Excellency did dedicate the final half hour to a survey of the SSPX’s political and legal relations with the authorities in Rome.  His remarks, some of which he reconfirmed to me personally in an exclusive interview for The Remnant, provide fresh insights, past, present and future.  A comprehensive report on the Angelus conference, including excerpts from my interview with His Excellency, will appear in a forthcoming issue of The Remnant; this present article will focus merely on the legal position of the Society.

His Excellency set the context by describing the Vatican’s policy as a process of “contradictions.”  He characterized the recent history of the relations as a process of saying one thing publicly but having to speak and act differently in practical application.  He seemed to be preparing his listeners to expect this dynamic of contradiction to continue, at least for the foreseeable future.

To aid our understanding of this dynamic (the Vatican’s official v. actual position) he likened the situation to that of the Vatican’s attitude to the larger crisis in the Church since the Second Vatican Council.  The official position has remained constant for the past 40 years:  There is no crisis—we live in the Springtime of Vatican II.  And yet, as His Excellency docuмented, through the personal remarks of Paul VI, John Paul II and Benedict XVI, we see the Vatican’s implicit recognition of an unprecedented crisis in the Church, a massive apostasy.

 So, for example, Bishop Fellay pointed to the Holy Father’s recent establishment of a Pontifical Council for the New Evangelization as a papal acknowledgment of a de facto crisis of faith, notwithstanding the official party line that all is well with the post-conciliar Church.

With specific references to the Society, Bishop Fellay explained that the Holy See has been pursuing a two-pronged policy – an official de jure policy contradicted by de facto actions.  He noted how the official line is embodied in the docuмent released by the Secretary of State after the 2009 decree nullifying the excommunication of the Society’s bishops.  According to this unsigned docuмent, the Society does not exist legally and enjoys “no legal standing in the Church”, with the SSPX priests exercising their ministry “illicitly.” Yet, the Holy Father speaks and takes concrete actions that run contrary to this, oftentimes even recognizing the legal and valid existence and ministry of the Society priests.  

His Excellency described this situation as the “principle of action” which refers to a mode of interpreting and applying legal norms.  Since the end of a law is the intention of the lawgiver, whenever the state of the law is unclear or uncertain, the legal texts are to be interpreted in light of the intention of the lawgiver as manifested through the way he administers the law.  The legal distinction is between the law “as written” and the “law as received.”  Another aspect of this legal principle is that the actions of the lawgiver in administering the law can create a de facto derogation of the letter of the law.

For the non-lawyers among Remnant readers, our mothers and fathers applied this perennial truth through the principle “actions speak louder than words.”  Now there has been no legal situation more hotly debated in recent decades than that of the legal standing in the Church of the Society priests and bishops.  A quick internet search reveals that the technical legal position is debated by Catholics on virtually all sides of this issue.  In such a case, the actions of the Supreme Legislator (the Pope) must be examined in order to guide a sound understanding of the current legal confusion surrounding the issue.

Bishop Fellay demonstrated the application of this “principle of action” in the case of the Society through several examples, most of which have never been previously publicized.  First, he mentioned the issue of SSPX confessions.  As most Catholics know, there are certain grave sins, the remittance of which is reserved to the Holy See alone.  Under Church law if a priest hears the confession of a person who has committed one of these reserved sins, he is obligated to report the matter to the Holy See within thirty days to receive permission to absolve as well as guidance for the imposition of an appropriate penance.  His Excellency indicated that from time to time Society priests have heard such confessions, and that, in every case, the required notification was sent to the Holy See.  In each of these cases, the response received from the Vatican was that “all was good and licit” and that the permission for the SSPX priest to absolve was granted.  

What inference are we to draw from this?  Obviously, the Society priests can validly hear confessions.  If the Society priests lacked any form of jurisdiction to hear confessions, the Holy See would have replied that the penitent needed to confess to a priest with legal jurisdiction to hear confessions.  By definition, we are here dealing with grave matter and hence mortal sin (assuming all other conditions are present).  Yet even still, the Holy See replied to the SSPX that “all is good and licit.” The Holy See is thus making a de facto recognition of SSPX jurisdiction to hear confessions, a position that the Society and a number of canonical experts have maintained for years in the face of what is obviously a difficult legal situation.

The second example cited by Bishop Fellay related to those priests who leave the Society of St. Pius X after having received ordination from one of her bishops.  According to Church law and practice, a priest who receives Holy Orders outside the Church (i.e., from a bishop who though validly possessing the episcopal powers has nevertheless separated himself from the Catholic Church) is prohibited (upon return to the Catholic Church) from ever exercising the priestly powers conferred at his illicit ordination.  He retains the indelible mark of the priesthood but is permanently forbidden to exercise the related powers.

Yet, Bishop Fellay explained, whenever a priest ordained by a Society bishop left the Society but wished to remain a priest, the Holy See allowed him to exercise priestly powers.  Again, the legal conclusion is inescapable: The SSPX priests were not ordained “outside the Church”.  Although His Excellency did not mention any names, we know from the case of the founders of the Fraternity of St. Peter, to the priests of the Institute of the Good Shepherd, to the priests of St. John Vianney in Compos, Brazil, to a long list of individual priests ordained by a SSPX bishop—that they all have been permitted to exercise their priestly power. They were not, therefore, ordained “outside the Church” in the eyes of the Holy See.  (This is not the case with one or two isolated priests being granted an exceptional derogation from this norm, but rather the consistent practice of allowing all these priests to exercise their priestly functions.)

The third example His Excellency relayed was in connection with the ordinations scheduled to take place in Germany in March 2009.  As reported in The Remnant at the time, the bishops of Germany were capitalizing on the media’s attempt to sabotage the Holy Father’s lifting of the SSPX decree of excommunication and a then-recent interview of Bishop Williamson (“coincidentally” released on the eve of the announcement of the Holy Father’s historic decision). As previously reported in The Remnant, the Holy See contacted Bishop Fellay to request that the ordinations be moved to another location in order to ease tensions between the Holy See and the German bishops.  In his address to the Angelus conference, Bishop Fellay revealed further details of this extraordinary intervention.  

The Vatican asked Bishop Fellay to move the ordinations out of the jurisdiction of the German bishops.  If Bishop Fellay would do so, the Vatican Cardinal bargained, the Society “would be legally recognized until Easter.”  This was to cover the two-week period in which the ordinations would occur.  Bishop Fellay explained that he had asked the Cardinal why this was being requested since, according to a recent docuмent of the Secretary of State, the SSPX does not “even exist legally.” The Cardinal replied that “the Pope does not believe that.”

As we know, Bishop Fellay did comply with the Vatican request to move the ordinations (demonstrating once again his willingness to obey the Pope).  There was a collective gasp in the room when His Excellency told this story.

The discussions that evening including plenty of questions as to whether we had all misheard or misunderstood what His Excellency had said earlier that day: “Did he really mean the Vatican acknowledged the legal existence of the Society for two weeks last March?”  When I later spoke personally with His Excellency, I repeated his own words back to him from my notes and asked him if he had misspoken or if I had misheard him.  He said “That is what I said, you heard me correctly.”  I then asked:  “What does that mean, since there is no precedent for such a statement?  How can you be legal for two weeks and then illegal again?”  He shrugged his shoulders and said that this is what the Cardinal had said.

Ah, to live in interesting times!

How can we interpret this incident?  First, we have a Cardinal in the Vatican claiming that the Pope does not believe the assertions of a docuмent appearing to come from an official organ in the Vatican.  The docuмent released by the Secretary of State says the Society does not exist in the Church, and yet the Pope believes the Society does.  The Vatican then agrees to temporarily recognize the Society in exchange for a change in venue for a SSPX ordination.  How seriously does the Pope take this lack of legal recognition when it can be offered thus as a mere bargaining chip?

Bishop Fellay attempted to make some sense of these contradictions but all he could tell us is that this is the reality we have to accept for the present.  The policy of the Vatican seems to be a contradictory policy which vacillates between “condemnation and admiration,” His Excellency noted.  He seems convinced that where the personal sentiments of Benedict XVI himself are concerned, admiration for the SSPX is the word.  He explained that in his first meeting with Pope Benedict XVI, His Holiness twice referred to Archbishop Lefebvre—first as the “venerated Archbishop Lefebvre” and, later in the conversation, as “Archbishop Lefebvre, this great man of the universal Church.”

So are we to believe that the Pope believes a schismatic excommunicant is venerable and a great man of the universal Church? This would be nonsensical.  The only logical explanation is that the Pope recognizes the Archbishop for the loyal son of the Church that he is.  His Excellency also contends that Cardinal Castrillon Hoyos expressed this same attitude when in reference to the work of the Society, His Eminence said that “the fruits are good hence the Holy Ghost is there.”

Now we know that Our Lord gave us this of who is in the Church and who is not— “judge them by their fruits.”  The Holy Ghost cannot be outside the Church; hence if He is with the Society, the Society is in the Church.  The logic is irrefutable.

How can it be that the Pope and the Vatican can have this policy of saying one thing but doing another? How can they allow clerics to claim confessions heard by Society priests are invalid and then make it clear by their own actions that the SSPX confessions are “all good and licit?”  How can the Society be legally recognized for two weeks and then cease to be thus recognized after that time?  Does this not manifest a Vatican dismissal of the seriousness of the issue of the SSPX’s “legal” recognition?

The answer His Excellency led us to see is that for political reasons, Benedict XVI feels that, given the situation in the Church today and the “wolves” within, that he cannot recognize the Society de jure.  Yet, since he knows they are “inside the Church” and “bearing good fruit” he will recognize their legitimacy de facto as much as possible.  As Father Scott Gardener remarked in his conference earlier in the day, the error of collegiality has prevented the correction of the errors and abuses produced by the Council. Father Gardner reported that a high ranking Cardinal had admitted to him that Collegiality has effectively made the Church “ungovernable.”

An American Cardinal admitted the same thing to me in a private conversation back in May of 2010.  Benedict XVI has learned through experience that he will lose what little influence he has over the bishops of most of the world united in their collegial disobedience and disregard of his authority if he goes too far in doing the right thing.

Bishop Fellay illustrated this point with concrete examples.  He recounted how, back in 2003, a group of Cardinals, including Joseph Ratzinger, had met to decide what was to be done about the Society and Tradition.  They agreed that an apostolic administration had to be organized in order to give legal standing and independence to Traditional groups.  There was a disagreement about whether the Society should form the “spine” of this structure with the other groups attached to it, or whether it should just be set up independently within the current Ecclesia Dei communities.

When Benedict XVI was elected in 2005, he started to implement this plan. Bishop Fellay relayed more details of his initial meeting with His Holiness.  The meeting included Cardinal Castrillon Hoyos, the Holy Father, Bishop Fellay and Father Schmidberger.  The Pope asked Cardinal Castrillon “where do things stand.”  The Cardinal replied, “Today you can recognize the Society of St. Pius X.  I have sent you a docuмent which would do this.”

The Pope replied that he had received the docuмent and sent it on to the Council for the Interpretation of Legislative Texts to determine if it was “right with the Church.”

Bishop Fellay remarked that it must have contained something unusual if it needed to be thus examined.  Yet, for whatever reason, the Pope was evidently blocked and so far this docuмent—prepared by Cardinal Hoyos and approved in principle by the Pope (and sent for technical study)— has not seen the light of day.  Why not?  

Bishop Fellay explained that in 2006 the bishops of Germany went to the Vatican and vigorously opposed the project.  So what did the Pope do?  He freed the Mass and lifted the decree of excommunication of the SSPX bishops.  We all remember what happened to the Pope after that.  Literally, all hell broke loose.  The world turned on him.

Bishop Fellay further directed our attention to the recent incident when the Pope had appointed the conservative Fr. Gerhard Maria Wagner to become Bishop of Linz, Austria. The Pope again was attacked in the media for this “ultra-conservative” appointment.  Clearly the Pope has concluded that the costs of provoking disobedience and rebellion from the world’s bishops are not worth giving de jure recognition to the Society.  The only solution is to grant recognition de facto, while the Vatican/SSPX talks continue.

As an aside, the details of this 2005 meeting and the mysterious “docuмent of recognition” that had resulted from it, put to rest an argument which has been used by many adversaries of the Society who claim that, although the Society had supplied jurisdiction at one time, they lost it when they “refused the offer of ordinary jurisdiction.”  I have heard this argument myself on more than one occasion.

Bishop Fellay pointed out, however, that he had never actually been shown (or presented with) an actual concrete offer of jurisdiction on the occasion of that meeting.  Obviously, he had not even seen the docuмent the Pope had sent for review.  He told us that that docuмent “must have been” unusual, indicating that his knowledge of its contents had only been deduced.  How can one refuse an offer of jurisdiction that was never presented in the first place, and which is now lost in a Vatican review process due to the intervention of the German episcopacy? Thus, this argument fails. It is not Bishop Fellay who “refused to accept” ordinary jurisdiction.  It is the disloyal bishops of the world who have bound the Pope’s hand, preventing him from signing it!  

At the Angelus conference, Bishop Fellay also drew our attention to a related indication found in the wording of the Vatican decree nullifying the decree of SSPX excommunication. The final paragraphs of this decree reads:

On the basis of the powers expressly granted to me by the Holy Father Benedict XVI, by virtue of the present Decree I remit the penalty of excommunication latae sententiae incurred by Bishops Bernard Fellay, Bernard Tissier de Mallerais, Richard Williamson and Alfonso de Galarreta, and declared by this Congregation on July 1988. At the same time I declare that, as of today's date, the Decree issued at that time no longer has juridical effect. (Emp. added)

Bishop Fellay pointed out what should have been obvious to us all.  Notwithstanding the fact that the first sentence mentions only four of the six bishops subject to the former decree, the final sentence clearly states that the former decree “no longer has juridical effect.”  That means the former decree ceases to legally exist.

If the decree claiming Archbishop Lefebvre and Bishop de Castro Mayer are excommunicated latae sententiae has no juridical effect, the declaration with respect to them has been withdrawn as well.  To avoid this obvious conclusion, the language needed merely to say “with respect to these four bishops only,” the former decree has no juridical effect; or “except as regards Archbishop Lefebvre and Bishop de Castro Mayer” the former decree has no juridical effect.

I must admit that I felt rather stupid for not having noticed at the time what was clearly but subtly accomplished by this clever wording. The declared excommunication latae sententiae against Archbishop Lefebvre and his trusted ally in 1988 was removed without mentioning either of them by name.  To do so would likely have elicited another episcopal rebellion.

Obviously, these are dangerous waters through which Our Holy Father navigates Peter’s Barque!

So where does all this new information leave us?  I had the distinct impression that His Excellency was working to help the faithful be realistic in their expectations.  Our help is in the name of the Lord, not in a legal docuмent from a Vatican which has largely lost control of the governance of the Church.  Yet, the Pope is doing what he can to reassure his most loyal sons to stay the course.  Through his words and actions he is consistently demonstrating his will.  “The fruits are good hence the Holy Ghost is there.”

So as the storm rages around him, the Holy Father presses ahead.  Contrary to the official line demanded by the liberal bishops of the world, the Pope carries on in word and practice (lifting SSPX excommunications, validating their confessions, permitting former priests to exercise their priesthood, “recognizing” the Society for two weeks) as if the Society are Catholic priests validly and licitly caring for souls and the good of the Church.  Would it be easier for the whole Church if the Pope would just recognize officially and in writing what he has manifested implicitly?  Perhaps, but that is easy for us to say from the comfort of our living rooms halfway across the world.

What Bishop Fellay is trying to make clear is that living with this dichotomy of Vatican public condemnation and quiet approval, is the sacrifice God is asking the priests of the Society to bear for the time being.

There is a wonderful scene in the film A Man for All Seasons where St. Thomas More convinces his good friend the Duke of Norfolk to publicly feign a quarrel with him.  More understands that for his friend’s own good, Norfolk must be seen as his enemy.  This is a great sacrifice for both men who truly love one another.

Benedict XVI seems to be asking the Society bishops and priests to allow him to pretend to have this public “quarrel” with them in order to help manage an unmanageable collegial bunch of bishops.

My impression is that Bishop Fellay has agreed to continue to bear this public stigma.  What can the faithful do in such a circuмstance?  Pray and offer sacrifices so that their priests and bishops may be granted the grace to endure this for the good of souls, the Church as a whole, and the Holy Father.  How long must this go on? Only God knows, but the circuмstances of its final curtain are clear – when the Pope again can freely rule the Church and cease being a “prisoner of the bishops.”  When that day dawns I believe Bishop Fellay is confident the Pope will shed tears of joy to be able to publicly embrace his loyal sons.

The faithful can do one more thing.  Pray for this Pope.  Pray he has the fortitude not to run for fear of the wolves as he begged us to do in his first words as Pope.  He is already under intense attack for his de facto recognition of the Society.  Clearly, he needs prayers more than ever if he is ever to do so de jure.

There is one more thing I believe we can do.  Having heard the heartfelt words of Bishop Fellay, I was able to witness personally his integrity and evident holiness.  I thus believe we must work together to put to rest the vicious rumor that Bishop Fellay is going to “sell out the Society.” We have all seen the rumors flying through cyberspace but I am convinced that such a thing is impossible. His Excellency is clearly not only wise in his dealing with the Vatican, but, in light of his extensive remarks at the conference (to be reported in the next issue of The Remnant), he also possesses the same steadfastness, combined with a prudent sense of proportionality, of his predecessor, Archbishop Marcel Lefebvre.

To believe that Bernard Fellay will “sell out Tradition” for thirty pages of legal text granting de jure recognition is tantamount to claiming that Marcel Lefebvre sought to “sell out Tradition” when he too went to Rome, again and again, in fact, and at the request of the Vatican, in order to try to resolve his Society’s legal standing in a Church already in crisis a quarter of a century ago.  

Let’s not give a second thought to these fabricated rumors about Bishop Bernard Fellay.  The SSPX is in good and capable hands, Deo Gratias.