Dumb Ox on the other forum wrote on 30 Jun 2012, 11:10 GMT:
Some Canonical Observations from a Catholic experienced in Legal Matters.
The author wishes to remain anonymous.
1) It is debatable whether Bishop Fellay is the de jure head of anything.
a) When SSPX was erected in Fribourg in 1970, it was erected on an ad experimentum basis for 6 years. That gets us to 1976. The erecting letter said that that period would be tacitly (i.e. automatically) renewed for another period. That takes us only to 1982, assuming we ignore the attempted and admittedly irregular (in law) suppression of the SSPX by the Novus Ordo authorities ca. 1975, and assuming that when the Bishop of Fribourg erected the SSPX he consulted the Holy See as required by Canon 492 para 1. So at best the SSPX charter ran out in 1982, because without any positive act of law, it simply disappeared from the books.
b) We are told the original SSPX statutes (more properly called the Constitutions) established the SSPX as a society of common life w/out vows. (Canons 673 et seq). The Fribourg Bishop’s letter erecting the society and approving its statutes for the 6 year trial period established the SSPX as a pious union. A pious union is NOT an institute of religious, but a lay ASSOCIATION OF THE FAITHFUL – of which, by the way, clergy can certainly become members. (Canons 685 et seq.) While there is some gray here, the erection of the society on this score was also clearly defective as a matter of law and renders the whole operation questionable in the eyes of the law.
c) The Vatican of course doesn’t recognize any canonical existence of the SSPX, which is what is being offered and angled for in the first place. So any invocation of Bishop Fellay’s authority on the basis of the new Code is arguably void because the SSPX has no existence in the eyes of the new Code or its official interpreters as it now stands.
UPSHOT:
Who knows WHAT the SSPX is? At best it’s an organization that fell off the books, as a matter of law, 20 years ago, leaving a purely practical organization of non-incardinated priests who between themselves, and commendably, agree to work together and continue on as if they are a “society of common life.” But the head of such an extrajudicial organization can claim no benefit of law to support his attempts to command his non subjects. They obey because they wish to, not because, strictly speaking, they have to. Consequence: Bishop Fellay probably has no power to impose canonical penalties on anyone since he derives no power from Canon 501 as a superior nor from Canon 2220 para 1 as a superior having power to penalize because he has power also to legislate and command.)
2) If, arguendo, Bishop Fellay is the head of SOMETHING. What position does he hold?
a) The old Code (Canon 501) gives religious superiors dominion over their subjects, but only heads of EXEMPT religious institutes exercise JURISDICTION. So we know that Bishop Fellay exercises no ecclesiastical jurisdiction. (Nor does anyone else within SSPX).
b) Presumably – if the SSPX is a society of common life without vows – Bishop Fellay as Superior General has the power to command his subjects, in virtue of Canon 501. (Of course it is not probable that the SSPX exists in law as a de jure society of common life. The probability is that it ceased to exist as a matter of law in 1982).
c) The other option – that the SSPX is a pious union which somehow survived its 1982 expiration date by virtue of the temporary erection by the Bishop of Fribourg – would mean that the form of governance is controlled explicitly by the statutes, and there is not necessarily any superior as referred to by the Code in Canon 501. Instead the Code speaks of “moderators” and “chaplains” etc. (Canons 698 et seq). Indeed, if SSPX is merely a pious union (that, again, survived its expiration in 1982) it is arguable whether they have properly and correctly – at least in terms of what the law envisions – adopted the formal structure of religious institutes (cf. Woywood, Vol. II, p. 344).
d) Canon 501, at any rate, says that a superior’s dominion over his subjects is pursuant to the CONSTITUTIONS of the institute of which he is head. So what do the CONSTITUTIONS say about Bishop Fellay’s authority? This is a mystery because no one can get hold of the SSPX CONSTITUTIONS. Canon 675 further emphasizes that it is the Constitutions, more than the Code, that establish the mode of governance for societies of common life without vows.
e) It will be important to what follows to note also that as a matter of law Bishop Fellay is NOT an Ordinary (Canon 198); as head of a religious institute (again, debatable at BEST) he would have to be a major Superior of an EXEMPT clerical religious institute. Exempt institutes are those which, by virtue of an act of the Holy See, are exempted from jurisdiction of the local Ordinary. Perhaps it is superfluous to mention that neither Paul VI nor the JP’s or B16 gave any such status to SSPX.
3) Further assuming, arguendo, Bishop Fellay is Superior General of a society of common life – which is the most generous interpretation of the situation – what is his authority in terms of the action he purports to have taken against Bishop Williamson?
a) What Bishop Fellay cannot do is exercise any of the prerogatives of an Ordinary or claim the benefits of law coming from being an ordinary. Consequently,
i) Bishop Fellay cannot inflict suspension (a form of censure, and possibly what Bishop Fellay thinks he did to Bishop Williamson – see Canons 2278 et seq) ex informata conscientia (i.e. per Canons 2186 et seq; and 2191 would probably impede recourse to this process anyway)
ii) nor can he claim that Bishop Williamson by inciting opposition to himself (i.e. to Bishop Fellay) violated Canon 2331 para 2 (conspiring against a proper ordinary)
b) The Code does not deal explicitly with how a member of a religious institute can be barred from casting a vote at a general chapter. In precise terms this would be established by the institute’s Constitutions (but it is perhaps likely that the SSPX “statutes” are rather thin and wouldn’t go into details on this point). What the CIC does say in this regard is that:
i) a censure imposed (Canons 2279 para 7 et seq) can deprive a cleric of exercising a certain office, and the way Bishop Fellay’s decree is phrased it seems that they are following this line – depriving Bishop Williamson of the “office of capitulant” (as it is phrased in the French)
ii) a vindicative penalty of depriving a person of performing any ecclesiastical act (of which voting in an election is one – 2256 para 2) per Canon 2291 para 8; (a stretch would be 2298 para 4, depriving Bishop Williamson of exercising a right attached to an office, but it is doubtful whether Bishop Williamson holds any office).
c) So clearly germane here WOULD BE the SSPX Constitutions if they addressed the issue. But, assuming they do, and making the additional assumption that they are just and fair, it would therefore be reasonable to suppose that the Constitutions did not give the Superior General the right to bar someone from participating in the general chapter just because in the Superior General’s sole discretion he felt or believed or supposed that a capitulant committed an offense against the law or a legitimate precept.
4) So what of the penalty actually imposed?
a) Generally applicable to all penalties:
i) The accused (Bishop Williamson) must first have been warned with mention of the penalty (Canon 2222 para 1), by either the terms of the law or a specific warning, except in one exceptional circuмstance (addressed below) – this was not done, to my knowledge.
ii) It must be CERTAIN that a delict (crime) was committed before a penalty is imposed (Canon 2233 para 1). But:
(1) “Rebellion” (i.e. conspiring against the authority of certain hierarchical persons) has no meaning in terms of the cited Code provision since Bishop Fellay is not an ordinary.
(2) “Pertinacious disobedience” raises the question of what lawful commands – i.e. within the scope of Bishop Fellay’s authority – Bishop Williamson disobeyed?
iii) If Bishop Fellay is purporting to punish the offense of transgressing a particular command, rather than the offense of transgressing Canon 2233, to make Bishopp Williamson liable to punishment Bishop Fellay would have had to attach specific reference to a canonical sanction to the law he purported to impose upon Bishop Williamson, per Canon 2195 para 1. This is improbable because the express terms of the letter from Menzigen specifies Canon 2331 para 1 as the crime being punished.
iv) An act cannot be punished as a delict if it was prescribed. (Canon 2233). There is at least a case to be made that the actions of Bishop Williamson – publicly agitating against an arrangement with the modernist bureaucrats – is prescribed. Catholics are bound to profess their faith whenever silence encompasses “contempt for religion, injury to God, or scandal for a neighbor.” (Canon 1325). Furthermore, Bishops are bound to personally preach the Gospel (Canon 1327), and (assuming the SSPX is a collegial moral person) whatever affects members of the SSPX as individuals (as the Rome agreement arguably does) “must be approved by all” – i.e. touches every person directly, rather than through majority rule (Canon 101 para 2). To whatever extent the SSPX claims supplied jurisdiction in the teaching of faith and morals, Bishop Williamson is Bishop Fellay’s equal and equally responsible for the conservation and promulgation of sound doctrine (Canon 1326). Finally, “if the faith were endangered, a subject ought to rebuke his prelate even publicly.” (II, ii, Q. 33, Art. 4, ad 2). While together all this is a bit thin, there is no question that it creates at least a rebuttable presumption that Bishop Williamson may have believed his public outcry to have in fact been obligatory – and therefore no penalty may be imposed. Cf. also Canon 2199 which says that the imputability of a delict depends upon the dolus (i.e. the deliberate will to violate a law – per Canon 2200 para 1) of the offender, and any causes that eliminate the dolus also eliminates imputability of the offense.
v ) Leaving aside the question of whether the statutes permit the Superior General to deprive anyone of a seat at the General Chapter just on the Superior General’s ipse dixit, it is probable that Bishop Fellay was required to resort to a canonical trial rather than to impose a penalty extrajudicially. To wit:
(1) Delicts normally give rise to criminal actions governed by CIC’s rules of procedure (Canon 2210 para 1-1).
(2) Delicts must be certain for imposition of penalties extrajudicially. (Canon 1933 para 4). But we know that based on the foregoing the delict is in no wise certain.
(3) Unless it is “entirely certain” or “notorious,” a special investigation must be done to determine what basis there is for imputability of the offense (Canon 1939 para 1).
(4) Things that excuse from grave imputability excuse from any penalty, provided the excuse(s) is(are) brought in the external forum. (Canon 2218 para 2). But the notion of bringing an excuse in the external forum presumes that Bishop Williamson would be given an opportunity to do so.
(5) For imposition of a penalty there must be a delict – which, as noted, is a violation of a law to which a canonical penalty is attached.
(a) If Bishop Fellay is punishing disobedience to a precept he presumed to impose, then that precept must have included a threatened penalty either in its own terms or by means of a warning issued later on threatening a penalty for continued transgression. But there is no precept manifest that meets this condition, therefore the delict of transgressing it cannot at all be termed certain.
(b) If Bishop Fellay is punishing pertinacious disobedience, then pertinacity must be established, and cannot merely be asserted.
vi) The only options for imposition of punishment extrajudicially are:
(1) The exception in 1933 para 4, which applies only to delicts that are certain. Even in this case, the certainty must be such that “the crime can be fully proved against the accused, and the means to prove it are actually at hand, and the means must be also available to show that there is no excuse from liability for the offense.” (Woywood, Vol. II, p. 328). As we have seen none of these are present since these are all matters of doubt:
1) Bishop Fellay’s authority;
2) Bishop Williamson’s susceptibility to punishment as a possible non-subject of Bishop Fellay;
3) whether Bishop Williamson’s actions were obligatory;
4) whether Bishop Williamson lacked the requisite dolus (intent to break the law);
5) and whether Bishop Williamson actually disobeyed a particular command or many over a period of time which were in fact legitimate and binding and which therefore would raise the act(s) of disobedience to “pertinacious” disobedience. It is impossible to envision how these matters could be proven and deemed certain extrajudicially.
(2) The exception in 2222 para 1 giving legitimate superiors power to punish transgression of laws that have no penalties attached to them.
(a) This applies only if scandal was given or the special gravity of the transgression makes it necessary (2222 para 1). Assuming Bishop Fellay would argue that Bishop Williamson’s disobedience was grave and scandalous, the other condition is…
(b) That the penalty is imposed for laws to which no penal sanction is attached.
But the code provision cited in Bishop Fellay’s letter banning Bishop Williamson from the General Chapter does have a penalty specified (“whoever pertinaciously does not obey….shall be punished with appropriate penalties”). As Woywood says (Vol. II, p. 416), “In laws to which a penal sanction is attached, the law itself serves as a warning, and, if such a law is violated, proceedings for punishment may be immediately taken; the formalities of the criminal procedure must be observed.” (and cf. p. 418: “In penalties a jure the criminal procedure must be followed.”)
(c ) Assuming that Bishop Fellay would allege a violation of a special precept imposed by his authority (contrary to the face of the docuмent imposing the punishment, which, again, alleges violation of a provision of the code, not a precept of a superior), Woywood still remarks (Vol. II, pp. 418–19): “In the imposition of penalties attached to a special precept of an ecclesiastical superior…there must be sufficient proof of the violation of the precept, opportunity must be given to the accused to defend himself, and all circuмstances material to the fact must be duly considered.” Furthermore, all the doubts about Bishop Fellay’s status as head of an expired religious institute raise equivalent doubts about Bishop Williamson’s subjection to any special precept issued by Fellay (cannon 2226 para 1: [only] one who is subject to a law is subject to penalties attached to it)
d) Assuming Bishop Fellay’s attempt at punishment was imposition of a censure (suspension, which, along with excommunication and interdict is one of three kinds of censure), Bishop Williamson was entitled first to a canonical warning (Canons 2233 para 2 and 2242 para 1 and 2), which I am almost certain he did not receive.
e) If it was merely a deprivation of a right (a vindicative penalty), Bishop Williamson can automatically evade the application of the penalty by appealing to the Bishop of the diocese of Fribourg (where the SSPX was erected) or to the ordinary in Menzigen who is over Bishop Fellay (because the SSPX is not an EXEMPT religious institute) or to the Pope – and the appeal is “suspensive” (per Canon 2287), which means that regardless of the ultimate outcome, its effect is suspended while the appeal is pending adjudication (cf. Canons 1889 and 2243).
5) UPSHOT:
a) Bishop Fellay was at least required to warn Bishop Williamson prior to imposition of punishment, by a canonical monition if the imposition was of a censure, or by the terms of a special precept which mentions the penalty attached to violation of the law. The exception in the case of scandal or grave misconduct does not apply here because that applies only to allegations of transgression of a law to which no penalty is attached.
b) Bishop Fellay was arguably required to impose his punishment via a judicial process since he alleged commission of a delict specified in the code rather than a special precept, and since there is no certainty or notoriety of fact in the instant case, and since there are grave doubts about the canonical status of Bishop Fellay as superior and consequently Bishop Williamson as subject.
c) Bishop Williamson can clearly avoid the effects of the penalty by
1) noting the absence of a canonical monition in the event Bishop Fellay’s punishment is a censure of suspension; or
2) appealing the vindicative penalty (if that’s what it is) in suspensivo, rendering its effect null pending the outcome of the appeal.
Topic: Some Canonical Observations, Regarding Bishop Williamson and SSPX (Read 783 times)