Archbishop Lefebvre believed that such a state of necessity existed in the Catholic Church. . Popes Paul VI and John Paul II confirm both this fact in the following:
" We have the impression that through some cracks in the wall, the smoke of Satan has entered the temple of God: it is doubt, uncertainty, questioning, dissatisfaction, and confrontation.... We thought that after the Council a day of sunshine would have dawned for the history of the Church. What dawned, instead, was a day of clouds and storms, of darkness, of searching and uncertainties. -- Pope Paul VI, June 29, 1972, Homily during the Mass for Sts. Peter & Paul, On the occasion of the ninth anniversary of his coronation in his response to Vatican II
"There is need to admit realistically and with a deep and sober sensibility that Christians today, for the most part, are dismayed, confused, perplexed and even frustrated; ideas conflicting with revealed and constantly taught Truth have been scattered by handfuls; true and real heresies in the sphere of dogma and morals have been spread, creating doubts, confusions, rebellions; the liturgy has been violated; immersed in intellectual and moral "relativism" and therefore in permissiveness, Christians have been allured by atheism, by agnosticism, by a vaguely moralistic enlightenment, by socialistic Christianity, without defined dogma and without objective morals" - Pope John Paul II, L'Ossevatore Romano, Feb.7,1981.
Thus there can be no doubt (or denial) that we are living in a time of unprecedented crisis as "present day Catholicism is prey to a generalized apostasy; there no longer subsist within it any other than scattered groups of healthy supernatural cells, which in their turn, risk undergoing corruption if they are not warned of the peril in time (Preface to "Teilhard the Apostate" by Manuel de Corte the Proffessor & Philospher at the university of liege in Belgium, 1971).
A state of necessity thus justifies using the law of necessity. The law of necessity in the Church is the sum total of juridical rules which apply in case of a menace to the perpetuity or activity of the Church. This law of necessity can be resorted to only when one has used all possibilities of re-establishing a normal situation, relying on positive law. The Archbishop did all this. The law of necessity uniquely justifies the measures, which are necessary for a restoration of functions in the Church. The principle of proportionality is to be observed. In the History of the Church there are numerous cases of Bishops who, in extraordinary circuмstance, when they found themselves in some of the same difficulties as those of the early centuries and, consequently, the necessity arose of using the Episcopal powers in all their fullness. However the case of whether or not many saints in the past acted directly or indirectly against the express will of the Pope is something that the adversaries of the SSPX have to prove, for in time of necessity when this is minor compared to the greater evil which is at stake.
This is because the preservation of the faith and the salvation of souls are the supreme law of the Church (Pope Pius XII, 2/10/1944 in an address to the Roman Rota, See also Can. 1752). Being the supreme law, all the others are subject to it.
In spite of the declaration made by Lefebvre explaining why he (and many other Catholic priests and bishops) believed it necessary to perform the Episcopal consecrations, the 1988 decree of Cardinal Gantin failed to take into account the above mentioned provisions of canon 1323 and 1324. Further if the Holy See really wanted to excommunicate Archbishop Lefebvre, it would have been necessary to proceed against him by imposing the penalty "senentia ferenda" after due process. The charge of schism would certainly have never have required the imposition of a lesser penalty at most, or possibly no penalty at all (Canon 1323 n.4) for the violation of canon 1382, if due process had been followed. It was obvious that the secretary of state did not want to run the risk of due process, and therefore the fraudulent procedure of issuing the incompetent decree of Cardinal Gantin was chosen instead.
For a Catholic excommunication to occur it must take place either positively by a special ceremony, or automatically by Church Law. Now Rome never performed any ceremony to excommunicate the Archbishop. It merely declared he had automatically excommunicated himself by Church law as never once did Pope John Paul II declare explicitly "I hereby excommunicate Archbishop Marcel Lefebvre." On July 2, the Pope merely declared that an "ipso facto" excommunication had taken place. It did not, according to Can. 1323 (1983 Code).
In order for one to be excommunicated he would have to break cannon Law. Much like in society one must first break the law in order to be lawfully arrested. However "it is not the consecration of a bishop which creates the schism. What makes the schism is to give the bishops an apostolic mission" this is something Archbishop Lefebvre never did.
One must not fail to realize that Schism means secession from the pope, separation for the Church, which is something Marcel Lefebvre & the SSPX have never done, as they continue to profess their Loyalty to the One, Holy, Catholic, and Apostolic Church of Christ. The Society of St Pius X has remained faithful in the constant teaching of the Church, for it is the apostle St Paul himself who strongly commands us to "Stand firm in the teachings and traditions" of the Church " (2 Thess 2:14).
In the History of the Church there are any numerous cases of Bishops who, in extraordinary circuмstance, when they found themselves in some of the same difficulties as those of the early centuries and, consequently, the necessity arose of using the Episcopal powers in all their fullness, consecrated Bishops without adhering to the disciplinary norms of the time; they did so by virtue of this "Law of supplying (Ecclesia supplet)" which exists in the Church, as it does in all organizations, when the functioning of necessary and indispensable organs become endangered. Thus in the 4th Century, "St. Eusebius of Samosata and other bishops, not only consecrated but even established other bishops in Episcopal sees" (V.Manlio Simonetti, la Crisi ariana nel IV Secolo, Institutum Patristicuм Augustinainum, Via S., Uffizio 25, Roma), 1975) even while having no particular jurisdiction over them, (Theod. Hist.eccl'bookII, Chap XI, Action du college episcopal) and yet the Church has not hesitated to proclaim his sanctity. Further St. Melilus of Antioch incurred an excommunication for the consecration of a bishop in order to maintain the faith.
Further it is well known that both St. Athanasius and St. Eusebius consecrated priest without the "official" approval of Rome. This like wise was the case with St. Jerome who was excommunicated by Bishop John of Jerusalem for partaking in a so-called "illegal" ordination however such an excommunication was later vindicated! Such historical facts only serve to confirm the courageous actions of Archbishop Lefebvre.
Cardinal Billot writes that Our Lord instituted the primacy, but left in some way the limits of episcopal power undefined, precisely because "it would not have been fitting that those things that are subject to change would be unchangeably fixed by divine law. Some things are indeed subject to change because of the variety of circuмstances and of the times and because of greater or lesser facility of recourse to the Apostolic See among other such like things (De Ecclesia Christi, Q.XV, §2, p.713).
Dom Grea, whose attachment to the pope is above all suspicion testifies (De L'Eglise et de sa divine constitution, vol. I) that not only at the beginning of Christianity did the "necessity of the Church and the Gospel" demand that the power of the episcopal order be exercised in all its fullness without jurisdictional limitations, but that in successive ages extraordinary circuмstances required "even more exceptional and more extraordinary manifestations" of episcopal power (ibid, P.218) in order "to apply a remedy to the current necessity of the Christian people" for whom there was no hope of aid on the part of the legitimate pastors nor from the Pope. In such circuмstances, in which the common good of the Church is at stake, the jurisdictional limitations vanish and "that which is universal" in Episcopal power" comes directly to the aid of souls" (ibid, p.218). It must be understood that in the exercise of the power of the keys, Christ remains always the "principle agent" and "no other man can exercise (the power of the keys) as principle agent" (St. Thomas, Supplement, Q.19, A.4).
Dom Grea further writes that the extraordinary manifestations of episcopal power do not call into question the doctrine on the primacy, because necessity, without hope of help from the legitimate pastors takes the "extraordinary action" of the episcopate back to "the essential laws of the hierarchy" which are not at all weakened by the ordinary jurisdictional Laws (see Catholic Encyclopedia, necessity, state of).
The keys of peter are also the "keys of ministry," and therefore not even Peter can use the power of the keys arbitrarily, but must be attentive to the divine order of things. The divine order is that jurisdiction flows to others by means of Peter, yes, but for the preservation of the faith" (St.Thomas, Contra Gentiles, Bk.4, c.72). Therefore, if peter prevented it from being supplied sufficiently for the need of souls, he would act against the divine order and would commit a most grave fault (St. Thomas, Supplement, Q.8, AA. 4-9).
From the above it is thus undeniable that the state of necessity extends not only to the duties of bishops, but also to their power of jurisdiction.
As for jurisdiction, the priests of the SSPX do not deny that they do not have ordinary jurisdiction. Nevertheless the New Code of Canon Law as promulgated by Pope John Paul II provides for the jurisdiction needed for the valid administration of the sacraments of confession, marriage and confirmation in Canon 144. This Canon explains how the law itself gives the necessary faculties when it says "In common error about fact or about law and also in positive and probable doubt law or fact, the Church supplies executive power of governance (jurisdiction) both for the external and internal forum. #2: "This same norm applies to the faculties mentioned in canon.883 (confirmation) canon 966 (confession) and canon 1111#1 (marriage). So Church Law itself can and does give a validly ordained priest the power to hear confessions, bless marriages and administer confirmations even without the permission of the local bishop "since necessity knows no law, in cases of necessity the ordinance of the Church does not hinder him from being able to absolve, since he has the keys sacramentaly" (St. Thomas, S.T. Suppl.,Q.8, A.6). This conforms to the law of "Epikeia" that allows one to follow the spirit of the law rather than the letter of the law in a given circuмstance.
Pope Pius XII in taking up the common opinion of theologians held that an Episcopal consecration does not, in itself, confer any automatic Jurisdiction but only the fullness of power of order; as through Episcopal consecration, the bishops are potential recipients of jurisdiction and have the passive power to receive jurisdiction (Pius XII, Ad Sinarum Gentem, 7/101954). Episcopal dignity comes directly from God but as regard to jurisdiction it comes from the Apostolic See (Pius VI, The Letter Deesemus). The SSPX bishops do not claim jurisdiction and thus Archbishop Lefebvre's Episcopal consecrations in no way call into question the primacy of jurisdiction of the Holy See and so it does not constitute a schismatic act contrary to what is asserted by "ecclesia Dei Adflica" and so it does not apply.
The power, while wielded by Peter, is owned by Christ. It is to benefit souls, not its possessor. It is to save souls, not damn them. As for the machinery of Peter's control of the consecration of bishops, Christ left it flexible, so that Peter could, down the ages, tighten or loosen that machinery according as different historical circuмstances would require for the good of the Church. Medieval popes tightened it, as did Pius XII because of a recurring problem in China, but the Church has approved of Eusebius of Samosate consecrating bishops without the Pope's permission in the 4th century. Therefore if a Pope were to tighten that control to the grave harm of souls, the Church would supply jurisdiction for a bishop to take that consecration into his own hands, as did Archbishop Lefebvre. For the manner of Episcopal consecrations is a matter not of divine law, but of human Church law, allowing for the exceptions possible in all human Church law. The real schism is with those who try and impose the false notion of "collegiality", as this challenge's the Pope's authority as Pope.
Further consensus amongst canonists is that Archbishop Lefebvre was NOT ex-communicated (i.e. Cardinal Lara , La Republica, October 7, 1988) as he was acting from a state of necessity for which canon law provides. After all the purpose of the law is the salvation of souls; and sometimes it is necessary to follow the spirit of the law and not the letter of the law. In speaking of the case of Archbishop Lefebvre, Cardinal Silvo Oddi, didn't hesitate to affirm that: "Marcel Lefebvre is the only case in the Church of being condemned because he was 'too faithful' to the Church. I am sorry for this." And what is more is that he adds, "In my opinion, the excommunication was a mistake. He was treated too harshly by the Church. I've said that to Cardinal Ratzinger. - Latin Mass Magazine, Vol. 3, No. 5, Sept-Oct 1994, pg. 24.
Now, the "excommunication" was supposed to be due to abuse of Episcopal powers (canon 1382), and was not incurred because:
A person who violates a law out of necessity is not subject to a penalty (1983 CIC, canon 1323, §4), even if there is no state of necessity but the person inculpably thought there was. This is because no penalty is ever incurred without grave moral imputability (Canon 1323.7) thus even if he is ever judged as being mistaken it could still never amount to subjective mortal sin.
The "rule of Law" (Regula iuris 15) which gives the benefit of any doubt in cases of penal Law, points out that if there is a doubt whether a penalty has been incurred in a particular case, it means that it has not been incurred. One must also say that even if there were an erroneous and punishable supposition of an emergency, still there would be no automatic sanction, much less an excommunication (Canon1324, n.1,8,3).
It appears that there can be no question of a separation with Rome since Abp. Lefebvre acted according to the directives of Catholic theology since "it is legitimate to disobey a popes command and hinder the carrying out of his orders if he jeopardizes souls" (St. Robert Bellarmine, de Romane Pontife, 2,29). Thus the Archbishops decision to consecrate four bishops is in direct line with the saintly bishop and confessor Athanasius who at a time of similar general blindness when heresy prevailed was one of the few bishops who openly resisted it at the cost of even being excommunicated which was a measure understood to be just as invalid as the supposed excommunication of June 30, 1988.
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