From the
archives - Published from 1982-96, Fidelity magazine was the predecessor of Culture Wars.
The Schism of Lefebvre: A Review of
Charles P. Nemeth's The Case of Archbishop Marcel Lefebvre
The Case of Archbishop Marcel Lefebvre: Trial by Canon Law, by Charles P. Nemeth, Esq. (Kansas
City, Missouri: Angelus Press, 1994), 173 pp., $8.00 paper.
By Andrew Tardiff
From the March 1995 issue of Fidelity
magazine
Canon 1629 - There is no room for appeal ... from a sentence of
the Supreme Pontiff himself ...
Recently the Angelus
Press published The Case of Archbishop Marcel Lefebvre, a defense of
the late Archbishop who was declared excommunicated and schismatic on July 2,
1988 for consecrating four bishops without a papal mandate. The book is written
by Charles P. Nemeth who is a man of much experience and with many
publications. Nevertheless, the work has two main defects: it fails to show
that Archbishop Marcel Lefebvre was not validly excommunicated and declared
schismatic, and it is at times intellectually dishonest.
The dishonesty begins
with a blurb on the cover which calls Mr. Nemeth "an outsider,"
giving one the impression that the author is not affiliated with the Society of
St. Pius X (SSPX) founded by Lefebvre, but an impartial observer who for some
reason took an interest in the case. This can only strengthen the "objective,
impassionate study of a very passionate subject..." the book promises
to be. But the reader soon discovers that Mr. Nemeth is not an impartial
outsider at all, but deeply sympathetic to the SSPX.
So how can they justify
calling him an outsider? Perhaps in this way: Mr. Nemeth is a not a canon, but
a civil lawyer. In other words he is writing on an issue outside of
his field of expertise and therefore an "outsider" in this sense. So
to call him "an outsider," then, is a either a cryptic
warning to the reader that the author is not an authority in this matter, or,
it is an attempt to create a false impression.
The author promises no
verbal assaults, but a pure, objective, well reasoned analysis. His work will
be clean and cold and, we are told, "authoritative." But
aside from the cover (for which he is probably not responsible) there is some
fishy translating in Mr. Nemeth's book that makes one wonder about the
cleanliness and coolness of his reasoned analysis.
One of the translating
errors involves the English rendering of a passage from canonist von Rudolf
Kaschewsky's Zur Frage der Bishofsweihe ohne Paepstlichen Auftrag ("On
the question of the Consecration of Bishops without Papal Mandate") (1) and is almost certainly an honest mix-up. The English does not
match the German passage at all. Probably there is a passage in German
somewhere that says what the English does. Whoever typed the German simply
chose a paragraph either above or below the one the author wanted. Later,
however, there is a clear instance of citation tampering.
Mr. Nemeth, like other
apologists for the Archbishop, quotes Cardinal Rosalio Lara in support of his
view that there is no schism and, like the others, leaves out that part of the
Cardinal's statement in which he flatly says that the Archbishop is in schism
on two counts. (2) But in Mr. Nemeth's case, not
only is this passage left out, but additional lines are supplied. Below is how
Cardinal's words appear in Mr. Nemeth's book: "...Consecrating a bishop
without a pontifical mandate is, on the contrary, an offense against the
exercise of a specific ministry," not a rejection of Papal Authority! And
hence definitely not schism (3).
"[N]ot a rejection
of Papal Authority! And hence definitely not schism" are not Cardinal Lara's
words. But they appear to be since they fall within the same indented paragraph
... well, that is until you look more closely. For notice the passage does have
quotation marks in it (not around it), and one of them just happens to come
directly after the word "ministry." So Mr. Nemeth has simply
chosen a different way of citing a passage. Right?
But one must ask him:
Mr. Nemeth, why don't you follow the correct procedure (as you do in all your
other quotes). This would involve three changes: First insert an empty line
between your words and his to separate them so that no one will mistake them
for the Cardinal's, then move your comments all the way over to the left margin
to match the rest of your text. Finally, the quotation marks have no place in an
indented citation, of course - except to mark a quote within a quote (which is
not the case here) - so delete them. Why do you take so many liberties in
citing this important passage? The reader is left with only two alternatives:
either he believes that a very elaborate and fortuitous (for Mr. Nemeth's
purposes) typo slipped through the proofreaders, or he believes that Mr. Nemeth
is trying to mislead us into thinking that "not a rejection of Papal
Authority! And hence definitely not schism" are the Cardinal's own
words.
However the reader
decides this, the failure of Mr. Nemeth to establish the invalidity of the
excommunication and schism of the Archbishop remains.
Any canonical or
juridical examination of the actions of the late Archbishop Marcel Lefebvre...is
not possible without knowing the man.
This is the opening
sentence of chapter 1, and, fittingly, it is foundational for Mr. Nemeth's
defense of the Archbishop. It is important because there are both objective and
subjective conditions involved in breaking a law and incurring a penalty. The
objective ones have to do with what a person actually did (the external act),
and the subjective ones (mainly) with the inner state of the person who
committed the external act (things like: did the person know he was breaking a
law, or, was he in his right mind, or, did he feel compelled in some way).
In the case of
Archbishop Lefebvre the objective conditions are met. He did consecrate bishops
without a papal mandate. So, the Archbishop can only be defended if the
subjective ones are not. So, we begin by looking at the man.
However, given the
obscurity and privacy of the psychological realm we must enter (only you and
God know directly what you are thinking and feeling, and only God understands
it fully), the question arises: who judges whether the subjective conditions
are met? Mr. Nemeth? Count and canonist Neri Capponi? The Archbishop? The
reader? How are we to know whether the Archbishop's inner state at the time
sufficiently qualifies for incurring excommunication? Did God give us a
definitive, authoritative voice that can judge for us?
Mr. Nemeth argues that,
since the Archbishop acted out of fear (grave or even relatively grave) and
necessity (or even imagined necessity), several such subjective conditions are
not met, and therefore he incurs no penalty. He cites the following canons:
Canon 1323 - The
following are not subject to penalties when they have violated a law or a
precept:
Canon 1323, Section 4 -
a person who acted out of fear, even if only relatively grave, or out of
necessity or out of serious inconvenience unless the act is intrinsically evil
or verges on harm to souls;
Canon 1323, Section 7 -
a person who without any fault felt that the circumstances in nn. 4 or 5 were
verified;
Canon 1324, Section 1 -
One who violates a law or precept is not exempt from a penalty but the penalty
set by law or precept must be tempered or a penance substituted in its place if
the offense was committed:
Canon 1324, Section 5 -
by a person who was forced through grave fear, even if only relatively grave,
or through necessity or serious inconvenience, if the offense was intrinsically
evil or verged on harm to souls;
Canon 1324, Section 8 -
by one who erroneously yet culpably thought one of the circumstances in canon
1323, nn. 4 or 5 was verified;
Canon 1324, Section 10 -
by one who acted without full imputability provided there was grave
imputability.
Under canon 1323 no
penalty would be incurred, under 1324 only a lesser one than the law
prescribes.
Three points are in
order.
First, Mr. Nemeth
engages in some translingual sleight of hand in making his case on the basis of
fear. He writes:
"(f)ear can be
grave (metu gravi) and even relatively slight (quamvis relative tantum) (4)
It would be easy to show
that the Archbishop was at least slightly afraid, and so he incurs no penalty,
Mr. Nemeth argues. But the Code does not say "relatively slight;"
it says "relatively grave." And there is an important
conspicuous difference between slight and grave. Mr. Nemeth would have us think
that the 1983 Code is so soft that it is very difficult to incur a penalty
under it. But the fear must be grave, though it may be relatively so. (I am no
canon lawyer either, but perhaps the Church means to distinguish here that
which is really grave, from that which just seems grave to some particular person.
She may also mean to distinguish that which is absolutely grave from that which
is grave relative to a particular situation). [Mr. Tardiff wrote, in June of
1997, "I found out later, this is what She means. Some things are
always grave, others only grave under certain circumstances." -- Ed.
Note]
This is not the only
time Mr. Nemeth tampers with the language in toying to make the code look
softer than it is. He does so again when considering whether the Archbishop's
act is seriously "imputable" to him, i.e., whether he
deliberated and acted freely (5) (because if not, then he incurs
no automatic penalty). Now the Code says that imputability is assumed when a
law has been broken, "unless it is otherwise evident (nisi
aliud appareat)." (6) Mr. Nemeth notes that in the old
Code one had to "prove (probetur)" the act was not
imputable. He makes much of the difference between appareat and probetur,
writing:
In the New Canon 1321
(3) - "imputability is presumed" unless it appears
otherwise, and in the old it must be proven otherwise. (7)
But apparere does
not mean "appear" or "seem." And the
English translation of it does not render it so. It means "to become
visible," "to be manifest," or, as the approved English
translation has it, "to be evident." Apparere is not weaker
than probare; it is only more realistic. Strictly proving, that is,
marshaling incontrovertible evidence such that no error is possible, is
extremely rare in any field, let alone it one such as the inner and private
condition of one's subjective conscious state. Mr. Nemeth continues:
"The 1917 Code
advocate had to satisfactorily demonstrate a well-founded, reasonable doubt
(donec contrarium probetur). By contrast, the 1983 Code's liberal employment of
the term "appears" grants greater discretion in the
interpretation." (8)
The 1983 Code does not
employ the word "appears." It employs the word appareat, which
is rendered "it be evident," which means that under the present Code
the advocate has to satisfactorily demonstrate a well-founded, reasonable doubt
such that it be manifest, clear, evident (nisi aliud appareat) that
the subjective condition of serious imputability is not met. Short of this,
imputability is to be presumed.
Second, Mr. Nemeth
selectively stops quoting canons where they would begin to undermine his case.
He quotes generously from the list of exceptions to a penalty and mitigating
factors, but does not push on only two canons deeper to 1326 where the Code
provides for punishing more severely than the law stipulates.
Canon 1326, Section 1 -
A judge can punish more severely than a law or precept has stated:
Canon 1326, Section 1,
Clause 1 - a person who after condemnation or after a declaration of a
penalty still commits an offense so as to be prudently presumed to be in
continuing bad will in light of the circumstances.
Canon 1326, Section 1,
Clause 2 a person who has been given some dignified position or who has abused
authority or office in order to commit an offense.
Canon 1326, Section 1,
Clause 3 - an accused who although a penalty has been established against a
culpable offense, foresaw what was to happen yet nonetheless did not take
the precautions which any diligent person would have employed to avoid it.
Canon 1326, Section 2 -
if the penalty established is an automatic one (latae sententiae),
another penalty can be added in those cases mentioned in 1. (My italics. [i.e.,
Mr. Tardiff's])
Were I judging the case,
I would say that at least two aggravating circumstances apply: (1326 Section 1,
Clauses 1 and 3). For the Archbishop was repeatedly warned by the Holy See of
the penalty of excommunication and yet went ahead with consecrations anyway.
Also, though he was promised a bishop from his own priests by August 15 of 1988
and that all his chapels throughout the world would be officially recognized
and that his priestly society would be established as a society of apostolic
life thus protecting it from local ordinaries, he would not take the
precautions any diligent person would have employed to avoid the schism.
But I am not judging the
case, and this brings me to the third point. Who determines whether there were
mitigating or aggravating circumstances in this case? Who judges whether the
subjective conditions applied? Who judges whether the act was a schismatic one?
Who has the authority to
rule in such cases? Mr. Nemeth? My local priest (who has a Ph.D. in canon law)?
Me? All wrong. We have no authority, and our opinions mean nothing. But there
is an authoritative and definitive voice established by God to decide such
cases.
Canon 331 - The bishop
of the Church of Rome...is head of the college of bishops, the Vicar of Christ
and Pastor of the universal Church on earth; therefore, in virtue of his
office he enjoys supreme. full and immediate and universal ordinary power in
the Church which he can always freely exercise. (My italics. [i.e., Mr.
Tardiff's])
Canon 1405, Section 1,
Clause 3 - it is the right of the Roman Pontiff himself alone to judge in cases
mentioned in can. 1401 ["the violation of ecclesiastical laws and all
those cases in which there is a question of sin in respect to the determination
of culpability and the imposition of ecclesiastical penalties."] legates
of the Apostolic See and, in penal cases, bishops.
Canon 1442 - The Roman
Pontiff is the supreme judge for the entire Catholic world;
Among the many problems
with Mr. Nemeth's book the biggest is that its content is irrelevant because it
is academic. He writes as if there were no papal decree, as if the Archbishop
were still waiting to be judged for his action. His book is 173 pages of the
Archbishop could say this in his defense, he could appeal to that, he could
point out that he has always , and, referring to canon X, he could say that he
truly believed Y. But judgment has already been given in the decree Ecclesia
Dei Adflicta, and the Archbishop was found by the Holy Father, "the
supreme judge of the entire Catholic world," to have incurred an automatic
excommunication and to be guilty of a schismatic act.
But, the book goes on,
this canonist agrees with the SSPX, so does that one, and in the opinion of
this count and canonist the Archbishop is innocent, and Elizabeth X thinks the
whole thing is preposterous. So what? Who cares what all these people think?
They have no authority. The pope, the Vicar of Christ, the Roman Pontiff, the
supreme head of the one true church has judged and decreed that Archbishop Marcel
Lefebvre committed a schismatic act by consecrating four bishops without a
papal mandate and that the bishops involved are excommunicated. The case is
closed. It has been judged by the supreme authority.
Moreover,
Canon 333, Section 3 -
There is neither appeal nor recourse against a decision or decree of the Roman
Pontiff.
Canon 1629 - There is no
room for appeal...from a sentence of the Supreme Pontiff himself.... [Part V,
Section 1, Recourse Against Administrative Decrees] Canon 1732 - What
is determined concerning decrees in the canons of this section is also to be
applied to all particular administrative acts which are posited in the
external forum outside a trial with the exception of those issued by the
Roman Pontiffs ... (My italics. [i.e., Mr. Tardiff's])
Remarkably, the stated
purpose of Mr. Nemeth's book is to "examine, assess and weigh the validity
of the latae sententiae excommunication posed for the act of
consecration." (9) For Catholics there is nothing
to "examine, assess and weigh," because the Vicar of Christ himself
has spoken, and, according to the Catholic Faith, he is the supreme judge. (10) Catholics
believe that God gave us the papacy to govern and settle such issues. We have
an answer to the world's question: Who's to say? For Catholics, the pope's
judgment is definitive. But it is not definitive for Mr. Nemeth. He will write
a book and review the case himself warning us in the preface: "(r)eaders
should be advised that my review is authoritative," (11) And so, he, too, will render judgment. This is an American
right-to-decide-for-oneself attitude, not a Catholic one. Ecclesia Dei Adflicta
is an official authoritative decree of the Vicar of Christ. There is no appeal.
For Catholics, the case is closed.
1
This passage is on p. 82.
2
See "The Story of the Vanishing Schism: The Strange Case of Cardinal
Lara," by John Beaumont and John Walsh, in Fidelity, vol. 13, no. 4,
March 1994.
3
Op. cit., p. 138.
4
Op. cit., p. 85.
5
"Two elements are necessarily involved in imputability, namely,
deliberation and freer will." Robert Swoboda, "Ignorance in Relation
to the Imputability of Delicts," Innocent, 88 (1941), quoted from The
Case of Archbishop Marcel Lefebvre, p. 56.
6 1321
3.
7
Op. cit., p. 65, (his emphasis).
8 Ibid.,
pp. 65-66.
9 Ibid.,
p. i.
10
It is a Protestant principle Society members turn to when they claim that only
God has the final word, that Christ is the supreme judge. But God established
the papacy giving the final word to the popes when He said to Peter "I
give to you the keys to the kingdom. Whatever you bind on earth will be bound
in heaven." Also in Protestant fashion Society members quote scripture and
remind us that Paul rebuked Peter to his face. But Paul did not override a
decree of the Vicar of Christ. He couldn't. He did not have the God-given
authority. He rebuked him for an erroneous personal policy.
11 Ibid.,
p. i.
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