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Fidelity logosThe 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.Fidelity

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.

Index of SSPX articles


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