This canonical study by Rev. Thomas C.G. Glover, Doctor of Canon Law, was first published in the January 1982 issue of The Angelus.
On November 1, 1970, Bishop Charriere had granted Archbishop Lefebvre, at his request, authority to found at Fribourg a "religious union" (pious union) which was not a congregation, nor a religious institute. On the same day he had approved, for an experimental period of six years, the Statutes of the Society of St. Pius X.
As the canonical study below will demonstrate, these acts or authorizations and approvals of Bishop Charriere were never legitimately withdrawn by his successor, Bishop Mamie, therefore the SSPX still has a legal right to exist.
The valid legal existence of the Priestly Society of St. Pius X
I. State of the question
There are many in the Church who say: "The Priestly Society of St. Pius X has no legal existence because it has been suppressed by competent authority." Granted that the justification of the existence of the Society is found mostly in moral and doctrinal considerations, the legal aspect is still of great importance.
No one has any doubt as to the valid erection of the Society: the only question is the one concerning the validity of the suppression of it. Whoever argues for the validity of the suppression must follow one of the three following lines of thought:
- The Society is merely a "pious union." The local Ordinary could suppress it and in fact did suppress it.
- The Society is a "society of the common life." Suppression required the action of the Holy See. This act of suppression has taken place.
- Although the act of suppression was invalid in itself, it received a confirmatio in forma specified from the Roman Pontiff, which sanated* the invalidity.
*"Sanate" is a term used in Canon Law meaning "to rectify," "to remove the invalidity of." Here the meaning is: "the confirmatio in forma specified from the Roman Pontiff removed the invalidity of the act of suppression of the Society, i.e., gave the suppression legal force."
The purpose of this treatise is to show that these three positions are erroneous. Before considering the legal question, a brief historical survey will be useful.
II. Brief Historical Survey
|Dates||Related texts: see founding SSPX documents|
|August 18, 1970: Bishop Charriere of Lausanne, Geneva and Fribourg, issued a letter of confirmation of the permission—already given orally on January 6—for an international house of candidates to the priesthood.||
 By these presents, We, Francois Charriere, Bishop of Lausanne, Geneva and Fribourg, confirm the authorization which We gave to His Excellency Archbishop Marcel Lefebvre, in an audience on June 6, 1969: to open at Fribourg an international house for candidates for the priesthood who study at the University [of Fribourg].
We implore for these future priests and on those who oversee their formation the blessings of Almighty God.
At our palace in Fribourg, August 18, 1970
|November 1, 1970: Bishop Charriere confirmed the decree of erection of the International Priestly Society of St. Pius X, with approval of its statutes for six years.||
 Given the encouragements expressed by Vatican Council II, in the decree Optatam totius, concerning international seminaries and the distribution of the clergy;
Given the urgent necessity for the formation of zealous and generous priests conforming to the directives of the cited decree;
Confirming that the Statutes of the Priestly Society correspond to its goals:
We, Francois Charriere, Bishop of Lausanne, Geneva and Fribourg, the Holy Name of God invoked and all canonical prescriptions observed, decree what follows:
1. The "International Priestly Society of St. Pius X" is erected in our diocese as a Pia Unio.
2. The seat of the Society is fixed as the Maison St. Pie X (St. Pius X House), 50, rue de la Vignettaz in our episcopal city of Fribourg.
3. We approve and confirm the Statues, here joined of the Society for a period of six years ad experimentum, which will be able to be renewed for a similar period by tacit approval; after which, the Society can be erected definitely in our diocese by the competent Roman Congregation.
We implore divine blessings on this Priestly Society that it may attain its principal goal which is the formation of holy priests.
Done at Fribourg, in our palace.
|February 18, 1971: Cardinal Wright, Prefect of the Sacred Congregation for the Clergy, sent a letter of commendation with mention of the expansion of the Society outside the diocese and outside the boundaries of Switzerland.||
 With great joy I received your letter, in which your Excellency informs me of your news and especially of the Statutes of the Priestly Society.
As Your Excellency explains, this Association, which by your action, received on 1 November 1970, the approbation of His Excellency Francois Charriere, Bishop of Fribourg, has already exceeded the frontiers of Switzerland, and several Ordinaries in different parts of the world praise and approve it. All of this and especially the wisdom of the norms which direct and govern this Association give much reason to hope for its success.
As for this Sacred Congregation, the Priestly Society will certainly be able to conform to the end proposed by the Council, for the distribution of the clergy in the world.
I am respectfully,
|January 24, 1975: The new bishop of Lausanne, Geneva and Fribourg (Bishop Mamie) asked permission from the Prefect of the Sacred Congregation for Religious (Cardinal Tabera) to withdraw the approval granted by his predecessor.|||
|April 25, 1975: Cardinal Tabera wrote to Bishop Mamie. The text [of this letter] is not clear, but he said either that the Sacred Congregation or the Ordinary himself had the necessary authority to withdraw approval. He not only expressed agreement but even invited the Ordinary to make the act of suppression.||
 Your Excellency,
Your report of this past January 24 concerning the priestly Society of St. Pius X has received the closest attention of the Sacred Congregation for Religious and Secular Institutes. We are grateful for your clarity and apostolic zeal.
In that which concerns the competence of this Sacred Congregation, Your Excellency knows that it has the necessary authority to withdraw the acts and concessions granted by your predecessor.
Nevertheless, granted the conclusions reached by the special ad hoc commission of cardinals, the Sacred Congregation not only expresses it full accord with the suppression of the Priestly Society of St. Pius X, erected by your predecessor, but invites you to proceed at once to this sad yet necessary step.
I am glad, in this painful situation, to express to you the gratitude of the Sacred Congregation and my own for your valuable collaboration in the service of the Lord and the Church. I remain,
Your Excellency's most devoted servant in Christ,
Arturo Card. Tabera, Prefect
|May 6, 1975: Three cardinals (Garrone, Tabera and Wright) wrote to Archbishop Lefebvre: "A letter will be sent" (not "has been sent") to Bishop Mamie in which the right of withdrawing approval will be recognized.||
 Sacred Congregation for Catholic Education
It is in the name of the Commission of Cardinals and by express mandate of the Holy Father that we write to you. We recognize the fraternal atmosphere in which the recent interviews have taken place, without our differences ever compromising a deep and peaceful unity. But the apparent intransigence of your views, with the inevitable consequences, only makes us that much sadder.
It is your public Declaration, published in Itineraires, that our exchange principally concerned. It could not have been otherwise, since we found the candidness which the Visitor to Econe could not clarify and invited us to disentangle in a conversation with you.
Now such a Declaration seems to us in all points unacceptable. It is impossible to reconcile the main affirmations contained in this document with an authentic fidelity to the Church and with him who is responsible for it and to the Council where the thought and wish of the Church are expressed. It is not allowable that each submit to his own judgment directives coming from the pope—to obey them or to disregard them: this is the typical language of the sects which appeal to the popes of the past in order to withhold their obedience to the present pope.
Throughout our conversations our wish was to lead you, Your Excellency, to recognize how well-founded these objections were and to review your own position. This, you told us, was impossible: "If I were to modify the text," you said, "I would write the same things."
In these circumstances, the Commission could only send to the Holy Father the absolutely unanimous conclusions and the complete dossier on this affair so that he might judge for himself.
It is with the entire approval of His Holiness that we make known to you the following decisions:
1) A letter will be sent to Bishop Mamie, recognizing his right to withdraw the approval granted by his predecessor to the Society and to its statutes. This was done by the letter of H.E. Card. Tabera, Prefect of the Sacred Congregation for Religious.
2) Once suppressed, the Society having no longer legal support, with its houses, especially the Seminary at Econe, lose their right to existence.
3) It is clear—we are invited to stress this—that no support can be given to Archbishop Lefebvre as long as the ideas contained in the Manifesto of November 21, 1974 remain the guide for his actions.
We cannot communicate these decisions to you, Your Excellency, without a profound sorrow. We know that with what generous perseverance you have worked, and the good accomplished. We realize the cruel situation in which you find yourself. But we are sure that all who read or wish to read your Declaration and who wish not to be gratuitously suspicious of the decisions taken for other reasons than this Declaration itself, will realize that, given your refusal to withdraw this Declaration, no organization in the Church, no foundation for the priesthood, can be built on such a foundation.
We hope, Your Excellency, that the Lord will give you the light to find your way in conformity with His Will, in the confidence in him to whom we as bishops owe a sincere and efficacious obedience.
For our part, we can only express to you our fraternal attachment and assure you of our prayers.
Gabriel Marie, Card. Garrone
May 6, 1975: Bishop Maime of Lausanne, Geneva and Fribourg informed Archbishop Marcel Lefebvre, Superior of the Priestly Society of St. Pius X, that he was withdrawing the approval given to this "union" in 1970.
 "...I inform you that I withdraw the acts and concessions granted by my predecessor concerning the Priestly Society of St. Pius X, particularly the decree of erection of November 1, 1970 ...This decision is effective immediately...."
This decision was taken in accordance with the Roman Congregation "for Religious and Secular Institutes," "for the Clergy," "for Catholic Education and Seminaries," as well as "in accordance with His Excellency Nestor Adam, Bishop of Sion."
|May 9, 1975: Bishop Mamie published a "communication" in which he said the Society was a religious union or pious union, not a congregation or religious institute.||
May 21, 1975: Archbishop Lefebvre sent a document to the Apostolic Signature in which he appealed:
 Your Eminence,
Please find enclosed the supporting documents on which I base my appeal to your department. I appeal as follows:
1) Against the decisions taken as expressed in the letters of May 6, 1975, by H.E. Mamie, Bishop of Fribourg, as well as by the three cardinals signing the letter addressed to me from Rome. This procedure is against Canon 493 of the Code of Canon Law.
2) Against the competence of the commission of cardinals to condemn me in a matter of faith because of my Declaration which appeared in the magazine Itineraires and which I wrote on November 21, 1974. I ask to be judged by the sole competent tribunal in these matters: the Sacred Congregation for the Doctrine of the Faith.
3) Against the judgment of H.E. Mamie and approved by the cardinals of the commission: in effect my Declaration, if it is to be condemned, should condemn me personally and not destroy the Society, its seminaries, nor the houses of formation, especially since the cardinals assured me that the apostolic visit had resulted in a judgment favorable to the work of the seminary, a visit which took place on November 11-13, 1974.
On the strength of this appeal and on the strength of the law, the appeal being suspended, I consider that—until proven to the contrary—that my Society and all that depend on it retain their canonical existence.
I remain at the disposal of Your Eminence for further developments and beg you to accept my most respectful thoughts in Our Lord and Our Lady.+Marcel Lefebvre, May 21, 1975
|May 31, 1975: Cardinal Tabera wrote to Bishop Mamie that he [Bishop Mamie] had full authority to withdraw approval of the Society.||
 Your Excellency,
Some reactions on the subject of your recent decision concerning the Priestly Society of St. Pius X—of which the Sacred Congregation for Religious, has been aware, gives it the occasion to reaffirm the following statements:
1) As was stipulated in the letter of last April 25, Your Excellency had full authority to withdraw the approval originally given by the Bishop of Fribourg; and the present development of the situation gives witness to the timeliness of that decision.
2) There can be no question for this department to give its nihil obstat for the eventual erection of the Priestly Society of St. Pius X as an institute of diocesan right as long as those responsible for it maintain their present attitude.
I gladly take the occasion to say, I remain Your Excellency's most devoted servant in Our Lord,
Arturo Card. Tabera
|June 10, 1975: The Apostolic Signature rejected the appeal concerning the incompetence of the tribunal as being contrary to the execution of the decisions of the commission of cardinals as already approved in forma specifica by the Roman Pontiff.|||
|June 29,1975: Paul VI wrote to Archbishop Lefebvre. The Roman Pontiff himself instituted the commission of cardinals, approved their conclusions and ordered that they take effect immediately.|| "...the Commission of Cardinals which We instituted has regularly and scrupulously reported to Us on its work. Finally, the conclusions which it has proposed to Us, We have made our own—each and every one—and We have personally ordered that they take effect immediately ..."|
October 27, 1975: Cardinal Villot, Secretary of State, wrote to the Episcopal Conferences. The Society was only a pious union, not a society of the common life.
| "The Priestly Society of St. Pius X was erected on November 1, 1970, by Bishop Francois Charriere… it was destined, in the spirit of Archbishop Lefebvre, to be transformed into a society of the common life without vows. Until its recognition—recognition which was not further renewed—it remained under the jurisdiction of the Bishop of Fribourg and the vigilance of the dioceses in which it exercised its activities. This is in conformity with the law."|
III. Examination of the first position: "The Society was a mere 'pious union.' The local ordinary had the power to suppress it and in fact did suppress it."
1. The law
a) The nature of a pious union
A pious union is an association of the faithful for the exercise of some work of piety or charity (cf. Canon 707, 1). It may be erected by a [written] decree of the local Ordinary, but a mere [oral] approval is sufficient. Where there is a decree of erection, the pious union is a moral person (cf. Canon 708). "If they are set up in the manner of an organic body, they receive members" (Canon 707, 1). It should be erected (or approved) in a church, or a public or semi-public oratory (cf. Canon 712, 1).
Pious unions are carefully distinguished from confraternities, which must be erected (mere approval does not suffice) and have as their purpose an increase in public worship (cf. Canons 707, 2 and 708). Although the foundation of pious unions by no means excludes the clergy, the discussion of them is found in the section of the Code on "The Laity." They are generally associations of laymen, who often have a chapel or at least an altar in a church. Their purpose can be a work of piety (such as recitation of the rosary in common, frequent reception of the Sacraments, etc.) or of charity (such as visiting the sick).
b) The Suppression of a Pious Union
Concerning the suppression of a pious union [which has been] merely approved, authors do not agree, but concerning the suppression of a pious union [which has been] erected, the Code speaks clearly.
For grave reasons and preserving the right of appeal to the Apostolic See, the local Ordinary can suppress ...an association erected by himself or by his predecessors..." (Canon 699, 1).
The question is whether the appeal is in suspensivo or in devolutivo. Blat and Cappello argue for an appeal in suspensivo, and this opinion seems correct in view of general legal principles, but others argue for an appeal in devolutivo only. (An appeal in suspensivo suspends the judgment while the appeal lasts, but an appeal in devolutivo does not remove the effect of the judgment except after a contrary judgment on the part of the tribunal of the second instance or of the superior who hears the appeal.
2. The Facts
a) Reasons for the status of pious union
i. The principal reason is found in the decree of erection itself:
There is erected in our diocese under the title of Pia Unio, the International Priestly Society of St. Pius X."[2—this ff is in reference to the text cited in the table above]
In other places, as we have seen in the historical sketch  we have here a simple statement, without arguments or reasons.
ii. A secondary reason also is found in the decree of erection. Approval of the statutes for six years and mention of a definitive future erection indicates, implicitly yet clearly, that the Society has not yet been definitively erected.
iii. A final reason is found indirectly in the letter of Cardinal Wright. If the Society is not a pious union, it must be a society of the common life and in that case be dependent on the Sacred Congregation for Religious. Why should a letter of commendation come from the Sacred Congregation for the Clergy?
b) Reasons against the status of pious union
i. In the first place, the reasons for the status of "pious union" are not sufficient. At the beginning of the statutes (approved in the decree of erection), there is a sentence that reads, "The Society is a society of the common life, according to the norm of Canon 673." The lack of a definitive erection (at least in the mind of the Ordinary) does not change the nature of the Society, but merely its perpetuity. It is true that a society of the common life may be conceived of as temporary, but the same is true of a temporary pious union and does not change the nature of the case.
There are in the Church today societies of the common life which in fact are dependent on the Sacred Congregation for the Clergy (the question of clerical or religious nature is vigorously debated today in not a few societies). Besides, the purpose of the Society is the formation of priests; it is therefore not surprising that commendation come from the Sacred Congregation for the Clergy.
ii. The whole nature of the Society is scarcely in accord with [the definition of] of pious union. It is not an association of the faithful for works of piety or charity, but a true community for the formation and ordination of priests, with seminaries and a common life. Before the difficulties [between the Society and Rome] the privilege was already several times granted of "applying" (as of incardinating for the diocesan clergy), along with ordination, under the designation "of common table." This practice, very common among societies of the common life, seems impossible for a pious union (except for the ancient privilege for a formerly military order!).
iii. If the Society had been a mere pious union, the act of suppression would not have demanded the intervention of the Apostolic See (except to hear an appeal). If the Ordinary had desired the advice of the Apostolic See for the sake of certitude, the Sacred Congregation for Religious would not have been competent, because a pious union is not subject to that department. (The same may be said of concession for ordination, etc., which always come from the Sacred Congregation for Religious.)
iv. Besides, mention of the term "pious union" in the decree of erection is an unsound argument because of unusual elements in the entire decree:
A. There is mention of the decree Optatam Totius [Second Vatican Council's Decree on Priestly Formation] concerning international seminaries. Discussion of international seminaries is found in the decree Presbyteriorum Ordinis [Second Vatican Council's Decree on the Ministry and Life of Priests](Ch. II, iii, 10), but not in Optatam Totius;
B. There seems to be a confusion between the approval of the statutes for a period of six years (which is the normal practice) and approval of the Society for six years. The expression "period which can be followed by a similar one by tacit agreement" does not seem normal. Commonly, when a new institute of this kind is to be erected in a diocese, the bishop gives consent for a "pious house" in which members live according to the norm of the new rule. After sufficient time has elapsed, provided there is moral certitude concerning stability of life, after consultation with the Apostolic See, he erects an institute "of diocesan right" and approval of the constitutions for a period of six or seven years. Later the constitutions are definitively approved, but the institute is definitively erected from the moment the decree of erection is signed. The mere fact that the term "pious union" is used in our decree is not real proof that we are dealing with a pious union. The entire document seems truly original.
IV. Examination of the second position: "The Society was a society of the common life. It required an act of suppression on the part of the Apostolic See. An act of suppression has taken place."
1. The law
a) The nature of a society of the common life
i. A society of men or women, in which members imitate the way of life of religious, living in common under the rule of a superior according to approved constitutions, but not bound by the customary three public vows, is not properly a religious institute, nor are its members properly called religious.
ii. A society of this type is clerical or lay, of pontifical or diocesan right, according to the norm of Canon 488, nn. 3,4 (Canon 673). There is an excellent explanation of this Canon in Prummer (Manuale Juris Canonici, Freiburg-Breisgau, 1933, pp. 354-5):
A society is not properly a religious institute ...because the three public vows are required for the essence of a true religious institute. Pious societies of this type have always existed and have been founded especially in more recent times and obtained ecclesiastical approval, e.g., the Oblates of St. Charles, the Oratory of St. Philip Neri, The Lazarists, the Society of St. Sulpice, the Pallotines, the Beguines living in the city of Ghent. In the same way as religious institutes, there is distinction between clerical and lay, pontifical and diocesan right. Concerning the legal status of such societies, particular law must first be noted. For in approving them the ecclesiastical authority customarily defines individual rights and obligations
...When there is no public vow of poverty, the society itself or any member is capable of ownership ; yet, whatever comes to members under the care of the society, is acquired by it, not by them. As for other goods, the constitutions of each society are to be observed. Clerics of such societies are considered to be secular clerics, and hence are bound by the same obligations as to studies, ordination, etc., by which secular clerics are bound, except insofar as they have special statutes of the Holy See....
All members are bound by the common obligations of clerics...."
b) The suppression of a society of the common life
The general principle is, whoever erects can suppress. But there is an exception in Canon 493:
Any religious institute, even if of diocesan right only, once legitimately founded, even if consisting of a single house, cannot be suppressed except by the Holy See...."
This Canon applies also to societies of the common life according to the norm of Canon 674.
2. The Fact
a) Reasons for the status of society of the common life
We have already seen in the decree of erection of the Society an explicit declaration concerning its nature as a society of the common life. The whole nature of the Society corresponds to this classification. The common life is considered on the model of the religious life. There are approved constitutions and superiors. There are no public vows but rather an "oblation." (On the negative side, there is not found in the Church another category of institutes which corresponds to the nature of the Society.) This proof seems sufficient.
b) Reasons against the status of society of the common life
The single real reason against the status of "society" is in the term "pious union" in the decree of erection. We have already shown the falsity of this argument. No one holds for the status of "pious union" with arguments, and mere repetition in other documents adds nothing. In these other documents there is a lack of legal precision, as in the decree of erection. Bishop Mamie speaks of a "religious union or pious union which is neither a congregation nor a religious institute". The term "religious union" is meaningless. "Congregation" is a religious order with simple vows (Canon 488, 2°). "Religious institute" is a generic term for a community with public vows, whether solemn or simple. No one claims the Society is a religious institute.
V. Examination of the "process of suppression"
It seems clear that the status of the Society as a society of the common life has been proved. Already we have seen the necessity of an act of the Apostolic See for a valid suppression of it. Now we must inquire whether there is agreement as to the existence of an act of this kind and to examine the whole "process of suppression."
2. Absence of an act of suppression
a) No one argues for an act of suppression directly enacted by the Apostolic See. What is required therefore is an act of the local ordinary with faculties granted by the Apostolic See. The one document is the letter of Cardinal Tabera to Bishop Mamie dated April 25, 1975.
b) The essential words [in the above-mentioned document] are [original in French]:
Concerning the competence of this Sacred Congregation, Your Excellency knows that it possesses the necessary authority to withdraw acts and concessions effected by its predecessor. Nevertheless, given the conclusions reached by the special ad hoc commission of Cardinals, not only does the Sacred Congregation express its full accord with the suppression of the 'Priestly Society of St. Pius X,' erected by your predecessor, but it invites you to proceed without delay to a step which is very sad, but which has nevertheless become necessary."
These words are very inadequate. There is first of all doubt as to their meaning. Votre Excellence sait qu'elle possede—elle can mean "the Sacred Congregation," but it can also mean "Your Excellency." "Your Excellency" is qualified by sait ("knows," in the third person). Later there is son and not votre predecesseur. We note that the author is not French but Spanish, many years resident in Rome and no doubt more fluent in Italian than in French. The French vous becomes in Italian lei or ella, which corresponds grammatically with elle in French, a usage also found in Spanish. In Italian the sentence would probably have read: "Your Excellency knows that you have the necessary authority to withdraw the acts and concessions effected by your predecessor." It would read thus also in Latin.
In other words, what we have here is not a granting of power but mere advice concerning a power already possessed. This is consistent with the (erroneous) opinion that the Society is a mere pious union. We willingly admit that a different meaning [of the disputed sentence] is possible: "As to the competence of this Sacred Congregation, Your Excellency knows that it [the Congregation] has the necessary authority to withdraw acts...." But the manner of the expression does not seem normal. The Sacred Congregation can make a decree of suppression but it cannot easily withdraw the acts of an inferior authority.
Besides, a mere declaration of the competence of the Apostolic See does not seem useful or probable in the context. At least there is doubt, and in doubt the validity of the suppression does not hold. Later [in the letter] we read: the Sacred Congregation "not only agrees but also invites to suppression." Again the absence of a grant of power and a text which is more easily interpreted as a declaration of the competence of the Ordinary in the case and of the agreement of the Sacred Congregation. Mention is made—for the first time—of the "commission of Cardinals." But this "commission" seems absolutely incompetent in the case.
3. The Incompetence of the Commission of Cardinals
Against the competence of the "commission" six points can be advanced:
- There is doubt as to how it was constituted. Only the Roman Pontiff can constitute a commission of cardinals. Although Paul VI later wrote: "The Commission of Cardinals which We instituted", a decree of constitution never came to light.
- In material penalties the Roman Pontiff alone is competent in matters concerning bishops (Canon 1557, 1,3°).
- Congregations of the Roman Curia cannot proceed collegially.
- "In matters of faith" only the Sacred Congregation for the Doctrine of the Faith (the former Holy Office) is competent.
- A defendant has the right of appeal (Canon 1655, 1).
- The presence of a secretary (Canon 2142) and a record of proceedings are required (Canon 1585, 1).
This is not the place for a study of live interrogation of Archbishop Lefebvre on the part of the "commission," but even a superficial examination of this interrogation clearly proves that the mode of procedure shows little respect for the norms set up by law. The whole "commission" was quite irregular and the citation of its decrees in no way helps the case of those who argue for the validity of the suppression of the Society.
The letter of the local ordinary concerning the suppression bears the date of May 6. Another letter, from the three cardinals to Archbishop Lefebvre, is also dated May 6 but does not change the situation. There is mention of a future letter of the local Ordinary, but the one letter of suppression was dated April 25, as we saw above (The possibility of telephone conversation on May 6 between the cardinals and the local Ordinary is not to the point; in serious matter it is not valid to proceed by telephone, which is considered in law an extraordinary means of communication). No serious attention is paid to justifying the process of suppression. The Sacred Congregation always speaks of recognizing the right of the Ordinary, never of the act of suppression on the part of the same Sacred Congregation. The argument was always, "The Society is a mere pious union; therefore the Ordinary is competent in this case."
VI. Examination of the third position: "Although the act of suppression was invalid in itself, it received 'confirmatio in forma specifica' on the part of the Roman Pontiff which sanated the invalidity."
1. Confirmation according to the law
a. Fundamental notion
There are in the law two ways of confirmation on the part of the Roman Pontiff for acts of inferior authorities: confirmatio in forma communi and confirmatio in forma specifica. Confirmatio in forma communi does not sanate a previous invalid act. Confirmatio in forma specifica often sanates an invalid act. If there is doubt concerning the form of confirmation, the presumption is in favor of confirmatio in forma communi only.
The question of confirmation is of the greatest importance in our case. We need, therefore, a complete description of the idea; this is found in Lega, Commentary on Church Law, Rome 1950, Vol. I, pp. 474-7.
First it should be noted:
- Confirmation differs in itself from approval, since to approve is to admit that something has been done in conformity with some law or rule; to confirm, on the other hand, is to give greater firmness to some act, by authority of the one who confirms.
- Nonetheless approval is assumed under the heading of confirmation as in the Constitution Sapienti Consilio of Pius X...
- Confirmation supposes that an act or instrument is already valid and firm; hence ordinarily confirmation is useful, if the act or instrument stands by its own force; otherwise it is useless.
- Yet sometimes a superior intends to confirm a certain act in such a way that if there should be any intrinsic defect vitiating it, it becomes sanated by the authority by which he confirms it; this confirmation is called in forma specifica and by this means the matter is taken under the authority of the one who confirms, in such a way that the legal validity is to be sought in the one who confirms, as when the Supreme Pontiff in confirming a privilege, can so confirm it as to intend to grant it, if by chance it was lacking in force or had expired; or he so confirms as to assume validity...
- Hence, if the Supreme Pontiff should confirm in forma specifica an act, either judicial, such as an opinion, or extrajudicial, like a provincial council, provided the act can be corrected or abrogated by the Supreme Pontiff.
- The other, ordinary confirmation, by which a valid act is made more firm, is said to be granted in forma communi and leaves the act in its original validity."
(IV) Whether the confirmation is in forma communi or in forma specifica, is seen from the context; for a superior, if he wishes to confirm, should so confirm an act that he corrects any possible defect in it; certain formulas are customarily used, as for example to confirm an act ex certa scientia [on certain knowledge] or motu proprio [on his own authority]. Canon 45, and other expressions of this sort which have gained the same acceptance in jurisprudence. Since confirmatio in forma communi is the ordinary form, and in forma specifica is the extraordinary form, when there is doubt the presumption is in favor of in forma communi.
(V) Confirmation, even if granted in forma specifica, can be useless, if there is a defect, which the superior either does not wish to correct, as the Supreme Pontiff does not wish to injure the rights of a third party, unless he expressly says so, Canon 46; or cannot correct, as for example an impediment of divine law in matrimony.
(VI) What we have explained above pertains to the old common law, and in the new law we consider it not to be abrogated, according to Canon 6, n.2°; because in Canon 16, as we interpret it, no mention is made of abrogation and the custom of the Roman Pontiff's confirmation is simply retained in the Code. Confirmatio in forma specifica forbids that an inferior judge lay a hand on a matter so confirmed...
it is not permitted to a judge to discuss a question that later arises or to define it, without a mandate from the Apostolic See."
Also, Chap. 2 h.t. Alex. III, teaches that confirmations in forma specifica cannot be impugned, except by a fresh mandate from the Apostolic See, or if it is certain that they were obtained through falsehood.
For if it becomes clear that the document has suffered an addition of falsehood or a suppression of truth, the nullity of the rescript of the Pontiff is equally clear. For unlawful suppression of truth Canon 45 should be consulted."
2. The question as to whether there is a confirmatio in forma specifica
a. Rejection of the appeal of Archbishop Lefebvre to the Apostolic Signature
Cardinal Staffa rejected the appeal on June 10, 1975, because the appeal was against the execution of the decrees of the commission of cardinals, and the decrees were approved by the Supreme Pontiff in forma specifica. But the cardinals' letter of May 6 says, "It is with the entire approval of His Holiness that we inform you of the following decisions". Thus we seem to have confirmation not in forma specifica but only in forma communi. Besides, the sanation of the cardinals' letter of May 6 does not carry with it sanation of the suppression of the Society on the part of the local ordinary on the same day, for the reasons already explained.
b. Letter of Paul VI of June 26, 1975
"Finally, the conclusions which it [the commission of Cardinals] set before Us, We have made Our own, each and every one, and We have personally ordered that they take immediate effect". In the whole case this is the first good point for opponents of the Society! On the face of it, this seems to be a confirmation in forma specifica which sanates the preceding invalidity. But it is not.
c. Absence of confirmatio in forma specifica
i. The Sacred Congregation for Religious never made a decree of suppression but "recognized" the right of suppression on the part of the Ordinary. The same may be said of the "commission" of cardinals. "A letter will be sent to Bishop Mamie, granting him the right of withdrawing the approval...". As the "acts" of the cardinals are not sufficient for suppression so confirmatio in forma specifica of the "acts" is not sufficient for suppression. The point is not of the greatest importance, since there is lacking a confirmatio in forma specifica.
ii. "...or it is certain that they were obtained through falsehood," as we read in Lega. The Apostolic Visitors at the seminary at Econe could find no reasons for its suppression. This proves that the interrogation of Archbishop Lefebvre before the three cardinals was entirely concerned with his Declaration. He was often denied an audience with the Roman Pontiff at this time. "Otherwise the pope might change his mind," said Cardinal Villot, according to witnesses. Even if there is not obreptio (assertion of falsehood) there seems to be subreptio (suppression of the truth) and subreptio is sufficient for invalidity, according to Canon 45.
iii. Suppression of the Society along with its seminaries would injure the rights of others. Even if the right of the faithful to Mass, the Sacraments, the Catechism, etc., should not be demanded, without doubt anyone belonging to the Society and especially anyone ordained to the priesthood, has rights. The whole "trial" of Archbishop Lefebvre and his foundation, according to the "judges," concerned his Declaration and not defects in the Society. The suppression therefore of the Society, even if the Superior General should be guilty (of an offense), is an unjust act against innocent people, and specifically is damaging to the rights of a third party. The presumption, either in the law or out of respect for the person of Paul VI, is against confirmatio in forma specifica.
The existence of the Society does not depend exclusively on moral arguments, but also on the answer to the legal question of the suppression of the Society. The answer must be that it was not suppressed, but that it still exists. This is not the place for a treatment of the decree of suspension of His Excellency the Superior General. It is sufficient to say that the whole case for the validity of the suspension depends on the validity of the suppression. We may conclude: "No suppression, therefore no suspension."