The Legal Status of the Tridentine Mass, Pt. 2

Michael Davies

THE 6 SEPTEMBER 1981 issue of the South African Catholic weekly, The Southern Cross, carried an article by Father Bonaventure Hinwood which attempted to prove that the Tridentine Mass had been abrogated. This article was answered by one which I wrote for the November 1981 Angelus, demonstrating that not only was this untrue, but that Father Hinwood's article contained a number of serious factual errors. I know that my article was brought to Father Hinwood's attention and that he studied it. The 18 July 1982 issue of The Southern Cross contained what is evidently a reply to my article, in which Father Hinwood rejects the principal thesis of my article, i.e., that priests of the Roman Rite are legally entitled to celebrate the Tridentine Mass and the laity to be present. If he did not find the case which I put forward convincing then he has the right to reject it, but I was sad to note that he did not acknowledge his errors of fact, or bring them to the attention of his readers—very few of whom would have seen the Angelus article. To give just one example, Father Hinwood had informed his readers that Pope Pius XII "changed the rite of the sacrament of orders probably more seriously than Pope Paul VI did the rite of Mass." I pointed out in my reply that Pope Pius XII did not change one word, capital letter, period or comma in the ordination rite. Now, we are talking here about a question of fact, either Pope Pius XII did change the rite of the Sacrament of Order or he did not. It is a matter which Father Hinwood could verify with very little trouble, and on doing so he would find that he had been totally mistaken and should point this out to his readers. If a columnist makes a mistake and then corrects it his readers' confidence will be increased, but if he makes a serious error of fact and covers it up, what confidence can his readers have in anything he writes?

Some Angelus readers in South Africa have asked if I would provide a critique of Father Hinwood's second answer on the Legal Status of the Tridentine Mass. I apologize for the long delay in doing this, having received the article from them in July 1982. As with the first answer, I have quoted Father Hinwood's article in full to avoid any charge of selective quotation. He has repeated some of the points made in his first answer, which has inevitably resulted in a certain amount of repetition in mine. In order to avoid too much repetition, I have made frequent references to my first reply to Father Hinwood, now available as a pamphlet entitled "The Legal Status of the Tridentine Mass" and abbreviated as LSTM. I have also made a number of references to my book Pope Paul's New Mass, particularly to the appendix which contains an important selection of the full texts of source documents relating to the liturgy, from Quo Primum onwards. I have not quoted at any length from these documents in my reply to Father Hinwood as, in any case, its content is rather technical and will only be of interest to those readers wishing to study this particular matter in some details. Such readers would, I presume, be interested enough to refer to the documents themselves.

Several readers from South Africa have written to assure me that Father Hinwood is a very orthodox priest, by no means tainted with any Modernist sympathies. I do not doubt this for one moment, and the somewhat severe tone of my first reply to him, and of this one in some places, results not from doubt as to his orthodoxy but from the inaccurate nature of his answers on the legal status of the Tridentine Mass, and his failure to acknowledge errors of fact.

I am pleased to say that I have received letters from three canon lawyers endorsing the case put forward in my first reply to Father Hinwood.

"THE SOUTHERN CROSS"
Sunday, July 18,1982

No Pope can limit a successor's
authority over the liturgy

From Monica Venables, Grahamstown:

How is it possible to "abrogate" a papal bull like Quo Primum by which Pope Pius V promulgated the Roman missal after the Council of Trent by a document which is not a papal bull, namely the apostolic letter Missale Romanum by which Pope Paul VI promulgated the new Mass liturgy after Vatican II? Moreover, how is it possible to "abrogate" immemorial custom, seeing that the old Roman Mass had already been traditional before Trent? The real point at issue here is that one pope has just as much authority as any of his predecessors to regulate the Church's worship, and no pope can limit his successors' exercise of his authority.

From a purely legal standpoint, Father Hinwood is correct, but simply because a person in authority has the legal right to do something it does not follow that this course of action will be prudent or beneficial for those subject to him. As I have already pointed out to Father Hinwood, the Pope has the legal authority to order the demolition of St. Peter's Basilica, and to sell the site for a parking lot (LSTM, p. 6). I doubt whether even he would claim that the Pope would be right to do this. What is legally right is not always morally right, witness the number of countries today in which civil law permits abortion. A mother now has the legal right to murder her unborn child, she certainly does not have the moral right. The liturgy of the Roman Rite was not something handed over to Pope Paul VI to be altered or even destroyed at his whim or pleasure, it was a sacred trust, and as the trustee he owed it to the Church and to the Divine Master, whose Vicar upon earth he was, to hand it over to his successor in its undiminished vigor. This obligation did not preclude any reform whatsoever, but it certainly precluded the unprecedented and almost total revolution which enabled Fr. Joseph Gelineau to boast that: "The Roman Rite as we once knew it no longer exists. It has been destroyed" (PPNM, p. 78). Father Hinwood is very fond of quoting Vatican II. Very well, here is a quote from the Liturgy Constitution for him: "In faithful obedience to tradition, this most sacred Council declares that Holy Mother Church holds all lawfully acknowledged rites to be of equal authority and dignity; that she wishes to preserve them in the future and foster them in every way" (Article 4). And here is a question he might like to answer in his column: "How do you preserve and foster something by destroying it?" Lest he claim that Father Gelineau was exaggerating, let him remember that this Jesuit was a "liturgical expert" at the Council, and one of those most actively involved in "interpreting" its wishes in the implementation of the reform it authorized. Professor Dietrich von Hildebrand, one of the intellectual giants of the Church of this century, testified that: "Truly, if one of the devils of C. S. Lewis's The Screwtape Letters had been entrusted with the ruin of the liturgy he could not have done it better." Father Hinwood continues:

The Council of Trent itself explicitly recognized the Church's authority to regulate all aspects of the sacraments except the inner core given by Jesus himself or the Holy Spirit to the apostles. It claims that this authority always remains in the Church, and indicates that it should be used to adapt the liturgy to the needs of changing rimes and places (Session 21, chapter 2).

This particular teaching of Trent was included in a session devoted to Communion under both kinds, and was a justification not for introducing changes into the traditional liturgy, but for maintaining the practice of Communion under one kind. Protestants had claimed that this was contrary to divine precept, but the Council of Trent affirmed the right of the Church to make liturgical changes where she judged it expedient. Trent certainly did not recommend making changes as a general practice, which seems to be the implication of Father Hinwood's paraphrase stating that this power "should be used to adapt the liturgy to the needs of changing times and places"—which could be interpreted as a recommendation for frequent changes in the liturgy, an attitude which is alien to the entire tradition of the Church and the fundamental ethos of Catholicism. (The actual words of the Council are "ea statueret vel mutaret—it may ordain or change.") The practice of Communion under one kind, which the Council was defending, was one with a tradition of centuries behind it. In the passage quoted by Father Hinwood, then, Trent was not recommending an innovation but defending a longstanding tradition.

Pope Pius XII repeated this teaching in his famous 1947 encyclical on the liturgy, Mediator Dei. He went further and specified that it is the pope who has the right to officially recognize or bring into existence any liturgical practice, to change any existing rites as well as approve new ones.

Principle of Trent

In doing this he is simply giving the general principle on which the Council of Trent had acted in committing the revising of the missal and divine office to the pope of its time.

As the new Roman liturgy does not alter the core of the Mass given us by Jesus in the consecration of bread arid wine, Pope Paul VI was perfectly within his rights to make whatever changes to the rest of the Mass he considered desirable on the advice of his experts.

Yes, perfectly within his legal rights, but, as I have already pointed out, not necessarily morally right. Implicit in Father Hinwood's thinking appears to be the fallacy that providing a pope acts in a manner which can be justified legally his action must be morally right. This would give him problems if he attempted to apply this principle to the actions of some popes in the past. For example, would he argue that popes such as Innocent IV were morally right to appoint relatives to important pastoral posts within the Church simply to provide them with an income? Karl Rahner has discussed the distinction between a legal and a moral right at some length, and to illustrate the matter he actually chose an example from the liturgy. The pope, he pointed out, would have the legal right to order the uniate Catholics of the East (e.g., the Ukranians) to abandon their ancient liturgies and adopt the Roman liturgy. But, commented Dr. Rahner, such an action would be so offensive to Oriental Christians that it would be a moral outrage (PPNM, pp. 599-601).

In doing so he was merely carrying out the charge given him by Vatican II (Liturgy 50).

This brings us to another fundamental fallacy in Father Hinwood's reasoning. He appears to be arguing that because the Council Fathers authorized a reform, the reform which followed the Council must correspond with what the Council Fathers ordered. Nothing could be further from the truth. I have shown on numerous occasions that the revolution which has followed the Council amounts to a contemptuous rejection of the intentions of the Council Fathers who mandated a reform of the existing Order of Mass, not a revolutionary new Order—a Novus Ordo Missae (see LSTM, pp. 10-12).

The question states that Pope Pius V's promulgation Quo Primum was a bull. In fact it was an apostolic constitution.

This is untrue! Quo Primum was a bull, and is described as such in every standard work of reference. Father Hinwood was probably confused by the fact that St. Pius V refers to Quo Primum as a "constitution" within the text of the document, and concluded that if it was a constitution it could not have been a bull. From the early Middle Ages, royal and papal documents were authenticated with leaden seals (Latin bulla), and by the thirteenth century the name of the seal was eventually applied to the documents. Since the fifteenth century the term has been reserved for more important documents. A bull can best be described as "an Apostolic letter with a leaden seal." Documents which we now distinguish carefully as "constitutions," "decretals," "encyclicals," or "rescripts" all came under the generic term of "bulls."

But whatever the sort of document Pope Pius V used to promulgate the revised Mass of 1570, this does not mean that his successors have to use the same form of document to perform a similar action.

Kinds of Documents

There are many kinds of papal documents. A pope may use a bull, an apostolic constitution, an encyclical letter, or a motu proprio, just to mention a few of the more common ones. He is free to use whichever he pleases for whatever purpose he wills. So, for example, in 1854 Pope Pius IX used a bull to declare the doctrine of Mary's immaculate conception; in 1950 Pope Pius XII's definition of Mary's assumption was contained in an apostolic constitution. The fact that a pope's decision may appear in a bull does not give it an especially high ranking. Some bulls deal with fairly trivial matters. In every case, what is important is the pope's intention, as this can be discerned from what he says and the circumstances in which he says it.

This is correct. Father Hinwood might even have pointed out that Pope Paul's New Mass was promulgated not by the Apostolic Constitution Missale Romanum (3 April 1969), but by a Decree of the Sacred Congregation of Rites dated 6 April 1969 (both documents are quoted in full in PPNM, pp. 550-555). This was by no means a novel procedure. For example Pope Pius XII had the revised Holy Week liturgy promulgated by a decree of the same Congregation in 1955 (see PPNM, p. 524). As Father Hinwood remarked, it is the Pope's intention which is important rather than the type of document he uses to express it. As I have already pointed out, Pope Paul VI proscribes nothing in this Apostolic Constitution Missale Romanum (LSTM, pp 5-6). This document certainly removes the prohibition on priests of the Roman Rite using any Missal other than that promulgated by Quo Primum, but there is not one word indicating a clear intention of Pope Paul VI to prohibit formally the use of the Missal of St. Pius V.

Clear Intention

It is manifestly clear that when Pope Pius V issued his apostolic constitution Quo Primum he had no intention of interfering with the freedom of action of any other pope with regard to the Mass.

Let us look first of all at the situation. There were at the time a large variety of local Mass rites in use in various places. In the century or two before Trent there had been a bit of a liturgical free for all, and the spirit of creativity had led to the development of various forms of the Mass.

Trent wanted to clean up this situation and get some uniformity into the Church's liturgical worship. So the pope was asked to produce a revised rite for the whole Church (Session 25).

Pope Pius V made it clear in Quo Primum that he wanted the Mass rite which had been produced by his expert advisors to be observed by all and everywhere, and went into some detail about this.

Few Exceptions

He made a few notable exceptions; but for the rest the use of all previous missals was absolutely ruled out.

He also forbade anyone to introduce changes into his missal, and he specified those to whom he was referring: patriarchs, bishops and diocesan administrators, cardinals, priests and religious. Note that future popes are not included.

Yes, indeed, this is all not only correct but appears to have been based upon my reply to Father Hinwood's original article (LSTM, p. 19). Father Hinwood has deemed it prudent to pass over one important point I made, that the principal motive for the Tridentine reform was to strengthen the Church in the face of the Protestant heresy. Could this be because this undoubted historical fact might be considered "unecumenical" today?

The Council of Trent stated that its Eucharistic teaching must be considered irrevocable. Although Quo Primum did not exclude the possibility of further reforms by subsequent pontiffs, it is quite reasonable to assume that St. Pius V felt that, in its broad outlines at least, the Missal which gave such clear liturgical expression to the Eucharistic teaching of Trent should have at least comparable permanence.

He furthermore ruled out all previous liturgical customs, however many centuries they may have gone back.

This is untrue. In two places he makes specific mention of customs of not less than 200 years, and permits the continued use of missals with such a background (see the text of Quo Primum, PPNM, pp. 531-534, and the commentary on the Bull by the Canonist, Fr. Raymond Dulac, pp. 571-580, particularly 573-4).

He ended off by saying that no one at all might bring in changes or dare to act in a way that went against what he had laid down.

From the whole tone of the document seen against its background, it is apparent that Pope Pius V's final prohibition about meddling with the missal was directed at those who had to use it, and not at his successors.

This prohibition was in any case a set formula attached to many papal documents of the time. It appeared likewise at the end of the apostolic constitution Quod a vobis by which Pope Pius V promulgated the new breviary office in 1568. This did not prevent Popes Clement VIII, Urban VIII, Leo XIII, St. Piux X and Pius XII introducing changes into the divine office, as Pope Paul VI did again.

Pope Pius V in Quo Primum was very insistent that nothing at all must be added to or taken away from his missal, or changed in any way. Nor was anyone allowed to bring in any practices or recite prayers during the Mass other than those contained in this missal.

This is all correct.

+ Yet in the new edition of the missal in 1604 under Pope Clement VIII, the rules for the final blessing were changed.

+ In 1634 under Pope Urban VIII the rubrics were rewritten and the hymns revised.

+ Pope Leo XIII added the prayers to be recited at the end of a said Mass.

+ Pope Pius XII changed the Holy Week rites considerably, and

+ Pope John XXIII introduced St. Joseph into the very canon of the Mass.

None of these apparently considered themselves bound by Pope Pius V's very precise prohibitions. If his prohibitions did not bind these popes, nor did they bind Pope Paul VI when he promulgated the revised liturgy after Vatican II.

This section of Father Hinwood's article is extremely misleading. There is only one possible interpretation: if all the popes cited revised the Missal of St. Pius V, why all the fuss about Pope Paul VI doing the same? The fact is that what Pope Paul did is in no way comparable to what they did. I have already accepted that Quo Primum did not preclude subsequent popes from revising the Missal, but not one of the popes cited by Father Hinwood introduced a single change which affected the ethos of the traditional Missal in any way at all. On the eve of Vatican II the Missal used within the Roman Rite was clearly and unmistakably the Missal of St. Pius V, the Ordinary of the Mass was identical, final blessing included! I own a Missal printed in 1577 and have verified this. I have already analyzed the alleged revisions mentioned by Father Hinwood; they are cited frequently by apologists for the liturgical revolution (PPNM, pp. 10-13). I have also included the full texts of the more important documents in Appendix II to Pope Paul's New Mass.

Father Hinwood cites the "reform" of Pope Clement VIII as a precedent for changing the missal. Read the Brief Cum Sanctissimum and you will find that this Pope's principal concern was that changes made in the Missal in defiance of Quo Primum should be corrected, and that, apart from some minor rubrical improvements, the Missal should be restored in every respect to the text authorized by St. Pius V. He commanded that Missals which deviated from the text published by St. Pius V "be banned and declared null and void and that their use be disallowed in the celebration of the Mass, unless they be entirely and in everything emended according to the original text published under Pius V." How can Father Hinwood possibly expect to be taken seriously after citing Pope Clement VIII's reform of the Missal as a precedent for the revolution of Pope Paul VI? He presumes, no doubt, that few if any of his readers will so much as heard of, let alone read, Cum Sanctissimum, or any of the documents relating to his list of "revisions." I suspect very strongly that he has not read them himself. "Pope Pius X brought in revisions," he claims. Quite true—he changed the musical notation! "Pope Leo XIII added the prayers to be recited at the end of a said Mass." He did, indeed, but this did not affect the text of the Mass in any way at all. Does Father Hinwood seriously expect us to accept that the recitation of the Leonine Prayers after a Low Mass provides a legitimate precedent for the revolutionary onslaught upon the Roman Missal which gave Father Gelineau ample justification for claiming that the Roman Rite had been destroyed?

Automatic Repeal

The Church's law book, the Code of Canon Law, says in canon 22 that a later law automatically repeals an earlier law if it deals totally with all the material dealt with in the previous law, even if it does not mention the repeal of the earlier law in so many words. Certainly the missal of Pope Paul VI deals totally with all the material in the previous missal of Pope Pius V. What they cover is the same in both cases. Technically speaking Pope Paul VI did not "abrogate" the previous missal, he simply replaced it by the revised missal.

My word! This is very interesting! So Pope Paul VI didn't "abrogate" the previous Missal. The headline to his 6 September 1981 answer on the same subject told a somewhat different story: "YES, TRIDENTINE MASS HAS BEEN ABROGATED." In the course of the answer Father Hinwood confidently asserted that "it was indeed Pope Paul VI's intention to abrogate the Tridentine Mass." I explained to him in my reply that there was no question of the traditional Mass having been abrogated, and if it had been replaced by the New Missal it would be a case of obrogation (LSTM, pp. 4-5). Father Hinwood has now dropped his claim of abrogation, and is now putting all his money on obrogation. But, as I explained to him in my original reply, and will explain again below, even if the traditional Missal has been obrogated, every priest of the Roman Rite still has a right to use it deriving from immemorial custom.

Furthermore, he "derogated" the use of the older missal for elderly and sick priests who could be allowed by their bishops to continue using the missal they were used to, but without a congregation taking part.

No, he didn't. There is not one word on the topic in the Apostolic Constitution Missale Romanum. This concession was included in an Instruction of the Sacred Congregation for Divine Worship dated 14 June 1971. Such an Instruction would not be adequate to deprive a priest of the right to celebrate the Tridentine Mass deriving from immemorial custom, or from the perpetual privilege contained in Quo Primum, if this is still extant, as it is according to Father Dulac (see PPNM, pp. 571-80).

In the conclusion to the apostolic constitution Missale Romanum Pope Paul VI makes it quite clear that his new liturgical prescriptions overrule all previous constitutions or regulations of his predecessors with regard to the Mass of the Roman Rite. This naturally includes the apostolic constitution of Pope Pius V.

But to what does this conclusion refer? It refers to "all those things which we have decreed and laid down." Nowhere in Missale Romanum is it laid down that the traditional Missal may no longer be used or that it is the will of Pope Paul VI that his new Missal shall be mandatory for every priest of the Roman Rite. What Missale Romanum does do is to overrule the prohibition in Quo Primum forbidding the use of any Missal but that promulgated by the Bull, and those with a tradition of two hundred years. In other words, it authorizes the use of the new Missal.

Custom

The tailpiece to the question refers to immemorial custom.

Some people have maintained that the form of the Roman Rite in use before Vatican II goes back beyond Pope Pius V. Because of this, it is argued, even if Pope Paul VI could and did revoke Quo Primum, and the missal which it approved, a priest would still be entitled to use the older form of the Mass on the grounds of immemorial custom.

This argument holds no water.

As I have already pointed out, Pope Pius V expressly, and more than once, in his apostolic constitution abolished all previous customary practices in favour of his missal. He made his intention clear that henceforth the liturgy would be regulated by law and not by custom. To appeal to custom, then, to circumvent the new liturgical law of Pope Paul VI, is to go clean contrary to the letter and spirit of Quo Primum.

I have already answered this point in my first reply to Father Hinwood. The consensus of canonists is that if an immemorial custom becomes regulated by written law, and the written law lapses, then the custom reverts to its original status, and can only be abolished by specific mention (LSTM, pp 8-9). Father Hinwood does not refute this argument, he does not even refer to it; he certainly does not attempt to prove that the eminent canonist who put it forward is wrong—he simply ignores it. It is not a question of going "clean contrary to the letter and spirit of Quo Primum" It is a question of interpreting Quo Primum and the legal status of the Tridentine Mass within the context of accepted canonical norms.

Groundless

On neither of the grounds suggested in the question can there be any basis for a bishop or priest thinking that he is entitled to use the pre-Vatican II missal, unless he has special permission to do so in terms of cases provided for in the Church's current liturgical prescriptions.

Pope Paul VI stated on several occasions his intention that the new missal of 1969 should be the only one used in public worship in the Church, not least of all in his letter of 11th October 1976, to Archbishop Marcel Lefebvre. The matter can only be doubtful to those who refuse to see.

The pope, as the supreme law giver, is entitled to express his will as he pleases.

Some people sadly quibble about the validity of his action with regard to the liturgy, because he has not exactly fulfilled certain legal niceties, which they themselves have decided shall be the criterion for acceptable papal legislation on the Mass.

To do this is to show a lamentable lack of respect and obedience to the pope's jurisdiction over the Church defined by Vatican I.

Yes, indeed, the Pope is entitled "to express his will as he pleases." But the fact is, and I challenge Father Hinwood to refute me, Pope Paul VI at no time abolished the status of the Tridentine Mass as an immemorial custom by specific mention. I accepted in my first reply to him that he could even have done so orally (LSTM, p. 8), but he didn't. Therefore those of us who affirm the continued status of the Tridentine Mass as an immemorial custom are not quibbling about "legal niceties, which they themselves have decided shall be the criterion for acceptable papal legislation on the Mass." What such people are doing is insisting upon the rule of law in the Church. The views they are expressing are those of reputable and learned canon lawyers, and Fr. Hinwood shows a disquietingly totalitarian attitude in dismissing good Catholics with such contempt simply because they uphold the rule of law within the Church. It is those who wish to disregard accepted canonical norms who show "a lamentable lack of the respect and obedience to the Pope's jurisdiction over the Church defined by Vatican I." In one of the debates during Vatican I it was made quite clear that the teaching of that Council could not be used to endorse the view that the pope possesses arbitrary power: "But who has ever said that the Roman Pontiff should govern the Church according to his sweet will, by his nod, by his arbitrary power, by fancy, that is, without the laws and canons?" (PPNM, p. 593). Pope Paul VI probably did wish that the use of the Tridentine Mass should be discontinued in favor of the Novus Ordo which had been concocted with the help of Protestant advisers, but this was his personal wish, not his clearly manifested will as the supreme legislator.

Finally, I wonder if Father Hinwood and those who think like him possess the capacity to see that what is really scandalous, what is truly outrageous in the "quibbling" over the legal status of the Tridentine Mass, is that anyone claiming to be a Catholic should wish to prohibit its celebration, or should wish to see it prohibited. It is, as Father Faber expressed it, "The most beautiful thing this side of heaven." It is the greatest treasure of Christian civilization, and yet, Father Hinwood insists upon, one might almost say, gloats over, the fact that, in his opinion, it can only be said (apart from the "English Indult") by elderly and sickly priests "without a congregation taking part." Has, then, the form of Mass which nourished the piety of countless saints and martyrs, the form of Mass brought to Elizabethan England by martyr priests trained in Europe, become something shameful, something almost so obscene that it must be celebrated behind closed doors lest the faithful be contaminated? Let us set the matter in its proper context, the context in which we can officially fulfil our Sunday obligation by assistance at the liturgy of a schismatic Orthodox Church,¹ a context in which we are encouraged to worship in Protestant churches, a context in which priests can, with impunity, celebrate Mass dressed as clowns, have dancing girls in the sanctuary—or even dogs! The onslaught on Catholic traditions which we have been witnessing during the past two decades is a revolution without precedent in the history of the Church. This revolution is being resisted by Catholics who love their Church and love their Faith, Catholics who agree with St. Thomas Aquinas that: "It is absurd and a detestable shame, that we should suffer those traditions to be changed which we have received from the fathers of old." This has always been the Catholic attitude, it is the Catholic attitude today, and those faithful who are imbued with the true sensus Catholicus will not allow Father Hinwood and his ilk to browbeat them into standing by passively while the traditions they have received from the fathers are destroyed.

1.See the "Directory Concerning Ecumenical Matters: Part One, 14 May 1967," included in Vatican Council II, The Conciliar and Post Conciliar Documents, edited by A. Flannery (Costello Publishing Company, New York, 1975), p. 497.

The initial encounter of "THE LEGAL STATUS OF THE TRIDENTINE MASS" is now a 32-page pamphlet