How can the Society’s St. Charles Borromeo Canonical Commission be considered “competent” concerning that which law reserves to the Holy See?
A first principle, which is quite clear, is that the Canonical Commission is not a canonically erected body and that, consequently, it does not possess ordinary jurisdiction over the faithful any more than do the district superiors. Consequently, there can be no question of it being “competent” in the technical, juridical sense of the word, with one having the ordinary jurisdiction to decide or handle certain questions or situations.
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Does not the establishment of such a commission make us look schismatic, as our accusers maintain?
To keep the spirit of the Church means to keep to its prudence and its rules as much as possible, even in the difficult circumstances that we find ourselves. This means that we should have recourse to our superiors, just as we would if they really had jurisdiction. This will safeguard the use of personal, supplied jurisdiction and keep it within the mind of the Church. It follows from this that neither the District Superior, nor the Canonical Commission, can technically give a dispensation using the power of Ordinary Jurisdiction. They can only grant the authorization for a priest to dispense in the act of administering the sacrament. This is what is clearly explained on our M-15 form, which is based upon the application of Canon 1044 (in the 1983 Code, Canon 1079), in the case of the extraordinary form of marriage.
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How can the Society’s Canonical Commission grant valid annulments, and if it were to try to do so, would not this be a schismatic act?
Clearly marriage is not just an individual matter or sacrament. It is a social act instituted for the good of society and for the good of the Church. That is why the Church has the right to legislate and why marriages need to be public facts. This is also why an annulment can only be granted by a tribunal with jurisdiction from the Church, in order that the subsequent marriage be a public, juridical and unquestionable fact.
It would seem to follow from this that our tribunals could not grant annulments, for they do not have jurisdiction, and that the public juridical nature of the subsequent marriage could be questioned. What are we to do then? It is manifestly clear that we cannot refer the faithful to Novus Ordo tribunals, for they will almost always be given a decision in favor of an annulment, and that generally on the basis of Canon 1095, 3 which is thoroughly personalist and liberal and states that whoever is not able to understand and assume all the obligations of marriage (and how many young people are really able to do that when they are married?), cannot enter into a valid marriage. The marriage is valid if the couple mature together and the marriage succeeds. If not, it is invalid.
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If it can be established, with moral certitude, that any Catholic tribunal would accept, from a study of the documents, that a marriage is and always was null and void, then a person is morally free to remarry. It is true that he is not juridically free in the most technical sense, being declared as such by a tribunal having jurisdiction. But since it is morally impossible to have recourse to the Novus Ordo tribunals, it is likewise morally impossible to obtain such a juridical freedom. Hence our duty to intervene, for the salvation of souls. The Society’s marriage annulment tribunal is thus supplied with jurisdiction in each particular case, both to make a statement of moral certitude for the good of souls (i.e., there never was a marriage in the first place), and to give a decree stating this fact.
Although this decree might lack the technical force of law, because of the fact that the Society’s tribunals do not have a regular canonical erection, it will nevertheless be a statement having authority amongst traditional Catholics, and one which would have authority amongst all Catholics, should the crisis in the Church come to an end. Furthermore, it will guarantee the validity of any subsequent marriages. For this validity does not depend upon the legal status of the decree. The reason for this is that a prior marriage is only a diriment impediment to marriage, when it is truly valid. A second marriage, entered into before the certitude of nullity of the first marriage has been established by authoritative judgment, is illicit but not invalid, presuming that it is later established that the first marriage was indeed null and void (cf. canons 1069, °2 & 1987 of the 1917 Code and canons 1085, °2 & 1684, °1 of the 1983 Code). It follows from this that, a second marriage is certainly valid when the certitude of nullity IS established by an authoritative judgment, even though such a judgment might lack the due legal form. Furthermore, given the present circumstances in the Church, a subsequent marriage is not only valid. It is also licit.