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In certain dioceses, Traditionis Custodes is being “applied” in ways that go well beyond what would be required by the letter of the law (such as it is; Fr. Réginald-Marie Rivoire in his masterful canonical tract has shown that it is bad law and worse theology; see also my article on newly-ordained priests and permission to offer the usus antiquior). One such way is when bishops attempt to redefine “private Mass” as a Mass at which only a priest and a server are present, and no one else.
Let’s begin with a preliminary canonical matter. If a bishop merely tells his priests that this will be his policy, or has it communicated to them in an informal way, then it is neither valid nor legally enforceable, the reason being given in a series of canons:
Now, Pope John XXIII in the 1960 Code of Rubrics, n. 269 (and after him, Paul VI in the encyclical Mysterium Fidei, nn. 32–33) rejected the term “private Mass” because a Mass of its very nature is a social act—even when said by a priest with a server and no one else. Historically and juridically, a “Missa privata” meant a Mass “deprived” of solemnity or ceremonial—a low Mass at a side altar in contrast with a solemn conventual Mass. Only later and colloquially did it acquire the sense of “unofficial, unscheduled, unadvertised.” Nevertheless, we can reasonably describe a Mass that is said on private property (not in a diocesan property) and not advertised to the public, and without pomp and circumstance, as a “private Mass.”[1] There is no canonical rule against doing this, nor, for the reasons given, could a merely verbal instruction from a bishop suffice.
(Let us be clear about this point: Any implementation of Traditionis Custodes that is not formally committed to writing in such a way that it might be canonically evaluated and challenged is invalid on the face of it and cannot be enforced.)
It is arbitrary to limit servers to a single one. There is no canonical basis for such a limit. A priest could have one, two, or three servers, or as many as seemed conveniens. Similarly, it is arbitrary to specify that a server can be present but not, say, three lay people who are simply attending and praying. Unless the server is ordained to the minor order of acolyte or installed in the “ministry” of acolyte, the server is simply a layman wearing a cassock and surplice and offering some assistance. There would be no objective basis for the aforementioned limit. Indeed, since the very term “private Mass” is to be avoided as per the 1960 Code of Rubrics (n. 269), one might consider any policy couched in terms of “private Mass” to be theologically unsound, and therefore deserving to be ignored.
Prior to 1958, the term “missa privata,” when used by the Holy See, carried with it various valences of meaning: conditions of privacy, lack of solemnity or music, etc.[2] I can only assume that a bishop today might use it in the sense of Mass “sine populo,” as the distinction exists in the Novus Ordo texts.[3] This concept does not, however, exist for the usus antiquior, and is therefore inapplicable.
Since current legislation does not define “private Mass,” a bishop could argue that it’s up to him to make distinctions (using the oft misquoted notion of the bishop as the “chief liturgist” of his diocese), though the counter-argument would be that such distinctions are praeter legem and beyond the authority of the bishop. A bishop who prohibits the Old Mass simply needs to be resisted. Priests should continue to offer the Mass. If need be, state that “Father will be offering a private Mass at 8:30 a.m. in the school chapel. The doors of the chapel will be unlocked during this private offering of the Mass.”
Incidentally, if a bishop dared to prohibit priests from saying the TLM by themselves, their prohibition would be utterly null and void. Pursuant to Can. 906 (and this is a change from Can. 813 in the 1917 Code), a priest is permitted to celebrate Mass without a server or anyone else for a “just and reasonable cause.”[4] This has long been understood canonically to include simply the great good, for himself and for the Church, of the priest saying daily Mass.
Thus, taking all the forgoing into consideration, hypothetically in a diocese where a bishop attempted to limit “private Masses” to a priest and one server, it would be permissible for a priest to celebrate a Missa sine populo without a server (i.e., a Missa solitaria) for a “just cause” as per Can. 906 (what more just cause than pursuing sanctity and the honoring of God according to the sound ritual tradition of the Church?), but in such a way that some of the faithful happened to be there at the same time for an unrelated reason (say, for instance, they gathered to pray the Rosary). In this case, everything would be canonically correct and the bishop’s ruling—already incorrect for other reasons—would not even find matter to which it could apply.
NOTES
Let’s begin with a preliminary canonical matter. If a bishop merely tells his priests that this will be his policy, or has it communicated to them in an informal way, then it is neither valid nor legally enforceable, the reason being given in a series of canons:
Can. 49. A singular precept is a decree which directly and legitimately enjoins a specific person or persons to do or omit something, especially in order to urge the observance of law.What is to be gathered from these canons is that the bishop would have had to present such a limitation on the rights of a priest in writing and properly promulgate it. If a bishop intends to ban something that a priest is otherwise entitled to, he must issue it in writing, because it has to be the sort of thing capable of being challenged by those affected by it. Otherwise, it would just be a form of bullying: “You gotta do this because I say so,” with no paper trail. Now, in the case at hand (where a bishop attempts to redefine a private Mass), what right of a priest would be being infringed?
Can. 51. A decree is to be issued in writing, with the reasons at least summarily expressed if it is a decision.
Can. 54. §1. A singular decree whose application is entrusted to an executor takes effect from the moment of execution; otherwise, from the moment it is made known to the person by the authority of the one who issued it. §2. To be enforced, a singular decree must be made known by a legitimate document according to the norm of law.
Can. 55. Without prejudice to the prescripts of cann. 37 and 51, when a very grave reason prevents the handing over of the written text of a decree, the decree is considered to have been made known if it is read to the person to whom it is destined in the presence of a notary or two witnesses. After a written record of what has occurred has been prepared, all those present must sign it.
Can. 906. Except for a just and reasonable cause, a priest is not to celebrate the Eucharistic sacrifice without the participation of at least some member of the faithful.Note that Can. 906 normally requires that there be “at least some member of the faithful,” which is deliberately open-ended: it could logically and legally include several people, indeed it could include a large church packed to the rafters. This remains true for a Mass that an unimpeded priest offers on any day of the week in any legitimate place for any legitimate reason. That would include a Mass held, for appropriate reason, in a side chapel, at a school or a retreat center, in a rectory chapel, at a house, etc.
Now, Pope John XXIII in the 1960 Code of Rubrics, n. 269 (and after him, Paul VI in the encyclical Mysterium Fidei, nn. 32–33) rejected the term “private Mass” because a Mass of its very nature is a social act—even when said by a priest with a server and no one else. Historically and juridically, a “Missa privata” meant a Mass “deprived” of solemnity or ceremonial—a low Mass at a side altar in contrast with a solemn conventual Mass. Only later and colloquially did it acquire the sense of “unofficial, unscheduled, unadvertised.” Nevertheless, we can reasonably describe a Mass that is said on private property (not in a diocesan property) and not advertised to the public, and without pomp and circumstance, as a “private Mass.”[1] There is no canonical rule against doing this, nor, for the reasons given, could a merely verbal instruction from a bishop suffice.
(Let us be clear about this point: Any implementation of Traditionis Custodes that is not formally committed to writing in such a way that it might be canonically evaluated and challenged is invalid on the face of it and cannot be enforced.)
It is arbitrary to limit servers to a single one. There is no canonical basis for such a limit. A priest could have one, two, or three servers, or as many as seemed conveniens. Similarly, it is arbitrary to specify that a server can be present but not, say, three lay people who are simply attending and praying. Unless the server is ordained to the minor order of acolyte or installed in the “ministry” of acolyte, the server is simply a layman wearing a cassock and surplice and offering some assistance. There would be no objective basis for the aforementioned limit. Indeed, since the very term “private Mass” is to be avoided as per the 1960 Code of Rubrics (n. 269), one might consider any policy couched in terms of “private Mass” to be theologically unsound, and therefore deserving to be ignored.
Prior to 1958, the term “missa privata,” when used by the Holy See, carried with it various valences of meaning: conditions of privacy, lack of solemnity or music, etc.[2] I can only assume that a bishop today might use it in the sense of Mass “sine populo,” as the distinction exists in the Novus Ordo texts.[3] This concept does not, however, exist for the usus antiquior, and is therefore inapplicable.
Since current legislation does not define “private Mass,” a bishop could argue that it’s up to him to make distinctions (using the oft misquoted notion of the bishop as the “chief liturgist” of his diocese), though the counter-argument would be that such distinctions are praeter legem and beyond the authority of the bishop. A bishop who prohibits the Old Mass simply needs to be resisted. Priests should continue to offer the Mass. If need be, state that “Father will be offering a private Mass at 8:30 a.m. in the school chapel. The doors of the chapel will be unlocked during this private offering of the Mass.”
Incidentally, if a bishop dared to prohibit priests from saying the TLM by themselves, their prohibition would be utterly null and void. Pursuant to Can. 906 (and this is a change from Can. 813 in the 1917 Code), a priest is permitted to celebrate Mass without a server or anyone else for a “just and reasonable cause.”[4] This has long been understood canonically to include simply the great good, for himself and for the Church, of the priest saying daily Mass.
Thus, taking all the forgoing into consideration, hypothetically in a diocese where a bishop attempted to limit “private Masses” to a priest and one server, it would be permissible for a priest to celebrate a Missa sine populo without a server (i.e., a Missa solitaria) for a “just cause” as per Can. 906 (what more just cause than pursuing sanctity and the honoring of God according to the sound ritual tradition of the Church?), but in such a way that some of the faithful happened to be there at the same time for an unrelated reason (say, for instance, they gathered to pray the Rosary). In this case, everything would be canonically correct and the bishop’s ruling—already incorrect for other reasons—would not even find matter to which it could apply.
NOTES
[1] O’Connell lists several kinds of private Masses.
[2] Cf. McManus, Handbook for the New Rubrics (Baltimore: Helicon, 1960), 106.
[3] “The revised edition of the Roman Missal that was promulgated by Pope Paul VI in 1969 presented two forms of the Order of Mass: Ordo Missae cum populo and Ordo Missae sine populo…. The 1970 General Instruction of the Roman Missal dealt with the first of these forms of celebrating Mass under the numbers 77–152, and with the second under the numbers 209–231. The latter section began with the explanation: ‘This section gives the norms for Mass celebrated by a priest with only one server to assist him and to make the responses.’ In the revised and expanded 2002 edition of the General Instruction, the term Missa cum populo remains as the heading for the information given under numbers 115–198, but the other section (numbers 252–272) speaks of Missa cuius unus tantum minister participat (Mass in which only one server participates). Corresponding to the latter form, the Missal presents the Ordo Missae cuius unus tantum minister participat (Order of Mass in which only one server participates)” (source).
[4] Fr Zuhlsdorf has a bit more on that here: https://wdtprs.com/2016/12/ask-father-can-priests-say-the-tridentine-mass-alone-without-a-server/.
