The Loss of Ecclesiastical Offices

Is Holy Church unprotected?

1. Many Catholics are well aware that those who purport to be their bishops are blatant heretics. And their Catholic sense informs them that they ought not to subject themselves to heretics. Unfortunately, however, many apparently learned writers have argued that in such a situation the culprits retain their offices and status until higher authority intervenes. They may regret this, but they say that Canon Law settles the matter and leaves Catholics with no protection against the disaster of heretics in the hierarchy - no protection except the appeal to higher authority, which today is mute. They tell us that under Canon 2264 the acts of excommunicated clerics are valid unless there has been a declaratory sentence against them. They quote Canon 2314 to the effect that those who defect from the Faith are to be deposed (and are therefore not already deposed as an automatic effect of their defection). Thus Canon Law is invoked to argue that even though our local "Catholic" bishop is evidently a raving Modernist, he still retains his authority until deposed by Rome, which, being equally infected by Modernism, has obviously no intention of deposing him. So despite his heresies, he remains our bishop, whether we like it or not. The usefulness of these claims for Satan's plan is impossible to overestimate.

This paper will explore this question by examining the actual canons in the light of approved commentaries on them, and some of the theology behind them. The following concepts will be discussed: law, offices, jurisdiction, censures, tacit resignation, internal and external fora, membership of Holy Church, legal presumptions, and others of the same kind.

2. Before turning to the canons, perhaps it will be useful to review some background theology, concerning the nature of law itself. St. Thomas Aquinas gives the classic definition: Law is "an ordinance of reason for the common good, made by him who has care of the community, and promulgated."1 This definition reveals, as St. Thomas explicitly states, that an ordinance which is contrary to reason, or to the common good, or not made by one who has authority, or not promulgated, is no law at all. This truth underlies several key principles affecting the interpretation and application of law. One of these is the principle of epikeia, which is "an interpretation exempting one from the law contrary to the clear words of the law and in accordance with the mind of the legislator."2 This follows from St Thomas's principle that law must promote the common good. A law that, owing to changed or unforeseen circumstances, clearly injures the common good when applied literally is no law at all in those circumstances.

3. Likewise "laws" which are contrary to reason are not laws at all, but "are acts of violence rather than laws; because, as Augustine says (De Lib. Arb. i, 5), 'a law that is not just, seems to be no law at all.'"3 For this reason purported laws which contradict divine law are null and void - they contradict divine reason. St. Thomas teaches: "laws may be unjust through being opposed to the Divine good: such are the laws of tyrants inducing to idolatry, or to anything else contrary to the Divine law: and laws of this kind must nowise be observed, because, as stated in Acts 5:29, 'we ought to obey God rather than men.'"4

4. Divine law provides the foundations for the law of the Church. Cardinal Ottaviani, explaining the difference between canon law and civil law, sheds light on the difference between divine and human law as follows: "… Billot well says in De Ecclesia Christi, Rome, 1927, p. 526, illustrating the comparison between the characteristics of the constitutional law of the Church and the forms of civil régimes: 'If in the Church there is from God not only power in general, but also a form and constitution of rule in detail, it follows finally that no place remains there for those changes, so many and so great, which elsewhere take place according to the variations of times, events, or whatever human circumstances. But because the Church herself is intended by Christ to endure to the end, she will also infallibly retain to the end the same constitution and hierarchy which she received from her founder.'"5 (Emphasis added).

Ottaviani points out that for this reason the larger part of canon law is unchangeable: "Therefore, public law precedes private law in order and in excellence; the more so, that the former is for the most part divine, while the latter was, in greater part, established by human authority. Consequently, public law is, in its chief part, immutable, constant, lasting to the end of the world, because the Church will stand until that time, in the form in which she was founded by Christ ..."6 (Emphasis added). Since our specific area of study relates to the offices of the Church, this testimony is particularly valuable, showing as it does that the nature and constitution of Holy Church are matters of divine law.

Continuing with Cardinal Ottaviani for a bit: "Jesus Christ, the divine founder of the Church, could indeed have left many things to the decision of men in regard to the social organisation of the Church: nevertheless, in fact He did not so leave them, but He Himself willed to establish all things which regard the fundamental constitution and organisation of the Church in so far as it is a perfect society. Consequently the principal part of the public law is divine, containing the immutable and permanent laws concerning the nature of the church, her authority and teaching office ... Examples of divine public law are: the statutes by which the Church is granted full and independent legislative, judicial, and coercive power in affairs which in any manner pertain to her end; also, the statutes which pertain to the primacy of jurisdiction of the Roman Pontiff over the whole Church, and the constitution of the sacred hierarchy; similarly, those by which the Church is granted the faculty, free and independent from any power, of acquiring, keeping and administering temporal goods in order to achieve ends proper to herself. Examples of human public law are: norms relative to the institution and rights of patriarchal sees; certain rights contained in concordats; certain norms concerning the government of the Church during the vacancy of the Apostolic See and the election of the Roman Pontiff."7 (Some emphasis added).

5. From this it follows that those laws which pertain directly to the constitution of Holy Church are in fact part of divine law, and immutable by nature. Now, the offices of pope and bishop are essential to the nature of Holy Church. They pertain to the government of Holy Church as a perfect and visible society, as explained by Cardinal Ottaviani, and hence certain requirements for their valid possession are matters of divine law. For example, it is absolutely necessary that one be a Catholic (i.e. a member of the Church) to possess validly such an office. And the conditions which must be fulfilled for membership of Holy Church are likewise matters of divine law. Nobody - not a bishop, a cardinal, nor even a pope - could change the conditions upon which membership of the Church depends. Jesus Christ has laid down what is necessary: baptism, outward profession of the true faith, subjection to the pope. It is also necessary that one not be excommunicated as a vitandus (i.e. "to be avoided").8 If a person meets these conditions, then he is a member; if he does not meet any one of these conditions, then he is not a member.

6. An office is a position in Holy Church to which is attached jurisdiction.9 Jurisdiction is etymologically the power or authority to judge. Canon 196 states: "The power of jurisdiction (or government) which is in the Church by divine institution, is divided into that of the external forum and that of the internal forum, or the forum of conscience; the latter is either sacramental or extra-sacramental." (It should be kept in mind that jurisdiction isn't the only kind of authority - there exists also dominative power. Dominative power is that which is enjoyed by superiors of professed religious, and by fathers of families. It consists in the right to make a subject act in accordance with the will of the person who possesses the authority. An example - a father can order a child to perform some task for him. A bishop, however, cannot issue any such instructions to the laymen in his diocese. His role with respect to the laity is limited to making general laws and punishing infractions of those laws and the universal laws of Holy Church.)
Bouscaren and Ellis comment: "Jurisdiction is the power to govern the faithful for the supernatural end for which the Church was established by Christ. This power is in the Church by divine institution, because Christ with divine authority placed it there (cf. c. 108. ). Its chief classifications are: (1) jurisdiction in the internal and external fora (c. 196); (2) ordinary and delegated jurisdiction (c. 197); (3) judicial and voluntary jurisdiction (c. 201).

"Forum means in general a place for the transaction of official business, judicial or administrative. In the present connection it designates rather a field or province of action than a physical place.

"1. The external forum is the forum of the Church's external government. Jurisdiction in the external forum: (a) concerns actions whereby the faithful are innocent or guilty in the eyes of the Church as members of the Church; and (b) it is exercised publicly, and has juridical effects.

"2. The internal forum is the forum of conscience. Jurisdiction in the internal forum: (a) concerns actions whereby the faithful are innocent or guilty before God; and (b) it is exercised privately, and has no juridical effects, unless these are specially provided for."10 (Some emphasis added).

Note that crime is a juridical concept. A crime is essentially a wrongdoing in relation to the public order, and as such it is judged in the external forum. The key point to grasp is that secret heresy is a sin but not a crime. Therefore it has no juridical effects. Public heresy, though, always has juridical effects for the obvious reason that it is a crime. The crime is, by definition, the refusal of a person to profess the true faith outwardly. (This will be further explained below.)

7. It should be understood that Holy Orders and jurisdiction are two entirely distinct powers. The former inheres immovably in those ordained to perform sacred functions for the faithful, while the latter is removable either by operation of law, or by the act of a superior. St. Thomas asks the question, "Whether schismatics have any power?" and his answer is as follows: "On the contrary, Cyprian says in a letter (Ep. lii, quoted vii, qu. 1, can. Novatianus): 'He who observes neither unity of spirit nor the concord of peace, and severs himself from the bonds of the Church, and from the fellowship of her priests, cannot have episcopal power or honour.'

"I answer that, Spiritual power is twofold, the one sacramental, the other a power of jurisdiction. The sacramental power is one that is conferred by some kind of consecration. Now all the consecrations of the Church are immovable so long as the consecrated thing remains: as appears even in inanimate things, since an altar, once consecrated, is not consecrated again unless it has been broken up. Consequently such a power as this remains, as to its essence, in the man who has received it by consecration, as long as he lives, even if he fall into schism or heresy: and this is proved from the fact that if he come back to the Church, he is not consecrated anew. Since, however, the lower power ought not to exercise its act, except in so far as it is moved by the higher power, as may be seen also in the physical order, it follows that such persons lose the use of their power, so that it is not lawful for them to use it. Yet if they use it, this power has its effect in sacramental acts, because therein man acts only as God's instrument, so that sacramental effects are not precluded on account of any fault whatever in the person who confers the sacrament.

"On the other hand, the power of jurisdiction is that which is conferred by a mere human appointment. Such a power as this does not adhere to the recipient immovably: so that it does not remain in heretics and schismatics; and consequently they neither absolve nor excommunicate, nor grant indulgence, nor do anything of the kind, and if they do, it is invalid."11 (Emphasis added).

8. We see then the distinction between the two types of spiritual power enjoyed by those in Holy Church - orders and jurisdiction. We also see that orders once conferred are irremovable. Contrasted with this is the fact that non-Catholics are incapable of sustaining ordinary jurisdiction. (It is true that in certain cases jurisdiction can be validly and lawfully exercised by schismatics and heretics, but in these cases the jurisdiction is "supplied" for the particular acts by Holy Church. An example would be if a Catholic in danger of death were to approach a schismatic for the sacrament of Penance. Jurisdiction would be granted for that act, and only for that act, so that the sacrament would be valid.)

9. Note that St. Thomas teaches that jurisdiction "does not remain" in heretics and schismatics. Likewise, as pointed out by the Angelic Doctor, St. Cyprian teaches that these non-Catholics "cannot have episcopal power." Pope Leo XIII (Satis Cognitum) teaches that "…it is absurd to imagine that he who is outside can command in the Church." St. Robert Bellarmine teaches the same thing: "it is proven with arguments from authority and from reason that the manifest heretic is ipso facto deposed. The argument from authority is based on St. Paul (Titus, c. 3), who orders that the heretic be avoided after two warnings, that is, after showing himself to be manifestly obstinate - which means before any excommunication or judicial sentence. And this is what St. Jerome writes, adding that the other sinners are excluded from the Church by sentence of excommunication, but the heretics exile themselves and separate themselves by their own act from the body of Christ."12 (Emphasis added).

10. Pope Pius XII confirms this doctrine as follows: "For not every sin, however grave it may be, is such as of its own nature to sever a man from the Body of the Church, as does schism or heresy or apostasy."13 He further illustrates the distinction between excommunication as a penalty, and automatic exclusion from the Church by crimes against faith and charity, when he teaches, "Actually only those are to be included as members of the Church who have been baptised and profess the true faith, and who have not been so unfortunate as to separate themselves from the unity of the Body, or been excluded by legitimate authority for grave faults committed."14 (Emphasis added).

11. The foundation of this teaching lies is the very nature of Holy Church herself, as a perfect and visible society composed of those who have been baptised, profess the true faith outwardly, and are subject to the Roman Pontiff. Pope Leo XIII in Satis Cognitum, which is chiefly about the unity of Holy Church, explains: "Agreement and union of minds is the necessary foundation of this perfect concord amongst men, from which concurrence of wills and similarity of action are the natural results. Wherefore, in His divine wisdom, He ordained in His Church Unity of Faith; a virtue which is the first of those bonds which unite man to God, and whence we receive the name of the faithful - 'one Lord, one faith, one baptism' (Eph. iv., 5). That is, as there is one Lord and one baptism, so should all Christians, without exception, have but one faith."15

Earlier in the same encyclical the Holy Father has laid down: "If we consider the chief end of His Church and the proximate efficient causes of salvation, it is undoubtedly spiritual; but in regard to those who constitute it, and to the things which lead to these spiritual gifts, it is external and necessarily visible. The Apostles received a mission to teach by visible and audible signs, and they discharged their mission only by words and acts which certainly appealed to the senses. So that their voices falling upon the ears of those who heard them begot faith in souls - 'Faith cometh by hearing, and hearing by the words of Christ' (Rom. x., 17). And faith itself - that is assent given to the first and supreme truth - though residing essentially in the intellect, must be manifested by outward profession - 'For with the heart we believe unto justice, but with the mouth confession is made unto salvation' (Rom. x., 10)."16 (Emphasis added).

12. Note that here we are defining Holy Church. It is "the body of the faithful", to put the matter in its simplest form. Within this definition of course there is more detail, but the fundamental fact remains that Holy Church is that group of men who profess the true faith. Those who don't are outside. This is why St. Athanasius could write, during the depths of the Arian crisis, "Even if Catholics faithful to tradition are reduced to a handful, they are the ones who are the true Church of Jesus Christ."

Likewise, Pope Leo XIII (Satis Cognitum) teaches: "The practice of the Church has always been the same, as is shown by the unanimous teaching of the Fathers, who were wont to hold as outside Catholic communion, and alien to the Church, whoever would recede in the least degree from any point of doctrine proposed by her authoritative Magisterium. Epiphanius, Augustine, Theodore, drew up a long list of the heresies of their times. St. Augustine notes that other heresies may spring up, to a single one of which, should any one give his assent, he is by the very fact cut off from Catholic unity. 'No one who merely disbelieves in all (these heresies) can for that reason regard himself as a Catholic or call himself one. For there may be or may arise some other heresies, which are not set out in this work of ours, and, if any one holds to one single one of these he is not a Catholic' (S. Augustinus, De Haeresibus, n. 88)."17 (Emphasis added).

13. The question arises naturally as to how we are to know when somebody is really a heretic, and not just a Catholic who has erred. In other words, how is pertinacity judged? Note that pertinacity (i.e. "knowing" violation of the law, or the faith) is part of the definition of the crime, and cannot be presumed. For a crime of heresy, schism, or apostasy to be truly manifest there must be evidence of pertinacity in the external forum. Consequently it is incorrect to cite Canon 2200 as though it allowed the presumption of guilt in a case where there was no evidence of pertinacity.

Judgements concerning who are the members of the Church are primarily concerned with a question of fact in law, not of sin. Canonists treat of these questions from the perspective of law, and are therefore interested in whether it is possible that a putative malefactor could be ignorant in the matter at issue. Moralists, on the other hand, are directly concerned with what is sinful, which is a distinct (though related) question. (Canonists interest themselves in the question of sinfulness also, but only in respect of juridical effects, which are obviously subsequent to the question of fact relating to whether a crime has been committed or not.)

In legal terms, pertinacity is judged present when a man clearly knows the law, or the faith, yet violates it anyway. This is always sinful, of course, but to repeat, the sinfulness of the act is a distinct matter from its effect in law. Holy Church has explicitly recognised this distinction. Regarding penalties, Bouscaren and Ellis write: "Grave fear (not necessarily unjust and external) excuses from penalties latae sententiae even if the act was intrinsically wrong and gravely culpable, but not if it tends to the contempt of the faith or of ecclesiastical authority or to the public harm of souls. (c. 2229, §3, 3º and Reply of Code Commission)."18

What this demonstrates is that the sinfulness of an act is considered quite separately from the fact of the crime itself. They are distinct questions, with distinct consequences.

14. To summarise, we have seen that the canons which deal with the nature and constitution of Holy Church are reflective of divine law; that offices have jurisdiction attached; that jurisdiction is a removable power; that ordinary jurisdiction cannot be possessed validly by non-Catholics; that questions which have juridical effects, such as those relating to the loss of offices, are judged in the external forum (insofar as their juridical effects are concerned); that all of the members of Holy Church outwardly profess the true faith; and that pertinacity must be present and evident in the external forum for a judgement of heresy or schism to be formed.
15. To proceed, Canon 192 §1, states: "A person may be unwillingly deprived of, or removed from, an office, either by operation of law or by an act of the lawful superior." Note the clear alternatives: either by the law itself, or by a superior. Bouscaren and Ellis, whose translation this is, provide the following commentary:

"1. Deprivation is effected by operation of law: (a) in the cases of tacit resignation enumerated above under canon 188; (b) in certain cases where the law declares privation from office as a penalty: e.g., upon sentence of excommunication, in the case of a vitandus (c. 2266), etc.[other cases not relevant to us are given]"

"2. It may be done by an act of the lawful superior. This may be either penal or administrative. Etc. [Further explanation of these categories is given]."19 (Emphasis added).

From this we see that the penal loss of office is the result of the act of a superior, and the section of canon law concerning penalties further specifies how this is to be done.

16. But as should be clear by now, there are two ways by which a man can be excluded from Holy Church (and therefore lose any offices he may hold) - by authority or by his own act. This fact of divine law is reflected, as we would expect, in canon law. The first of these ways (the process by which an incumbent is deprived of his office by authority) is dealt with in various parts of the Code, especially in the section on penalties. The second way (automatic loss of office for faithlessness) is covered by Canon 188 §4, in the section of the Code dealing with ecclesiastical offices. It states: "By tacit resignation, accepted by the law itself, all offices become vacant ipso facto and without any declaration if a cleric... publicly defects from the Catholic Faith." (Emphasis added).

The canonist Charles Augustine introduces Canon 188 as follows: "Besides express or explicit resignation [which generally must be accepted by a superior], both the old and the new law admit also a TACIT RESIGNATION, which is brought about and signified by a fact, especially one upon which the law itself has decreed the loss of an ecclesiastical office."20 (Emphasis in the original). On Canon 188 §4, Augustine comments: "Defection from the Catholic faith, if public, deprives one of all ecclesiastical offices he may hold…"21 (Emphasis in the original).

17. Canon 150, section 1, lays down: "Appointment to an office which is not vacant de jure is null; and the subsequent vacancy of the office does not make it valid." Bouscaren & Ellis explain: "The ways in which an office becomes vacant de jure are enumerated in canon 183, section 1."22 Finally, on this question, Bouscaren and Ellis make the following comment: "Canon 183 enumerates the various ways in which ecclesiastical offices may be lost: (1) by resignation (cc. 184-191) etc."23 (Emphasis added).

To summarise, one who publicly defects from the Catholic Faith automatically loses his office, and the office is then vacant de jure. In other words, such offices are legally vacant without the need for any intervening declaration. These clear provisions of Canon Law reflect the divine law in this matter, which is that non-Catholics are incapable of possessing offices in the Catholic Church.

18 An historical example of automatic loss of office for the crime of heresy is the case of Nestorius, Patriarch of Constantinople. Nestorius denied the divine maternity of the Blessed Virgin and immediately many good Catholics cut off communion with him. He reacted by "excommunicating" some of them. St. Robert Bellarmine quotes Pope St. Celestine I as follows: "The authority of Our Apostolic See has determined that the bishop, cleric, or simple Christian who had been deposed or excommunicated by Nestorius or his followers, after the latter began to preach heresy shall not be considered deposed or excommunicated. For he who had defected from the faith with such preachings, cannot depose or remove anyone whatsoever."24

19. Many theologians, doctors and popes have enunciated the principle that the judgement of heresy for juridical purposes occurs only in the external forum, since this principle belongs not just to law but also to theology. One example ought to suffice: "There are two kinds of judgement, that of God and that of men. God judges the inner man; whereas man can only judge of the inner thoughts as they are reflected by outer actions, as is admitted in the third of these arguments. Now he who is a heretic in the judgement of God is truly and actually a heretic; for God judges no one as a heretic unless he has some wrong belief concerning the faith in his understanding. But when a man is a heretic in the judgement of men, he need not necessarily be actually a heretic; but because his deeds give an appearance of a wrong understanding of the faith he is, by legal presumption, considered to be a heretic."25 (Emphasis added).

20. We have at least one historical example of the application of these principles of divine and ecclesiastical law to a pope who was suspected of heresy - the case of Liberius. Pope Liberius was accused of signing an ambiguous semi-Arian formula designed to allow the Arians to be accepted as Catholics. The Roman Clergy apparently believed the allegation, repudiated his pontificate, and elected St. Felix in his place.

St. Robert Bellarmine explains: "Then two years later came the lapse of Liberius, of which we have spoken above. Then indeed the Roman clergy, stripping Liberius of his pontifical dignity, went over to Felix, whom they knew to be a Catholic. From that time, Felix began to be the true Pontiff. For although Liberius was not a heretic, nevertheless he was considered one, on account of the peace he made with the Arians, and by that presumption the pontificate could rightly be taken from him: for men are not bound, or able to read hearts; but when they see that someone is a heretic by his external works, they judge him to be a heretic pure and simple, and condemn him as a heretic.."26 In other words, Bellarmine believed that Liberius was not a heretic before God, but since the Roman Clergy judged him guilty of heresy based on their belief that he had acted as one, they rightly rejected him and chose another for pope.

21. What is perfectly clear is that Holy Church has not been left unprotected from the ravages of heretics "in the hierarchy" at all. Clear principles of theology and divine and canon law apply to such cases, and ensure that all Catholics are in position to protect themselves by judging to whom they ought to be subject. Certainly it is not right, or even possible, for Catholics to be really subject to heretics, schismatics, or apostates. All of history attests to this fact. Even the Society of St. Pius X and various individual priests and bishops who profess to believe that Karol Wojtyla is the pope make clear their acceptance of this principle in practice - they profess their subjection to Wojtyla as the Roman Pontiff with words, but in fact do not subject themselves to him by any actions whatsoever. They habitually ignore him, as good Catholics ought to do.

Objections answered.

Objection 1.

Canon 2314 states:

  1. All apostates from the Christian Faith and each and every heretic or schismatic:
    i. Incur ipso facto excommunication;
    ii. Unless they come to their senses when warned, are to be deprived of any benefice, dignity, pension, office or other function they may have in the Church, are to be declared infamous, and in the case of clerics, after a second warning, are to be deposed;
    iii. If they have joined or publicly adhered to a non-Catholic sect they are ipso facto infamous and, canon 188 §4 remaining firm, if clerics, after a previous warning has proved fruitless, are to be degraded.
  2. Absolution from the excommunication referred to in §1, to be imparted in the forum of conscience, is reserved speciali modo to the Apostolic See.
    If, however, the delict of apostasy, heresy or schism shall be in any way brought before the external forum of the local Ordinary, even by voluntary confession, the said Ordinary - but not the Vicar General without a special mandate - can absolve the penitent by his own authority in the exterior forum after previous abjuration juridically made and the observance of whatever else the law requires; and the one thus absolved can thereupon be absolved of the sin by any confessor in the forum of conscience. Abjuration is considered to have been juridically made when it takes place in the presence of the local Ordinary or his delegate and at least two witnesses.

This canon would appear to directly contradict Canon 188 §4, which states: "By tacit resignation, accepted by the law itself, all offices become vacant ipso facto and without any declaration if a cleric... publicly defects from the Catholic Faith." (Emphasis added). In other words, it is objected that Canon 2314 implies that offices are retained until after a public judgement.

Answer to Objection 1.

This assertion is evidently absurd. What is immediately obvious is that Canon 188 is in the section of the Code dealing with offices, and it defines the ways in which a cleric resigns an office automatically. Canon 2314, however, is in the section of the code dealing with penalties, which are of course punishments. Canon 188 merely recognises a fact which already exists - that an office has been resigned by its incumbent and is therefore now vacant. Therefore there is no contradiction at all between the two canons.

In addition, notice carefully the respective wording of the two canons. Canon 188 states that if a cleric publicly defects from the Catholic faith he loses any offices he may possess. Canon 2314 relates to "all apostates from the Christian Faith and each and every heretic or schismatic." Hence it can be seen that even heretics whose crime is not public are to be warned and then deposed if their heresy is discovered. This is because while heresy that is not public does not destroy the bond of faith joining the person to Holy Church, it is evidently not to be tolerated on account of its gravely sinful nature and the danger that heretics pose to others. So, while heresy remains private it does not produce the automatic loss of offices, but when it is made public it does. As Charles Augustine has commented: "Defection from the Catholic faith, if public, deprives one of all ecclesiastical offices he may hold…"27 (Emphasis added).

Canon 2314, §1, n.3 explicitly states that public adherence to, or membership in, a sect produces the effects prescribed by Canon 188, §4. Other public heresy does likewise, but it would not automatically result in the censure of infamy, since this is only prescribed for the particular crime of adhering to or joining a non-Catholic sect.

Objection 2.

Canon 2233 §1 legislates: "No penalty can be inflicted unless it is certain that a crime was committed and that its prosecution is not barred by prescription." §2 of the same canon lays down that before a penalty can be inflicted the culprit must be warned, and given the opportunity to desist.

Answer to Objection 2.

Canon 188 §4 is not penal, and therefore Canon 2233 does not apply to cases covered by it.

As Bellarmine has said in answer to a parallel objection: "There is no basis for that which some respond to this: that these Fathers based themselves on ancient law, while nowadays, by decree of the Council of Constance, they alone lose their jurisdiction who are excommunicated by name or who assault clerics. This argument, I say, has no value at all, for those Fathers, in affirming that heretics lose jurisdiction, did not cite any human law, which furthermore perhaps did not exist in relation to the matter, but argued on the basis of the very nature of heresy. The Council of Constance only deals with the excommunicated, that is, those who have lost jurisdiction by sentence of the Church, while heretics already before being excommunicated are outside the Church and deprived of all jurisdiction. For they have already been condemned by their own sentence, as the Apostle teaches (Tit. 3:10-11), that is, they have been cut off from the body of the Church without excommunication, as St. Jerome affirms."28 (Emphasis added).

It should be noted that Canons such as 188 and 646 would be meaningless if it was impossible to know a heretic with certainty unless a canonical warning had previously been issued.

Objection 3.

Offices may be lost automatically as a result of public heresy, but we cannot act upon this fact until after a declaration.

Answer to Objection 3.

If this were true it would be a vital element of the law, and yet the Canons are entirely silent on the matter. Furthermore Church history is filled with examples of saints acting against heretics without first waiting for a public judgement. Additionally, Holy Scripture makes perfectly clear that we are to react to heretics, not merely pass a secret judgement on them: "But though we, or an angel from heaven, preach a gospel to you besides that which we have preached to you, let him be anathema."29

In a case where the law does stipulate the necessity for a declaration (Canon 646), we find that Holy Church has expressly taught the opposite - i.e. that we do not have to wait until after the declaration to act upon the fact.

Canon 646 §1 states that a religious who commits certain crimes is dismissed ipso facto by the law itself. § 2 of the same canon prescribes that the superior of such an ex-religious must make a written declaration of the fact. On July 30, 1934 the Code Commission gave an answer to the following question: "Is it necessary that the fact which is referred to in c. 646, §2, shall have been declared, in order that the religious be considered ipso facto as legitimately dismissed?" The reply: "In the negative."30 Clearly, once the fact is public the effect occurs, and others can and should treat the ex-religious accordingly.

The question may then be raised, what is the nature of the required declaration? Jone answers: "This declaration can be made without any canonical trial. It is not equivalent to a judicial sentence, nor even to a declaratory sentence, nor yet to the decree of a judge. Hence, no formalities are prescribed for making it. According to the response of the Commission for Interpreting the Canons of the Code, 30th July 1934, the declaration of the fact is not required for the religious to be ipso facto dismissed in accordance with no.1 of the Canon. The declaration of the fact and conservation of the evidence are prescribed so that the dismissal may be fully established ["constet"] in law and to offset future doubts and possible difficulties."31

Objection 4.

If one were to act on the basis of a personal judgement that an office was vacant, before any declaration, then chaos would result.

Answer to Objection 4.

Results are not arguments in a matter governed by divine law. What God has established, He has established. But if results were to be considered relevant to the question of truth in this matter, then the argument would cut the other way.

Consider St. Thomas, S. Th., II-II, Q. 12, art. 1, ad. 2: "The result is that he [i.e. an apostate] sows discord, endeavouring to sever others from the faith even as he severed himself." This holds true for schismatics and heretics also. The truth is that when Christ's enemies are treated as pastors of the flock, chaos results. This is why Canon 188 §4 exists - it protects Holy Church from the ravages of heretics who are apparently in positions of authority. Our own experience tells us that this is true - chaos reigns at present. This fact can be attributed to the failure of Catholics to reject the heretics along with their heresy from the beginning of the crisis.

It remains true that some disorder is bound to result from the failure of authority to act. This is only natural, given that it is precisely the role of authority to ensure order. It is no solution to treat heretics as legitimate pastors of the faithful - that merely compounds the disorder. It is also a failure to act in accordance with truth, in favour of an imagined legal fiction.

Objection 5.

The pope is not subject to canon law, since it is his own authority which gives force to the canons.

Answer to Objection 5.

This is perfectly true of ecclesiastical law, but it is not true of divine law. Much of canon law is actually divine law. Canon 188, as explained, is one such canon - it is merely a codification of divine law, and a "pope" is as much subject to divine law as everybody else. Consequently while it is conceded that canon law is not capable of deposing a pope, it is not conceded that a heretic can be pope. There exists a radical incompatibility between the status of "non-Catholic" and the possession of ordinary jurisdiction. For this reason no public heretic is or ever can be pope, irrespective of whether or not he previously possessed the papacy. Another way of seeing this is to forget the canons and focus on the divine law involved - a pope who committed public acts of heresy would cease to be a member of the Church, and would therefore be incapable of possessing an office.

The footnotes in the Code give the Apostolic Constitution of Pope Paul IV Cum ex Apostolatus as a source of c. 188 §4. Cum ex Apostolatus legislates: "…if ever at any time it shall appear that any Bishop, even if he be acting as an Archbishop, Patriarch or Primate; or any Cardinal of the aforesaid Roman Church, or, as has already been mentioned, any legate, or even the Roman Pontiff, prior to his promotion or his elevation as Cardinal or Roman Pontiff, has deviated from the Catholic Faith or fallen into some heresy:

  1. the promotion or elevation, even if it shall have been uncontested and by the unanimous assent of all the Cardinals, shall be null, void and worthless;
  2. it shall not be possible for it to acquire validity (nor for it to be said that it has thus acquired validity) through the acceptance of the office, of consecration, of subsequent authority, nor through possession of administration, nor through the putative enthronement of a Roman Pontiff, or Veneration, or obedience accorded to such by all, nor through the lapse of any period of time in the foregoing situation;
  3. it shall not be held as partially legitimate in any way;
  4. to any so promoted to be Bishops, or Archbishops, or Patriarchs, or Primates or elevated as Cardinals, or as Roman Pontiff, no authority shall have been granted, nor shall it be considered to have been so granted either in the spiritual or the temporal domain;
  5. each and all of their words, deeds, actions and enactments, howsoever made, and anything whatsoever to which these may give rise, shall be without force and shall grant no stability whatsoever nor any right to anyone;
  6. those thus promoted or elevated shall be deprived automatically, and without need for any further declaration, of all dignity, position, honour, title, authority, office and power, without any exception in respect of those to which they may have been promoted or elevated before they deviated from the Faith, became heretics, incurred schism, or provoked or committed any or all of these."

Objection 6.

By his apostolic constitution Vacantis Apostolicae Sedis, of December 8, 1945, Pope Pius XII legislated that when the cardinals enter a conclave to elect a pope all censures that might apply to them are automatically suspended.

Answer to Objection 6.

Censures are penalties. Suspending a censure which applies to a non-Catholic does not make that person Catholic. Only sane Catholic men are valid matter for the papacy, as Coronata explains: "III. Appointment to the office of the Primacy. 1o What is required by divine law for this appointment: (a) The person appointed must be a man who possesses the use of reason, due to the ordination the Primate must receive to possess the power of Holy Orders. This is required for the validity of the appointment. Also required for validity is that the man appointed be a member of the Church. Heretics and apostates (at least public ones) are therefore excluded."32 (Some emphasis added).

From another perspective we note that a censure is a penalty imposed by Holy Church, and can be removed or suspended by that same authority. But the effects of divine law are ordained by God, and only God can mitigate or cancel them. Therefore Pope Pius XII did not have the authority to alter the divine law in this regard, since he was Christ's Vicar, not Christ Himself. Not that Pius XII did attempt to alter divine law - Canon 188 is a provision of the Code in the section dealing with ecclesiastical offices - it is not penal, and applies no censures. Where no censure is applied, none can be "suspended."

Objection 7.

Canon 2264 states that acts of jurisdiction are valid unless a declaratory sentence has been imposed

Answer to Objection 7.

Canon 2264 explicitly refers only to acts of jurisdiction placed by excommunicated persons. Public heretics do not lose any offices they may hitherto possess because of any excommunication, but because public heresy makes one a non-member of Holy Church. Once more, this objection reveals confusion over the nature of Canon 188, which is not penal.

John Lane
August 31, 1999
St. Raymond Nonnatus, Confessor.


1. St. Th. I-II, Q. 90, Art. 4, Resp.
2. Bouscaren & Ellis, Canon Law, A Text and Commentary, 2nd Ed. Bruce, Milwaukee, 1953, p. 33.
3. S. Th. I-II, Q. 96, Art. 4, Resp.
4. Ibid.
5. Cardinal Ottaviani, Institutiones Iuris Publici Ecclesiastici [Rome, Typis Polyglottis Vaticanis, 1958], p. 352, note 11. Translated by Mr. James Larrabee.
6. Ottaviani, op. cit., p. 9.
7. Ottaviani, op. cit., p. 10-11, (citing Pope St. Pius X, constitution Vacante Sede Ap., 25 Dec. 1904.)
8. Obviously a pope could, within certain limits, alter the crimes for which this special excommunication is applied. Ordinary excommunication, as a toleratus, is not incompatible with membership of the Church.
9. Cf. Canon 145.
10. Bouscaren & Ellis, op. cit. pp. 133, 134.
11. S. Th. II-II, Q. 39, Art 3.
12. St. Robert Bellarmine, De Romano Pontifice, lib. II, cap. 30. Translated by Mr. James Larrabee.
13. Pope Pius XII, encyclical Mystici Corporis Christi, June 29, 1943.
14. Ibid.
15. Pope Leo XIII, encyclical Satis Cognitum.
16. Ibid.
17. Ibid.
18. Bouscaren & Ellis, op. cit., p. 875. The Reply of the Code Commission referred to can be found in the Canon Law Digest, vol. II, p. 570.
19. Bouscaren and Ellis, op. cit., p. 130.
20. Rev. Charles Augustine, O.S.B., A Commentary On The New Code Of Canon Law, Vol. II, Clergy and Hierarchy, Herder, 1918. P.159.
21. Ibid. p. 161.
22. Bouscaren and Ellis, op. cit. p. 125.
23. Ibid. p. 129.
24. St. Robert Bellarmine, De Romano Pontifice, lib. II, cap. 30
25. James Sprenger & Heinrich Kramer, Malleus Maleficarum, (English ed. The Pushkin Press, London, 1951), p. 200.
26. St. Robert Bellarmine, op. cit., lib. IV, c. 9, no. 15
27. Rev. Charles Augustine, op. cit. p. 161.
28. St. Robert Bellarmine, op. cit. lib. II, c. 30
29. Gal. 1, 8.
30. Herbert Jone, Commentarium in Codicem Juris Canonici, Canon 646 n.2. Translated by Mr. John Daly.
31. Ibid.
32. A. Coronata, Institutiones Iuris Canonici. Rome: Marietti 1:312,316. Translated by Rev. Anthony Cekada.