Rome, February 24, 2015:  On Wednesday of this week, Rorate Caeli published an interesting article on the possibility of heresy in the Pope, entitled, “Paul IV and the Heretics of His Time – by Roberto de Mattei“, translated by Francesca Romana. The article discussed the importance of the Papal Bull, issued by the same Pope, which bears the Latin title, « Cum ex apostolatus officio », which means, “On account of our Apostolic duty/office”.  The original of Dr. de Mattei’s article was published the same day in Italian by Corrispondenza Romana.

In To what extent is Pope Paul IV’s  « Cum ex apostolatus officio » still in effect?, The From Rome blog examined the intention of Pope Paul IV in promulgating this law, and whether the promulgation of the 1917 Code of Canon Law abrogated it, wherein we argued that it was not abrogated, since it was a law of positive right, exempted by canon 6 of that Code from abrogation  (see revisions of conclusion therein).

Now let us consider..

Whether the promulgation of the Code of Canon Law of 1983 did anything?

The argument which arises as to the perpetually validity of the Papal Law, « Cum ex apostolatus officio » arises secondarily upon the occasion of the promulgation of the Code of Canon Law of 1983 (which we cite it from Intratext), and that due to canon 6 of that code, which reads:

Can. 6 §1 When this Code comes into force, the following are abrogated:

1° the Code of Canon Law promulgated in 1917;

2° other laws, whether universal or particular, which are contrary to the provisions of this Code, unless it is otherwise expressly provided in respect of particular laws;

3° all penal laws enacted by the Apostolic See, whether universal or particular, unless they are resumed in this Code itself;

4° any other universal disciplinary laws concerning matters which are integrally reordered by this Code.

• § 2  To the extent that the canons of this Code reproduce the former law, they are to be assessed in the light also of canonical tradition.

Here, we must considered, in accord with canon 6, § 1, 2°, whether Paul IV’s papal bull, Cum ex apostolatus officio, is contrary to the provisions of the code of 1983; and whether, in accord with 4° of the same, whether its matters were integrally reordered by it.

There are several ways this could be done, and a complete examination would be prolix for a blog post.  So let us consider whether the new Code of 1983 conflicts with Cum ex apostolatus officio, in that section of the latter which regards the invalidity of a nomination to the office of Cardinal, since this was the basis of the recent petition to the College of cardinals.

The College of Cardinals in the Code of Canon Law of 1983

Let’s take a look at the section of the 1983 code on the College of Cardinals (Canons 349-359: source Intratext):

CHAPTER III : THE CARDINALS OF THE HOLY ROMAN CHURCH

Can. 349 The Cardinals of the Holy Roman Church constitute a special College, whose prerogative it is to elect the Roman Pontiff in accordance with the norms of a special law. The Cardinals are also available to the Roman Pontiff, either acting collegially, when they are summoned together to deal with questions of major importance, or acting individually, that is, in the offices which they hold in assisting the Roman Pontiff especially in the daily care of the universal Church.

Can. 350 § 1 The College of Cardinals is divided into three orders: the episcopal order, to which belong those Cardinals to whom the Roman Pontiff assigns the title of a suburbicarian Church, and eastern-rite Patriarchs who are made members of the College of Cardinals; the presbyteral order, and the diaconal order.

• § 2 Cardinal priests and Cardinal deacons are each assigned a title or a deaconry in Rome by the Roman Pontiff.
• § 3 Eastern Patriarchs within the College of Cardinals have their patriarchal see as a title.
• § 4 The Cardinal Dean has the title of the diocese of Ostia, together with that of any other Church to which he already has a title.
• § 5 By a choice made in Consistory and approved by the Supreme Pontiff, Cardinal priests may transfer to another title; Cardinal deacons may transfer to another deaconry and, if they have been a full ten years in the diaconal order, to the presbyteral order: priority of order and of promotion is to be observed.
• § 6 A Cardinal who by choice transfers from the diaconal to the presbyteral order, takes precedence over all Cardinal priests who were promoted to the Cardinalate after him.

Can. 351 § 1 Those to be promoted Cardinals are men freely selected by the Roman Pontiff, who are at least in the order of priesthood and are truly outstanding in doctrine, virtue, piety and prudence in practical matters; those who are not already Bishops must receive episcopal consecration.

• § 2 Cardinals are created by decree of the Roman Pontiff, which in fact is published in the presence of the College of Cardinals. From the moment of publication, they are bound by the obligations and they enjoy the rights defined in the law.
• § 3 A person promoted to the dignity of Cardinal, whose creation the Roman Pontiff announces, but whose name he reserves in petto, is not at that time bound by the obligations nor does he enjoy the rights of a Cardinal. When his name is published by the Roman Pontiff, however, he is bound by these obligations and enjoys these rights, but his right of precedence dates from the day of the reservation in petto.

Can. 352 § 1 The Dean presides over the College of Cardinals. When he is unable to do so, the sub-Dean takes his place. The Dean, or the subDean, has no power of governance over the other Cardinals, but is considered as first among equals.

• § 2 When the office of Dean is vacant, those Cardinals who have a suburbicarian title, and only those, under the presidency of the sub-Dean if he is present, or of the oldest member, elect one of their number to act as Dean of the College. They are to submit his name to the Roman Pontiff, to whom it belongs to approve the person elected.
• § 3 In the same way as set out in §2, the sub-Dean is elected, with the Dean presiding. It belongs to the Roman Pontiff to approve also the election of the sub-Dean.
• § 4 If the Dean and sub-Dean do not already have a domicile in Rome, they acquire it there.

Can. 353 § 1 Cardinals assist the Supreme Pastor of the Church in collegial fashion particularly in Consistories, in which they are gathered by order of the Roman Pontiff and under his presidency. Consistories are either ordinary or extraordinary.

• § 2 In an ordinary Consistory all Cardinals, or at least those who are in Rome, are summoned for consultation on certain grave matters of more frequent occurrence, or for the performance of especially solemn acts.
• § 3 All Cardinals are summoned to an extraordinary Consistory, which takes place when the special needs of the Church and more serious matters suggest it.
• § 4 Only an ordinary Consistory in which certain solemnities are celebrated, can be public, that is when, in addition to the Cardinals, Prelates, representatives of civil states and other invited persons are admitted.

Can. 354 Cardinals who head the departments and other permanent sections of the Roman Curia and of Vatican City, who have completed their seventy-fifth year, are requested to offer their resignation from office to the Roman Pontiff, who will consider all the circumstances and make provision accordingly.

Can. 355 § 1 It belongs to the Cardinal Dean to ordain the elected Roman Pontiff a Bishop, if he is not already ordained. If the Dean is prevented from doing so, the same right belongs to the sub-Dean or, if he is prevented, to the senior Cardinal of the episcopal order.

• § 2 The senior Cardinal Deacon announces the name of the newly elected Supreme Pontiff to the people. Acting in place of the Roman Pontiff, he also confers the pallium on metropolitan Bishops or gives the pallium to their proxies.

Can. 356 Cardinals have the obligation of cooperating closely with the Roman Pontiff. For this reason, Cardinals who have any office in the Curia and are not diocesan Bishops, are obliged to reside in Rome. Cardinals who are in charge of a diocese as diocesan Bishops, are to go to Rome whenever summoned by the Roman Pontiff.

Can. 357 §1 When a Cardinal has taken possession of a suburbicarian Church or of a titular Church in Rome, he is to further the good of the diocese or church by counsel and patronage. However, he has no power of governance over it, and he should not for any reason interfere in matters concerning the administration of its goods, or its discipline, or the service of the church.

• § 2 Cardinals living outside Rome and outside their own diocese, are exempt in what concerns their person from the power of governance of the Bishop of the diocese in which they are residing.

Can. 358 A Cardinal may be deputed by the Roman Pontiff to represent him in some solemn celebration or assembly of persons as a ‘Legatus a latere’, that is, as his alter ego; or he may, as a special emissary, be entrusted with a particular pastoral task. A Cardinal thus nominated is entitled to deal only with those affairs which have been entrusted to him by the Roman Pontiff himself.

Can. 359 When the Apostolic See is vacant, the College of Cardinals has only that power in the Church which is granted to it by special law.

As one can see, there is nothing in the Code regarding the qualifications of office which contradict Pope Paul IV’s bull. The only canon dealing with their eligibility for office is 351 §1, which specifies that they are to be outstanding in doctrine, virtue, piety and prudence in practical matters.  This is the same spirit underlying the prescriptions of Cum ex apostolatus officio.

Furthermore, there nothing in the Code which expressly addresses the invalidity of a nomination to the office of cardinal.

Thus, nothing in Paul IV’s decree, in this respect, is invalidated in virtue of Canon 6 of the present Code.

Rome, February 20, 2015:  On Wednesday of this week, Rorate Caeli published an interesting article on the possibility of heresy in the Pope, entitled, “Paul IV and the Heretics of His Time – by Roberto de Mattei“, translated by Francesca Romana. The article discussed the importance of the Papal Bull, issued by the same Pope, which bears the Latin title, « Cum ex apostolatus officio », which means, “On account of our Apostolic duty/office”.  The original of Dr. de Mattei’s article was published the same day in Italian by Corrispondenza Romana.

Readers of the From Rome blog will remember to have encountered this document, when we reported about the existence of a petition to the College of Cardinals, back in December, calling to the investigation into 3 canonical charges made against Jorge Mario Bergoglio, urging them to take action on the basis of this same Papal Bull.

In Dr. Roberto de Mattei’s article, according to the English translation just cited, there is this statement, which the From Rome blog considers worthy of examination (Italics in original):

This Bull re-proposes the Medieval canonical principle almost to the letter, according to which the Pope cannot be contradicted nor judged by anyone, “ nisi deprehandatur a fide devius” unless he deviates from the faith (Ivo di Chartres, Decretales, V, chap. 23, coll. 329-330). There is debate on whether Paul IV’s Bull is a dogmatic decision or a disciplinary act;  whether it is still in vigor or if it has been implicitly abrogated by the Code of 1917; whether it applies to the Pope who incurs heresy ante o post electionem, and so on. We shall not address these issues. The Cum ex apostolato officio is still an authoritative pontifical document, that confirms the possibility of a heretical Pope, even if it gives no indication on the concrete procedure through which he might lose the pontificate.

While Dr. de Mattei avoids the questions of the present validity of this Papal law, on account of the controversy which he says surrounds its legal status, the From Rome blog considers this of such importance, that it cannot be overlooked.

Therefore, let us examine the basis of the validity of this Papal law, and ask, whether it is still valid today, as so many Catholics believe.

The Intention of Pope Paul IV in this Papal Law

First, let us begin, by examining the expressed intent of the Papal law.  We follow the Latin text of the Papal Bull which can be found at Daily Catholic:

Cum ex apostolatus officio Nobis, meritis licet imparibus, divinitus credito, cura Dominici gregis Nobis immineat generalis, et exinde teneamur pro fideli illius custodia, et salubri directione, more vigilis Pastoris, assidue vigilare, et attentius providere, ut qui hac aetate, peccatis exigentibus, propriae prudentiae innitentes scientius, et perniciosius solito contra orthodoxae fidei disciplinam insurgunt, et superstitiosis, ac fictitiis adinventionibus sacrarum Scripturarum intelligentiam pervertentes, Catholicae Ecclesiae unitatem et inconsutilem Domini tunicam scindere moliuntur, ab ovili Christi repellantur, nec magisterium erroris continuent, qui discipuli veritatis esse contemnunt.

1. Nos considerantes rem huiusmodi adeo gravem, et periculosam esse, ut Romanus Pontifex, qui Dei, et Domini Nostri Iesu Christ vices gerit in terris, et super gentes, et regna plenitudinem obtinet potestatis, omnesque iudicat, a nemine in hoc saeculo iudicandus, possit, si deprehendatur a fide devius, redargui, et quod ubi maius intenditur periculum, ibi est plenius, et diligentius consulendum, ne pseudoprophetae, aut alii etiam saecularem iurisdictionem habentes, simplicium animas miserabiliter illaqueent, innumerabilesque populos eorum in spiritualibus, aut temporalibus curae, et regimini commissos, secum in perditionem, et damnationis interitum trahant, nec aliquando contingat Nos abominationem desolationis, quae dicta est a Daniele Propheta, in loco sancto videre, cupientes, quantum cum Deo possumus, pro nostro munere Pastorali vulpes vineam Domini demoliri satagentes capere, et lupos ab ovilibus arcere, ne canes muti videamur nequeuntes latrare, et perdamur cum malis agricolis, ac mercenario comparemur.

Latin translations are usually very poor, but the English text at Daily Catholics is very good, and thus we quote the same opening paragraphs of the Law (bold facing is our own):

By virtue of the Apostolic office which, despite our unworthiness, has been entrusted to Us by God, We are responsible for the general care of the flock of the Lord. Because of this, in order that the flock may be faithfully guarded and beneficially directed, We are bound to be diligently watchful after the manner of a vigilant Shepherd and to ensure most carefully that certain people who consider the study of the truth beneath them should be driven out of the sheepfold of Christ and no longer continue to disseminate error from positions of authority. We refer in particular to those who in this age, impelled by their sinfulness and supported by their cunning, are attacking with unusual learning and malice the discipline of the orthodox Faith, and who, moreover, by perverting the import of Holy Scripture, are striving to rend the unity of the Catholic Church and the seamless tunic of the Lord.

1.In assessing Our duty and the situation now prevailing, We have been weighed upon by the thought that a matter of this kind [i.e. error in respect of the Faith] is so grave and so dangerous that the Roman Pontiff, who is the representative upon earth of God and our God and Lord Jesus Christ, who holds the fulness of power over peoples and kingdoms, who may judge all and be judged by none in this world, may nonetheless be contradicted if he be found to have deviated from the Faith. Remembering also that, where danger is greater, it must more fully and more diligently be counteracted, We have been concerned lest false prophets or others, even if they have only secular jurisdiction, should wretchedly ensnare the souls of the simple, and drag with them into perdition, destruction and damnation countless peoples committed to their care and rule, either in spiritual or in temporal matters; and We have been concerned also lest it may befall Us to see the abomination of desolation, which was spoken of by the prophet Daniel, in the holy place. In view of this, Our desire has been to fulfil our Pastoral duty, insofar as, with the help of God, We are able, so as to arrest the foxes who are occupying themselves in the destruction of the vineyard of the Lord and to keep the wolves from the sheepfolds, lest We seem to be dumb watchdogs that cannot bark and lest We perish with the wicked husbandman and be compared with the hireling.

From this introduction, the Pope makes clear that his intention regards the divine duties of his office as Pope, and the very nature and constitution of the Church; also the rights and duties he has as a father to Christendom to protect his household.  He also points out that the dangers are not temporary ones, but those of which Our Lord spoke of, which will arise at the end of time, when the Antichrist would reveal himself.

The nature of the penalties are founded upon Divine Law

There follows in the papal law, Cum ex apostolatus officio, further confirmation that the intention of the lawgiver was to impose a law which was valid until the end of time, because the nature of the penalties regard those classes which by divine law, that is by the teaching of Christ, regard those who by their sins and crimes have excluded themselves from communion with the Church.  Here, let us quote the English translation only, to avoid prolixity:

2 Hence, concerning these matters, We have held mature deliberation with our venerable brothers the Cardinals of the Holy Roman Church; and, upon their advice and with their unanimous agreement, We now enact as follows: In respect of each and every sentence of excommunication, suspension, interdict and privation and any other sentences, censures and penalties against heretics or schismatics, enforced and promulgated in any way whatsoever by any of Our predecessors the Roman Pontiffs, or by any who were held to be such (even by their “litterae extravagantes” i.e. private letters), or by the sacred Councils received by the Church of God, or by decrees of the Holy Fathers and the statutes, or by the sacred Canons and the Constitutions and Apostolic Ordinations – all these measures, by Apostolic authority, We approve and renew, that they may and must be observed in perpetuity and, if perchance they be no longer in lively observance, that they be restored to it. Thus We will and decree that the aforementioned sentences, censures and penalties be incurred without exception by all members of the following categories:

(i) Anysoever who, before this date, shall have been detected to have deviated from the Catholic Faith, or fallen into any heresy, or incurred schism, or provoked or committed either or both of these, or who have confessed to have done any of these things, or who have been convicted of having done any of these things.

(ii) Anysoever who (which may God, in His clemency and goodness to all, deign to avert) shall in the future so deviate or fall into heresy, or incur schism, or shall provoke or commit either or both of these.

(iii) Anysoever who shall be detected to have so deviated, fallen, incurred, provoked or committed, or who shall confess to have done any of these things, or who shall be convicted of having done any of these things.

These sanctions, moreover, shall be incurred by all members of these categories, of whatever status, grace, order, condition and pre-eminence they may be, even if they be endowed with the Episcopal, Archiepiscopal, Patriarchal, Primatial or some other greater Ecclesiastical dignity, or with the honour of the Cardinalate and of the Universal Apostolic See by the office of Legate, whether temporary or permanent, or if they be endowed with even worldly authority or excellence, as Count, Baron, Marquis, Duke, King or Emperor.

All this We will and decree.

The key paragraph is the subsection ii, which includes all future violators, and not only heretics or schismatics, but those who provoke either heresy or schism.

All this argues clearly that the intention of the legislator is that this papal law will remain valid until the end of time, and is founded upon the divine and natural law, and hence draws its validity, not so much from a positive act of the Roman Pontiff, but from the very nature of his duties.

What the Code of Canon Law of 1917 abrogated…

The argument which arises as to the perpetually validity of the Papal Law, « Cum ex apostolatus officio » arose principally upon the occasion of the promulgation of the Code of Canon Law of 1917 (which we cite it from jgray.org), and that due to canon 6 of that code, which reads in Latin:

Can 6. Codex vigentem huc usque disciplinam plerumque retinet, licet opportunas immutationes afferat. Itaque:

1º Leges quaelibet, sive universales sive particulares, praescriptis huius Codicis oppositae, abrogantur nisi de particularibus legibus aliud expresse caveatur;

2º Canones qui ius vetus ex integro referunt, ex veteris iuris auctoritate, atque ideo ex receptis apud probatos auctores interpretationibus, sunt aestimandi;

3º Canones qui ex parte tantum cum veteri iure congruunt, qua congruunt, ex iure antiquo aestimandi sunt; qua discrepant, sunt ex sua ipsorum sententia diiudicandi;

4º In dubio num aliquod canonum praescriptum cum veteri iure discrepet, a veteri iure non est recedendum;

5º Quod ad poenas attinet, quarum in Codice nulla fit mentio, spirituales sint vel temporales, medicinales vel, ut vocant, vindicativae, latae vel ferendae sententiae, eae tanquam abrogatae habeantur;

6º Si qua ex ceteris disciplinaribus legibus, quae usque adhuc viguerunt, nec explicite nec implicite in Codice contineatur, ea vim omnem amisisse dicenda est, nisi in probatis liturgicis libris reperiatur, aut lex sit iuris divini sive positivi sive naturalis.

And which, in English, according to our own unofficial translation reads:

Canon 6. The Code for the most part retains the discipline here-to-fore enforce, though it introduces opportune changes.  And thus:

1°  Any laws you like, whether universal or particular, opposed to the prescriptions of this Code, are abrogated unless concerning particular laws something else is expressly exempted;

2° The canons which cite an old law in its entirety, by the authority of the old law, are, for that reason, also to be judged out of the interpretations received among approved authors.

3° The canons which are congruent with the old law only in part, are to be judged according to the ancient law; when they are discrepant, they are to be dijudicated according to their own sense.

4° In doubt whether any prescribed canon is discrepant with the old law, one is not to recede from the old law;

5° What pertains to the punishments, of which no mention is made in the Code, whether they be spiritual or temporal, medicinal and/or, as they say, vindictive, latae or ferendae sententiae, they are to be held as abrogated;

6° If any of all the other disciplinary laws, which were in force up to now, be not contained either explicitly or implicitly in the Code, it is to be said to have lost all force, unless it be found in approved liturgical books, or a law be of divine, positive or natural right.

Here, the key passage is by far n. 6, which exempts from abrogation the laws of divine, positive and natural right. Divine laws are those promulgated by God, natural laws are those which God has included in the natural order of things, and positive laws are those promulgated by the competent authority, which in the Catholic Church is the pope.

That the papal law of Pope Paul IV remained in force after the promulgation of the Code of Canon Law of 1917, is thus morally certain, since the Code of 1917 expressly, thus, excludes Papal legislation from abrogation.

This is confirmed by numerous cases of fact, such as the Papal Bulls regarding religious orders and their privileges.  If these, which are all laws of positive right, were abrogated or abolished by the promulgation of the 1917 Code, then there would have been a world-wide outcry from all religious orders.  This did not happen, ergo, the 1917 Code did not abolish Papal laws previously enacted.  The Papal law, Cum ex apostolatus officio, though not a Divine Law, when considered as a whole, since it was promulgated by the Pope, not by God, yet it is a law of positive right, since it comes into being by a Papal act.  Therefore, it too has not been abrogated.

Moreover, to hold otherwise, namely, that any subsequent Papal law or Code could include in the Church heretics and schismatics such that they had the right to hold office or be elected Pope, is thus as nonsensical as it is contrary to Divine Law.*

But whether this papal law was abrogated by subsequent legislation is another question.

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* After the publication of this article, it was brought to my attention, that the Code of Canon Law of 1917, in canon 188, p.47 of the Kennedy & Sons annotated edition of 1918, explicitly cites Cum ex apostolatus officio in footnote 2: which signifies that the author of that footnote, the eminent canonist Cardinal Gasparri, who supervised the revision of the Code, was of the opinion that the code of 1917 was in harmony with — and did not intend to obrogate or abolish  — the terms of that Papal law.