Part I: Was this bull abolished or replaced by the Code of Canon Law of 1917?

For Part II, which deals with the 1983 Code, see HERE

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 Constitution, 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 for the investigation into 3 canonical charges made against Jorge Mario Bergoglio, urging them to take action on the basis of this same Papal Constitution.

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 Constitution, 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 Constitution, and ask, whether it is still valid today, as so many Catholics believe.

The Intention of Pope Paul IV in this Papal Constitution

First, let us begin, by examining the expressed intent of the Papal law.  We follow the Latin text of the Papal Constitution 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 constitution, 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 constitution 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 follows has been updated on August 19, 2025

What the Code of Canon Law of 1917 abrogated by Canon 6

The argument which arises as to the perpetually validity of the Papal Constitution, « 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.

RULE OF INTERPRETATION

First, it must be noted that the very introduction to Canon 6, of the 1917 Code as well as section 4° incline that the entire canon be read and interpreted as maintaining in force the parts of all laws which are not contrary to the Code of 1917.

NON APPLICABLE PARTS

Next, sections 2°, 3°, and 4°, do not pertain to the present argument, since they regard canons and not Papal Constitutions.

HOW THE LATIN ‘LEX’ IS TO BE UNDERSTOOD

Next, regarding those parts of Canon 6 which abolish previous laws, we must read the term “law” (lex, leges, legibus) in a strict sense, as “any individual prescription, precept or provision”, and not in the broad sense of any particular document containing such. This is not only juridically sound, but theologically sound, because, when in regard to Papal Decrees of any kind, when there is a clear intention to promulgate an individual prescription which will have perpetual force — as are all the prescriptions in Paul IV’s Constitution — this intention passes into the intention of Christ the King, the High Priest, Who confirms, “Whatsoever you bind upon earth, shall be bound also in Heaven” (Matthew 18:18) — and thus we cannot presume that a subsequent pope who speaks vaguely, not specifying whether he speaks of provisions or entire documents, intends to specifically abolish what he does not specifically name, especially when he already has declared his intention that all previous disciplines are to be maintained in force. — This reading of “law” (lex) is also confirmed in 6° of Canon 6, where it speaks of the divine, positive and natural “law”, all of which can be an individual particular provision, but only one of which, positive law, could refer to a document. The same is implied by the use of the word, “law”, in 2°, 3°, and 4° of the same Canon 6, cited above.

WHAT IS A CONSTITUTION?

Thus, here, it will be helpful to note, that a constitution differs from an individual law, because a law, which Saint Thomas Aquinas defines as “an ordinance of right reason for the common good, promulgated by one who has authority over the community” (Summa Theologica, I-II, Q. 90, a. 4), regards something individual and specific, whether prohibiting or enabling. But a constitution is an assembly of laws of different kinds (e.g. ordinances, prescriptions, commands, sanctions, decrees, institutions, wills etc..) in a single document with a common theme or purpose. — “As to subject-matter, the term “constitution”, if used in a restricted sense, denotes some statute which the Vicar of Christ issues in solemn form either to the whole Christian world or to part of it, with the intention of permanently binding those to whom it is addressed.” (Catholic Encyclopedia, here).  For this reason, “laws” (leges) in the 1917 Code, Canon 6, must be understood as referring to parts of the Papal Constitution, and not the whole document.

PAUL IV’S CONSTITUTION, IN N. 6 REMAIN IN FORCE?

With this clarified, let us proceed to consider the rest of Canon 6, as it specifically regards the censure of Paul IV, in n. 6 of his Constitution, regarding the election of a man who after his election is found to have deviated from the Catholic Faith or fallen into heresy or schism:

As regards section 1°, it is clear that since n. 6 of the Constitution of Paul IV is not opposed to any Canon the Code of 1917, because this Code says nothing about how such an election of such a man is to be regarded, it does not fall under this provision, for to say “opposed” is to signify that it withstands, or is in disagreement; viz. to say one thing, when the other says something else. Juridical opposition occurs when the precept of one directs that a thing to be done while the precept of the other directs that another thing be done. But since in the Code of 1917, there is nothing said about whether the election of a man as Roman Pontiff is to be held to be juridically valid in the case spoken of in n. 6 of Paul IV’s Constitution, there is no “opposition”. In general, the Code of 1917 says nothing about Papal Elections since the law on papal elections was a special particular law published by Saint Pius X.

Also, it is clear that 5° does not apply  to n. 6 of this Constitution, because an election in conformity with a papal law for the election of the Roman Pontiff, cannot be punished, since an election which is according to the laws in force is not a criminal act.  Again, “punishments” (poenae) must be read in a restricted sense, regarding persons not things. Therefore, the censure contained in n. 6 of Paul IV’s Apostolic Constitution, since it does not regard, in the strict sense, a punishment or penal precept against a person, it is thus not abolished by this section of canon 6.

Finally, section 6°, does not abrogate this provision of Paul IV. First, because the exclusion of a heretic from being elected is contained in canon 2265 of the 1917 code, and thus to this extent, n. 6 of Paul IV’s Bull is implicitly contained in the code, even if the Code forbids the person from being elected, whereas the Constitution of Paul IV sanctions his election as invalid. — Second because, Paul IV’s, n. 6 requires by the Roman Pontiff, the Supreme Legislator, that things be done by others, to protect the Church, and thus clearly fulfills all the conditions for a law of positive right in the sanction it levels in n. 6 against such an election. — Positive laws are those promulgated by the competent authority, which in the Catholic Church is the pope, and which grant rights which must be protected by others. — But clearly, since the Faithful are obliged by divine law to obey a Roman Pontiff, it certainly pertains to their rights that the Cardinals NOT elect someone who has deviated from the Catholic Faith, fallen into heresy or who partook of some schism. Thus, inasmuch as n. 6 of the Bull Paul IV raises an unassailable bulwark defending this right of the Faithful, its abolition would result in a grave attack against the rights of everyone in the Church. Indeed, the entire Bull of Paul IV is expressly intended and promulgated to protect the whole Church, and thus most certainly is a law of positive right of the highest order.

That the papal Constitution of Pope Paul IV, in regard at least to its sanction against a papal election of a heretic or schismatic in. n. 6, 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 laws of this kind in these particulars, from abrogation, when they are not contrary to nor re-integrated in the Code of 1917. However, as regards all other parts of the Constitution, when they were integrated fully or said contrary things than the 1917 code, they were obrogated or abrogated.

Thus, if there be found any commentary on Canon Law which holds that the Constitution of Paul IV was abrogated or obrogated by the promulgation of the 1917 Code of Canon Law, I would expect that it is speaking of all those parts which do not concord with Canon 6, and that the commentator has without precision considered the meaning of the canon in regard to specific provisions of Paul IV’s Constitution. And if they have done either, then their opinion “that the Constitution of Paul IV has been abrogated” is simply an over generalized, hasty and erroneous formed opinion. Moreover, once the Code of 1917 is promulgated, the law means what it says, and it no longer means what the canonists who wrote it may have intended, if they did not write that into the text. — This is because this Code was not legislated by an assembly, but promulgated by a Monarch. And thus subsequently its interpretation belongs alone to the Roman Pontiffs, when there arises a question the answer to which someone, whomsoever they be, would have be contrary to the plain meaning of the text. That is why, in reading the law, I always stick to the plain meaning of the text, and do not insert any interpretation which does not arise from the text itself.

But whether this papal constitution in n. 6, was abrogated or obrogated 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 in all of its particulars. — Canon 188, 4°, in fact reads, “On account of tacit renunciation admitted by the law it self, let whatever offices you like be vacant, ipso facto and without any declaration, if the cleric … publicly fails from the Catholic Faith.” — And since obviously Paul IV’s n. 6 is to be read in the context of a man who after his election is discovered to have deviated from the Catholic Faith before his election and remained deviated, the condition is the same as a man who has publicly failed from the Catholic Faith. Here “deficere” signifies both heresy and apostasy, because of its generic sense of “failing” or “being deficient”. In the English language, some authors translate “deficere” as “defect”, and thus might read “a fide catholica defecerit” as “defects from the Catholic Faith”, but since Canon 188, 4°, is the only part of that canon which refers to Paul IV’s Constitution’s prescriptions — where apostasy is not mentioned — it is clear that in the mind of Cardinal Gasparri, the Latin term, “deficere” has the broad sense which includes “heresy”, “schism” or some other “deviation”, and not necessarily a public renunciation of the Faith.

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