Category Archives: Canon Law

2013 Conclave, Canon Law, Ecclesiology, Faith, Philosophy

Responding to a juridical positivist

by Br. Alexis Bugnolo

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Recently, the Most Rev. Henry Gracida, on his blog published a long critique, entitled, “Some Thoughts about the status of Cardinals etc.”, of a post, here at the From Rome Blog, entitled, “How usurpation of the Papacy leads to the excommunication of the participating Cardinal Electors and Bishops“.

Since, I intend to respond to the charges brought against my position, I recommend that all readers first read both articles, in chronological order. — Since the commentator is anonymous, I will refer to him by the initials of his nome du plume: CC.

The argument marshaled against my position contains a list of ridiculous errors.  The first of which is derived from juridical positivism, which holds that nothing is certain in reality unless it be judged by a competent court of law, holding constitutional authority to judge the matter. This is the kind of error no one but a Canonist or Lawyer would fall into, because it reduces the realm of epistemological truth to that of what a court recognizes as facts. Now, its quite understandable that someone exercising the profession of a lawyer or canonist, who must prove everything to the level of certitude had in the courts before whom he appears, to have such a habit of mind, but is quite a grand moral and philosophical error to hold that such a criterion is validly applied to the whole of reality.

On the contrary, the human mind can know truth with certitude. This is a fundamental presupposition of all human endeavor, because if it be denied, then there could be no faith given by one man to another on the basis of human judgements. Now just as the human mind can exist outside the mind of a lawyer before a court, so the human mind can know truth with certitude outside of the court of law. To say otherwise, would be psychotic, that is divorced from reality.

I say this to preface the notion of latae sententiae excommunication as a canonical penalty in the new code of Canon law. Many canonists, proceeding from the mindset of juridical positivism hold that whereas such penalties are published in the Code, they are either never incurred or that they can never with certainty be known to be incurred, until, in both cases, a competent authority declares them.

The fundamental error of this position, is that the very Latin of the penalty contradicts their position:  “latae sententiae” in Latin means, without the necessity of a juridical sentence being handed down. This means, that the one who violates the law which bears this penalty for violation, is penalized BEFORE and WITHOUT any public declaration of the penalty being inferred.  This being the case, a human mind can know of it with certitude. The certitude I speak of here is the certitude of natural reason which from facts which are in the external forum and known by documented evidence or eye-witness testimony, can be with seen as fulfilling the conditions for the excommunication to be incurred.

What CC attempts in criticizing me is a sophistic error:  For first he argues that such excommunications cannot be known with certitude, and then asserts that such certitude can only be had in a court of law, from which he infers that I am wrong in saying that Cardinals are excommunicated. — As an aside, no where in my article do I say that any Cardinal is excommunicated;  I merely said that Cardinals and Bishops are subject to the penalty.

While it it true, that in the Catholic Church, the incurring of any ecclesiastical penalty, whether declared or not, should be made known by ecclesiastical authority for the sake of the unity of the Church, it is not true, that all of them are NOT incurred if ecclesiastical authority through corruption, fear, sloth or some other vice, fails to declare that they are incurred.  For excommunications latae sententiae are incurred by the law itself. Those who say otherwise are simply ignorant of Latin.  To say this idea of excommunication as “automatic” is merely a canard, since as is clear it depends not upon the private individual or merely the act of violation, BUT by the imposition before the fact by the Supreme Legislator, the Pope, of a penalty which applies to all future violations ipso facto.

He extends this error of juridical positivism in the most clericalist manner by denying that a Catholic can know with certitude if a Conclave be valid or not, when a Conclave is called to elect another pope, while the first pope is still alive! — This is pure insanity! That is like saying a layman cannot know the Moon is eclipsing the Sun, just because he saw the Moon blot out the Sun! — You have to be totally psychotic to even say such a thing.

The truth is, the certitude that a Conclave is invalid is had from the certitude of the facts according to which it would not be licit to convene the Conclave. In the case in question, this certitude derives from the certitude that Pope Benedict XVI never resigned the petrine munus.  Which certitude is objective, real, verifiable, documented and testified to by 2 things: the document Non solum propter, which only renounces the ministerium, and canon 332 §2 which says a Pope resigns when he resigns the munus.  Since every Latinist knows that ministerium and munus are not only different words, but which do not share the same significations in ecclesiastical usage, the certitude that Pope Benedict XVI never resigned the Papal Office is both prima facie and a necessary consequent of the law (especially since canon 38 required that if Benedict wanted to signify munus by ministerium, he would have had to explicitly derogate the obligation of canon 332 §2 in its fundamental conditional clause).

Those who have studied and understood philosophy know that both in logic and in moral and legal affairs, the certitude of principles and causes extends and flows down through to conclusions and effects.  A Canonist who is expert in the procedural rules of declared and imposed penalties which are not latae sententiae, might think differently, since he moves in a world of courts, but that is not the whole of reality. Thus to discount canon 359, the canon which forbids Cardinals to convene a conclave when there is no sede vacante, is not only absurd but should make anyone who knows Canon Law doubt whether CC has ever read the law.

Next, in regard to his attempt to fault me for misreading 1382, he seems never to have read the Code of Canon Law of 1983, which specifically obrogates the old code and makes recourse to its terms unauthentic when the new code establishes a greater penalty, which is true in the case of episcopal consecrations. And no, contrary to CC’s assertion, when I said, “ordain” I mean “consecrate” because the consecration of Bishops is a species of the power of ordination, a thing everyone who knows his theology of the Sacraments knows well enough. CC furthermore goes off into the fog, by saying in effect that an AntiPope consecrating Bishops or nominating Bishops is only guilty if he is feigning to have the authority of the Pope to confer jurisdiction. What kind of argument he is trying to make by moving this against the case in question, I do not know, because that is what an Anti-Pope objectively does!!!

The appeal to canon 1405 §1, 2°, namely, that the Pope alone judges the Cardinals, is praeter rem, because in legislating canonical penalties which apply to everyone in the Church, without exception, Pope John Paul II did judge the Cardinals  beforehand.  Those who have studied Canon Law and understand its nature know this well.

Finally, all CC’s other assertions saying things cannot be known or known with certitude, by anyone but the Canonist or Judge in a court of Canon Law, or by the Pope alone, is merely an extension of juridical positivism, an absurd professional error of snobbery among poorly schooled lawyers. Canonists who know the Faith understand well that Canon Law’s fundamental context is the Catholic Faith and that it must be understood in a manner which does not conflict with objective reality and epistemology. Like the Catholic Faith, it is not a gnostic science in which the truth is only known by the initiates who study at Pontifical Universities.

I invite all those who have not yet done so, to read my original article on the Excommunication of Cardinals and Bishops who participate in the usurpation of the Papal Office more carefully, and they will see how I speak of moral causes and the terms of the law, and how I never said anyone was excommunicated, only that if they know what they did, they merit to have incurred the penalty. This is perfectly Catholic.

As a Postscript, I add, that I am not in the least offended by the publication of CC’s critique. I appreciate the occasion to manifest the truth better through the clash of mental swords. — I would also note that, what really irks Canonists and Bishops about my article is that I have put them on notice that their offices and privileges be derived from a true Pope, not a fake pope; in other words, I am reminding the malicious ones that their entire project is null and void, and that they are risking losing communion with Christ, canonically speaking, if they have not already done so.

 

 

 

 

 

 

 

 

Canon Law, Debates

Whether, with all Cardinal electors defecting, the Roman Church has the right to elect the Pope?

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A Scholastic Question by Br. Alexis Bugnolo

In High Scholasticism, the Catholic Theologians, Saints and Doctors of the Church often considered many questions which were speculative, either in regard to what was true but unknowable by man (being hid in the mystery of God) or what could be in a special circumstance which may or may not ever come to be. As founder of The Scholasticum, an Italian non profit dedicated to the revival of the Scholastic Method, I believe that the Scholastic Method can greatly assist the Church even in Her most pressing needs and extraordinary crises. For that reason, I present here a Disputed Question, the import of which may arise, if His Holiness Benedict XVI pass to the Lord before Jorge Mario Bergoglio, and then only if, at such a time, the Cardinals holding fast to the faulty notion that Benedict’s resignation was valid, fail to convene within 20 days to elect his successor. For in accord with the current law on Papal Elections, Universi Dominici Gregis, n.37  Cardinals who do not attend a Conclave with that period no longer have their votes counted. (All references are to the new Code of Canon Law, Latin text; and the papal law on electing the Pope, Latin text.)

Whether, with all Cardinal electors defecting, the Roman Church has the right to elect the Pope?

And it seems that she does not:

1. For only the Cardinals of the Roman Church have the right to elect the Roman Pontiff, according to what is stated in Canon 349, where it says cui competit ut electioni Romani Pontificis provideat ad normam iuris peculiaris.  Therefore, since the Roman Church includes those Cardinals, Bishops and Clergy who are not Cardinal Electors, they have no such right. Therefore, the Church of Rome has no right to elect a Pope, even if all the Cardinal Electors fail to elect one.

2. Likewise, since the College of Cardinals has no authority during a Sede Vacante to act other than what is provided for in special law, namely, in the Law for Papal Elections, Universi Dominici Gregis, and this according to Canon 359, which reads: Sede Apostolica vacante, Cardinalium Collegium ea tantum in Ecclesia gaudet potestate, quae in peculiari lege eidem tribuitur; It follows that neither does the Roman Church, because what is denied a superior, is denied also to the inferior. But the College of Cardinals is denied license to act in any other way that what is proscribed in law, therefore also the entire Church of Rome which is inferior to the College.

3. Likewise, since the papal law, Universi Dominici Gregis, n.4, expressly forbids any variation or alteration in law during a Sede Vacante, when it says: Sede Apostolica vacante, leges a Romanis Pontificibus latas non licet ullo modo corrigi vel immutari, neque quidquam detrahi iis sive addi vel dispensari circa partes earum, maxime eas, quae ad ordinandum negotium electionis Summi Pontificis pertinent. Si quid contra hoc praescriptum fieri vel attentari contigerit, id suprema Nostra auctoritate nullum et irritum declaramus; there is nothing which the Roman Church can do, even if all the Cardinals defect, since there is no provision in Canon Law for such action.

4. Likewise, the ancient right of the Roman Church to elect the Roman Pontiff was abrogated when that right was restricted to the Roman Clergy, and again, when that right was further restricted to the Cardinals of the Roman Church. Therefore, no such right exists.

5. Likewise, the ancient right of the Roman Church to elect the Pope was no more than a custom of the Roman Church. But laws of custom have no force if they have not been observed for 1300 years (cf. Canon 26). Therefore, the Roman Church has no such right.

ON THE CONTRARY:

It seems that she does:

1. By Apostolic Institution of the Apostle Saint Peter, the Roman Church undubitably enjoyed the right to elect the Roman Pontiff.  This right was restricted by special degree in the 7th century to the Roman Clergy, and in 11th century to the Cardinals of the Roman Church. Yet such a restriction which was prudential and a benefice cannot extinguish the apostolic right, in accord with the principle of law, which states that general prescriptions take precedence to special benefices: Generale praescriptum beneficio speciali anteferendum est (Theodosian Code: DEM AAA. VICTORIO P(RO)C(ONSULI) ASIAE). Therefore, in the case that there are no Cardinal Electors, whether in fact or by defection to an Anti-Pope, or to a Heretical or Schismatic Church, the apostolic right of the Roman Church revives. Therefore, the Roman Church has such a right in their absence.

2. Likewise, by the Code of Canon Law, which declares that all rights which have never been revoked remain in force, according to canon 4, which reads: Iura quaesita, itemque privilegia quae, ab Apostolica Sede ad haec usque tempora personis sive physicis sive iuridicis concessa, in usu sunt nec revocata, integra manent, nisi huius Codicis canonibus expresse revocentur; but the right to elect the Roman Pontiff was indubitably granted by the Apostle Saint Peter to the Roman Church, and that right has never been revoked. Nay, it is the very justification and inherent principle maintained when the Roman Synod in the 7th century restricted the exercise of that right to the Clergy, and when the Pope in the 11th century restricted it further to the College of Cardinals. This is confirmed by canon 6 §4, which restricts the abrogation of previous laws and rights to those things which are integrally expressed in the New Code. But such case, of having no Cardinal Electors, is not provided for. Therefore, it is not integrally included. Therefore, the rights to be referred to in such a case are NOT obrogated. Therefore, that right remains in force always to be revived.

3. Likewise, the ancient right of the Roman Church to elect the Roman Pontiff was ever held to have the force of law. This is self evident from history. But as canon 25, teaches: Nulla consuetudo vim legis obtinet, nisi a communitate legis saltem recipiendae capaci cum animo iuris inducendi servata fuerit. But, such is the case with the ancient right of the Roman Church, especially since when this right was restricted, the ancient reason for it was never denied or explicitly abrogated. This is proven by the fact that the Cardinals are still called Cardinals of the Holy Roman Church. Therefore, in the absence of all Cardinals, whether by bad will or substantial error, the right returns to the Roman Church.

4. Likewise, custom is the best interpreter of law (Canon 27). But, when Pope John Paul II was near death, the Cardinals and Bishops in his presence presumed his consent to use his signet ring to appoint Bishops which he had already considered for nomination. And no one in the Church objected to this. Therefore, it is right to presume the consent of a lawgiver, in cases in which he never foresaw. But such is the case of a substantial error in a papal resignation, when all the Cardinals fail to notice that substantial error and are consequently led not to convene in Conclave to elect a successor, but cleave instead to an Anti-Pope which they elected uncanonically during the lifetime of the Pope. Therefore, in such an unforseen and extraordinary case, the Roman Church has a right to have recourse to the ancient law.

5. Likewise, from the principle of subsidiarity, that, namely, when a higher or more dignified part of the body politic fail, the right to act passes to the subordinate authority. This is based on the teaching of Pope Pius XI in Quadragesimo Anno: Just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do. For every social activity ought of its very nature to furnish help to the members of the body social, and never destroy and absorb them. It is also supported by Pope John Paul II’s Papal Law on Elections, Universi Domini Gregis, where in the Prologue, the Holy Father says expressly that the College of Cardinals is “not necessary” as an institution “for a valid papal election”. — Thus, with all the Cardinals failing, it would be wrong to deny what the lesser and subordinate organization, the Roman Church, can do. Therefore, if all the Cardinal Electors fail to act on account of an obstruction which they themselves cannot or fail to remove, the Roman Church, as the entity to which they belong by incardination, receives license to resort to the Apostolic right which it has ever enjoyed, in part or whole, of electing the Roman Pontiff.

6. Likewise, from the Code of Canon Law itself, in canon 28: nisi expressam de iis mentionem faciat, lex non revocat consuetudines centenarias aut immemorabiles; hence, since the Apostolic right of the Roman Church is of time immemorial, and since that right is not expressly revoked in the present Code, it remains in force, in due circumstances. But the absence of all Cardinals Electors is not only a due circumstance, but one which puts the very constitution of the Church in the gravest danger, since the Office of Saint Peter is not only useful but necessary for the salvation of souls. Therefore, such a right cannot be considered abrogated by the new Code nor by the papal law on the Election of the Roman Pontiff, even if it seems to be expressly abrogated. Therefore, the Roman Church has such a right, in such circumstances.

Quod si pravorum, atque iniquorum hominum ita perveritas invaluerit, ut pura, sincera, atque gratuita fieri in Urbe non possit electio, Cardinales Episcopi cum religiosis Clericis, catholicisque laicis, licet paucis, jus potestatis obtineat eligendi Apostolicae Sedis Pontificem, ubi conguerit.
(Nicholas P.P. II, In Nomine Domini, §3, 13 Aprile 1059)

RESPONDEO:

I RESPOND:  It must be said, that whether by good will or bad, the act of electing a Roman Pontiff during the life time of a validly elected Roman Pontiff is both a crime against God and against the unity of the Church. It is a crime against God, since Christ has ordained only one man to be pope at any given time. — Likewise, the act of invalidly electing a man as Roman Pontiff, in violation with the existing papal laws on such an election, is likewise a crime against both God and the Church, since such a man who could never be the bond of unity, taking the place of the Roman Pontiff. — Likewise, the act of electing as Roman Pontiff a man who before his election was a formal manifeste heretic, is a crime against both God and the Church, because being a heretic, his election violates in the most horrid manner the rights all Catholics have to have a Catholic Pope in communion spiritually and canonically with Christ the Head of the Church.

Each is a crime against the unity of the Church, since causes causes a de facto schism between the Cardinals who adhere to their false pope and the entire Church which has a right to validly elected Catholic Pope.  Now, even if the Cardinals who do this, do so without malice, but operate under substantial error, nevertheless before the law they must be held to be guilty of the sin and crime of schism, whereby they lose every office and privilege in the Church.

Now, with Pope Nicholas II,  I say that the Roman Church, which has always held the right by apostolic privilege to elect the Roman Pontiff, enjoys in a special way the promise and right granted by Our Lord when He declares that “the gates of hell shall not prevail against My Church.” But the gates of hell would prevail against the Roman Church if it were deprived of a validly elected Pope and forced to submit to a public and obstinate heretic, an apostate, or a Freemason. Therefore, with Pope Nicholas II, I say that the Church of Rome has the right to elect the Roman Pontiff, in the particular case where all the Cardinal Electors refuse to elect according to the rules or elect a heretic (cf. Paul PP. IV, Cum ex apostolatus officio, n. 6, February 15, 1559).

For this reason, the arguments to the contrary are to be accepted, which sufficiently refute the arguments which contradict them.

Ad. 1. That one group has a right, according to a papal law, does not mean that another group does not have a right from some other font of law. Furthermore, the Roman Church has the right to elect the Roman Pontiff by Apostolic Law which is superior to Papal Law, for Apostolic Law is part of Divine Law and Sacred Tradition, which the Roman Pontiff can never abrogate.

Ad. 2. While it is true that all orders of clergy in the Roman Church are inferior to the College of Cardinals, it is not true that that College is superior to the Roman Church. Therefore, what is denied to an inferior, is not necessarily denied to a superior. Nay, the Papal power has denied the right of elections to inferiors, but has not denied the right to elect to the superior. Thus, ex silentio no argument can be made.

Ad. 3. While it is true that the Papal Law Universi Dominici Gregis denies to anyone but Cardinals to elect the Pope, it conditions this and all its provisions to elections during Conclaves. It says nothing about how to conduct an election by Apostolic right, though it does refer to such an election as valid in its introduction, as is clear.

Ad. 4. Right in one order of law is not abrogated when that right is applied by a lesser law in application. Thus when the circumstances of the application no longer hold, then that right revives. And such is the case when all the members of the College of Cardinals defect, or fail to convene within the time specified by the Papal Law.

Ad. 5. The ancient right of the Roman Church is no mere law of custom, since all Catholic theologians hold that it is of Apostolic ordinance. Thus while the custom of positive law could abolish customary law, it cannot abolish this right, which is no mere custom of men.

 

 

Canon Law, Ecclesiology

To what extent is Pope Paul IV’s « Cum ex apostolatus officio » still in effect?

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A collage of images of Pope Paul IV, c/o Corrispondenza Romana
A collage of images of Pope Paul IV, c/o Corrispondenza Romana

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.