© Copyright 2008, T. Stanfill Benns (None of what appears below — in whole or in part — may be used without the express and written permission of the author.)

Presumption must yield to truth

When I co-authored the book “Will the Catholic Church Survive…?” in 1989, I stated that once a presumption of law was established then that presumption stood unless and until it was proven unsound or erroneous. I also indicated, in the section on Moral Certitude, that this type of certitude is sufficient, yet not absolute. But the book failed to explain sufficiently that while moral certitude can help one arrive at a truly probable course of action, it does not exclude the possibility of revision or error. Theological or supernatural certitude is the only form of certainty that does not admit of revision.

Theological certitude is mentioned in the book, but it is not always distinguished, in its application to the election principle, from moral certitude. Nor were the principles governing Canon Law adhered to as they should have been, seeing that no one was allowed to interpret or dispense from Canon Law during an interregnum per Pope Pius XII’s papal election law. (The book itself even states that this law was so dispensed from on pgs. 438-439.) Justification for this dispensation given in the book was “the higher law” of Jesus Christ, Who willed that the Church as He constituted it should last “unto the consummation,” and who taught through His Vicars that without a true pope the Church cannot exist. Based on these truths, those promoting the election demanded the need for a true Pope, with little thought given to the equally grave dangers to the common good (Can. 21) should an unfit or unworthy man be invalidly elected. Also much to do was made about the fact that the law could be declared inapplicable because no true cardinals existed to see that it was followed.

But in his “Handbook of Moral Theology,” Rev. Dominic Prummer states: “A doubtful law has no binding force whenever the doubt concerns the lawfulness of an act and not its validity.” Pope Pius XII’s constitution on papal election was a disciplinary decree that invalidated any election held contrary to the rules laid down during an interregnum and those regulating the Conclave. So the decision made that this law no longer bound anyone could not be made because Pius XII beforehand had authoritatively invalidated future acts or attempts to elect a pope contrary to his constitution. Also, Rev. Bernard Wuellner states in his “Summary of Scholastic Principles”: “In doubt about the validity of a positive law, the law is presumed to be valid for the sake of the common good and to preserve the certain right of authority.” Rev. Wuellner does qualify his statement by adding that the law must be physically and morally capable of fulfillment, and the point of Pope Pius XII’s law concerning the cardinals is not capable of fulfillment because they no longer exist.

But Rev. Amleto Cicognani, in his commentary on Can. 21, which determines when an invalidating law may cease, states that if such a law ceases only inadequately (meaning that only some particular purpose of the law ceases), “the law ceases neither for the community nor for individuals, for the reason or soul of the law still exists.” Most of Pope Pius XII’s law still applies wherever it does not directly concern the cardinals and both Pius XII’s law and the laws for ecclesiastical elections were quoted and followed in the pre-election book. Yet many of these election laws were never followed to the letter as required. This includes the interpretation of the meaning of the Church contrary to Divine law (Can. 107) used in allowing the laity to vote, and the violation of Can. 167 §5 concerning the Catholicity of electors. It is a denial of scholastic principles to pretend that something has lawfully and validly taken place when the preponderance of evidence clearly says otherwise — and such antics cannot fool those who truly wish to follow the laws and teachings of the Church. These laws and teachings existed long before the death of Pope Pius XII and will exist until the consummation.

The mind of the legislator, Pope Pius XII, was clear where the division between laity and clergy is concerned when he wrote “Mystici Corporis” and “Six ans se Sont,” (see Can. 18). Pius XII did say that in the absence of the hierarchy the laity could assume all their duties, providing that “nothing…be undertaken against the explicit or implicit will of the Church, or contrary in any way to the rules of faith or morals, or ecclesiastical discipline,” (“Mission of the Catholic Woman,” Sept. 29, 1957). Sadly, those promoting a papal election to restore the Church in this devastating crisis violated the rules of faith and ecclesiastical discipline in many ways, although that was never this author’s intent. Many mistakes were made; many wrong turns were taken, with disastrous results all around. But in the end, presumption must yield to Divine truth. Can. 107 states that by Divine law, the Church can consist only of the CLERGY and laity, not the laity alone.  This is a matter of Divine faith as taught by the Catholic Church. Deny this truth and one is ipso facto excommunicated for heresy.

In the book “Will the Catholic Church Survive…?,” this author states that once a presumption of law has been established, the burden of proof is then shifted to one’s opponents. If the latter cannot disprove the presumption, it stands. This is true only when the thing being discussed is doubtful; and I once believed that what was to be done during an interregnum concerning a papal election was doubtful and the law could be dispensed from where cardinals and other matters were concerned. That doubt concerning certain Canon Laws was later removed, placing me in the unenviable position of disproving the case presented in the book. Examining the law with a view to making certain deductions concerning a mode of action and conduct which may or may not be lawful is the province of theologians and their students. It is important today that laymen who do study Canon Law view it rather as ordinances of reason reflecting the will of God, to be obeyed and not dispensed from or adjusted in any way. It is one thing to conduct such studies under the supervision of the proper spiritual authorities, who can bring attention to errors in reasoning and in theology. But when this is not possible it is fatal to presume to arrive at personal deductions and present them to others as correct and worthy of belief, without a superior’s approval. I have a strict obligation to correct any errors found in my book, to undo the spiritual damage done as far as possible. And until I feel these errors are properly and completely corrected I will continue to make them known.

The laity are forbidden to elect

“The good of the Church demands that we take all possible care that the stability of Canon Law be not endangered by the uncertain opinions and conjectures of private parties regarding the true sense of the canons, and that interpretations which rest on subtleties and cavils against the clear will of the legislator do not result in undue indulgence toward violators of the law, a thing which disrupts the nerve of ecclesiastical discipline,” (decision concerning Can. 2319 § 1,1; Pope Pius XII Motu Proprio 1953).

In retrospect, and in view of Pope Pius XII’s words above, there are things in Canon Law and Church teaching on the “papal” election held in 1990 that need to be further addressed. These observations have come about over a period of time and serve to simplify as well as summarize much of what appeared on this site in regards to that invalid election and the heretical teachings connected to it. For those looking for a more understandable explanation, the following will suffice:

1.       Divine Law says that the Church is made up of the clergy and laity in DZ 966 and Can. 107. To remain members of the Church, we must obey Divine Law and infallible Church teaching.

2.       The Vatican Council teaches infallibly that dogma must always be understood in the same sense as the Church has always taught it, and that sense must be always retained, (DZ 1800). The Vatican Council then teaches concerning the Church: “That the episcopacy itself might be one and undivided, and that the entire multitude of the faithful through priests closely connected with one another might be preserved in the unity of faith and communion, placing the blessed Peter over the other Apostles, He established in him the perpetual principle and visible foundation of both unities, upon whose strength the eternal temple might be erected, and the sublimity of the Church to be raised to Heaven might rise in the firmness of faith.” Pope Leo XIII also wrote: “…the divine Founder decreed that the Church be one in faith, and in government, and in communion,” and only the hierarchy may authoritatively teach, govern and sanctify the Church. We must believe it and cannot question it.

3.        In “Quartus Supra,” Pope Pius IX says that the laity has never been able to elect bishops or ministers under either divine or ecclesiastical law. We unquestionably believe what he said.

4.       The Council of Trent in two different places (DZ 960, 967) and also Pope Pius VI (DZ 1502) state that it is heretical to believe that the community or the people can elect a bishop or pastor. The Church has said it and we must believe it.

5.       Pope Nicholas II’s law mandating that cardinals only are to elect a pope states that in an emergency clergy AND laity can elect a pope.  “Will the Catholic Church Survive…?” says that Can. 178 on devolution permits laity only to elect in the absence of clergy. Other writers discussing the election rightly teach that devolution could go only as far as the clergy, because to say only the laity can elect denies that the Church is made up of the clergy and laity. It also denies that the Church, as Christ Himself founded it will last until the end of time, meaning that not the papacy only, but also the hierarchy MUST BE VISIBLE. St. Francis de Sales says that this visibility will be interrupted only during the time of Antichrist, when all will see the Church going into the desert (during the false Vatican II Council) and emerging from it, (“The Catholic Controversy”).

6.       The 1990 “Election Update” article on privileges says that Nicholas II gave the clergy (and laity) a privilege that is still in effect that allows them to elect a pope in unsettled times. In case of doubt concerning a privilege, Canon 68 sends us to Canon 50. Canon 50 tells us that when a privilege involving private parties goes against the usual law, it must be interpreted strictly. Canon 49 says that the privilege is to be understood according to the proper meaning of the words as they are commonly used. Canon 67 says a privilege cannot be “extended or restricted.” So strictly speaking these Canons were never observed because the words “universal Church” were not taken in the sense in which the Church commonly uses them (meaning clergy AND laity). The  clergy unlawfully was excluded, restricting any emergency election only to laity.

7.       But these Canons on privileges (and customs) become irrelevant after reading Canons 4 and 5, then referring to Can. 160.  In their summaries of Pope Pius XII’s 1945 election law, Revs. Bouscaren-Ellis and Woywod-Smith agree that Pope St. Pius X’s and Pope Pius XII’s election laws “abrogate” all earlier documents and that Pius XII’s “Vacantis Apostolica Sedis” now “exclusively” governs papal elections. Canon 4 says that privileges granted by the Holy See before the Code that are still in use at the time the Code was issued are not revoked unless expressly revoked by the Code. The privilege given by Pope Nicholas II was never invoked (an emergency election by clergy and laity), even after it was granted; so that privilege is now clearly revoked. Canon 77 states that a privilege ceases when the superior decides it has become harmful, or its use has become illicit. It is obvious that Pope Pius IX already believed this even before the Code was written. And it is equally obvious that Pope St. Pius X’s and Pope Pius XII’s papal election laws summarized all previous papal election law and abrogated any rights once accorded to the clergy and laity.

8.       Among the ecclesiastical laws upon which the attempted 1990 “election” was based, Can. 167§5 is mentioned. The old law on which this canon rests is none other than Pope Paul IV’s “Cum ex Apostolatus Officio,” written in 1559. This Canon states that those who are deprived of the active vote by the common or particular law may not cast a vote. If they do the election is not invalid unless this vote was needed for the two-thirds plus one majority necessary to elect. Pope Pius XII’s election law forbids laymen to vote, therefore all their votes were invalid because the laity could never have elected a pope. Also, none of those electing could certainly prove they were members of the Church since they were never absolved from their membership in non-Catholic Novus Ordo and Traditionalist sects by a valid and licit priest or bishop, (as the 1990 book stated was necessary to validly vote in the election). Canon 2248 states that, “any censure once contracted cannot be removed except by legitimate absolution.” Revs. Woywod-Smith comment: “Only a superior who has power to attach a censure to his precept can absolve under such a condition, unless the law gives the confessor faculty to absolve under that condition.” Even in these “extraordinary times,” no law gives the laity the right to absolve each other from censures as suggested in  “Election Update.” For if electors are laity, and among them women, could it then be said that women have the right to function as confessors and priests?

9.       Under the heading “Ecclesiastical offices…,” Canon 145 includes the papacy as an ecclesiastical office, (Bouscaren-Ellis). Canon 145 reads: “In the strict sense, an ecclesiastical office means a stable position created either by the divine or the ecclesiastical law, conferred according to the rules of the sacred canons and entailing some participation at least in ecclesiastical power, whether of orders or of jurisdiction. In law, the term ecclesiastical office is used in its strict sense, unless the context clearly indicates the contrary.” Canon 146 treats of ecclesiastical benefices, which as Revs. Bouscaren-Ellis comment are “permanently established by ecclesiastical authority.” Ecclesiastical benefices can be conferred only on clerics (Can. 118), so unless one is a cleric either before or after appointment to an office, depending on the law, he is not entitled to the revenues from an ecclesiastical benefice.

Canon 147 §2 informs us that ecclesiastical offices cannot be “validly obtained without canonical appointment…which is the conferring of an ecclesiastical office by the competent ecclesiastical authority in harmony with the sacred canons.” When ecclesiastical authority does not elect and the sacred canons are not followed, there can be no valid election. This is further testified to by Pius XII himself who states in “Vacantis Apostolica Sedis”: “Laws given by the Roman Pontiffs are in no way able to be corrected or changed through the meeting of the cardinals of the Roman Church [the See] being vacant; nor is anything able to be taken away or added, nor is there able to be made any dispensation in any manner concerning the laws themselves or some part of them. This is very evident from pontifical Constitutions [on]…the election of the Roman Pontiff. But if anything contrary to this prescript occurs or is by chance attempted, we declare it by Our Supreme authority to be null and void.”

Some contend that Can. 160 does not govern papal election; that no canons govern papal election. But this is a specious evasion, for the very first line of Can. 160 refers us specifically to the Constitution of Pope St. Pius X. Rev. Charles Augustine devotes an entire section to papal elections past and present under this canon. The first line of the law itself reads that Pope Pius X’s election law now “exclusively” governs papal election, and then in a footnote Revs. Woywod-Smith explain that Pope Pius XII’s “Vacantis Apostolica Sedis,” amends and revises this law. Under Can. 218, Revs. Bouscaren-Ellis state that (“Vacantis Apostolica Sedis”)  “explicitly abrogates all other previous ordinances on the subject.” and elsewhere Woywod-Smith assert that Pope Pius XII’s constitution “abrogated and supplanted all previous legislation regulating the election of the pope.”  Pope Pius XII’s law is entered into the “Acta Apostolica Sedis,” Vol. 38, pgs., 65-99. This means, as Pius XII explains in “Humani Generis,” that the conduct of the faithful during an interregnum and the exclusion of any lay influence on papal elections is no longer open to discussion.

Commenting on Can. 162, Revs. Bouscaren-Ellis write: “If more than a third of the electors failed to be convoked, the election is invalid.” When no valid and licit clergy responded to a call for election, the promotion of the election should have ended. Instead, a concerted effort should have been made to locate true clergy before any further steps were taken.

In “Will the Catholic Church Survive…?” Can. 18 is used to explain why ecclesiastical election laws can be appealed to in a doubt of law to determine electors when the cardinals are all excluded from voting. This law refers those able to authoritatively apply the law to parallel passages in the Code, to the purpose of the law and its circumstances and to the mind of the lawgiver, (in this case Pope Pius XII). Canon 167 is such a canon, and should have stopped everyone in their tracks. Canon 167 §4 forbids anyone who has been involved with heretical or schismatic non-Catholic sects any vote in ecclesiastical elections. And Can. 167 §5 forbids anyone to participate who is deprived of a vote by the common or particular law, which would include Pope Pius XII’s election law. All those attempting to elect in 1990 at one time had been members of NO and Traditionalist sects, both schismatic and heretical. They could not find valid and licit clergy to absolve them, when the 1990 book states this is necessary for readmission into the Church, (pg. 445). And Can. 2248 above insists that for such a censure to be lifted, the absolution must be lawful. Therefore these laypersons remained under censure.

10.  In his 1945 election law “Vacantis Apostolica Sedis,” Pope Pius XII ruled that even the Cardinals could not change the laws, detract from them in any way at all or dispense from them. Everything was to be left for a future Pope to decide.  He said that if anything contrary to his constitution took place or was attempted, it would automatically be null and void. (This same statement can be found in the Catholic Encyclopedia, Vol. VIII, page 751.) Pope Pius XII’s law was further protected from any violation by an oath. This means that only a future Pope could change it in any way, although the Cardinals could interpret it in an emergency by unanimous vote. In illicitly dispensing from this law, the laity effectively usurped the rights and privileges of the Roman Pontiff. And anyone acting against his constitution would incur God’s indignation and the wrath of the holy Apostles  Peter and Paul.

After reading all this, it doesn’t take a rocket scientist to figure out that there is no way the laity can ever validly elect a pope. There is no privilege and could never be such a privilege that allows this. In fact there are several condemnations of any attempt by the laity to elect their leaders (see below) that were condemned by the Popes hundreds of years ago! There are probably many other reasons why such an election has never happened and could never happen, but this one goes to the root of the problem. No one can promote such a proposition without denying what the Church and Christ Himself teaches about the Church. We must believe God and not men.

Lay investiture and other errors

Below, the teachings of the Church on lay elections and conferral of rights on the one elected will be examined. The meaning of lay investiture above is the attempt by laypersons to grant an ecclesiastical office. It is condemned in Can. 147 and the footnote to this Canon leads us to the Council of Trent. In 1950, under Can. 147 (Canon Law Digest, Vol. 3), Pope Pius XII levied excommunications reserved in a special manner to the Holy See against “anyone who [against] the sacred canons occupies an ecclesiastical  office…or allows anyone to be lawfully intruded into the same, or who retains the same; also those who have any part in [this]…” Below are listed the Council of Trent’s condemnations and also the condemnation of this same heresy by Pope Pius VI and others.

“For the doctrine of faith which God revealed has not been handed down as a philosophic invention to the human mind to be perfected, but…as a Divine deposit to the Spouse of Christ to be faithfully guarded and infallibly interpreted. Hence also that understanding of its sacred dogmas must be perpetually retained, which Holy Mother Church has once declared; and there must never be any recession from that meaning,” (DZ 1800).

"If anyone says that in the Catholic Church a hierarchy has not been instituted by divine ordinance which consists of bishops, priests and ministers [deacons], let him be anathema," (The Council of Trent, DZ 966; Canons 108-109).

"This Holy Synod teaches that, in the ordination of bishops, priests and other orders…those who are called and instituted only by the people, or by the civil power…and proceed to exercise these offices, and…those who take these offices upon themselves, are not ministers of the Church, but are to be regarded as 'thieves, robbers and those who have not entered by the door,'" (DZ 960; Canons 108-109; Can. 147.) Here it must be noted that tonsure is officially ranked with the ceremonies of Holy Orders under Can. 950, since without tonsure there can be no further advancement to the minor orders. The first sentence of the reference above to “other orders” would include tonsure as defined in Canon Law. So to imply or explicitly state that the laity has conveyed such a species of Orders is to heretically attribute to the laity the power to confect what the Church includes in Her definition of Holy Orders. Preaching and teaching are functions reserved to those who possess both Holy Orders and jurisdiction.

Condemnation of the Jansenists
by Pope Pius VI: "'Power has been given by God to the Church that it might be communicated to the pastors who are its ministers for the salvation of souls.' If thus understood that the power of ecclesiastical ministry is derived from the community of the faithful to the pastors — heretical," (DZ 1502; Canons 108-109). Here we see the danger of interpreting the word “Church” in a sense that limits it to “the community of the faithful,” bypassing the hierarchy. For this implies that this community, not the bishops and the Pope, may appoint their own priests and bishops or convey a minor order. This results in heresy.

"If anyone says that … those who have neither been rightly ordained nor sent by ecclesiastical authority, but come from a different source, are the lawful ministers of the Word and of the Sacraments, let him be anathema." (The Council of Trent, Sess. 23, July 15, 1563; DZ 967, 424). The minister intended here need not be a cleric prior to the attempt to preach or confer the Sacraments. All that is needed to incur this anathema is for someone to come “from a different source,” meaning one outside the necessary ecclesiastical authority required by Can. 147. The laity is obviously not included in the definition of ecclesiastical authority as laid out here and in Can. 147 § 1, 2.  

We have already seen that Pope St. Pius X and a commission of cardinals condemned the idea of command vocations, teaching instead that “No one ever has any right to ordination antecedently to the free choice of the bishop…The requisite which has to be examined and which is called priestly vocation by no means consists, at least necessarily and as a general rule in a certain interior attraction of the subject or in invitations of the Holy Ghost, to enter the clerical state,” (July 2, 1912). In the Catholic Encyclopedia article on vocation, Rev. Vermeersch tells us it is the semi-Quietists who placed emphasis on Divine attraction by insisting that once a man received this call the vocation was “obligatory…practically necessary.” Vermeersch then mentions Pope St. Pius X’s condemnation of this idea. But long before Pius X ever rendered his decision on the true definition of a vocation, St. Francis de Sales wrote the following:

 “No one should allege an extraordinary mission unless he prove it by miracles…If they allege an extraordinary mission, let them show us some extraordinary works…Never must an extraordinary mission be received when disowned by the ordinary authority which is in the Church of Our Lord…An extraordinary vocation is never legitimate where it is disapproved of by the ordinary…Where will you ever show me a legitimate extraordinary vocation which has not been received by the ordinary authority?  St. Paul was extraordinarily called, but was he not approved and authorized by the ordinary once and again? And…the mission of St. John the Baptist cannot properly be called extraordinary because he taught nothing contrary to the Mosaic church,…was of the priestly race and…his doctrine was approved by the ordinary teaching office of the Jewish Church…(Jn. 1: 19)…The vocation of Aaron was made by the ordinary Moses, so it was not God who placed his holy word in the mouth of Aaron immediately, but Moses…And if we consider the words of St. Paul we shall further learn that the vocation of pastors and Church rulers must be made visibly…,” (“The Catholic Controversy,” chapter on Mission).

Pope Pius IX in “Quartus Supra”: “For no power of electing bishops or other ministers of religion has ever been given to the people by either divine or ecclesiastical law.”

Pope Pius XII states in “Ad Apostolorum Principis”: “All ecclesiastical discipline is overthrown if it is in any way lawful for one to restore arrangements which are no longer valid because the Supreme Authority of the Church long ago decreed otherwise.”

Can. 147, which says even the Pope must receive his office from “competent ecclesiastical authority, made according to the sacred canons.” Only the Roman Pontiff, legitimately and canonically elected has ever been considered a true Pope, (see DZ 570d, 650, 658 and 674; Can. 147; also “Cum ex Apostolatus Officio.” So papal election is necessarily determined by the sacred canons. Under Can. 145, Bouscaren-Ellis comment that the ecclesiastical offices under consideration are established either by Divine or ecclesiastical law, and the papacy is established by Divine law. So Can. 147 applies to the papacy as well as other offices. The very definition of canonical provision under Can. 147 §2 is “the grant of an ecclesiastical office, by competent ecclesiastical authority, made according to the sacred canons.” As noted above, some wrongly and dishonestly assert that Can. 160 does not apply to a papal election, when it must for an election to be considered canonical. When in doubt, define. What is a canon? In his dictionary, Rev. Attwater tells us: “(Ecclesiastical) canons are rules, laws, decrees, definitions concerning the Christian faith or life.” For those who insist that Pope Pius XII’s Constitution is a “special” law governing papal elections that can be disassociated from the canons, we define constitution, papal, from Rev. Attwater: “Those laws which the Pope issues in his own name.” We must remember that when Pope St. Pius X wrote his constitution on elections in 1904, he was already beginning the work of codifying Canon Law. In his law he summarized all previous election laws, summarizing and abrogating them. There then was one law, vs. many rules, laws, decrees, definitions to consult, and this also was true with Pope Pius XII’s law. Basically Pope St. Pius X’s and Pius XII’s constitution are the same, being laws on the matter written solely by these Popes. So how is this different from any of the other Canons, based on Bulls or constitutions written by Popes of the past?

Having read through this however, we need to better understand why the rite of tonsure cannot be conveyed by anyone except a clerical candidate’s proper bishop.

What is tonsure?

Tonsure is the ceremony that distinguishes the clergy from the laity. The fact that there is such a distinction is a divinely revealed teaching according to Can. 107.  Canons 108 and 948 also tell us that tonsure marks this separation to distinguish the ones governing from the governed, and that the sacred hierarchy of Order was Divinely instituted (bishops, priests and deacons) while the hierarchy of jurisdiction exists in the bishops and the Supreme Pontiff and was likewise instituted by Christ. The Church Herself established the orders of the lesser clergy. Ironically, As Bouscaren-Ellis point out under Can. 118 and Rev. Miaskiewicz states in his “Supplied Jurisdiction According to Canon 209,” a layman does not need to receive clerical status in accepting the papacy. For a layman, this does not come prior to but antecedent to papal election according to the 1945 election law of Pope Pius XII. And Pope Pius XII forbids us to attenuate his law in any way.

Canon Law also forbids the laity to confer sacramentals. Tonsure is usually described as a sacramental, although it is actually more than that in the eyes of the law. For as Can. 950 explains, while tonsure is not considered an actual Sacrament, nevertheless where Canon Law is concerned, it is essential to Orders and is classified under the law with Orders. Canon 950 reads: “The terms: to ordain, order, ordination, sacred ordination, comprise besides Episcopal consecration, all the orders enumerated in Can. 949, as well as first tonsure, unless some other meaning is to be taken by reason of the nature of the matter treated or from the context of the wording of the law,” (and this last phrase ultimately would be a matter for the Committee for the Authentic Interpretation of the Code to decide, not laymen). .

Canon 1146 teaches that only clerics can confer sacramentals. Commenting on this canon, Rev H. A. Ayrinhac also says that lay persons are never permitted to administer the sacramentals, (“Legislation on the Sacraments in the New Code of Canon Law”). Sacramentals are like the sacraments: they are outward signs instituted by the Church to give grace, (although in the Roman Ritual, the editor, Rev. Weller, comments: “Some of the sacramentals definitely come from Christ, [but] how many and actually which ones is not clear.”) A bishop of the proper diocese is always the minister of tonsure, unless the Pope or the Bishop delegate another cleric for this purpose. Pope Innocent III said, “By tonsure given according to the form of the Church is the clerical status conferred,” (Revs. Woywod-Smith, Can. 950). St. Francis de Sales tells us the confirmation of any vocation in the Church must be “made visibly,” (“The Catholic Controversy,” Mission).

From these observations it is clear that only the actual ceremony of tonsure and the subsequent conferral of the minor and major orders by the proper bishop can grant clerical status; nor can the laity “send” their pastors; and if they attempt to do so they commit heresy. As Pope Pius XII states in “Mystici Corporis”: “Bishops must be considered as the nobler members of the Universal Church,” that same Universal Church which others, with rare temerity, say may be considered only as the laity.

Divine right and canonical jurisdiction

The grant of ecclesiastical (canonical mission) jurisdiction cannot be confused with the reception of jurisdiction by Divine law, (Can. 109, 219). In the histories of the three laymen historically elected Pope (Leo VIII, Benedict VIII and John XIX) the Catholic Encyclopedia entries for Popes Leo VIII and John XIX state that they received the full round of minor and major orders in succession, and this would necessarily have included tonsure which is the key to the door that unlocks the Sacrament of Holy Orders. Ecclesiastical jurisdiction is not divine right (jure divino) jurisdiction; ecclesiastical jurisdiction is received by canonical mission and is distinct from jure divino jurisdiction. Canon 109 explains this: "In the supreme pontificate, the person legitimately elected and freely accepting the election receives jurisdiction by the divine law itself; in all other degrees of jurisdiction, by canonical appointment." Rev. Charles Augustine comments on Can. 109 as follows: "The missio canonica is necessary for all who are inferior to the Pope. For as the Lord sent His Apostles, so in turn He sent others to exercise their spiritual power with authority, and without such credentials no one has authority in the Church.” The jurisdiction Christ gave to the Apostles was distinct from that given to Peter alone. Peter received his power first (jure divino) Holy Scripture tells us, and all the Apostles received theirs as a group at a later time, (missio canonica). A layman legitimately elected Pope by the proper ecclesiastical authority receives tonsure following his election, prior to ordination and consecration.

As Pope Pius XII teaches in “Six ans se Sont,” clerical fitness must be determined prior to the acceptance of election to assure validity.  This is the “clear will of the legislator,” as he states above, and Canons 149, 153 and 154 also demand it. Under Can. 118, Revs. Bouscaren and Ellis point out in their volume on Canon Law that “jurisdiction presupposes Orders,” and if not Orders itself, at least the fitness necessary to receive them. Rev. Raymond Kearney, also Rev. H. A. Ayrinhac state concerning the laws demanding fitness in priestly candidates that “Ecclesiastical as also natural and divine positive law demand in a candidate for Orders certain qualifications,” (“Legislation on the Sacraments,” pg. 325). Divine law requires that a candidate for papal election be a baptized male possessing the use of reason. (As long as there are valid and licit hierarchy available to ordain and consecrate a layman, one may still be elected, but today we do not have access to the hierarchy.) In the article “Papal Elections” in the Catholic Encyclopedia, William H. Fanning writes: “A layman may also be elected as pope…Even the election of a married man would not be invalid…Of course the election of a heretic, schismatic, or female would be null and void.  Immediately on the canonical election of a candidate and his acceptance, he is true pope and can exercise full and absolute jurisdiction over the whole Church.”

Heresy and schism

In the May 31, 1990 “Election Update” we find: ““Heresy invalidates the election; even suspicion of heresy is sufficient. However, if one has not been declared a heretic and has removed any cause for suspicion, he is capable of election…Forming a merely schismatic sect is [also] sufficient to incur the censure of Can. 2314…Does starting a [non-Catholic] sect subject one to further censure? We can find no specific censure for this horrendous crime, but the Church has followed a pattern in these cases. She has always declared the people who have started non-Catholic sects excommunicatus vitandus. Luther and Henry VIII are two notable examples.”

So let us suppose an hypothesis. Let us say that someone was assumed to be validly elected pope. But later this man was found to have unquestionably admitted in writing to joining a non-Catholic sect shortly before election and incurring excommunication for heresy and schism. Let us say more. Let us say that this excommunication remained unknown or at least not fully known for many years. What would be the outcome of such a discovery? Once the commission of an offense is divulged, it is known that it is an actual offense, and its divulgence is easily possible, it is public, (Can. 2197 §1). If other statements or actions show that this offense or others like it have been committed, this is further proof. Those who have not read Pope Paul IV’s “Cum ex Apostolatus Officio” before might think that such a thing is not addressed; but it is indeed addressed and the answer to the problem is quite simple: such a man would be considered as never having become pope once the divulged heresy is CLEAR to even a small number of people, in a small community.

6. "Further, if ever at any time it becomes clear that any Bishop…Archbishop, Patriarch, or primate; or any Cardinal of the aforesaid Roman Church…or likewise if any Roman Pontiff before his promotion or elevation as a Cardinal or Roman Pontiff, [has strayed from the Catholic Faith or] fallen into some heresy, [or has incurred schism], then his promotion or elevation shall be null, invalid and void. It cannot be declared valid or become valid through his acceptance of the office, his consecration, subsequent possession or seeming possession of government and administration, or by the enthronement of or homage paid to the same Roman Pontiff, or by universal obedience accorded him, or by the passage of any time in said circumstances, [nor shall it be held as quasi-legitimate.] It shall not be considered to have given or to give any power of administration in matters spiritual or temporal, to such persons…elevated as Cardinals or as the Roman Pontiff. Rather, each and, every one of their statements, deeds, enactments, and administrative acts, of any kind, and any result thereof whatsoever, shall be without force and shall confer no legality or right on anyone. The persons themselves so promoted and elevated shall, ipso facto and without need for any further declaration, be deprived of any dignity, position, honor, title, authority, office and power…

"It shall be lawful for all and sundry who would have been subject to persons so promoted and elevated, had these not first strayed from the Faith or been heretics, or incurred or incited or committed schism; for clerics, secular or regular, and for laymen; likewise for Cardinals, even for those who participated in the election of one straying from the Faith, or of a heretic or schismatic to the Papacy, or who otherwise presented and pledged him obedience and paid him homage…to depart with impunity at any time from obedience and allegiance to said promoted and elevated persons and to shun them as sorcerers, heathens, publicans, and heresiarchs — though subjects of the same remain, nevertheless, bound in fealty and obedience to future Bishops, Archbishops, Primates, Cardinals and the canonically established Roman Pontiff. For the greater confusion of persons thus promoted and elevated, if they attempt to continue their government and administration, all may implore the aid of the secular arm against those so advanced and elevated. Nor shall they be liable to reprisal through any censure or penalty, as renders of the Lord's robe, for departing, for the reasons set forth above, from fealty and obedience to said promoted and elevated persons…"

Anyone can be mistaken or fooled into believing that something is either not what it appears to be or is something it is not. But once the truth becomes clear, and the mistake is evident, then the obligation to act exists. Pope Paul IV says when this happens, anyone may depart “with impunity, at any time” without fear of censures or reprisals. His law is sympathetic to those laboring under such strong delusions. Why? Because in his Bull, Pope Paul IV states that he writes in order that the abomination of desolation may not be seen to stand in the Holy Place. He wrote for us, that we may walk with the light, and walk safely.