Aug. 5, 2015

+ St. Dominic +

Dear Readers,

Here we wish to correct an error recently discovered in our works. For some time now we have stated that Pope Paul IV’s Cum ex Apostolatus Officio is the “old law” given as footnote for Canon 2200. This was a misreading that can explained by the way the footnotes are listed in the Latin version of the Code, but still this is not offered as an excuse.

While Can. 2200 is not directly supported in the canonical footnotes by Cum ex…, as previously stated, it is closely related to Canons 2197-2199. It is Can. 2198 to which Cum ex… is the footnote, and while it is necessary to consider it in context with the other canons, it is different in content. Canon 2198 states: “In order for a crime to be called public, it is necessary that the fact be publicly known as a criminal or morally imputable act — in other words, that the act is known as a crime. Thus if a person has been dangerously wounded or killed, it is not enough that the fact is known, but it must also be known the act was a criminal one, [not self defense or an accident]. …The offender must be known to the public to make the act a public crime, (Can. 2197 §4). If the offender does not stand identified before the public as the perpetrator of the criminal act, his offense is occult, called formaliter occult in the Code.” (Canon 2197 §4 says an offense is materialiter occult if the offense itself is not publicly known. Under this canon it is noted that “The Code calls an offense public when knowledge of it has been spread among the people [as few as six in a small community] or when it was committed under circumstances which make it practically impossible to keep the offense secret, (Can 2197 no. 3.”)

“An offense which violates solely the law of the Church, is by its very nature subject to punishment by the ecclesiastical authority only, although this authority may at times ask the assistance of the civil power, when it judges such help necessary or opportune. The civil authority according to its own law punishes an offense which violates solely a law of the civil society, except that, in accordance with Can. 120, clerics are to be tried in ecclesiastical courts only and the Church also is competent to judge it by reason of sin committed. An offense which violates the law of both Church and State may be punished by both,” (end of Can. 2198).

Can. 2197 relates to the material/formal argument today, as can be seen by the wording. This will be examined in a separate article, posted under the Most Recent Articles heading on the Free Content site. What Can. 2198 is concerned with is paragraph seven of Cum ex… stating that if the man deposed by heresy committed publicly, as the canon defines, will not give up his claim to the see, the civil authorities may step in. Heresy is public when: 1) the identity of the perpetrator is known to the public; 2) when the knowledge of the act has spread among a large number of people, or is such that it can’t be concealed and 3) the act itself is known to be a criminal act. Once it is determined that heresy is public, then it can be dealt with in the public forum. Material or occult formal heresy is if its nature non-public, because it does not satisfy the criteria.

Can. 2200 considers only those things in the external forum, committed according to the guidelines set down in Can. 2198. In other words, if we say that some of those who are included under Can. 2200 are material heretics (i. e., guilty of the external act but not necessarily the sin of heresy itself), we are not saying it is not publicly known. We are saying that it is an external act that may not be “morally imputable,” (Can. 2196). Only the Church can determine what is morally imputable or not because this is a matter concerning the internal forum, (confession). The rest of us have to stop at the part about external acts until the Church can decide, and according to Can. 2200 § 2, if the criteria for an external act is met then Canon 2200 presumes imputability when there is an external violation of the law; neither imputability or pertinacity determine the presumption of heresy, only the external act itself, proved contrary to faith or morals. Those who have been warned and do not heed the warning, even if it comes from a well-informed layperson, are pertinacious heretics — very simple, contrary to what Traditionalists would have us believe. For a complete picture of the heresy issue, please read the site articles on the Free Content page.

My apologies to anyone who may be confused by this. However even without Cum ex… as a footnote, Canon 2200 is one of those laws with a presumption on its side. Because Can. 2200 establishes a presumption of law; the burden of proof rests with the accused. As stated in Can. 1827, “He who has a presumption of law in his favor is freed from the burden of proof, which is shifted to his opponent. If the latter cannot prove that the presumption failed in the case, the judge must render sentence in favor of the one on whose side the presumption stands.” And only a lawful superior can make such a determination; how to assess this burden of proof rests with them. St. Alphonsus Liguori teaches concerning the presumption of law: “In doubt, decide for that which has the presumption.” But I suppose St. Alphonsus’ advice is not good enough for Traditional “priests” pretending to teach as theologians.

It really all comes down to the fact that both Nicholas I in DZ 326 and Pope Pius IX in both Quartus Supra and Quae in Patriarchatu; also Etsi Multa, call Catholics who do not accept disciplinary decrees heretics and schismatics. Pope Pius XII also forbids anyone to violate papal law during an interregnum under the penalty of a null and void act. Infallible or not, we must obey Cum ex…or lose our membership in the Church. We are still obliged to obey the canons regardless of the old laws that support them. Can. 2198 is important in its own right, since it basically confirms that it is not the cardinals who are to determine how a usurper pope is to be handled; he is to be turned over to the civil authority since he never held the office in the first place; it is a civil matter having to do with public order. The FACT of the heresy of the usurper must be made known, but his sentence as one who never held the papacy, but remained a mere bishop or priest who has never held office to begin with is rendered by the censure ipso facto. The material-formal crowd could find all their answers in the Code, if they would just look. But they can’t afford to go there.

Once again, my apologies. Don’t forget to look for the new article on the material-formal papacy under Most Recent Articles.


T. Benns

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