Infamy of Law Bars the Valid Exercise of Orders Received
© Copyright 2009, T. Stanfill Benns (This text may be downloaded or printed out for private reading, but it may not be uploaded to another Internet site or published, electronically or otherwise, without express written permission from the author.)
Since Traditionalists first appeared on the scene and began collecting followers for services, they have claimed common error and supplied jurisdiction to function validly and licitly, something proven here not to exist in our particular case. Yet even if it could be said that such jurisdiction did indeed exist, there is yet another problem they need to contend with, more onerous by far than any of the rest. That problem is known as infamy of law, a special penalty attached to excommunication of certain kinds, primarily for heresy, apostasy and schism. Because the additional penalty cannot be proven unless it first is proven that one has abandoned the faith, Catholics need to understand how the Church judges and views acts of excommunication resulting from attendance at non-Catholic services, since most Traditionalists have attended and even officiated at the services of the Novus Ordo as well as schismatic Traditional services.
Canon E. J. Mahoney explains the Church’s teaching on attendance at these services as follows: “The liberal view [is that] baptized non-Catholics in good faith are members of the body of the Church precisely because they are not excommunicated…The view diametrically opposed to this is [that] the excommunication of heretics applies to material as well as formal heretics…If a choice had to be made between theses two views…, there is no question that the second fits in best with Catholic discipline, and, in particular, with our practice in reconciling converts…The solution which I think is the correct one consists in perceiving a distinction which the Code itself supplies. The Sacraments are to be denied both to material and formal heretics but for different reasons; to formal heretics because they merit punishment, the censure of Can. 2314 §1; to material heretics because they are excluded by Can. 731 §2, which is a necessary deduction from the concept of the Church: [basically, the Church is a society of men professing the same Christian faith, participating in the same worship, receiving the same Sacraments, from lawful pastors in communion with the Pope, etc…] Those who reject the rule of faith proposed by the Church are not members of the Church, and may not lawfully share in the privileges of members, as, for example, the reception of the Sacraments,” (“Questions and Answers: The Sacraments,” pg. 39-40, 1946).
Mahoney then cites Billot, who explains that formal heresy and schism cannot be excluded as a possibility in these cases. “…In reconciling converts…it is difficult in the first place to say with certainty that a given convert has not incurred the censure. It is not amongst those which crass ignorance excuses, and it is not unlikely that, during a given period previous to his submission, there was sufficient knowledge for incurring a censure. Therefore absolution from censure is given at least ad cautelam…Moreover, the important distinction between the internal and the external forum must always be remembered. The external government of the Church regards the external actions of people…It is open to the authority of the external government of the Church to regard the members of heretical sects as excommunicated, even though, in the internal forum of conscience, they may be guiltless of any act meriting punishment. We say it is ‘open to them’ to do so, but whether they do, as matter of fact, must depend on their own avowal, explicit or implicit. Even though there is no express direction from the competent authority that all converts are reckoned to be excommunicated, the absolution from censure, should, in my opinion, always be given…It is at least a liturgical law…In the “Ordo Administrandi,” [England] …rubric two takes it for granted that absolution from censure will be given to all who have reached the age of puberty. Nothing is said about omitting the absolution in cases where it is said not to have been incurred…Lastly, and the most important point of all…the license of the Ordinary is always necessary before reconciling a convert with the Church,” (ibid).
Mahoney’s words are only strengthened by the commentary of Revs. Woywod-Smith on Can. 731: “All canonists and moralists agree that those who are heretics or schismatics and know they are wrong cannot be given the Sacraments of the Church unless they renounce their errors and are reconciled with the Church. Numerous decrees of the Holy Office put this point beyond controversy.” As Mahoney observes above, “Those who reject the rule of faith proposed by the Church are not members of the Church, and may not lawfully share in the privileges of members…” These privileges include that of voting and being a candidate, such as is mentioned under Can. 167 §5. This Canon has for its source Pope Paul IV’s “Cum ex Apostolatus Officio,” which deprives heretics and schismatics of any right to vote in ecclesiastical elections. This would exclude elections of bishops by other bishops and priests, as is the practice among certain Traditional sects.
Other theologians on this subject
The same subject matter is addressed in “Homiletic and Pastoral Review” in an answer to an enquirer, (Volume 34, Number 7, page 743-4, April 1934). The question was asked about receiving a baptized non-Catholic into the Church. The usual procedure was followed with absolution from the excommunication for heresy. However, in the accompanying confession the woman confesses to having had an abortion, which is also an excommunicable offense. Let us read part of the answer: Practically there is no difficulty about censure for the sin of abortion or any other offense which the Code of Canon Law punishes with a censure, because ignorance excuses from censures (See Canon 2229, paragraph 1), and it is reasonable to assume that ordinarily the convert was ignorant of the regulations of the Church. One may object and ask why then must we insist on absolving from censure because of heresy when the convert knows nothing more about that censure than he knows of other censures. There is a difference between a public profession of faith contrary to the teaching of the Church and sins committed in one’s private life. The one is a public affair; the other is a matter of conscience only. In public violations of the rules of the Church the public authority cannot but judge that the violation was done with full knowledge, and the burden of proof that it was done in good faith rests with the one who appears to be guilty. In many instances he may not be able to prove good faith, and he will be considered guilty.
• “The very commission of any act which signifies heresy; e.g., the statement of some doctrine contrary or contradictory to a revealed and defined dogma, gives sufficient ground for juridical presumption of heretical depravity. There may be excusing circumstances which excuse from grave responsibility in the external forum, and the burden of proof is on the person whose action has given rise to the imputation of heresy. In the absence of proof, ALL such excuses are presumed not to exist. (“The Delict of Heresy,” p. 35.)
• And from “The Jurist,” volume 132, page 405: “Irregularity Arising from Sect Affiliation” the same teaching may be found: “Question: A young man in my parish joined the Methodist Church at the age of 15. He was baptized in it in infancy. At 16, through association with Catholic young men in high school, he became a convert to the Church. Does he labor under any irregularity from which a dispensation should be obtained? (signed, Pedagogous)
“Answer: Since the young man joined the Methodist Church after he had attained the age of puberty, he does not escape the penalties which the Code visits upon his act. Clearly it may be assumed that he has been absolved from the excommunication in accordance with the provisions of Canon 2314§ 2, since it is apparent from the state¬ment of the case that he is a good Catholic and proposes to study for the priesthood. It is very likely, however, that he has not been dispensed from the vindictive penalty of infamy of law (infamia juris). Only the Holy See can dispense from this penalty. One who labors under it is irregular ex defectu, not ex delicto. Of course, even considered as an irregularity ex defectu, its presence is prevented, in the internal forum, by the good faith of the party affected: that is, good faith prevents the incurring of the vindictive penalty of infamy of law, and in the absence of the latter, there is an irregularity ex defectu. In the external forum, however, the dis¬pensation should be duly sought from the Sacred Congregation of the Sacraments.
“The young man also is subject to the impediment arising ex delicto from this heresy in accordance with canon 985, 1°. In the internal forum, good faith would excuse him; in the external forum, however, a dispensation should be sought from this irregularity also from the Sacred Congregation of the Sacraments. (I Cf. can. 2314, § 1, (here the author cites Canons 188 n. 4 and 2295). “All the above heresies are so-called silent heresies. No declaration of their individual existence is ever made by an ecclesiastical authority — except in the general way that all heresies have been condemned by the continual magisterium at some time, in one place or the other — and there is a record of this. To insist that one 14 and older cannot be held guilty of censures is to deny the Church’s right to establish and enforce censures. This teaching of the Jansenist heretics is condemned by Pope Pius VI:
“ ‘Likewise, the proposition which teaches that it is necessary, according to the natural and divine laws, for either excommunication or for suspension, that sentences called ipso facto have no other force than that of a serous threat without any actual effect, — false, rash, pernicious, injurious to the power of the Church, erroneous.’
“ ‘Likewise, the proposition which says “useless and vain is the formula introduced some centuries ago of general absolution from excommunications into which the faithful might have fallen, — false, rash, injurious to the practice of the Church.’”
What is infamy of law?
Canonists Woywod-Smith define it as “the loss of good repute…among good and serious-minded Catholics by reason of a crime committed or by general bad character…The infamy of law is of itself a permanent impediment unless a dispensation from the Holy See is obtained,” (commentary on Can. 984 n. 5). Canon 984 n. 5 declares that men seeking to receive orders who are guilty of apostasy, heresy, schism and other crimes not only become irregular but also incur infamy of law.
Revs. Woywod-Smith explain the effects of infamy of law under Can. 2294 §1: “A person who has incurred infamy of law is not only irregular, as declared by Can. 984 n. 5, but in addition, he is incapacitated from obtaining ecclesiastical benefices, pensions, offices and dignities, from performing legal ecclesiastical acts, from discharging any ecclesiastical right or duty, and must be restrained from the exercise of sacred functions of the ministry.” The authors continue: “The person who has incurred…an infamy of law…cannot validly obtain ecclesiastical benefices, pensions, offices and dignities, nor can he validly exercise the rights connected with the same, nor perform a valid, legal ecclesiastical act,” (all emph. within quotes in this article is the author’s). Canon 2314 §1 declares that by the commission of heresy, apostasy or schism the offender also incurs infamy ipso facto. When imposed in the form of a penalty attached to law, this sentence takes place immediately.
Infamy is an additional penalty separate from excommunication. As explained in Rev. Eric MacKenzie’s “The Delict of Heresy” on pg. 69 and 72: “The joining of the non-Catholic sect may follow after the externalization of heretical error as a consequence, or may itself be the first internal act which manifests the internal sin of heresy…As a penalty for his aggravated delict, he incurs juridical infamy ipso facto. This is quite independent of infamy of fact and may be incurred without the loss of reputation in the judgment of the general public. It is a juridical status which consists of a series of incapacities…It applies to all those who were validly baptized but were brought up in sectarian belief [such as] Protestants, Nestorians, etc., [These] must be presumed responsible for their external acts in violation of the law of the Church, until and unless the contrary is proven. Consequently, when they formally joined their sect, or publicly lived in accordance with its tenets and its practices, they are presumed to have incurred this juridical infamy, along with the general excommunication for heresy.” Therefore one is presumed to have incurred infamy until positive proof is offered that heresy itself was not committed.
Infamy of law is both a vindictive penalty and an impediment to Orders barring the excommunicate from the exercise of valid legal acts issuing from the clerical state, (or rights or privileges enjoyed by the laity). These are two separate things. Impediments require a dispensation and indeed Can. 2295 states: “Infamy of law ceases only on dispensation granted by the Apostolic See.” A dispensation is not the same as absolution in the internal or external forum nor abjuration or Profession of Faith. The local ordinary can absolve from infamy of fact after the usual period of “laudable conduct for three years,” but only the Pope can dispense from infamy of law. Pope Pius XII specifically states in the preamble to his 1945 election law that during an interregnum, no one can so dispense from those laws which the Roman Pontiff alone is wont to dispense and if they do, the dispensation is null and void.
As Woywod-Smith state, one under infamy of law cannot validly grant or obtain any offices, benefices, dignities, legally and validly perform any ecclesiastical acts or invoke any rights. So any offices or benefices Traditional clerics claim to posses, any right to elect, all right and power to function as clerics validly and licitly and officiate at sacred functions, any right to solicit tithes in the name of the Church — all are forbidden and invalidated by infamy of law. The only possible exception would be the simple laity, who at least are not certainly formal heretics in the eyes of the Church and therefore do not incur the actual infamia juris, as we saw above. They would still need to be dispensed, however, in the external forum. As in many other instances, formal excommunication in the case of those who are not aware of the law at all or are not schooled in Canon Law; also those invincibly ignorant or who are not well grounded in the faith, is not certain (Canons 2218, 2219). This is true at least until a true Pope and hierarchy examines the case. In any event, even non-Catholics are allowed to validly witness a marriage conducted in the extraordinary form and to administer emergency Baptism.
Does infamy of law bar one from election or electing? From Pope Pius XII’s 1945 election law it appears that cardinals were excused from the observance of not only “excommunication, suspension and interdict” (para. 34), but also from “ecclesiastical impediments” for those crimes other than heresy (excluded by para. 36) which would include, it seems, even infamy of law. However, Pope Pius XII adds that while cardinals cannot be “excluded in any manner from active and passive election, we suspend these censures, to the effect of this manner of election only, the censures remaining of their own strength in other cases.” Let us go to the Latin original for those who wish to check, since one Conclavist website quoting Pope Pius XII’s law has omitted the phrase, “to the effect of this manner of election only.” The Latin reads: “Nullas cardinalium cuius libet excommunicationis, suspensionis, interdicti aut alius ecclesiastici impedimenti praetextu vel causa a Summi Pontificis electione activa et passiva excludi ullo modo potest; quas quidem censuras, ad effectum huiusmodi electione tantum, illus alias in suo robore permansuris suspendimus,” (“A Practical Commentary on the Code of Canon Law,” Revs. Woywod and Smith). Using Cassell’s Latin Dictionary, (1923) we translate: “ad effectum (to the effect) hujusmodi (of this kind or manner) electione (of election) tantum (only).
While cardinal electors are probably excused from the observance of the vindictive penalty for infamy of law, for offenses other than heresy, apostasy or schism, this does not apply to “other cases,” and only to “the effect of this manner of election.” Let us presume that one was so elected in another manner of election. The electors would need to be free from any censures and infamy of law, then. Even if cardinals allowed to vote despite their excommunications invalidly helped elect an heretical or schismatic layman, who of course cannot enjoy the privilege of cardinals and would not be electing, that layman would be required to refuse the office voluntarily or would need to be rejected by the cardinal electors. This is true because Pope Pius XII infallibly states that during an interregnum, no one can dispense from things usually dispensed from by the Roman Pontiff, and only the Roman Pontiff can dispense from infamy of law. Therefore the cardinals could not dispense. Because Angelo Roncalli openly preached heresy prior to his election and was, by all accounts, a member of Freemasonry, and also because Roncalli openly allowed others to assure his election during Pope Pius XII’s lifetime, he never became pope. Over the years, the preponderance of evidence against Roncalli has become overwhelming. Those who continue to consider him a true pope despite this evidence should remember that even if Roncalli was only doubtfully pope, this is enough to disqualify him in the eyes of the Church.
So far we have demonstrated in the section on Canon Law that current Canon Law cannot be changed, interpreted or dispensed from during an interregnum; that even if such was the case, papal and conciliar teaching and the writings of approved theologians pre-1959 forbids illicit clerics to exercise their orders and declares their acts or attempted acts invalid; that Traditionalists do not possess lawful pastors nor do their pastors possess apostolic succession; that epikeia cannot be used as a pretext to operate as a priest or bishop, and that the pretense of extraordinary mission is a heresy and cannot be admitted. All that remains is to discover how heresy may be determined.