Consecrating Bishops During an Interregnum, Part I:
Why Canon Law doesn’t cover Traditionalist operations
© Copyright 2013, 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. All emphasis within quotes is the author’s unless indicated otherwise.)
Introduction
For years attempts have been made by Traditionalists to appeal to Canon Law to justify the administration of the Sacraments and celebration of the Holy Sacrifice. Charges and countercharges have issued back and forth between Traditionalist sects and Catacomb Catholics proving laws like Can. 209 and 2261§2 cannot be invoked to justify what Traditionalists do. But in reality, it is much simpler than that. Traditionalists, as has been proven for decades, cannot be regarded as true Catholics; although they call themselves Catholic, they are no different than those participating with the Novus Ordo, Anglicans, Old Catholics, Liberal Catholics and others who insist on keeping the name but do not adhere to Church teaching and practice. And while they are bound to observe Canon Law, even as baptized non-Catholics, they sedulously avoid doing so, and this is just as well. Catholic laws could never govern the non-Catholic services and “sacraments” of Traditionalists or any other group of non-Catholics. In reality the name of this group should be changed to traditores, meaning traitors in Latin. For the ancient traditores burned the Sacred Books in the time of Diocletian, at the request of their persecutors, and Traditionalists today have effectively likewise destroyed the Sacred Canons by mauling them and prostituting them.
The primary reason Canon Law cannot cover Traditionalist operations (even if they were true priests, which they are not) is because the laws Traditionalists cite to cover themselves need the supplying principle of the papacy to validate their actions. These laws are Canon 209 and Canon 2261§2, which require the pope (“Church” in Can. 209, and implied as supplying again in Can. 2261) to lend such jurisdiction for the validity of the Sacraments. The “Church” in Can. 209 means the Pope, according to Rev. Francis Miaskiewicz’s “Supplied Jurisdiction According to Canon 209,” (1948; Catholic University of America). This is true because the Pope alone holds the primacy of jurisdiction, and he alone throughout the Church’s history has provided this supplying principle according to canonists teaching on this subject since the 1200s, (ibid. Miaskiewicz). Canons 80 and 83 teach that no one but the Roman Pontiff can dispense from the general laws of the Church unless such power has been conceded to them explicitly and it implies that even then the pope must be able to be reached eventually in order to resolve the matter. This only confirms what Pope Pius XII infallibly decreed in his papal election constitution, “Vacantis Apostolica Sedis” — that if anyone attempts to change the laws or teachings of the Church in any way during an interregnum, even the Cardinals, that attempt is null and void. It also should be noted that no Commission for the Authentic Interpretation of the Code exists to which true Catholics could present such a difficult case, and outside the lawmaker himself, this commission is the only one allowed to authoritatively interpret the laws of the 1917 Code of Canon Law.
Private interpretation of Canon Law
However, as noted in the site article “Who May interpret Canon Law?” the canonist Rev. Matthew Ramstein, S.T. Mag, J.U.D., OFM (“A Manual of Canon Law,” 1947) says that even private individuals may use the rules for proper interpretation provided in Canon Law itself in trying to resolve certain cases not covered in the Code. This is allowed whenever no authentic interpretation of the law is available, which without a true pope is not possible today. He discusses this in the excerpts from his book below.
And he is not the only author who teaches this concerning private interpretation. Speaking of Pope Benedict XV’s Motu Proprio promulgating Canon Law, Monsignor Amleto Cicognani writes: “There is no prohibition in the Motu-proprio of private interpretation, which may be doctrinal or usual…It is said to be doctrinal when it is given by those skilled in canon law; customary (also called usual) when it is derived from unwritten practive, that is custom…General rules for the right interpretation of the Code are given in Canons 17 ff, besides those of Canons 5 and 6, (“Canon Law,” 1935, pgs. 434, 598-9). As Rev. Nicholas Neuberger explains in his dissertation, “Canon 6,” (Catholic University of America, 1927), “Of old the jurists distinguished between a mere declaration of and the interpretation of the law. The declaration today is called comprehensive interpretation. Its scope is not to change the law but determines the sense of the law comprehended therein from the beginning. Therefore, it adds or subtracts nothing from the original meaning…The comprehensive interpretation adds nothing anew but explains more and more the significance attached to the words… Ordinarily, every private individual may interpret laws according to the rules of jurisprudence, unless a special prohibition has been made…The code, in Canon 6 §2 bids us have recourse to the doctrine of the approved authors. The authentic, however, always remains the guide for the doctrinal.” In his work, Neuberger provides the actual list of these authors “quoted freely by the Roman Congregations and Tribunals.” They are all those same authors faithfully quoted by the doctors of Canon Law writing their dissertations, which have been used extensively to document this work and the many others found on this site.
The idea behind consulting these canons is to help the faithful and clergy obtain certainty in doubtful matters, for one cannot act in a state of positive practical doubt. This is especially true where the Sacraments are concerned and is the unanimous opinion of modern theologians, following the teaching of Pope Innocent XI, (DZ 1151). Rev. Gury writes in his “Compendium of Moral Theology” (1950s translation): “One is bound to use diligence in keeping with the truth to be investigated according to the importance of the matter and the condition of person and place.” He explains that unless Catholics seek answers from able and conscientious men and investigate their practice, desiring only to learn the truth, then they expose themselves to “the danger of violating the law by neglect of inquiry and thereby sin.” As Monsignor Cicognani notes, “the common good demands certitude concerning the validity of acts.” But it appears Traditionalists are oblivious to this serious duty to study and develop such certitude, as will be discussed at length below.
Self-proclaimed “Bishop” Mark Pivarunas and other Traditionalist “clerics” have accused stay-at-home Catholics of illicitly and falsely interpreting Canon Law for themselves. But then Piavarunas is quite handy at interpreting the law himself and he is a layman as well in the Church’s eyes, like it or not! Pivarunas writes: “In his article, [Patrick Henry] attempted to interpret Canon Law and in particular Canon 209. Surely he must realize that he had no authority to interpret Canon Law. According to Canon 17, only the Pope for the entire Church, and a bishop for his diocese, enjoy the authority to issue authoritative interpretations…He should stop his pseudo-ministry of acting as if he possessed a mission from the Church…” (http://www.cmri.org/02-patrick-henry-jurisdiction.html). And ditto a 1,000 times for Pivarunas, who is such a celebrated “bishop” that he knows absolutley nothing about what Canon Law really teaches. From the above it is clear that such interpretation is not forbidden as long as the rules are followed. So maybe Pivarunas can explain to us : a) When Traditionalists performed their due diligence and observed the rules laid down in Canons 6§4, 18, 19, 20 and 21 and who completed this monumental task? b) Where the specific body of work fulfillment of this binding obligation to prove that they indeed have established a canonical provision to justify their operations can be found? c) How it can possibly be construed that (as stated by Ramstein in his next sentence below) the law is really silent on the points Traditionalists dispute?
In reference to (b) above, the canonical provision can be determined from consulting Canons 18-21 in a doubt of law or fact. Canonists T. Lincoln Bouscaren and Adam Ellis (Canon Law, a Text and Commentary, 1946) define canonical provison as “the grant of an ecclesiastical office by competent ecclesiastical authority made by the sacred canons,” (Can. 147§2). In other words, private interpretation does not ESTABLISH a provision, but only demonstrates what the law says such a provision should be from the canons themselves. Canon 20 allows the creation of a law from other laws when no specific law can be found that addresses the situation. But still this must be constructed from the canons themselves; for it refers interpreters to similar laws, general principles of the law and to decisions of the Roman Rota, (Sacred Congregations, et al). Canon 147 is cross-referenced with Can. 2394 which advises the reader of a decree issued by the Sacred Congregation of the Council, June 29, 1950 on this canon. In the decree, the council delivered excommunications especially reserved to the Holy See from Pope Pius XII, stating in part that: “anyone, who without a canonical investiture or provision made according to the sacred canons occupies an ecclesiastical office, benefice or dignity,” or allows anyone “to be unlawfully intruded into the same,” (Canon Law Digest, Vol. III).
In this decree, the Sacred Congregation makes it clear that the Council of Trent has declared appointments assumed by anyone on their own authority and those made by the people or secular government anathema, (DZ 967; Trent, Session XXIII, Ch. 4, Can. 7). They reference this decree to Can. 147§1, which declares such appointments invalid. While Traditionalists do not claim to occupy any office, they possess a benefice of sorts since they are compensated for their services, although this does not come from the CATHOLIC Church. They also arrogate to themselves the dignity which is attached to the priesthood, presenting as valid and lawful descendants of the apostolic line Christ established, when the men who have ordained and consecrated them did not do so licitly, nor, in nearly all cases, validly.
It is absolutely outrageous that Pivarunas holds others to the observance of the “authentic” interpretation of the law when he has done everything in his power to attenuate what the law truly means and what it conveys. This is especially true since, although he professes to be proficient in Canon Law, he has not so much as attempted to follow the rules of true interpretation provided by the Code. His knee-jerk response to Henry was prompted primarily by Henry’s demonstration from papal documents and approved authors that there is no possible way that Pivarunas’ precious “Archbishop” Thuc could possibly have relayed episcopal consecration to anyone, even if he had been in his right mind. For the Church declares excommunicated and infamous all those who communicate with others in divine services including the Sacraments, and Pivarunas cannot validly function until he is released from this irregularity by a canonically elected pope, (Canons 2314 no. 3; 2294, 2295). This excommunication and the accompanying infamy of law actually was incurred long befofre his attempted ordination and consecration, when he studied in Shuckardt’s “seminary,” attended his simulated masses, made invalid confessions and allowed himself to be “ordained” to minor orders. Nor has Pivarunas ever performed public penance for his misdeeds or publicly retracted his errors, as Canon Law prescribes. Instead he continues to ignore the prescriptions of Canon Law on the entire jurisdiction issue, then pretends the law is silent on these matters so he can illicitly invoke epikeia to justify his pretended operations as a Catholic “bishop.”
In number three above, as stated in the third case, exceptions to the law must be interpreted strictly. This principle is covered under Can. 19 and will be treated below under that heading.
The silence of the law referred to by Ramstein in (4) above applies to Can. 20. Canon 20 states that: “If there is no explicit provision concerning some affair either in the general or particular law, a norm of action is to be taken from laws given in similar cases, from the general principles of law applied with the equity proper to Canon Law, from the manner and practice of the Roman Curia, and from the common teachings of doctors.” That this is the law Traditionalists appeal to in invoking epikeia is indisputable, since the only place in the Code that mentions both the situation in which we find ourselves and equity in the same breath is Can. 20. These are the provisions they must fulfill in order to render their operations valid and licit in the eyes of Canon Law. Notice that the four conditions in no. 4 above are ALL required by Canon Law; there is no “or” separating any of them in creating this provision. And yet Traditionalists stopped dead in their tracks — literally — at number two, after conveniently skipping number one.
The old law and the colored title
As was stated above, the canons that Traditionalists invoke to validate their operations are Canons 209 and 2261§2. But Can. 209 is NOT silent on what constitutes its valid invocation, however, as Rev. Miaskiewicz admirably demonstrates. A close study of his dissertation on this law clearly shows when priests can invoke and assume such jurisdiction and when they cannot. Also Pope Pius XII’s “Vacantis Apostolica Sedis” is the law to be consulted during an interregnum, and it is very clear. Just because Traditionalists are secretly frustrated that they do not qualify to receive jurisdiction (even if it was available today) does not mean the law is silent. And more important, they entirely exclude the other stipulations that must be satisfied in Can. 20. They do not admit the decisions of the Roman Curia, which deny use of Can. 209 in cases where no true probability exists concerning the possession of an ecclesiastical office of some kind. They deny the fact that the lawgiver made the law to be applied to those who have already received such an office, if not yet the jurisdiction which accompanies it. They primarily deny that the jurisdiction supplied comes from the Roman Pontiff alone, and thus if they claim to possess it they must admit one of two things: a) They receive extraordinary jurisdiction directly from God, when St. Francis de Sales and the Council of Trent (indirectly) teaches that this occurs only when proven to be valid by miracles, and very rarely; or b) they admit that jurisdiction comes from their bishops or the community (Gallicanism), heresies condemned repeatedly in the past by the popes.
They also ignore the need to abide by the teachings of the doctors of Canon Law in this matter, and falsify or ignore the conclusions of such doctors as Miaskiewicz, Kearney, Szal, Riley, Hyland, McCoy, MacKenzie and others who have written on these topics. These conditions in Can. 20 were not set down as “either/or” propositions, but were to be taken as a whole in deciding the course of action to be pursued. But the absence of a Roman Pontiff to supply the necessary jurisdiction, in any and all cases proposed by Traditionalists, prevents any of the canons they invoke from having their effect. Essentially these laws cease to bind because their actuating principle is lacking. In other words the laws still exist until a true pope can decide the matter but Traditionalists cannot invoke them in the situation today.
In the case of Can. 209 they ignore Can. 6§4, which tells us to return to the old law and the mind of the lawgiver in a doubt of law. The old law is then to be used exclusively, as it stands, to govern the case, something Traditionalists do not admit or understand. A doubt of law exists because many have questioned the validity and liciety of a host of Traditionalist “clerics.” The old law required the colored title or office (at least an apparent standing of some kind in the Church), and Traditionalists do not even claim to occupy offices, according to Traditionalist “cleric” Anthony Cekada. This he explains in his “Pius XII, Excommunication, and Traditional Catholic Bishops” article, located at: http://www.traditionalmass.org/articles/article.php?id=59&catname=13 His conclusions have been refuted at /articles/a-catholics-course-of-study/traditionalist-heresies-and-errors/refuting-the-dimonds-2009-no-jurisdiction-position-tapes/cekadas-false-justification-for-acting-without-papal-mandate/ ).Without the colored title jurisdiction could not be supplied, even if a true pope was alive to supply it.
Where Traditionalists think they have pulled off their greatest coup is in the area of excommunications for heresy, apostasy and schism, which fall under the old law (Pope Paul IV’s Cum ex Apostolatus Officio and Pope Pius IX’s “Apostolica Sedis”), since there is a doubt concerning their binding nature today. These take effect automatically, without any need for a declaratory sentence. Traditionalists use epikeia to “soften” these laws, and indeed the canons themselves state that penal laws are to be applied with every consideration for the offender, allowing him to prove that he indeed was not culpable for his heresy, (although in the meantime, whenever the offense is notorious as it is in the case of Traditionalists, it must be observed in the external forum according to Can. 2232). While holding the Novus Ordo as at least illicit and probably invalid, and the whole of Novus Ordo teaching as heretical, Traditionalists yet maintain that those clerics they use who have celebrated it are not to be judged as schismatics, guilty of communicatio in sacris, regardless of how long they have remained in the employ of this false church. They do this in two ways: 1) either they claim that ignorance excuses them from the censure, when only a lawful superior (Can. 2219) can make this determination; or 2) that one of their bishops has “absolved” such priests from the censure(s).
Since their bishops are suspended from exercising their jurisdiction in the confessional and any other act of external jurisdiction for failing to employ the papal mandate and violating the laws of the Church, this is not possible. Also they forget that it is not just the censure they must consider. Canon 2314 no. 3, §1 also declares these offenders guilty of infamy of law, which can be absolved only by the Roman Pontiff. No faculty exists which can override this requirement, and all know we have no pope. So these men are required to observe the penalty until, as Pope Pius XII teaches in “Vacantis Apostolica Sedis,” a new pope is canonically elected. In the case of excommunications for heresy, apostasy and schism, Traditionalists also forget that Can. 21 applies, which states that laws enacted against a common danger bind, even when there is no danger. Traditionalists can say what they wish about the “holiness” of their clerics, but the law still binds until the case is examined by the Roman Pontiff. In his work on epikeia, Rev. Lawrence Joseph Riley concludes that “it is never licit” to apply epikeia to matters of Church membership or to determine whether one is in possession of the true faith.
And in any case, the first step always to be taken in resolving a doubt, if Can. 6§4 cannot be followed for some reason, (for example, the old law cannot be determined, or it cannot be found to consult), is to follow the steps given in Can. 18 below. This is why it is relatively easy to resolve the doubt about the definition of the word ”Church” in Can. 209, which can have no other logical meaning than that provided by Rev. Miaskiewicz. All other arguments pale in comparison once this definition is understood. Even before Can. 18 is consulted however, Can 6§4 refers us to the old law and titulus coloratus, or the colored title. To qualify, Traditionalists would need to have received an OFFICE from a COMPETENT superior (Bouscaren-Ellis), but invalidly. Well no competent superior ever gave any of these Traditionalists an office or even appeared to do so. Traditionalists even freely admit they do not possess offices. And neither would the Church ever consider heretics and schismatics competent superiors. So Traditionalists cannot prove colored title by any stretch of the imagination. The wording of Can. 2261§2 also figures in to its proper interpretation, since it proves this canon is an exception to the law and must be interpreted strictly, (Can. 19). This means it cannot be unduly extended to include notorious heretics and schismatics who have incurred infamy of law under the general meaning of the word “excommunicated.” The old law (Ad Evitanda Scandala), as interpreted by St. Robert Bellarmine, confirms this (see below). All other difficulties can be resolved by following Ramstein’s no. 2 as stated earlier.
Canon 19 excludes the application of Can. 2261§2
Canon 19, another canon listed by Ramstein which Traditionalists ignore, teaches that Canons 209 and 2261§2 are both exceptions to the law and therefore must be interpreted strictly; no interpretative extensions or restrictions may be made. This is important because Traditionalist clerics themselves have even admitted that if they followed the law strictly, they could not function. This concerns all laws “which decree a penalty, restrict one’s rights, or establish an exception from the law.” Both Canons 209 and 2261§2 establish exceptions to the law, for Can. 209 is “new in statute law…The rules set down by Canon 6, nn. 2-5, are to be followed in the interpretation of Can. 209,” (ibid., Miaskiewicz, p. 311). And Can. 2261§1 prefacing Can. 2261§2 contains the word “except,” as in “exception.” As Rev. Neuberger, quoted above explains, this necessarily brings us to the mind of the lawgiver, and the conditions set out in Can. 18. But who among Traditionalists have followed the grammatical and analogous rules in no. 1 above as laid down in Can. 18? Or heeded the restrictions dictated by Can. 19 in no. 3 below? (See the previously mentioned article on who may interpret the law.)
It must be remembered that when the Church established Her laws in the first place, these laws were made for what usually happens; all canonists are agreed on this point. Exceptions to the law must be interpreted strictly and cannot be drawn into precedent in any way because they are not made for the usual case, (Monsignor Cicognani; “Canon Law”). In the case of these two laws one cannot stretch the law to include clerics not licitly ordained and/or consecrated nor pretend that those incapacitated and inhabilitated under Can. 2314 for infamy of law resulting from communicatio in sacris could be considered as included under either one of these canons. As Revs. MacKenzie and McCoy demonstrate in their dissertations, these laws were intended to apply mainly to tolerati and those not yet sentenced, not notorious apostates/heretics, who long ago would have been condemned as vitandus if a true pope was reigning. The purpose of these laws was obviously to extend the Sacraments to as many of the faithful as possible, but not to the exclusion of the necessary suppletory principal provided only by the Supreme Pontiff. That in itself is schism, for all know that those administering the Sacraments must be subordinate to and in communion with the Roman Pontiff. The only softening of this principle can be found in Can. 882, governing cases in danger of death. Even then, there is no longer a pope to supply the necessary jurisdiction.
Traditionalists cannot authentically interpret Canon Law
As seen above under Ramstein’s “Rules of Private Interpretation,” such interpretation is limited to “comprehensive interpretation” — private individuals cannot resort to an extensive or restrictive interpretation because, as Ramstein points out, these are authentic interpretations reserved only to the lawgiver. Traditionalists accuse stay-at-home Catholics and others of unlawfully holding a restrictive meaning of Canons 209 and 2261§2 when both these Canons provide exceptions to the usual norms laid down for the necessary possession of jurisdiction. Because they do constitute such exceptions, the faithful are bound to interpret them strictly under Can. 19. In this case it is not stay-at-homes who are attempting to authentically interpret the law but Traditionalists, who insist on extending the provisions of this law even to notorious heretics/schismatics, which is forbidden by Can. 2232, (see commentary by Revs. Stanislaus-Woywod). Notorious means, “Acts or facts…so public or manifest as to require no proof in law,” (Donald Attwater; “A Catholic Dictionary,”). Notorious is distinguished from public in Can. 2197, where public is defined as already divulged or “committed or attended by such circumstances that its divulgation may and must be considered prudently possible.” When all know that some crime has been regularly committed or one admits committing a crime freely for any length of time then it has become notorious. Canon 2197 defines notorious as something “committed under such circumstances that it cannot be concealed by any subterfuge nor excused by any excuse admitted in law.” And this applies to the previous attendance at and participation in Novus Ordo and non-Catholic (Traditionalist services) by Traditionalists, acts of communicatio in sacris.
While the above constitutes a violation of the rules for interpretation of Canon Law and the notoriety of Traditionalists disallows their use of Can. 2261§2, this is the least of their problems. The application of Canon 2261§2 could easily have been ruled out when considered under Can. 6§4 as well, just as Can. 209 can be excluded from application by this consideration. The reasons are as follows.
We find the (only) old law listed in the footnotes for this canon as “Ad Evitanda Scandala,” (see the article on this piece in the Articles section, 10b. (e) at / ). In this article, we explain that “Ad Evitanda Scandala” applies only to those personally excommunicated by the Church Herself for some offense, NOT to heretics, apostates or schismatics. And “Ad Evitanda…” itself even gives Traditionalists the boot, although they entirely ignore this salient fact as the excerpt from Pope Martin V’s document below demonstrates:
“Notwithstanding any apostolic or other constitutions to the contrary, save the case of someone of whom it shall be known so notoriously that he has incurred the sentence passed by the canon for laying sacrilegious hands upon a cleric that the fact cannot be concealed by any tergiversation nor excused by any legal defence. For we will abstinence from communion with such a one, in accordance with the canonical sanctions, even though he be not denounced.” Now in his “Ad Apostolorum Principis,” Pope Pius XII makes reference to just such bishops consecrating without the necessary papal mandate, and characterizes their ministrations as follows: “41. Acts requiring the power of Holy Orders which are performed by ecclesiastics of this kind, though they are valid as long as the consecration conferred on them was valid, are yet gravely illicit, that is, criminal and sacrilegious.” And one presumes that the same would apply to bishops ordaining priests without dimissorial letters, although Pius XII does not mention this.
Concerning the proper interpretation of “Ad Evitanda Scandala,” St. Robert Bellarmine teaches: “There is no basis for that which some respond to this: that these Fathers based themselves on ancient law, while nowadays, by decree of the Council of Constance, they alone lose their jurisdiction who are excommunicated by name or who assault clerics. This argument, I say, has no value at all, for those Fathers, in affirming that heretics lose jurisdiction, did not cite any human law, which furthermore perhaps did not exist in relation to the matter, but argued on the basis of the very nature of heresy. The Council of Constance only deals with the excommunicated, that is, those who have lost jurisdiction by sentence of the Church, while heretics already before being excommunicated are outside the Church and deprived of all jurisdiction. For they have already been condemned by their own sentence, as the Apostle teaches (Tit. 3:10-11), that is, they have been cut off from the body of the Church without excommunication.” So what basis for proceeding to act per Can. 2261§2, in light of Can. 6§4 can Traditionalists possibly pretend to contrive for themselves?
But the truly definitive answer for both of these laws lies in the fact that one cannot invoke the suppletory principle when there is no one to supply, as Rev. Francis Miaskiewicz has proven. For the higher law demands that until a true pope is elected, NO ONE can arrogate the jurisdiction of the Roman Pontiff to themselves or change papal laws; this from Pope Pius XII’s “Vacantis Apostolica Sedis.” Should they do so, Pius XII infallibly decrees, their acts are void of all effect. And as pointed out elsewhere on this site, once a signed document of the Roman Pontiff is presented as evidence, Rome has spoken and the game is over. As shown above Traditionalists, against the laws of the Church, have attempted to authoritatively interpret the law, usurping the jurisdiction of the pope. Their acts in this matter can be considered non-existent, as are their attempts to establish Mass centers and provide the Sacraments. For without offices in the Church they are not valid priests and bishops (Can. 147), and Cekada already has stated that they possess no such offices. Here they will object that epikeia applies even to invalidating and incapacitating laws, something Richard Ibranyi claims he has “proven” by stating against Patrick Henry. Ibranyi claims that Rev. Lawrence Joseph Riley, A.B., S.T.L., in his dissertation “The History, Nature and Use of EPIKEIA in Moral Theology (Catholic University of America, 1948), admits epikeia does so apply to these laws. But Ibranyi is far from truthful in stating this, since Rev. Riley goes to great lengths, citing many of the approved authors listed by Neuberger, to prove that the majority of authors do indeed believe epikeia cannot be applied to invalidating and incapacitating laws. Ibranyi mistook the arguments of the minority as justification for using epikeia in such laws and failed to recognize that Riley was creating a majority or common, probable opinion concerning the law. He was showing that the predominant majority did not believe that such laws could be used for cases involving invalidating and inhabilitating laws. And he clearly states this in his 12 final conclusions.
Let’s think for a moment about what has just been said above. For epikeia to even be thought to apply to any law, it must be presumed that the lawgiver does not “urge the obligating force of his precept.” And yet we have every indication from the Popes themselves that this is not the case, as Riley notes; that in fact, based on Charitas, Vacantis Apostolica Sedis, Cum ex Apostolatus and decisions by the Sacred Congregations, such laws bind infallibly and cannot be loosened for this very reason. In fact not only do they bind, but these papal decrees also make null and void anything those who seek to act despite their existence might attempt. If we take “Cum ex…,” the source of all other laws concerning heresy as the currently governing law — which Can. 6§4 requires us to do whenever there is a doubt of law — it is clear that these heretics needed no admonition or declaration for their heresy to immediately bind; they are outside the Church and cannot regain their former status. Therefore they cannot function validly. By invoking Can. 2261§2 and brazenly defending its use by heretics contrary to the law, Traditionalists freely admit that they are guilty of heresy. They continue to function and defend their right to do so because their followers are either unable to puzzle out their imposture or are unwilling to do so, since they then would forfeit their “Mass” and “Sacraments.” This determination by Rev. Riley above is important because Miaskiewicz states in his dissertation: “Now, when the Church demands the presence of an authority, or jurisdiction, in any minister as a condition requisite for the valid performance of certain jurisdictional acts, such a jurisdictional regulation of the Church may well be regarded as an equivalently invalidating or inhabilitating law,” (see Can. 11). “And one may note by way of a comparison, which suggests itself, that such jurisdictional laws are, to all intents and purposes, as strict and as strongly to be enforced, as the laws which proclaim diriment matrimonial impediments of ecclesiastical origin.”
So let’s draw out the conclusions of what Traditionalists have been doing all these years. They have pretended to use epikeia as a dispensing factor concerning acts that the Church declares are invalid unless the requisite jurisdiction is certainly present or is supplied by a canonically elected Roman Pontiff. They have denied the need for a colored title and have misinterpreted “Ad Evitanda Scandala” contrary to the teaching of St. Robert Bellarmine and against Can. 6§4 in order to hijack Can. 2261§2. They have ignored the necessity of a true Pontiff to supply the necessary jurisdiction and validate their acts. They have admitted that they were formally involved with groups such as the Novus Ordo, St. Pius X Society and even the Orthodox. Despite this admission of communicatio in sacris, rendering them apostates, heretics and schismatics, and regardless of the infamous status accompanying their heresy and schism (see Can. 2314, no. 3), they insist they are still able to validly and licitly receive ordination and consecration in order to confect the Sacraments and offer the Holy Sacrifice. They ignore every suspension and excommunication involved in their lack of dimissorial letters, positive proofs they are worthy to enter the priesthood, ordination by notorious apostates, heretics and schismatics, consecration without papal mandate, altering the Sacrament of Episcopal Consecration to exclude the mandate and communicatio in sacris in receiving orders from heretics and schismatics. And none of their actions would ever have been possible had they first followed Can. 6§4 or even gone through the motions of fulfilling the requirements of Canons 18-21. But these canons were never followed precisely because they would have unquestionably excluded Traditionalists from ministering to the faithful.
Canon 21 and common danger
In light of the above, we arrive at the last of the canons listed by Rev. Ramstein as among the rules to be satisfied in order to privately interpret Canon Law. Not surprisingly, it has a direct bearing on what has just been said. That law is Can. 21, which reads: “Laws enacted for the purpose of guarding against a common danger bind, even when there is no danger.” Rev. Charles Augustine indicates that this canon was intended to put a necessary brake, as it were, on the unregulated use of epikeia. Cicognani states that the presumption of danger must be proven, and this has been done extensively in the articles presented on this site. He lists as these dangers, “Sin or fraud, deception or perversion,” among others. When a danger to the common good would occur if the law was not observed, the law certainly binds, for this is the very purpose for which it was enacted. But if there is no danger in a particular case, or if observing the law in certain circumstances would work contrary to the common good, then sometimes the law may be said not to bind. Some believe that because the law as it stands concerning jurisdiction would deprive the faithful of the Mass and Sacraments, it is contrary to the common good and the laws governing jurisdiction need not be observed.
Yet they have failed to prove that a true danger to eternal salvation exists by not receiving the Sacraments and attending Mass when not available from lawful pastors, and also have failed to note the teaching of moralists concerning the use of probable opinions in the reception of the Sacraments, (DZ 1151). Moreover they have failed to prove that their ministrations do not actually harm the faith, since the faithful who receive the Sacraments at the hands of illicit priests and know or should know they are illicit, receive no graces from these Sacraments, and receive no Sacraments at all, where Penance is concerned. Also one who receives Communion after failing to receive true absolution — from one who possesses no jurisdiction — commits sacrilege. In fact even Church membership itself is affected, for Rev. Tanquerey notes in his “Dogmatic Theology” that those who receive Sacraments from the hands of unlawful pastors are no longer members of the Church. These points have all been addressed and resolved in other articles on this site. And of course we cannot fail to mention that heresy, apostasy and schism, the worst of all sins are to be avoided at all costs because of their contagion, which is why St. John ran from the bathhouse.
Although all previous arguments are more than sufficient to prove that independent priests cannot use Canons 209 or 2261 §2 to minister to the faithful, it is important to knock down this final argument that these priests and illicit bishops are acting out of mercy and consideration for the common good, the salvation of souls. What matters here is not what those making this claim to be working for the common good actually believe or think, but what the Church teaches concerning what constitutes a common danger and detriment to souls. And it must be remembered that the danger does not consist of the inability to receive the three necessary Sacraments, which can always be received by laypersons or spiritually; the danger lies in exposure to false doctrines, sacrilegious reception of those Sacraments, communicatio in sacris, heresy and schism, (sin, fraud, deception and perversion). We have the sin of sacrilege, the fraud of imposture on the part of these Traditional “priests,” the deception that they can convey true Sacraments and the perversion of the faith by spreading heretical doctrines directly opposed to the teachings of the Council of Trent. There also is the confirmation of this conclusion by Rev. Alan McCoy O.F.M., J.C.L. from his dissertation, “Force and Fear in Relation to Delictual Imputability and Penal Responsibility,” (Catholic University of America, 1944). This can be viewed in the last several paragraphs of the original article on Can. 2261§2 at /articles/a-catholics-course-of-study/canon-law/canon-2261-§2-and-the-common-good/ Canon 2261§2 states that Catholics can ask excommunicates (NOT the infamous) for the Sacraments “for a just reason,” and yet there is no just reason to request Sacraments from those who are unable to deliver them without the requisite graces and without the necessary jurisdiction, if indeed they deliver them at all. In fact there is a positive obligation, under penalty of mortal sin for Catholics to expel from Divine services all those who are notorious heretics, apostates or schismatics and this includes even the tolerati in cases where the faithful object to them.
Conclusion
- Canon 6§4 requires that in a doubt of law, one must adhere to the old law. The old law governing Can. 209 requires the colored title, which Traditionalists cannot produce. The old law under Can. 2261§2, as interpreted by St. Robert Bellarmine and as indicated in the law itself forbids communicatio in sacris with notorious apostates, heretics and schismatic’s, (Pope Martin V’s “Ad Evitanda Scandala”).
- There is much more than just reasonable doubt that the law was intended to ever apply to those ordained or consecrated outside the Church without canonical erection of seminaries, dimissorial letters or a papal mandate. Canon Law states that such men are immediately suspended and forbidden to exercise their orders (Canons 2370, 2372 and 2373). The only time that jurisdiction is supplied to certainly validly ordained priests regardless of their current excommunicated status is when the penitent is in the immediate danger of death (Can. 882), when ordinarily ANY priest can absolve from sins and censures (although today there is no pope to supply the necessary jurisdiction). But most among those presenting as Traditional priests cannot prove certainly valid ordination. And even if they could, there is no pope to supply.
- In the case of such well-established doubt, to maintain that jurisdiction is supplied directly by Christ per the above canons in the absence of the Roman Pontiff during this contrived emergency is the sin against the Holy Ghost known as presumption. One commits presumption by assuming Christ will do for the sinner what the sinner is not willing to do for himself, and do it without any indication of sorrow for sin or repentance from the sinner. This sin basically amounts to assuming that Christ would directly choose to appoint all Traditionalist clergy today just as He chose and appointed the Apostles and would likewise authorize and confirm their works.
- One denies the necessity of the papacy and the primacy of jurisdiction by administering or receiving the Sacraments from those known to have never possessed canonical mission jurisdiction (Can. 147). Such individuals are not in communion with a true pope, nor do they have any intention of ever being in communion with one. They cannot fit the definition of true members of the Church because the official (broad) definition of the word Church by St. Robert Bellarmine states that all such members must be united to their lawful pastors under one head. Traditionalists have never been lawful pastors nor have they ever even bothered to appear to obediently follow the decrees of past popes. The Catholic Encyclopedia, Rev. McVey in his catechism for seminarians and Revs. Devivier and Sasia, to name only a few, teach that without jurisdiction in addition to Orders, these men cannot possess apostolicity and are not members of the hierarchy.
- Canon 1325 warns Catholics that any action by the faithful, which would “entail an implicit denial of their faith” requires a public Profession of Faith to avoid such a denial. The Canon further teaches that if a baptized person while retaining the name Christian [or Catholic] doubts or denies any truths proposed for belief by the Divine and Catholic faith, he is a heretic. Those reading the Code are encouraged to make the Profession of Faith, which is printed either in the front or in the Appendix of Canon Law commentaries. The very fact that this profession is included in the Code shows us that nothing in Canon Law could ever be called into question, since it rests on faith. For this reason the Catholic Encyclopedia calls Canon Law negatively or indirectly infallible, that is, the Church could never teach falsehood concerning Her discipline. This is verified by the Vatican Council teaching found in DZ 1831.
The fact that Traditionalists refuse to observe the rules for interpreting Canon Law (insofar as the law allows) and that they ignore the teachings of the Vatican Council concerning the necessity of the papacy, the pope’s primacy of jurisdiction, the definition of what constitutes a matter of faith, the binding nature of papal decrees as well as other teachings, only proves they deny the papacy and all legitimate authority itself. The absolute necessity of the papacy for the Church to exist is a revealed truth and nothing they can say or do will alter that fact; for it is the very rock upon which the Church was built. We have a presumption of law in our favor, since Can. 2200 decrees that once solid evidence s presented to prove guilt, the evil will is presumed in the external forum until the party can prove themselves innocent, and such a determination can be made only by a lawful superior; the burden of proof rests with them. Therefore we are bound to hold them as apostates/heretics for denying this revealed truth by behaving as though jurisdiction supplied by the pope is unnecessary and we do.
Could any of the laws for interpreting the Code cover the situation presented by Traditionalists? Hardly. As Rev. Miaskiewicz notes, more modern opinions, just because they have never been condemned are not to be held as probable (DZ 1127). And no extension of the law can be presumed in the absence of a Roman Pontiff under Pope Pius XII’s papal election constitution (“Vacantis Apostolica Sedis”). Therefore the absence of the Roman Pontiff to supply definitively decides the question, since until a true pontiff reigns the law cannot be dispensed from contrary to Canon Law. Miaskiewicz is firm in stating that “all doubts of law…cease immediately upon any authentic declaration of the Holy See…It is definitely not the Church’s wish that anyone should dare to presume any jurisdictional powers when he is certain he is deprived of them, or even as long as he is plausibly uncertain that he is in possession of them.” And this is precisely what Traditionalists consistently do.
It is an historical fact that two lay canonists, to be exact, were the ones to advance the true teaching on what went on during the Western Schism. This is recorded by the professor and historian Walter Ullmann, who wrote in 1948: “Two leading lawyers of the time gave their verdict on the burning question of the day; both were layman, neither was officially consulted by the pope and both, quite independently of one another, arrived at the conclusion that Urban VI was the true canonical pope.” This was the line from which Pope Gregory XII emerged, later named as the true pope all along by Pope Benedict XIV. The names of these canonists were Baldus de Ubaldis and Joannes de Lignano. Ullmann, calls Ubaldis one of the two “greatest jurists of the 14th century.” Lignano he styles as enjoying respect and “authority in ecclesiastical circles…His reputation was great.” Concerning their determinations, Ullmann relates what later became law under future popes below:
“Both jurists deal at length with the authority of the cardinals over the pope and both reach the conclusion that cardinals have no jurisdictional powers over the pope; they cannot be accusers, witnesses, and judges in one…all disputes concerning intentions, motives and will must be decided by a judge, but who should be the judge in this case? Certainly nobody else but a general council…[which could only be] lawfully summoned by…Urban VI…Baldus refers to a commentary of Clem. I.iii.2, which passage expressly lays down that during a vacancy the Sacred College cannot exercise papal jurisdiction nor can the cardinals change the constitution of the Church,” and here Ullmann notes this is found in Pope Pius X’s Vacante Sedis Apostolica, as reiterated by Pius XII. Baldus further taught that the cardinals also can clear the pope elected of all irregularities “except one, and that is persistent heresy.”
Francis Zabarella, (who although he had never received more than minor orders was made a cardinal under the false pope John XXIII) would be the one to further elaborate on the proper manner to provide the Church with a true pope. Zabarella was a student of Lignano’s, and Ullmann says that, “the pseudo-legal meta-juristic panacea of epikeia,” advanced by the publicists, “occurs not once in his tracts.” Ullmann reports that several among the clergy had advanced the proposition that epikeia must be used to resolve the question of papal authority because it best fitted the situation. Ullmann calls this theory “illegal…and against a fundamental article of Faith…Measures palpably against law and dogma were thus propounded by canonists and theologians of the highest repute.” So there is nothing new under the sun, and in fact the same fatal and heretical error made so long ago only repeats itself today in similar circumstances, despite the numerous condemnations of the Gallicanist heresy by the popes over the centuries since the Schism. Therefore, if the Traditionalists want to call into precedent the Western Schism for these times, let them call in the entire historical record of that era. For this will show that it was precisely the use of epikeia that was the false basis for the heretical solution of a general council over the pope, a premise later condemned by the Vatican Council.
Traditionalists claim that they follow the dictates of Canon Law and “obey” the decrees of past popes, but this is nothing more than smoke and mirrors. In the end Traditionalists are really just Old Catholics, who were nothing more than Gallicanists in new garb. But more specifically they are neo-Modernists, since Modernism as described by Pope St. Pius X is the synthesis of ALL these heresies. As such they are to be soundly denounced and strenuously avoided.
