“Ad Evitanda Scandala,” the jurisdiction dilemma and Can. 2261 §2

“Ad Evitanda Scandala,” the jurisdiction dilemma and Can. 2261 §2

© Copyright 2012, 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. Unless otherwise indicated, all emphasis within quotes is the authors’.)


Whenever some strange objection is made outside the clear dictates of Canon Law and Church teaching, it can almost always be traced to the failure to make some important distinction in those terms used by the Church to explain and define her own laws and dogmas. This happens one of two ways: either the word is assumed to mean one thing when it actually means another or it is applied in a way that allows the one reading to think that it includes things and individuals unrelated to the purpose and intent of the law. This is why the definition of terms is so important in addressing any matter. Statements must always be properly explained and qualified to avoid any confusion or possible misunderstanding.

The word excommunication in Pope Martin V’s Ad Evitanda Scandala below is one example of how assuming certain persons are included in the definition changes the entire purpose and meaning of the law. This is shown by St. Robert Bellarmine to apply to all but apostates, heretics and schismatics when Traditionalists assume that excommunicates includes them. From Ad Evitandca Scandala:

“To avoid scandals and many dangers and relieve timorous consciences by the tenor of these presents we mercifully grant to all Christ’s faithful that henceforth no one henceforth shall be bound to abstain from communion with anyone in the administration or reception of the sacraments or in any other religious or non-religious acts whatsoever, nor to avoid anyone nor to observe any ecclesiastical interdict, on pretext of any ecclesiastical sentence or censure globally promulgated whether by the law or by an individual; unless the sentence or censure in question has been specifically and expressly published or denounced by the judge on or against a definite person, college, university, church, community or place. 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. (Fontes I, 45.)” — Pope Martin V

But one hundred years or so later, St. Robert Bellarmine clarified, per Pope Paul IV’s Cum ex Apostolatus Officio (1559) who precisely was included in Pope Martin V’s decree as follows:

“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, as St. Jerome affirms… All the ancient Fathers…teach that manifest heretics immediately lose all jurisdiction, and outstandingly that of St. Cyprian (lib. 4, epist. 2) who speaks as follows of Novatian, who was Pope [i.e. antipope] in the schism which occurred during the pontificate of St. Cornelius: “He would not be able to retain the episcopate [i.e. of Rome], and, if he was made bishop before, he separated himself from the body of those who were, like him, bishops, and from the unity of the Church.’” — St. Robert Bellarmine, An Extract from St. Robert Bellarmine, De Romano Pontifice, lib. II, cap. 30, (http://www.cmri.org/02-bellarmine-roman-pontiff.html .This link is placed merely for purposes of attribution; no endorsement of this site is hereby intended.)

St. Robert Bellarmine, de Romano Pontifice, Bk. 2, Chapter 40: “The Holy Fathers teach unanimously not only that heretics are outside of the Church, but also that they are ipso facto deprived of all ecclesiastical jurisdiction and dignity …Saint Nicholas I (epist. Ad Michael) repeats and confirms the same. Finally, Saint Thomas also teaches (II-II, Q39, A3) that schismatics immediately lose all jurisdiction, and that anything they try to do on the basis of any jurisdiction will be null.”

Bellarmine could scarcely say otherwise, since already Pope Paul IV in “Cum ex Apostolatus Officio” had infallibly decreed that, “Further, if ever at any time it becomes clear that any Bishop, even one conducting himself as an Archbishop, Patriarch, or primate; or any Cardinal of the aforesaid Roman Church, even as mentioned, a Legate; or likewise 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]…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…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…” (Cum ex…, 1559).

Commentary: There are many types of excommunication besides those for heresy, apostasy and schism. So this decree by Pope Martin V in the case of Traditionalists is not relevant, as St. Robert Bellarmine aptly proves. This even though it is listed as the “old law” in the Fontes for Can. 2261 §2 and §3. It is not relevant to the situation we face today because those citing the above decree assume the following:

1. That such Traditionalists are indeed priests who can otherwise validly administer the Sacraments;

2. That they have been certainly validly ordained and/or consecrated and have received a canonical mission from a legitimate superior in communion with a canonically elected pope;

3. That given all the above, they are not laboring under an irregularity which incapacitates them from validly conferring the Sacraments;

4. That they have not lost the jurisdiction they once held through heresy, apostasy or schism, or that having lost it, they were abjured and reinstated in office by a canonically elected Roman Pontiff.

According to Canons 107 and 108, divine law decrees that there is a noted distinction between the laity and the clergy. This distinction is marked by entrance into the clerical state. That entrance ensues on the “calling” of a candidate to the priesthood by a lawful bishop in communion with the Roman Pontiff whose “seminary “ has been erected by order of and with the approval of the Holy See. The rite of tonsure is just that — a rite. It is not an order so does not involve the use of orders to convey. Rev. Charles Augustine, in his Canon Law commentary states that tonsure is clearly a jurisdictional act that stems entirely from the jurisdictional faculties of the bishop. A bishop who never received such jurisdiction cannot exercise it to confer tonsure. Without tonsure, a man cannot become a cleric and only clerics are able to be ordained, (Canons 108, 118); only priests can become pastors and obtain an office, (Cans. 154, 453). There are no Traditionalists who today can claim canonical mission jurisdiction by special faculties or from a Pope Pius XII bishop; so all these purported bishops UNDENIABLY lack such jurisdiction, which can come to them only through the Roman Pontiff, (Pope Pius XII’s “Mystici Corporis” and “Ad Sinarum Gentum”).

Since we have no Roman Pontiff, and since the supplying principle can be actuated only by a canonically elected Roman Pontiff (Rev. Francis Miaskiewicz, “Jurisdiction According to Canon 209,” 1949, Catholic University of America), then no jurisdiction today can be claimed by anyone. Even Marcel Lefebvre admitted to his “seminarians” that he could not grant them jurisdiction, so in accepting their ordination, they automatically denied the necessity of one of the keys that guarantee apostolicity and received absolutely nothing from Lefebvre, either in way of tonsure or “ordination.” The same is true of Thuc and all those issuing from these two men.  As the rule of law states, you cannot give what you do not possess yourself.

There are many who will indignantly insist that their particular priest or bishop has never been guilty of heresy, apostasy or schism. Yet according to Can. 1325, anyone who either implicitly or explicitly denies a truth of faith is a heretic, and in setting up mass centers, saying masses and administering sacraments, establishing seminaries, these men in essence implicitly deny the need of a Roman Pontiff for the Church’s very existence, testified to by the Catechism of the Council of Trent, St. Thomas Aquinas and various popes. They deny the necessity of jurisdiction in either accommodating or declaring inoperable the sacred canons, when Pope Pius IX (and his predecessors) have clearly stated that discipline falls under the scope of infallibility. Pope Pius IX teaches, in “Quae in patriarchatu”: “In fact, Venerable Brothers and beloved Sons, it is a question of recognizing the power (of this See), even over your churches, not merely in what pertains to faith, but also in what concerns discipline. He who would deny this is a heretic; he who recognizes this and obstinately refuses to obey is worthy of anathema,” (emph. mine — Pope Pius IX, September 1, 1876, to the clergy and faithful of the Chaldean Rite.) This should end any controversy on the matter. In his 1945 constitution on papal elections, “Vacantis Apostolica Sedis,” Pope Pius XII infallibly teaches that all attempted acts of those who would usurp papal jurisdiction during an interregnum; or any who change, dismiss or dispense from Church laws, are null and void. Assuming jurisdiction, especially to hear confessions (but also to establish seminaries and inform the faithful that they indeed are able to administer the Sacraments) can be nothing short of such a usurpation. And this one law that governs specifically for our particular circumstances, that of an extended interregnum, is never consulted by these “clergy” for guidance in this matter.

It is time that the faithful began obeying the laws of the Church and the teachings of their popes and the General Councils, not the false and self-interested teachings of their pseudo-cleric leaders. We must obey God, not men, and if God and His vicars are teaching something different than those claiming to be clergy — and this is definitely the case — then even if these false shepherds appear to be angels of light, we must flee. For more on this subject, see /wp-content/uploads/2012/02/TradActsNullFinal.pdf

But what about Canon 2261§2 ?

As already stated, there is confusion between excommunicates proper and those excommunicated for heresy and schism among Traditionalists. The reason for this is that Traditionalists assume the law applies to all calling themselves priests or bishops, even those doubtfully valid and illicitly ordained, despite the fact they have never possessed jurisdiction. Traditional priests and bishops also have always assumed that Can. 2261 §2 applies to all excommunicates, regardless of why they have been excommunicated. However the Church legislates only for what usually happens, not for extraordinary circumstances. She is not anticipating in this law hundreds of clerics who would invoke it while possessing questionably valid and illicit orders. So the excommunicates to whom the law does apply are assumed to at least at one time have possessed jurisdiction, or to have never lost it because they are only tolerati. Therefore the Church could always restore their jurisdiction or fully reactivate it. This cannot be true and is not true of Traditionalists, however, who never possessed it in the first place.  Rev. Francis E. Hyland, in his 1928 dissertation, “Excommunication,” comments on this subject below.

“The question of whether excommunicates cease to be members of the Church has given rise to quite a controversy among theologians. Suarez is under the opinion that persons under ban of excommunication continue to be members of the Church…Bellarmine maintains that excommunicates cease to be members of the Church…According to the more common opinion of most of the recent dogmatic theologians the tolerati do not cease to be members of the Church, [but] with regard to the vitandi, the more commonly accepted opinion is that, at least temporarily, they are cut off from all external communion with the Church. Tanquerey remarks that the question has little practical bearing since the Church is wont to declare as vitandi only notorious heretics and schismatics. FROM THESE REMARKS IT IS CLEAR THAT THOSE EXCOMMUNICATES UNDER CONSIDERATION IN THIS CANON ARE NOT THOSE EXCOMMUNICATED FOR HERESY AND SCHISM, FOR THESE ARE ALREADY OUTSIDE THE CHURCH, AS REV. TANQUEREY OBSERVES.” It is one thing to argue that simpliciter tolerati, as Hyland describes them, can validly and licitly administer the Sacraments and offer the Mass under Can. 2261 §2. It is quite another to argue that heretics and schismatics, notorious by notoriety of fact and who no longer are even members of the Church, can validly and licitly provide the same. And it doesn’t matter that the Church has not declared them vitandus; they still are notorious by fact and infamous by law.

The term simpliciter tolerati seems to refer to those whose excommunication for an offense (other than heresy or schism) is not notorious because it is occult or known only to a few and who can claim that they do not need to observe the censure in the external forum. This Traditionalists equate with material heresy and schism, even when, as in their own case, such heresy has been public. They claim that because this is all they can be accused of in way of a censure, this allows them to operate under Can. 2261 §2 when requested to do so by the faithful…Hyland explains that, “In pre-Code law, all excommunicates were deprived of ecclesiastical jurisdiction in such a manner that they could not exercise acts thereof, at least licitly. This privation affected even the toleratiVitandi were altogether stripped of ecclesiastical jurisdiction, [but] the tolerati were not altogether stripped of the power of jurisdiction, but were forbidden to exercise acts thereof. Even if they were publicly known to be under a ban of excommunication, they could validly exercise jurisdiction as long as they were not objected to by the faithful. [However], THE FAITHFUL COULD PREVENT THEIR JURISDICTIONAL ACTS FROM HAVING EFFECT BY OBJECTING TO THEM ON THE SCORE OF EXCOMMUNICATION AND BY PROVING THE EXISTENCE OF THE CENSURE,” (Can. 2259).

Infamy of law

And here we are not talking only about publicly recognized heretics and schismatics, (and by invoking Can. 2261 § 2 Trads FREELY ADMIT they are under censure! Former CMRI attendees have even stated that the leaders of this group have publicly admitted to their heresy.) Because publicly recognized heretics and schismatics also incur another penalty, known as vindicative (Can. 2291); in this case it is infamy of law. This penalty is automatically incurred right along with the censure for heresy according to Can. 2314 §1, no. 3 whenever anyone participates in the worship of a non-Catholic sect. While the censure for heresy can be lifted in urgent cases even by valid and licit bishops with the faculties to do so (provided they are in communion with a canonically elected Roman Pontiff), the penalty of infamy of law is reserved in a special manner to the pope alone; only he can declare this punishment a perpetual penalty or choose to lift it.  While under the penalty of infamy of law, these heretics cannot administer any of the Sacraments, sacramentals or say Mass. They can pray publicly with no one. Those guilty of heresy and communicatio in sacris also can incur this penalty and in a way, it is much like an interdict in that only the Church can decide when to lift it.

If they even attempt to violate their irregularity by ministering to the faithful, their actions are automatically null and void, (Can. 2294, Revs. Woywod-Smith). They are to be REMOVED from the sacred services if they have the audacity to attend them, just as the vitandus, and until they are removed the services are not to continue, (Cath. Encyclopedia, Excommunication).  So while those excommunicated for public acts of heresy, apostasy or schism may not be declared vitandus, they nevertheless occupy a position very similar to them, being unable to function in any way whatsoever until the Roman Pontiff remedies their situation, which he may or may not do. One may wish to consider the following in deciding if these Trad pseudo-clerics would be eligible for any leniency from a future Roman Pontiff.

Contempt of Faith

In 1944, Rev. Alan McCoy O.F.M., J.C.L. wrote a dissertation, “Force and Fear in Relation to Delictual Imputability and Penal Responsibility,” (Catholic University of America). Under the general heading of “Delictual Acts Interdicted by Divine Authority,” he writes: “When an act is intrinsically evil, or involves contempt of the faith or of ecclesiastical authority, or works to the detriment of souls…imputability is not taken away in such cases since in these instances the observance of the law still urges under the pain of sin, even though the most severe personal hardship or danger, or also the greatest private harm might come from such observance. And the reason for this is that some spiritual good, either of God or of the Church or of individual souls is involved…There is consequently always grave guilt in the deliberate transgression of such a law.” As Rev. William Conway also notes in his “Problems in Canon Law,” grave inconvenience which excuses from the observance of a law applies only to ecclesiastical laws; McCoy speaks here of violations of Divine law. And McCoy duly notes that not even the gravest personal hardship or greatest private harm excuses from observing the law.  In the violation of the Divine law, positive or natural, only grave fear externally manifested to witnesses would excuse from incurring the censure attached to the violation of such laws, (1937 decision by the Pontifical Commission for the Authentic Interpretation of the Code). Most authors agree it does not excuse from the sin, however, and in our case there is no indication that there was ever a question of grave fear in these cases; so the censure still binds. While it applies to delictual acts that are intrinsically evil, it does not excuse from those acts which, “involve contempt of the Faith or work to the public harm of souls,” (Ibid).

On page 92 McCoy discusses what the Code considers to be acts involving contempt of the faith. He identifies the titles in the Code containing these acts as XI and XII of the fifth book, concerning “Delicts Against the Faith and Unity of the Church and Delicts Against Religion.” These include heresy, apostasy and schism; communication in sacred rites with heretics; usurpation of priestly functions and sacrilege, also any recourse to the civil power from the acts of the Apostolic See and interference with the liberty and rights of the Church, among others. These last two offenses must be considered because both Pope Pius XII’s papal election law and the Church’s rights have been ignored. As mentioned elsewhere, Catholics are bound by Can. 1325 to profess their faith in the face of persecution, and this means they are never to resort to silence, subterfuge or indicate by their manner of acting that they are denying their faith. Whether intended or not, the continual violation of Pope Pius XII’s election law, especially the invocation of supplied jurisdiction reserved especially to the Roman Pontiff contrary to this same law, shows a particular contempt for the laws and rights of the papacy. Essentially such behavior at least implicitly denies the necessity of the papacy and the supremacy of the pope, and this undeniably works to the public harm of every soul on earth.

On page 97, under the heading “Acts that Work to the Detriment of Souls,” McCoy writes: “These are all acts which draw people away from the faith or from the practice of Christian morals and thus expose them to the danger of eternal damnation…Those acts which, by their nature, work to the detriment of souls are listed particularly in Titles XVI and XVII of the fifth book of the Code…bearing the headings: ‘Offenses Committed in the Administration or Reception of Orders or the Other Sacraments’ and ‘Offenses Against the Obligations Proper to the Clerical and Religious State.’” Among the offenses McCoy lists that work to the detriment of souls are: “…the administration of Sacraments to those who are forbidden to receive them…the consecration of a bishop without a papal mandate…the reception of Orders from unworthy prelates…the negligence of a pastor in the care of souls.” These are the Church’s ideas of what constitutes contempt of faith and a true detriment to souls. Many of the offenses listed here have been committed by those calling themselves bishops and priests who believe that they are serving the common good and furthering eternal salvation by ministering to the faithful. But these ministrations were never committed under any visible force or fear. As McCoy points out, in the case of fear the individual affected is presumed to act “out of frailty rather than through obstinacy.” It is not clear that independent bishops and priests were not obstinate in refusing to fully examine all the objections to their ministrations. And once Traditionalism organized itself into various groups and began publicly presenting as the true Church minus Her visible head, it became a non-Catholic sect, operating freely and without any constraint. So where was the force or fear?


Traditionalists have committed heresy and schism and as such they cannot function in any ecclesiastical capacity in the Church. What few ever had jurisdiction to begin with, long ago lost it when they committed heresy or schism. The authorities necessary to absolve them are not available, so they cannot recover it even if they once had it. Canon 2261 §2 does not apply to them because they already are outside the Church and have become notorious. Moreover they have been declared infamous by law, a vindictive penalty separate from their censure which can be dispensed from only by the pope. The ignorance of their followers regarding their compromised condition cannot excuse, for common ignorance is not common error. And how can those who claim they have a “mission” to work for the salvation of souls possibly hope to secure the salvation of these souls, when by all their very acts to invalidly and illicitly gain clerical status, they work to the detriment of souls?! As Pope Pius XII taught in “Ad Apostolorum Principis”:

49. What then is to be the opinion concerning the excuse added by members of the association promoting false patriotism, that they had to act as they alleged because of the need to tend to the souls in those dioceses which were then without a bishop?

50. It is obvious that no thought is being taken of the spiritual good of the faithful if the Church’s laws are being violated…”

Equally obvious is the case of Traditionalists, who take this course without even the advantage of those long ago Chinese bishops; for they, at least, could claim they themselves were validly ordained and consecrated. The consummate arrogance of these self-appointed “Traditional” ministers is truly mind-boggling, given their absolute lack of any substantive proofs whatsoever to demonstrate that they are lawful pastors and true successors of the Apostles. Nor can their followers be held guiltless for their leaders’ continued imposture, either, since they are obligated to expel them if they attempt to celebrate divine services. In reality, all the laity would need to do is to fail to attend these services in order to send the required message. While many plead these followers be excused as not culpable, this is not the case. We are all our brothers’ keepers, and without the cooperation in sin of those seeking Mass and Sacraments, no services would be necessary. When the blind lead the blind, all fall into the pit.

Print Friendly, PDF & Email

Submit a Comment

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.