Jurisdiction, Lawful Pastors and Communicatio in Sacris

From the Baltimore Catechism

What does Father Thomas Kinkead tell American Catholics on lawful pastors in the catechism used in Catholic schools in the 1940s and 1950s, before the decline of the Church? In his “An Explanation of the Baltimore Catechism,” #4, Fr. Kinkead writes in Q. 115: “What is the Church? A. The Church is the congregation of all those who profess the faith of Christ, partake of the same sacraments, and are governed by their lawful pastors under one visible head.” The Baltimore Council’s approved Catechism #3 for adults, also written by Rev. Kinkead, tells us in the answer to question # 494 that lawful pastors are “those in the Church who have been appointed by lawful authority and who have therefore a right to rule us.”  Note that this says nothing of the supposedly “validly” consecrated bishops who have created these priests; it mentions only lawful authority. Lawful bishops, as will be seen below, are only those consecrated with papal mandate following their appointment by the pope.

“Even if valid orders exist, where jurisdiction is lacking there is no real apostolicity. Schism, as well as heresy, destroys apostolic succession,” (Rev. Thomas Cox, “Pillar and Ground of Truth,” 1900).  In his “Manual of Christian Doctrine,” written for religious congregations and Catholic institutions of higher learning, seminary professor Rev. John Joseph McVey wrote in 1926:

  1. 60: Who after the pope are lawful pastors of the Church?
  2. The bishops who have been canonically instituted, i.e., who have received from the Sovereign Pontiff a diocese to govern.
  3. 73: Why is it not sufficient to be a bishop or priest in order to be a lawful pastor?
  4. Because a bishop must also be sent into a diocese by the Pope, and a priest must be sent into a parish by the bishop. In other words, a pastor must have not only the power of order, but also THE POWER OF JURISDICTION, (emphasis by the author, Joseph McVey).
  5. 77: How is the power of jurisdiction communicated?
  6. Priests receive their jurisdiction from the bishop of the diocese; bishops receive theirs from the pope; and the Pope holds jurisdiction from Jesus Christ. A bishop who did not receive his spiritual powers from the Pope and a pastor who did not receive his from a lawful bishop, would be AN INTRUDER OR SCHISMATIC” (emphasis, McVey).

So not only are Traditionalist “priests” and “bishops” illicitly ordained and consecrated, without a true pope they possess no jurisdiction whatsoever.

Canon Law expresses the same concept

This is based on Canon 147, which Pope Pius XII strengthened with special excommunications.  It reads: “An ecclesiastical office is not validly obtained without canonical appointment.  By canonical appointment is understood the conferring of an ecclesiastical office by the competent ecclesiastical authority in harmony with the sacred canons.”  Above we have seen that a bishop can be canonically appointed and sent into his diocese only by a legitimately elected pope.  Only a canonically appointed bishop who has received jurisdiction from a pope can delegate that jurisdiction to the priests in the diocese to which he has been duly appointed. Only lawful pastors who validly possess an office in the Church have a right to rule the faithful as pastors.

Canon 147, which according to the Sacred Congregation and Pope Pius XII, based on “Sacred principles” is no ordinary canon.  And because it is an invalidating and inhabilitating law, any attempt to intrude oneself into an office or appoint anyone to that office without canonical provision is null and void; it simply never takes place.

The decision of the Sacred Congregation issued June 29, 1950 (AAS 42-601) gives the text of DZ 967 (DZ indicates a teaching from Denzinger’s Sources of Catholic Dogma, 1957, available online) and yet another version of DZ 960, varying slightly from the Denzinger translation: “If anyone says that…those who have been neither rightly ordained nor sent by ecclesiastical and canonical authority, but come from a different source, are lawful ministers of the word and of the sacraments: let him be anathema,” (DZ 967). If this is compared to what Rev. McVey and Canon 147 says above, one can see it is in perfect agreement. The document from the Holy Office, beginning with DZ 960, continues as follows: “Those who undertake to exercise these offices merely at the behest of and upon appointment by the people or secular power and authority, and those who assume the same upon their own authority, are all to be regarded not as ministers of the Church but as thieves and robbers who have entered not by the door…His holiness Pope Pius XII…in order to preserve more inviolate these same sacred principles and at the same time forestall abuses in a matter of such great importance…deigned to provide as follows…”

And here censures specially reserved to the Holy See are mentioned.  The ipso facto excommunications are incurred by the ones occupying or holding an ecclesiastical office contrary to the canons and without any provision and those who allow anyone to be placed in these offices. Also excommunicated are those who have any direct or indirect part in such crimes. Ipso facto excommunication means that by the very act of performing such, the performer and receiver of the action are both excommunicated.  No formal declaration or edict from Rome is required. If we examine the sources of this law in the footnotes to Canon 147, we see that it is based on Pope Pius VI’s Charitas, the condemnation of those bishops and priests who swore allegiance to the civil constitution in France following the French Revolution.

“Love, which is patient and kindly, as the Apostle Paul says, supports and endures all things as long as a hope remains that mildness will prevent the growth of incipient errors. But if errors increase daily and reach the point of creating schism, the laws of love itself, together with Our duty, demand that We reveal to the erring their horrible sin and the heavy canonical penalties which they have incurred. For this sternness will lead those who are wandering from the way of truth to recover their senses, reject their errors, and come back to the Church, which opens its arms like a kind mother and embraces them on their return. The rest of the faithful in this way will be quickly delivered from the deceits of false pastors who enter the fold by ways other than the door, and whose only aim is theft, slaughter, and destruction…”

  1. “We therefore severely forbid the said Expilly and the other wickedly elected and illicitly consecrated men, under this punishment of suspension, to assume episcopal jurisdiction or any other authority for the guidance of souls since they have never received it. They must not grant dimissorial letters for ordinations. Nor must they appoint, depute, or confirm pastors, vicars, missionaries, helpers, functionaries, ministers, or others, whatever their title, for the care of souls and the administration of the Sacraments under any pretext of necessity whatsoever. Nor may they otherwise act, decree, or decide, whether separately or united as a council, on matters which relate to ecclesiastical jurisdiction. For We declare and proclaim publicly that all their dimissorial letters and deputations or confirmations, past and future, as well as all their rash proceedings and their consequences, are utterly void and without force…”
  2. “At length We beseech you all, beloved Catholic children, in the kingdom of France; as you recall the religion and faith of your fathers, We urge you lovingly not to abandon it. For it is the one true religion which both confers eternal life and makes safe and thriving civil societies. Carefully beware of lending your ears to the treacherous speech of the philosophy of this age which leads to death. Keep away from all intruders, whether called archbishops, bishops, or parish priests; do not hold communion with them especially in divine worship. Listen carefully to the message of your lawful pastors who are still living, and who will be put in charge of you later, according to the canons. Finally, in one word, stay close to Us. For no one can be in the Church of Christ without being in unity with its visible head and founded on the See of Peter.”

Again in Charitas, we see the same dogmas stressed, the same terms used as are used above. The Church is the same forever; Her teachings never change.  Unless jurisdiction comes directly from the pope through the bishops in communion with him to the priests, the chain of apostolic succession is broken and the faithful must not avail themselves of these intruders. This time period in France was similar to our own. Pope Pius VI makes the position of the Holy See concerning ecclesiastical jurisdiction as regards illicit consecrations and ordinations very clear. Both Charitas and Pope Pius XII’s decision on Canon 147 are documents of the ordinary magisterium; they are binding on all Catholics as infallible decrees, and deserve a firm and irrevocable assent, as the Vatican Council teaches.

Excommunication involving communicatio in sacris

Those championing the “old priests” seem to hold the opinion that the present laws on heresy and schism call for a judgment concerning whether or not the heresy or schism was committed.  The Church herself does not require us to jump through endless hoops to determine this.  It is not true that lay people cannot and should not judge heresy and schism, for how else are they to protect themselves from such contagion in their day-to-day lives?  The fact that they can so determine what is heresy or schism is proven as follows: “Although it is evidently established by you that Peter is a heretic, you are not bound to denounce him if you cannot prove it,” (DZ 1105; Pope Alexander VII).  If I consistently see a priest enter a non-Catholic church to celebrate services and I know that in order to celebrate these services he must utter words attributed to Christ which are not His own, and violate a decree of an ecumenical council to do this (see DZ —), I must certainly denounce and avoid such a man. Nor can he gain re-entrance to the Church unless he publicly renounces his errors, does penance and is absolved and then abjured by the Holy See or a bishop delegated to abjure him.”

In the (temporary) absence of a true pope and hierarchy, we must look for our answers to the questions of the day in the most secure places, and one of those places is the research of true priests studying for their degrees as doctors of Canon Law.  These dissertations, most published by the Catholic University of America, cover the history of the various canons, their development over time, the opinions of well-respected theologians concerning the various aspects they cover and arrive at conclusions concerning their proper application, as documented in case histories. These works were duly approved by the proper bishop and published following the reception of the author’s actual doctorate. Being the only real case studies on these topics outside the Canon Law Digest and commentary by various canonists, they are the most reliable sources of information on the Sacred Canons that Catholics could follow today.  In fact we are bound to prefer them exclusively to any so-called teachings of “Traditionalists” because they are issued by certainly lawful authority with the power to instruct, and possess the ecclesiastical approval necessary as a guarantee of orthodoxy.  This current “Traditionalist” writings and oral teaching cannot and do not possess. If these “Tradionalist” priests were so well versed in Canon Law, where is their research, their justification for what they are doing? Are people aware that the Church had quite a few lay canonists with licentiates prior to Vatican II and that Canon Law even made special allowances for their studies?

Heresy and schism are not difficult to judge

In his dissertation The Delict of Heresy (1932), Rev. Eric MacKenzie, A.M., S.T.L., J.C. L. gives these examples of judging heresy from different theologians: “Pighi rightly states that if a person disbelieves in the Real Presence, and in token of this belief, deliberately omits to remove his hat in a Catholic Church, he has completely expressed his heretical tenet and has incurred censure…Noldin cites the case of those who seek to divine the secrets of the present past or future …by appeal to spiritistic activities” even if the individual only is “implicitly aware” such practices are condemned by the Church.  He says that such a consultation is a delict and the one seeking it incurs censure.  “The very commitment of any act which signifies heresy, for example,  the statement of some doctrine contrary or contradictory to a revealed and defined dogma, gives sufficient ground for presumption of heretical depravity.”

Despite abundant proofs, however, many current “Traditionalists” still maintain that those ordained by schismatics, who have never received the canonical mission precisely as outlined above are nevertheless justified in exercising powers they do not possess.  As we can see from what was just stated by Rev. MacKenzie, and if we read once again DZ 967 above, it becomes clear that to maintain current “Traditionalist” clergy may function is heretical.  Rev. MacKenzie carefully lays out and examines all the arguments for the exercise of Canon 2261 §2 by those who have belonged to a non-Catholic sect, and makes the necessary distinction between simple heresy and communicatio in sacris. He begins by discussing material heresy, something current “Traditionalists” seem to assume is not subject to censure. This Rev. MacKenzie disputes, following the practice of the canonists.

Material heretics still incur censure

He begins by explaining that some of those who are validly baptized, but brought up outside the Church may be of good faith, and if so “their sin of heresy is purely material and does not involve personal guilt.”  But, in the external order, “they are held responsible for their non-memberships in the Church by presumption of law, (Canon 2200),” and Church teaching (DZ 864) still binds them to the observance of Canon Law. So if even Protestants are bound and incur censure, it is very difficult indeed to see how one of the Church’s own clerics would not be bound to a much greater degree. Seminary professor Rev. Adolphe Tanquerey, whose theological texts were used worldwide to train theologians,  then points out that, “All theologians teach that publicly known heretics, those who belong to a heterodox sect through public profession, or those who refuse the infallible teaching of the authority of the Church, are excluded from the body of the Church, even if their heresy is only material heresy,” (Manual of Dogmatic Theology, Vol. II).

As Msgr. J. C. Fenton notes in his “The Teaching of the Theological Manuals,” (The American Ecclesiastical Review,  April 1963): “If the theses taught by Tanquerey were opposed to those of ‘the most authentic Catholic tradition of all ages,’ then thousands of priests, educated during the first part of the twentieth century were being led into error.” Based on decisions issued by the Holy Office, Revs. Woywod-Smith observe concerning the status of material heretics: “Nevertheless, in the external forum they are not free [from the penalties of Canon 2314] for, according to Canon 2200, when there is an external violation of Church law, malice is presumed in the external forum until its absence is proved.  Respected canonists who wrote following the publication of MacKenzie’s thesis agree with this statement.  As St. Alphonsus teaches, quoted by Revs. McHugh and Callan, “In doubt, decide for that which has the presumption.  In this case the presumption is for the continuance of the law, since it was certainly made, and there is no probability for its non-continuance.”  And Canon 2200 contains a presumption of law.

Ignorance is no real excuse for clerics

While many are anxious to see these current “Traditionalist”so-called “care providers” as guiltless material heretics, there is no support found for this false assumption in Canon Law or Church teaching.  Concerning a plea of ignorance of the heretical nature of the offense or the actual penalty attached to it by a cleric guilty of occult heresy, Rev. MacKenzie states that, “If the delinquent making this claim is a cleric, his plea for mitigation must be dismissed, either as untrue or else as indicating ignorance which is affected, or at least crass or supine.  His ecclesiastical training in the seminary, with its moral and dogmatic theology, its ecclesiastical history, not to mention its canon law, all insure that the Church’s attitude toward heresy was imparted to him…He had ample opportunity to know about heresy.  Hence his present ignorance is unreal; or if real, it can be explained only as deliberately fostered — affected ignorance — or else as the result of a complete failure to do even a minimum of work in regard to fundamental ecclesiastical theory and practice — crass and supine ignorance.”  While this ignorance may excuse in certain cases, it must be proven to the satisfaction of ecclesiastical authorities, and this is not possible today. And when heresy becomes public, a different set of rules apply.

Communicatio in sacris differs from simple heresy

First of all, Rev. MacKenzie explains that only those who have committed a simple delict of heresy may be considered toleratus.  Different by far is the individual who has publicly affiliated with a non-Catholic sect.  Rev. Charles Augustine defines such a sect as “Any religious society established in opposition to the Catholic Church, whether it consists of infidels, pagans, Jews, Moslems, non-Catholics, or schismatics.”  In this case, it is schismatics.  Formal membership is required for the delict to occur, according to the law, and no more formal membership exists than to be a minister in such a sect. The heretical act is expressed by either joining the sect or expounding its beliefs. “In either case, the delinquent incurs first the basic excommunication inflicted on simple heresy.  In addition, as a penalty for his aggravated delict, he incurs juridical infamy ipso facto, whether or not there is further official action by the Church.”  This includes “repulsion from any ministry in sacred functions and disqualification for legitimate ecclesiastical acts.” (Under Canon 2294, Revs. Woywod and Smith qualify these acts as invalid.)  Also, under Canon 188 §4, anyone who has engaged in non-Catholic worship “no longer has any rights or powers deriving from [an ecclesiastical] position.”

Concerning the exception made by Canon 2261 §2, Rev. MacKenzie relates: “If a priest has incurred more than a simple excommunication — [if he has] resigned his office by joining a non-Catholic sect,” he cannot even assist at marriages.  And of course with the penalty for infamy of law comes loss of jurisdiction, if it was ever granted, so neither can he hear confessions or preach, even at the request of the faithful, because such acts would be null and void.  And regardless of any existing censures, Rev. MacKenzie explains that to make use of Canon 2261 §2,  requires that “the power of jurisdiction [be] already possessed.”

Doubts concerning application of censures and Canon 2261 §2

In doubts of how we are to proceed today in these matters, Canon Law says in Canon 6 §4, “In case of doubt whether some provision of the canons differs for the old law, one must adhere to the old law.”  In the case of Canon 2261 §2, we have a doubt whether Canon 2261 §4 should be extended to men who are heretics, many of whom, in any other day, would have been declared vitandus or degraded and deposed. In the case of current “Traditionalists”, as noted elsewhere, many have been warned by the faithful for decades that they do not have the jurisdiction necessary to function, and yet they continue to function, despite the fact there is no pope to supply them jurisdiction.  However, on the basis of the doubts about the long-term use of Canon 2261 §2, when this was not the original intention of the lawgiver, we can refer to the parent law for guidance, which is Pope Paul IV’s Cum ex Apostolatus Officio. It is clear from the highlighted sections of the Bull, below, that once such offenders were outside the church, they could not be admitted back in for any reason, even to minister to the faithful.  So to return to the old law would be to consider them unable to be rehabilitated in any way, at any time.

“We approve and renew, by Our Apostolic authority, each and every sentence, censure or penalty of excommunication, suspension and interdict, and removal, and any others whatever in any way given and promulgated against heretics and schismatics by any Roman Pontiffs Our Predecessors, or considered as such, even in their uncollected letters, or by the sacred Councils recognized by God’s Church or in the decrees or statutes of the Holy Fathers or in the sacred Canons and Apostolic Constitutions and ordinances. We sanction, establish, decree and define, through the fullness of Our Apostolic power, that …all and sundry Bishops, Archbishops, Patriarchs, Primates, Cardinals, Legates… who, in the past, as mentioned above, have strayed or fallen into heresy or have been apprehended, have confessed or been convicted of incurring, inciting or committing schism or who, in the future, shall stray or fall into heresy or shall incur, incite or commit schism or shall be apprehended, confess or be convicted of straying or falling into heresy or of incurring, inciting or committing schism, being less excusable than others in such matters, in addition to the sentences, censures and penalties mentioned above, (all these persons) are also automatically and without any recourse to law or action, completely and entirely, forever deprived of, and furthermore disqualified from and incapacitated for their rank [now retained in Canon 188 §4]…

“They shall be treated, as relapsed and subverted in all matters and for all purposes, just as though, they had earlier publicly abjured such heresy in court. They can never at any time be re-established, re-appointed, restored or recapacitated for their former state or for Cathedral, Metropolitan, Patriarchal or Primatial Churches, for the Cardinalate or other honor or for any other greater or lesser dignity or for active or passive voice, or authority; If ever at any time it becomes clear that any Bishop, [Cardinal or Pope]… before his promotion or elevation [has strayed from the Catholic Faith or] fallen into some heresy, [or has incurred schism], then his promotion or elevation shall be null, invalid and void. It cannot be declared valid or become valid through his acceptance of the office, his consecration, subsequent possession or seeming possession of government and Administration… 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, [without any exception as regards those who might have been promoted or elevated before they deviated from the faith, became heretics, incurred schism, or committed or encouraged any or all of these.]”

And some of the old laws Pope Paul IV recalled into service above are mentioned here by 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.”


There are several different things preventing those priests ordained illicitly by Novus Ordo bishops or “Traditionalist” “bishops” not possessing the papal mandate from a canonically elected pope from validly and licitly conveying the sacraments and offering Holy Mass.

  1. As stated in Charitas, by papal decree “illicitly consecrated men, under this punishment of suspension, [cannot] assume episcopal jurisdiction or any other authority for the guidance of souls since they have never received it… They must not grant dimissorial letters for ordinations. Nor must they appoint, depute, or confirm pastors, …or others, whatever their title, for the care of souls and the administration of the Sacraments under any pretext of necessity whatsoever.  Nor may they otherwise act, decree, or decide, whether separately or united as a council, on matters which relate to ecclesiastical jurisdiction.  For We declare and proclaim publicly that all their dimissorial letters and deputations or confirmations, past and future, as well as all their rash proceedings and their consequences, are utterly void and without force…”   Nothing could be clearer than this decree.
  2. Such priests never received jurisdiction, since as Charitas states, they could never validly obtain it from schismatic bishops. Nor can it be supplied to them by Canon 209. Francis Misakiewicz, in his dissertation on this canon, is insistent that where Canon 209 states that the “Church” supplies, this means only the Roman Pontiff, AND WITHOUT A POPE THE SUPPLETORY PRINCIPLE IS Entirely LACKING.  This is further confirmed by Pope Pius XII in his papal election constitution, Vacantis Apostolicae Sedis.
  3. The fact that they have never received such jurisdiction prevents these men from invoking the application of Canon 2261 §2, which presumes valid and licit ordination/consecration and canonical mission jurisdiction. Any doubts in this matter also can be resolved by consulting the old law governing heresy, which, after all, is in accordance with Canon 6 §4 and Canon 147 above, making it “in harmony with the sacred canons,” (Canon 147). This law (see above) forbids any rehabilitation of heretics and schismatics for any purposes.

Any clerics who have publicly celebrated the Novus Ordo Missae or have joined “Traditionalist” mass groups to offer their services have adhered to a non-Catholic sect and can be at least externally considered schismatic.  Donald Attwater, in his Catholic Dictionary, also states “anyone guilty of an external act of schism is ipso facto excommunicated; the conditions for absolution are the same for heresy.” (emphasis his). Public adherence to a non-Catholic sect is all that is required under Canon 2314 to ipso facto incur infamy of law, and until a true pope exists, there is no way to reverse it.  Once Pope Pius XII died, the chain of Apostolic Succession was broken because none of the Catholic cardinals or bishops separated themselves to elect a true pope to continue his line.  Cardinal Siri was incapable of doing this, being excommunicated for communicatio in sacris himself.  If those currently functioning as “clerics” within the “Traditionalist” organizations would lay down their claims perhaps this terrible crisis would end.

And the only way this will happen is if their followers, who also have now been excommunicated for attending their non-Catholic services, refuse to cooperate with them in sin.  To follow Canon Law as Pope Pius XII commands, “Traditionalists” now are bound to obey Canon 2294 §1, which states that those who have incurred infamy of law “must be restrained from the exercise of sacred functions of the ministry.”  Under Canon 1935, so also should those be denounced and ordered to cease and desist from these services.  In saying their mass prayers at home, stay-at-home Catholics are observing the censure they believe they have incurred for attending these services, in penance for their sins and in obedience to Canon Law. For as long as God is being mocked and His people continue to dishonor Him by committing sacrilege, nothing will change.  The truth has the power to make all of us free, if we just recognize it for what it is.



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