The interpretive theory of jurisdiction held by Traditionalists

by T. Stanfill Benns | May 16, 2013

The interpretive theory of jurisdiction held by Traditionalists

© 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

It has not been explained in detail, either on this site or anywhere else, (to the best of this author’s knowledge), that the position Traditionalists espouse concerning supplied jurisdiction was already known and held by more liberal-minded theologians prior to the crisis in the Church. This was briefly referenced in the article “Consecrating Bishops During an Interregnum, Pt. I.” Rev. Francis Miaskiewicz, in his Canon Law thesis “Supplied Jurisdiction According to Canon 209,”(1940), goes into the problems surrounding the interpretive and ignorance theories and explains why they were not tenable, even then. And in doing so he reminds us that even before the death of Pope Pius XII, there were those at work undermining the very foundations on which the Church was built, forerunners of those who later acquiesced so readily to the changes mandated by the Vatican Council and the introduction of the Novus Ordo Missae. It shows us that the infiltration of the Church began much sooner than most realize, on many levels, and that the errors we see today really were at work long before we became aware of them.

Traditionalists have made hay with such errors, claiming they are opinions advanced by certain theologians which they are free to embrace. But as explained in other articles here, the opinions of the theologians are not to be consulted until all other avenues are exhausted and the rules laid down in Canon Law itself for resolving doubtful cases has been followed. It is not difficult to determine the mind of the lawgiver in the case for supplied jurisdiction once Pope Paul IV’s Bull Cum ex Apostolatus Officio, used as the basis for most of the canons on heresy, apostasy and schism also Pope Pius XII’s infallible constitution, Vacantis Apostolica Sedis have been considered. For as Rev. Miaskiewicz points out and Pope Pius XII clearly teaches, without the Roman Pontiff, there is no one whomsoever to supply such jurisdiction, (per Vacantis Apostolica Sedis). So any arguments these theologians may have made in the past for supplied jurisdiction (occurring only during the reign of a legitimately elected pontiff) cannot possibly apply during an extended vacancy of the Roman See.

In examining the interpretive theory, Rev. Miaskiewicz refers to another Canon Law dissertation, “The Jurisdiction of the Simple Confessor,” written by a proponent of this theory, Rev. James Kelly, in 1927. He points out that Kelly mistakenly equates common error with common ignorance, even though common ignorance as a supplying factor for jurisdictional purposes appears nowhere in Can. 209. Miaskiewicz twits Kelly and others for confusing negative ignorance, which cannot influence a cause or act because the necessary basis for an informed decision does not exist, with ignorance as it affects human acts. This is “ignorance to which a judgment can be added,” (p. 154), and is not the same as ignorance which does not advert to the necessary information at all. He explains that the authors Kelly cites to support his theory believe error is convertible with this last type of ignorance only, not the negative ignorance to which Kelly refers. He bases this on Can. 207 §2, which separately allows for inadvertence outside any of the provisions of Can. 209, noting that Can. 2202 §3 states that what holds true for inadvertence also applies to error and ignorance. Why, he ably argues, would Can. 207 §2 make a separate provision if ignorance is included in the phrase errore communi in Can. 209?

Kelly’s work runs to 202 pages and treats the far broader subject of all aspects of the confessor’s jurisdiction. Miaskiewicz’s work of 312 pages concentrates solely on Can. 209, giving a complete history and a thorough evaluation of all the arguments pro and con concerning the application of this canon. For this reason it is the primary source referenced on this site in regards to any questions on the application of Can. 209.

Common error

It is obvious that the doubt of law under consideration here specifically involves Canons 209 and 2261 §2 and what constitutes common error and ignorance, so it is not a moral issue on which theological opinions may be considered as such. Even if this was the case, it is the unanimous opinion of theologians (hence infallible), as stated many times over in the proofs offered on this site, that a probable opinion — which the interpretive theory of jurisdiction offers concerning the definition of common error and ignorance — cannot be used to justify the reception of the Sacraments. Common error is a belief by a large number of people that they hold as true, but which is, in act erroneous. Common error as taught by the interpretive school would admit the existence of supplied jurisdiction even though the many that were in error had no basis for their false supposition that a priest possessed jurisdiction, but this is not how the Church has always understood common error. Were there a true pontiff the Church in certain cases could even supply if a putative title existed, but we have no pope. And in cases presented by Miaskiewicz that were decided by the Roman Rota, the Church was not interested in whether the priest was convinced he possessed jurisdiction, but only in whether the facts proved he actually did possess it; that the Church could have and in fact did supply, (pgs. 213-14 of Miaskiewicz work).

Common error must be about the existence of a certain office (which Traditionalists don’t possess) or the validity of jurisdiction already possessed, even if it was issued for only one act. Rev. Miaskiewicz limits the application of Can. 209 on the basis of common error as follows: “The Church does not supply in common error about a clear and certain law. By way of illustration one may note the fact that the law clearly demands that a priest be duly authorized to hear confessions. Since this law is so clear, one could not term any common error concerning its existence as probable. Therefore the Church in all probability does not supply in cases of such common error. The Church supplies only in common error of fact, that is, in common error about the existence or the valid possession of a certain office or jurisdiction.”In other words there must be some “objective evidence to support and to justify the objective belief in the existence of the jurisdictional power about which there is question,” (p. 312). This evidence should be sufficient to convince a “prudent man,” although one wonders if a prudent man could even be found among Traditionalists today.

Common ignorance

But those of the interpretive persuasion do not believe that such evidence is necessary to absolutely prove that jurisdiction is supplied. They would pass as enough that a priest entertained only subjective certainty, not real objective reasons for believing the Church would supply. And where ignorance is concerned they would equate common error (mistaken knowledge about a certain fact) with negative ignorance, which is an actual absence of any knowledge concerning the situation. As Miaskiewicz points out, “Even if the parties involved in a certain transaction knew that they were acting against the law, the general ignorance of the people [those holding this opinion teach] would render their acts valid, according to the ignorance theory,” (p. 155). He then challenges those adhering to this theory to prove, under Can. 6 nn. 2 and 4, that indeed common ignorance suffices to actuate the suppletory principle. The method for resolving these doubts of law is clearly outlined in the canons themselves, as described in “Consecrating Bishops During an Interregnum,” (Pts. I and II). Rev. Miaskiewicz makes this clear in his work on supplied jurisdiction and demands that this method of resolution be used to uphold “the unanimous teaching of the pre-code jurists” concerning the interpretation of common error and ignorance, (p. 132).

Papal teaching manipulated by Traditionalists

It has been the habit of Traditionalists to pit the decisions of the Roman Pontiffs one against the other, and to interpret them privately in order to justify their invocation of the suppletory principles in Canons 209 and 2261§2. They do this by claiming that (especially the later) decisions of the popes on such matters are not infallible. Rev. J. C. Fenton’s “The Doctrinal Authority of Papal Encyclicals,” Pt, condemns this private interpretation. II, (American Ecclesiastical Review, September, 1949). Fenton spends some time in this article admonishing certain theologians who have failed to grasp the true import of the Vatican Council teachings. He writes: “A great deal of the confusion and the minimism with reference to the doctrinal authority of papal encyclicals would seem to proceed from a misunderstanding of the Holy Father’s ordinary and universal magisterium…” Fenton accuses certain theologians of holding “an attitude toward papal encyclicals [and papal teaching in general] which can be productive of doctrinal evil and which can lead to a practical abandonment of their teaching. According to this attitude it is the business of the theologian to distinguish two elements in the content of the papal encyclicals.”

“One element would be the deposit of genuine Catholic teaching, which, of course, all Catholics are bound to accept at all times. The other element would be a collection of notions current at the time the encyclicals were written. These notions, which would enter into the practical application of the Catholic teaching, are represented as ideas which Catholics can afford to overlook…This attitude can be radically destructive of a true Catholic mentality. The men who have adopted this mentality imagine that they can analyze the content of an individual encyclical or a group of encyclicals in such a way that they can separate the pronouncements which Catholics are bound to accept from those which would have merely an ephemeral value. They, as theologians, would then tell the Catholic people to receive the Catholic principles and do as they like about the other elements…It is very difficult to see where such a process would stop.”

The scope of the Pope’s infallibility far exceeds its limited application as taught by most Traditionalists. In misapplying and misunderstanding the term ex cathedra, some even go so far as to deny the Pope’s infallible teaching authority in his ordinary magisterium, a heresy condemned by the Vatican Council. But Rev. Fenton, an approved theologian well-versed in sacred theology, teaches that the manifest nature of any statement later judged heretical as contrary to an infallible statement would not need to be opposed to an ex cathedra pronouncement but could be opposed simply to a statement of the ordinary magisterium. This Rev. Fenton makes clear in his above-mentioned article. He also states that not only can the Holy Father teach infallibly in his ordinary magisterium as defined by the Vatican Council, but he also is “capable of issuing infallible definitions on matters included in what sacred theology knows as the secondary object of the Church’s magisterium [i.e.,] … theological conclusions… dogmatic facts, approval of religious orders, canonization of saints,” and certain philosophical matters. Now the Catholic Encyclopedia and other works identify the Canon Law as negatively (indirectly) infallible and it would seem that it would qualify under this category as a secondary object of infallibility, especially if the pope had ruled specifically on a given canon. Certainly Pope Pius XII indicted in Vacantis Apostolica Sedis that no one can touch papal laws or Church law during an interregnum and that if they attempt to change it or attenuate it in any way, their acts are null and void.

It is interesting to note that by implication, at least, one Traditionalist seems to hold that the secondary object of the Church’s infallibility is NOT subject matter for infallible decisions. This can be concluded from St. Pius V Society advocate John Daly’s distribution of Rev. Frederick Faber’s book on canonization, without any editorial note advising the faithful that Faber wrote before the matter of the secondary object of infallibility had been fully decided. This coincides with the application of the interpretive theory, as seen below.

Interpretive theory in practice

So it is interesting to note that Rev. Francis Miaskiewicz, in his “Jurisdiction According to Can. 209” takes to task, among others, Jesuit canonists Wernz-Vidal, favored by Daly, for their erroneous views on common error re the “interpretative theory” as regards supplied jurisdiction. Wernz-Vidal held that “Once there was a public fact that could lead others into error, common error is already present …[This] reflects an attempt on their part to close a gap in logic without the aid of a logical connecting link,” (pg. 139). This public fact can be translated in these times to mean that those held as Traditionalist “priests,” who those wishing to be true Catholics see parading around in their cassocks and collars, are imbued with jurisdiction outside the normal channels. These people think these men are real priests and know nothing about the need for a true pope to exist in order to supply them with jurisdiction. They are entirely ignorant concerning the fact that the Church has condemned the creation of such clerics by schismatic bishops not in communion with the Apostolic See and that She holds any of their actions null and void, per Pope Pius VI’s Constitution Charitas and Pius XII’s Vacantis Apostolica Sedis. So the faithful believe these men to be priests possessing jurisdiction and Traditional clergy defend the interpretive theory — that this very ignorance of the faithful, then, establishes common error and activates the suppletory principle. The fatal flaw common to both those who would minimize papal authority and who support the interpretive theory, then, is the denial of the Roman Pontiff’s supreme apostolic authority and universal jurisdiction as defined by the Vatican Council. This was the heresy of the Anglicans, the Gallicanists and the Old Catholics, and today these are the very heresies embraced by Traditionalists.

As Miaskiewicz points out: “If any and all jurisdictional activity is to be considered as valid because of the verification of common ignorance, what jurisdictional act could ever be considered as invalid? The difficulties of the interpretive theory are difficulties resulting from an attempt to break away from a traditionally accepted doctrine. They are difficulties which border closer and closer upon pure absurdity according as the individual authors venture to reduce common error to greater and greater insignificance. And it must be said that for such veering away from the traditional concept no limit can properly be set, precisely because it seems that the interpretive school has substituted its personal feeling of how they would want the law to be interpreted for the ordinary legal and objective norms which the law maintains must be followed…” For as Miaskiewicz notes, the system of supplied jurisdiction is intended to help the Church fulfill Her mission: “the spiritual good of ALL the faithful…” (p. 143). Yet all the faithful CANNOT benefit from those lacking such jurisdiction who, by pretending to absolve them then administering Holy Communion during Mass, assist them in committing sacrilege, even possibly idolatry. As Miaskiewicz concludes in his final comments on the interpretive theory, this purported doubt of law could be easily solved if the rules governing the interpretation of Canon Law itself — the first 24 canons under General Rules and Ecclesiastical Law — were simply consulted and obeyed.

Canon Laws on interpretation quash the interpretive theory

He writes: “From the foregoing evaluations and criticisms of the interpretive and of the ignorance theory, it is quite apparent that the traditional concept of common error must be retained,” (but those claiming to be “Traditionalists” certainly do not retain it.)  “Indeed, even though one were to grant that the innovators’ theories enjoy some degree of probability and of consequent feasibility, Can. 6, n. 4 must be remembered. Thus in reality there is no dubium juris [doubt of law] which could be solved in favor of the other theories, [concerning positive error and common and probable doubt] by the use of the second phase of Can. 209,” (p. 156). “Canon 209 is admittedly a new law only insofar as it represents the first statutory formulation of the suppletory principle. The doctrine, the jurisprudence of this principle, however, antedates Can. 209. Since the Code verbatim received the errore communi [common error] and supplet ecclesia the Church supplies], the presumption is that the legislator intended no substantial changes in the interpretation of the errore communi. And to all who would attempt to justify any deviation from the traditional concept it may be remarked that the burden of proof lies upon them. They will have to establishbeyond a prudent doubt [emph. Miaskiewicz’s] that the legislator wished to treat errore communi in a new sense. Until they furnish such proof, their claim must be rejected in view of Canons 6 nn. 2 and 4,” (pgs. 160-61).

Canons 6 n. 2 and 6 n. 4

Can. 6 n. 2 states that Canons restating the former law in its entirety must be interpreted in accordance with the old law. Canon 6 n. 4 instructs that in a case of doubt whether some provision of the Canons differ from the old law, one must adhere to the old law. So it is clear that the old ideas of common error and ignorance must be retained if we are to follow the introductory Canons of the Code that instruct those who consult it how to understand the Law. If we use the old law in place of the new law, it not only returns to the traditional idea of common error, but reactivates the need for a colored title in order for priests to claim supplied jurisdiction.

Canons 11, 15 and 20 — invalidating laws and epikeia

Rev. Miaskiewicz’s next topic is epikeia and Can. 209, which is treated under Can. 20. It is not surprising to note that he immediately reminds his readers that “jurisdictional laws are at least equivalently invalidating or incapacitating laws, [treated under Canons 11 and 15],” (p. 161). He then goes on to compare jurisdictional laws to a diriment impediment, requiring dispensation, which prevents partners from marrying validly if it is not dispensed.  He comments: “In the same manner that a dispensation is necessary for a person to marry validly…so too the requisite faculty, the required power or jurisdiction, is necessary to posit validly a jurisdictional act. Those who have not that power, even should they possess all other qualifications, simply cannot act validly,” (ibid. p. 161). Miaskiewicz then explains that epikeia, “in almost every interpretation,” applies only when “some moral inability intervenes,” (p. 162). He distinguishes however, between merely prohibitive laws and invalidating laws, and cites Suarez who says there is no “identity” between the two. Invalidating laws produce “a certain inability or even incapacity” to act, which has nothing to do with some difficulty presented by the “obligation” to observe a prohibitive law. “In laws that are merely prohibitive or preceptive, there is not the necessity for the common good that some uniformity in the law be observed.”

This is precisely what Rev. Lawrence Joseph Riley, A.B., S.T.L., teaches on this same subject in his dissertation “The History, Nature and Use of EPIKEIA in Moral Theology,” (Catholic University of America, 1948): epikeia applies only to the internal forum concerning moral matters, for the sake of the common good, and cannot be used in the case of invalidating and incapacitating laws. Rev. Riley observes: “There are extremely few theologians who admit the lawfulness of applying epikeia strictly so-called to invalidating laws…Human invalidating laws sometimes cease to bind but epikeia may not be applied to human invalidating laws.”  As Miaskiewicz emphasizes: “In jurisdictional laws it favors the common good more to preserve the law absolutely inviolable than to avoid some personal inconvenience in any one case, [emph. his],” (p. 162). Likewise canonists Woywod-Smith comment under Can. 16: “Ignorance and good faith are immaterial as far as the effect of invalidating and inhabilitating laws is concerned. The common welfare demands that these laws have absolute effect.” So much for the ignorance theory.

Canon 20 — the Roman Curia

The text of Canon 20 tells those who are seeking to construct a new law for a situation (where no law seems to exist) that to do this they must consult the decisions of the Roman Curia in formulating such a law. Since Traditionalists are famous for inventing their own laws, the least they could do is make some pretense of following the laws provided in the Code, but of course this is not what they have done. However in the course of his work, especially concerning doubts of fact, Miaskiewicz cites several decisions of the Roman Rota proving that not only does the Church not supply as readily and as lavishly as some theologians might wish, She does not consider invalidating marriages, confessions and other acts, when no facts exist to prove their validity, as a negative thing. Rather these decisions demonstrate that the Church feels that “ignorance, confusion and false certitude were not considered enough,” (p. 214), to validate such acts. “In the instances that the Roman Rota agreed that a true probability of fact was verified, there are found real arguments, objective reasons leading a prudent man to believe that the priests possessed jurisdiction and there the requisite jurisdictional competence,” (ibid).  In other words the Church believes “It is what it is,” and acts accordingly.

Traditionalist motivation for claiming a doubt of law

The reason that Traditionalists wish to say there is a doubt of law concerning how jurisdiction is to be applied is that 1) If the old law is not invoked, they can wiggle out of the necessity to produce a colored title, which they cannot do; and 2) If the old law is not invoked, they can claim that common error is not to be interpreted traditionally and that ignorance is the equivalent of such error. Miaskiewicz proves it is impossible for them to claim a doubt of law because one must adhere to the old law, but for Traditionalists it is paramount that they be able to claim this doubt. The reason is found in the wording of Can. 15, which states that in a doubt of law or fact, invalidating and incapacitating laws cease to apply, and they seize on this to justify their actions. But jurisdiction is based on Divine law, which can never be abrogated or cease to exist. Without jurisdiction the entire fabric of the Church disintegrates. And there IS no doubt of law, as Miaskiewicz has proven, because we must return to the old law under Can. 6 §4. Revs. Woywod –Smith explain that a doubt of fact concerns some circumstances or facts in the case that are doubtful. Certainly that could apply to us but the law says that these can be dispensed by the Ordinary as long as it is something from which the Roman Pontiff is wont to dispense. Clearly we have no ordinary and therefore the point is moot. Here Woywod-Smith mention the teaching of moralists, stating that Can. 15 applies in a doubt of fact only if the liciety and not the validity of an act is in question, meaning it cannot apply in the case of jurisdiction since the very misuse of the suppletory principle could result in invalidity of the Sacraments. As Miaskiewicz comments, the burden of proof rests with Traditionalists and they cannot demonstrate those proofs necessary to establish their case. They must concede defeat, but their pride and fear of losing their social status and incomes will not allow.

Conclusion

Adhering to the interpretive theory only indicts Traditionalists as liberals and innovators. They simply cannot claim jurisdiction in any form without a true Roman Pontiff, regardless of what “opinions” they pretend to advance in order to bolster their irrational arguments. Even if granted their “doubt of fact” under Can. 15, they have no valid or licit bishop to decide the case and the practice of the Roman Pontiffs would not support a decision in their favor anyway. The decision in their case can be found in Vacantis Apostolica Sedis, where Pope Pius XII made it clear that NO ONE may presume to usurp pontifical jurisdiction during an interregnum or dispense or modify Church law. Without a clear decision on the “interpretive” and ignorance theories from the lawgiver, Traditionalists are stuck with the old law. They are bound to return to the pre-Code teaching on Can. 209, which ran as follows:

•  Public utility and the general good required the relaxation of the ordinary rules of jurisdiction, (this was true both then and now).

•  The teaching then current on the suppletory principle would apply only to acts performed in virtue of a public office, (Traditionalists readily admit they possess no offices, so cannot invoke it).

• At least a colored title would still be required, one conferred by “an authorized or proper superior,” but which labors under some occult defect which renders it invalid. (Traditionalists did not even appear to or claim to receive any titles and the superiors who ordained them — schismatic bishops — could not confer such titles validly or licitly anyway. This is well known, so cannot be an occult situation.)

• The suppletory principle applies to the external forum and also to the ordinary power.

• There must be common error, but what constituted it could not be agreed upon. (No decision in this regard can be made, either, without referring it to a true pope.)

•  A positive probability must be present in cases of doubt, as decisions of the Roman Rota prove. (Miaskiewicz quotes the theologian Creusen to the effect that priests are to seek out the necessary information in doubts of law and not trust their own judgment.)

• Jurisdiction could be supplied to excommunicates, who may be outside of the Church for a variety of reasons, (but not notorious heretics, apostates and schismatics, as proven elsewhere. This excludes Traditionalists.)

Traditionalists cannot satisfy the requirements of pre-Code law any more than they can satisfy the post-Code requirements. Regardless of the many arguments made for the case of supplied jurisdiction for Traditionalists, the one determining factor for providing it — a valid Roman Pontiff — is lacking. No one can usurp his jurisdiction during an interregnum Pope Pius XII’s Vacantis Apostolica Sedis teaches, so no other “supplier” exists. No one, either, can provide the Church with a pope, unless and until unquestionably valid and licit bishops are found who could hold a papal election. Traditionalists claim their jurisdiction comes directly from God, but this would place them in the same class as Christ’s Apostles, which is not only an absurdity, but a Protestant heresy, (see site article on Can. 209 and extraordinary mission). While the interpretive theory enticed and emboldened them to take their liberal stand, it could not possibly overcome almost 55 years without a true pope, try as they might to get around this salient fact. This is not even considering their obligation, as Rev. Miaskiewicz notes, that they must return to the old law and follow the rules laid down for resolving doubt. This was recently documented in the article on this site, “Consecrating Bishops During an Interregnum, Pt. I.” It is required long in advance of any consideration of Can. 20, where epikeia is allowed as one of several steps to construct a “new” law in the event that no law exists that covers the situation.  Since following the old law (Can. 6 nn. 2 and 4) would eliminate any doubts about how to interpret common error and would require them to demand at least a colored title, which they do not possess, there is no justification for invoking Can. 20, since no new law is needed.

Traditionalists simply cannot and do not possess jurisdiction of any kind. As Rev. Miaskiewicz aptly observes in his work: “Dealing with men, with all their foibles and weaknesses, with their need of strict sanctions to help them along the path of probity and justice, the Church has found it necessary to be very careful in allowing others to share in Her power. To protect the faithful against deception and to assure them of competent and worthy ministers, the Church has ever insisted, and still does insist, that those who are to minister unto the faithful in the name of Christ and of the Church, must first receive the approval and authorization necessary for the valid and licit performance of jurisdictional acts,” (p. 21). “The matter of jurisdiction, then, is very important. First, the necessity for it supplies the Church with strict sanctions against usurpers and incompetents. The possession of it is important also for the priest who, in acting without it, would not only posit invalid acts, but would run afoul of the rigid sanctions of the Church and of God. Finally, it is especially clear how important the use of it is to the faithful and what a great loss it would be for them to approach a priest adjudged to have faculties to absolve, confess and then upon their confession depart not knowing that they were still unabsolved. …Upon the presence or absence of jurisdiction, the very validity or the invalidity of the acts will depend,” (p. 22).

And following this, no further comment is necessary.

Jurisdiction, Lawful Pastors and Communicatio in Sacris

by T. Stanfill Benns | Dec 18, 2012

From our family to your family:

The Blessed Season of Advent, a Time of Preparation

We have been asked to provide proofs and documentation of our adherence to Church Law with regards to attending “Traditionalist” group religious services.  We are providing that here, but first, a little background.

One thing we all know is that we all desire to attend the Holy Sacrifice of the Mass and to receive the Sacraments which we knew as faithful Catholics; Catholics who attended daily Mass, Stations of the Cross, Forty Hours Devotion, said the Family Rosary and read daily from our Douay Rheims Catholic Bible.  Our family has a heritage of German and Irish ethnicity and Catholicity. For many years we have fought to defend our Faith, first against Protestant prejudice and then against the inroads of Modernism and many other heresies.  We have enjoyed the benefits of formal Catholic education, through college level, during the nineteen twenties, thirties, forties and fifties. We developed a keen Catholic Instinct.  We resisted what became obvious as modernistic liberalism in the sixties forward. Our resistance involved organized groups, publications, and billboards to preserve Catholic education in our Catholic schools. It even involved visits to the chancery office, including personal confrontations with the diocesan bishop.  Finally, it meant a departure from our parish church and from teaching in our Catholic schools.

At first, our saintly pastor in our country parish church refused to turn around the altar and to say the new mass.  The diocese punished him, stripped him of his pastor position and sent him into retirement. With that situation, in the early days of the late sixties, and early seventies, we visited the Byzantine Rite, the Ukrainian Uniate Rite and the Armenian Rite, wherever they had not changed to the new mass service. They also became influenced by Rome’s Modernism.  We were fortunate to find a blessed priest who had jurisdiction in the diocese.  We attended his Mass in a private home until he died.  We then observed certain groups without any participation, such as SSPX.  There we found nothing but trouble.  We were even contacted by a few renegade priests, but there was always the problem of jurisdiction.  We investigated many of their claims and the claims of certain “Traditionalist” groups as they became known.  They all shared the same problem. They had gone out on their own without ecclesiastical authority, because they thought they should do so.

In the meantime, we collected hundreds of books that were being discarded from seminaries, rectories, convents and schools.  We accumulated some three thousand books in our libraries.  With our cumulative experiences, it became obvious to us that Almighty God had taken away the Holy Sacrifice, at least from us here in our country.  We developed contacts around the world, and discovered the same to be true with them.  We knew the Holy Sacrifice had to be offered somewhere legitimately, but it must be behind the Iron Curtain or in the China underground.  With this in mind, we stayed home to pray.  We pray the Mass Prayers using our Saint Andrew’s Missal, the same one used in the forties and in the seminary in the fifties.  We continued our other normal Catholic Devotions at home.

We have written many personal letters in order to provide Catholic advice to others in need.  We do so again. May you receive this letter and information in the spirit in which it is given.  Following are the “rules” that we follow.  It is not our opinion.  These are the laws of the Church.

The Morris Family

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Instructions for reading these proofs

By Teresa L. Benns

Out of charity for your soul and with the hope that you will choose to heed the teachings of Christ through His Vicars, we are posting the proofs below. Several people participated in the research and compilation of these proofs. While they cite the works of canon lawyers and theologians, what they teach is in perfect agreement in every respect with the teachings of the Roman Pontiffs and the ecumenical councils on these subjects. The latter documents are primary, as the Church insists they must be, and are only faithfully echoed by Her approved authors.

Generally speaking Traditionalists, while they claim obedience to these papal decrees and teachings, allow their “clerics” and lay leaders to recycle them in accordance with their claims to be lawful ministers endowed with the necessary power to act as pastors of souls. Attempts have even been made by some to erase the Church’s ability to infallibly pronounce on strictly disciplinary measures, when this error was condemned as follows by Pope Pius IX 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). Some also have suggested that the popes are not infallible in their Ordinary Magisterium. One well-respected Traditional “priest” even taught this heresy publicly. And yet this was defined at the Vatican Council as follows: “Further, by Divine and Catholic faith., all these things must be believed which are contained in the written word of God and in tradition, and those which are proposed by the Church, either in a solemn pronouncement or in her ordinary and universal teaching power, to be believed as divinely revealed,” (DZ 1792).

And furthermore, Catholics are bound also to obey not only infallible decrees but those condemnations of errors which are not strictly heretical: “But since it is not sufficient to shun heretical iniquity, unless these error also are shunned which come more or less close to it, we remind all of the duty of observing also the constitutions and decrees by which base opinions of this sort, which are not enumerated explicitly here, have been proscribed and prohibited by this See,” (Vatican Council, DZ 1820). This also is addressed in Can. 2317, which bars those teaching doctrines condemned by the Roman Pontiff or the Ecumenical council but not as formally heretical, “from the ministry of teaching the Word of God, and hearing sacramental confessions, and from every office of teaching, without prejudice to other penalties which the sentence of condemnation of the doctrine may have perhaps decreed…” And again from Can. 1324: “For it is not sufficient to avoid heretical error, but one must also diligently shun any errors which more or less approach heresy.”

The Vatican Council anathematized anyone who would question that the Roman Pontiff possesses “the full and supreme power of jurisdiction over the universal Church, not only in things which pertain to the discipline and government of the Church spread over the whole world, but…over the churches altogether and individually, and over the pastors and the faithful altogether and individually,” (DZ 1831). Canon 1812 tells us that acts issuing from the Roman Pontiff and the Roman Curia during the exercise of their office and entered as proof in ecclesiastical courts “prove the facts asserted,” (Can. 1816), and force the judge to pronounce in favor of the party producing the document, (commentary by Revs. Woywod-Smith). “Proof to the contrary is not admitted against Letters of the Roman Pontiff bearing his signature,” (Rev. Amleto Cicognani’s, “Canon Law, 1935; ibid. p. 626, ft. note). Documents entered into the Acta Apostolic Sedis do not need to be submitted in the original or be an authenticated copy, (Can. 1819). So the citation of the documents of the Roman Pontiffs themselves, without any qualification by anyone, but taken exactly as they appear, cannot be questioned. Why then have those claiming to be lawful pastors, but who instead have no right to rule us, ignored and misconstrued these documents?

By allowing those who have no authority to usurp papal authority and dictate terms we deny that it is the Roman Pontiff alone who possesses the fullness of jurisdiction; he alone is to be obeyed and followed above any so-called clerics, especially during an interregnum. For it is precisely during these dangerous times that the sheep and lambs are most likely to be attacked by the wolf pack. For this reason, when faced with the defection of clergy in France during the time of the introduction there of the Civil Constitution requiring clergy to swear allegiance to the civil authorities over the pope, Pope Pius VI told the faithful: “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,” (“Charitas”).

This is true whether we presently have a pope or not. Their teachings bind in perpetuity because they are the voice of Christ teaching His Church on earth. No one may gainsay what they teach, whether such teaching is infallible or not. You say you are sure that your illicit priests can convince us that we are wrong. I tell you that no one shall ever separate us from the love of Christ and obedience to His Vicars. The teachings of the continual Magisterium as presented here — of the Canon Laws whose primary authors are the popes — cannot be refuted, according to the Church Herself. And Christ in Heaven binds what is bound by His Vicars on earth.

It is in the spirit of the Prophet Elias then (3 Kgs. 18:37), that we present these proofs. For he entreated the Lord from the summit of Mt. Carmel as follows: “Hear oh Lord, hear me, that Thy people may learn that Thou art the Lord, God.” Amen.

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Jurisdiction, Lawful Pastors and Communicatio in Sacris

© 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. All emphasis added unless otherwise noted.)

Introduction

Some of you have asked for proofs that Traditionalist priests, ordained by Pius XII bishops after his death are unable to celebrate Mass and administer the sacraments. The answers to these questions have already been presented, but perhaps they should be gathered together in one place to speak to this specific point. Because once the answers are understood, it will become clear why — if even those validly ordained by bishops who accepted John 23 as a true pope are forbidden to function — Traditional priests and bishops proper have no hope of validly functioning at all. And once these proofs have been demonstrated, it should be better understood why Traditional “Catholicism” is really just another non-Catholic sect.

From the 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:

Q. 60: Who after the pope are lawful pastors of the Church?

A. The bishops who have been canonically instituted, i.e., who have received from the Sovereign Pontiff a diocese to govern.

Q. 73: Why is it not sufficient to be a bishop or priest in order to be a lawful pastor?

A. 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, (emph. McVey’s).

Q. 77: How is the power of jurisdiction communicated?

A. 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 have his spiritual powers from the Pope, a pastor who did not have his from the lawful bishop, would be AN INTRUDER OR SCHISMATIC,” (emph. McVey’s). So not only are Traditionalist “priests” and “bishops” illicitly ordained and consecrated, without a true pope they possess NO jurisdiction whatsoever.

For those who may have questions about this answer, please see the Catholic Encyclopedia article on the Church, which states in part: “Apostolicity of mission consists in the power of holy orders and the power of jurisdiction derived by legitimate transmission from the Apostles. Any religious organization whose ministers do not possess these two powers is not accredited to preach the Gospel of Christ. For ‘How can they preach,’ asks the Apostle, ‘unless they be sent?’ (Rom. 10:15).” “A Christian society whose bishops go back to the apostles only through the power of order, and not also through the power of jurisdiction, cannot claim to be apostolic, and consequently cannot be the Church of Christ,” Revs. Devivier and Sasia, “Christian Apologetics, Vol. II), wrote in 1924. Canon Law states: “Besides the power of orders, the ministers, to absolve sins validly, must have either ordinary or delegated power of jurisdiction over the penitent,” (Can. 872). 7. Fathers Callan and McHugh in their “A Parochial Course in Doctrinal Instruction,” Vol. 2, p. 305, et seq., make the following statements:

“II. The minister of the Sacrament of Penance must not only be a priest validly ordained, but he must also be duly authorized. 1. The priest in ordination receives the power of forgiving sins, but he cannot exercise that power, unless duly authorized by proper ecclesiastical authority. Just as a judge cannot pronounce sentence of cases outside his own district, so the priest cannot forgive sins, except within the limits of his jurisdiction. That this authorization is necessary for a priest to forgive sins is evident from the practice of the Church from the very beginning.”

Rev. Ignatius Szal states in his “Communication of Catholics with Schismatics,” (Catholic Univ. Of America dissertation, 1948): “The reception of holy Orders from the hands of schismatic bishops has practically always been forbidden by the Church. Rarely has the Holy See ever considered it necessary to receive orders from a schismatic bishop. The prohibition to receive holy Orders at the hands of a schismatic bishop is contained in the general prohibition against active religious communication as expressed in Can. 1258§1[canon on communicatio in sacris].” Also from Rev. Szal: “On August 7, 1704, The Holy Office also stated that, “The decree which prohibited Catholics from being present at the Masses and prayers of schismatics applied also in those places where there were no Catholic priests and with reference to such prayers as contained nothing contrary to faith and the Catholic rite…On May 15, 1709, the Holy Office forbade Catholics to hear the confession of schismatics or to confess to them…Under no circumstances, not even in the case of necessity, according to a response of the Sacred Congregation for the Propagation of the Faith on Feb. 17, 1761, was it permissible for a Catholic to confess his sins to a schismatic priest in order to obtain absolution from him…” On two other occasions, May 10, 1753, and April 17, 1758, the Holy See again forbade Catholics to participate in the masses of schismatics. In 1769, certain priests “were called to task for joining in the celebration of Mass with schismatics. The ignorance was inexcusable, and the act was a sacrilege which violated the true faith.”

St. Robert Bellarmine cites the unanimous teaching of the Fathers in his work “de Romano Pontifice,” where he states: “Heretics [and below we will see that these “clerics’ are both heretics and schismatics] who return to the Church must be received as laymen, even though they have been formerly priests or bishops in the Church. St. Optatus (lib. 1 cont. Parmen.).” This also is the teaching of Pope Paul the IV in his Cum ex Apostolatus Officio,” (see below).

Canon Law expresses the same concept

This is based on Can. 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. And only a canonically appointed bishop who has received jurisdiction from such 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 us. And those who may have obtained an office from Pope Pius XII or a bishop in communion with him retains that office only if he denounces the Novus Ordo church, also any Traditionalist sects; otherwise he is guilty of schism under Can. 2314, as explained below. Bishops validly consecrated and appointed by Pope Pius XII, but who later signed V2 documents and remained in communion with the Novus Ordo, have been verified as providing Trad “priests” with jurisdiction, even though such men are/were officially aligned with and loyal members of the Novus Ordo church until their retirement or death! And these men have then been advertised as the last true priests on earth. Yet the minute such men accepted the V2 popes and signed V2 documents, they tacitly resigned for lapsing from the Catholic faith, (Can. 188 §4). Under Pope Paul IV’s bull Cum ex Apostolatus Officio, still in effect whenever there is a doubt about a bishop retaining office, they lose all said offices and cannot regain them.

Can. 147, which according to the Sacred Congregation and Pope Pius XII is 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 someone 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 Henry 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 Can. 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 especially 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.

If we examine the sources of this law in the footnotes to Can. 147 (Latin Code), we see that it is based on Pope Pius VI’s “Charitas” below, the condemnation of those bishops and priests who swore allegiance to the civil constitution in France following the French Revolution. Also  listed as a source for this canon is Pope Pius IX’s encyclical “Etsi Multa.”

“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…

“24. 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…” (And here we see the second time the popes refuse to allow these men to act on the pretext of “necessity.”)

“32. 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.”

And from Etsi Multa: ““Therefore following the custom and example of Our Predecessors and of holy legislation, by the power granted to Us from heaven, We declare the election of the said Joseph Humbert Reinkens [an Old Catholic], performed against the sanctions of the holy canons to be illicit, null, and void. We furthermore declare his consecration sacrilegious. Therefore, by the authority of Almighty God, We excommunicate and hold as anathema Joseph Humbert himself and all those who attempted to choose him, and who aided in his sacrilegious consecration. We additionally excommunicate whoever has adhered to them and belonging to their party has furnished help, favor, aid, or consent. We declare, proclaim, and command that they are separated from the communion of the Church. They are to be considered among those with whom all faithful Christians are forbidden by the Apostle to associate and have social exchange to such an extent that, as he plainly states, they may not even be greeted,” (Etsi Multa, On The Church In Italy, Germany, and Switzerland, Nov. 21, 1873).

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.

Attention is to be paid especially to the following part of the quote from Etsi Multa above: But as even the rudiments of Catholic faith declare, no one can be considered a bishop who is not linked in communion of faith and love with Peter, upon whom is built the Church of Christ…Therefore following the custom and example of Our Predecessors and of holy legislation, by the power granted to Us from heaven, We declare the election of the said Joseph Humbert Reinkens, performed against the sanctions of the holy canons to be illicit, null, and void. We furthermore declare his consecration sacrilegious.

Consider these words carefully. While Reinkins was validly consecrated, his ELECTION (or in other cases it could be illegal appointment, acceptance or intrusion into office) is nullified, not his ORDERS. He is not, and cannot hold the office of bishop, because he is not in union with the pope and was elected and placed in office by heretics and/or schismatics. (The Utrecht Jansenists were considered valid for a time, although this validity later was questioned by some theologians in the 20^th century.) Even though validly consecrated, Reinkins is not considered a bishop because he never received the office and accompanying jurisdiction from Rome. The Holy See never approved his consecration and so he remained an apostate Old Catholic priest. And no priest could ever validly ordain another man priest.

Charitas, Etsi Multa and Pope Pius XII’s decision on Can. 147 all 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 and 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. And 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? That they can so determine what is heresy or schism is proven by this proposition condemned by the Church: “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 at the specified times to celebrate services or he admits he has done so; 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 942, 953), I must certainly denounce and avoid such a man. Nor can he even hope to gain re-entrance to the Church unless he publicly renounces his errors, does penance and is then absolved and abjured (also dispensed) by the Holy See.

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 Traditional writings and oral teaching cannot and do not possess. If these Trad 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 “2” and that Canon Law even made special allowances for their studies?

Heresy, schism 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, e.g., 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 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 Traditionalist clergy may function is heretical. MacKenzie carefully lays out and examines all the arguments for the exercise of Can. 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 Traditionalists seem to assume is not subject to censure. This MacKenzie disputes, following the practice of the canonists.

Material heretics still incur the 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, (Can. 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). It is difficult to see how such heresy could be material in the case of those priests validly yet illicitly ordained by schismatic bishops, when they went from the Novus Ordo church to yet other schismatic Traditional sects, once again committing  communcatio in sacris.

As Rev. 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 Can. 2314] for, according to Can. 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, quoted by Revs. McHugh and Callan, teaches: “’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 Can. 2200 contains a presumption of law.

Ignorance no real excuse for clerics

While many are anxious to see these Traditionalist “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.” In his dissertation, “Ignorance in Relation to the Imputability of Delicts,” (Cath. Univ. of America, 1948), Rev. Innocent Swoboda, O.F.M., J.C.L. defines crass and supine ignorance as: “A complete lack of diligence when it is known that the truth could be easily discovered…A complete and total failure to use any effort to fulfill the obligation of knowing the law or the pertinent facts surounding the law. The failure itself may arise from mere sloth or from a sinful heart or from a sinful habit of acting without due consideration of the results of one’s conduct…only the ignorance of those things which can be easily learned can be considered crass or supine.”And if the faithful could recognize that the Vatican 2 church was false and abandon it, then what possible excuse could those far better educated in the faith offer?

And finally, in their commentary on Canon Law, under Can. 2242, Revs. Woywod-Smith observe: “Contumacy of the offender is implied in the deliberate violation of a law to which a censure latae sententiae is attached, and therefore the censure is incurred immediately with the breaking of the law. The violation is considered to be deliberate where disqualifying and invalidating laws are concerned, such as a lack of jurisdiction which invalidates the Sacrament of Penance.”

Communicatio in sacris differs from simple heresy

First of all, MacKenzie explains, 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,” MacKenzie continues, “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 no there is further official action by the Church.” Attwater’s Catholic Dictionary” defines infamy as “A stigma attached in canon law to the character of a person…” Juridical infamy or infamy of law is a special punitive penance or vindicative penalty attached to certain grave offenses. It includes “repulsion from any ministry in sacred functions and disqualification for legitimate ecclesiastical acts.” (Under Can. 2294, Revs. Woywod-Smith qualify these acts as invalid.) Also, under Can. 188 §4, one who has engaged in non-Catholic worship “no longer has any rights or powers deriving from [an ecclesiastical] position,” (Ibid).

Concerning the exception made by Can. 2261 §2 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, MacKenzie explains that to make use of Can. 2261 §2 requires that “the power of jurisdiction [be] already possessed.”

Doubts concerning application of censures and Can. 2261 §2 

Rev. MacKenzie explains in his work that occult heretics and those not yet sentenced by a judge for publicly manifested heretical or schismatic acts may minister to the faithful when requested, but only briefly addresses the case of an individual who has publicly joined a non-Catholic sect. He seems to be concerned mainly with those who have incurred only delicts of simple heresy, for he states in one place that those committing simple heresy are allowed to invoke Can. 2261, calling them toleratus, but excluding those joining a non-Catholic sect from the status of toleratus. This can only be laid at the door of the vindicative penalty they incur in addition to the simple delict of heresy, which is infamy of law. While some invoke Pope Martin V’s “Ad Evitranda Scandala” to prove that heretics and schismatics may be resorted to in these times, there are several difficulties involved with this. One, no pope envisioned a long-term and widespread reliance on such men for the Mass and Sacraments, but rather a limited use of them, only when necessary. It is frightening to think that many of these men have belonged to several non-Catholic sects and in any other time, would long ago have been sentenced as vitandus and degraded. Those who are “repeat” offenders are especially dangerous to the faith of others. Also, no one would ever have foreseen the long vacancy of the Holy See that we have seen nor imagined that anyone would actually rely on the pretended status of schismatic bishops to justify such a usage. Below we examine “Ad Evitanda Scandala” and hear from St. Robert Bellarmine, who has something interesting to say about schismatic bishops.

“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 not long afterwards, 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, (https://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.)

In doubts of how we are to proceed today in these matters, Canon Law says in Can. 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 Can. 2261 §2, we have a doubt whether Can. 2261 §2 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 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. But on the basis of the doubts about the long-term use of Can. 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 Can. 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.” It must al;so be remembered that Cum ex Apostolatus Officio was confirmed by Pope St. Pius V in his motu proprio, Intermultiplices.

Conclusion

There are several different things preventing those priests ordained validly but illicitly by Novus Ordo bishops from validly and licitly conveying the sacraments and offering the Holy Sacrifice of the Mass.

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. It completely wipes out any Traditionalist bishops and the priests they pretend to create, so that not only were they never bishops, but could never validly ordain or consecrate other priests/bishops. In summary:

1. Such priests never received jurisdiction, since as Charitas states they could never validly obtain it from schismatic bishops, far less from schsimatics consecrated by schismatic bishops; these “bishops” remain priests and priests cannot ordain other priests!  Rev. Francis Miiaskiewicz, in his dissertation on this canon, is insistent that where Can. 209 states 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 Apostolica Sedis,” where he teaches that during an interregnum the intended effects of all usurpation of papal jurisdiction is null and void.
2. The fact that they have never received and could never receive such jurisdiction prevents these men from invoking the application of Can. 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 Can. 6 §4 and Can. 147 above, making it “in harmony with the sacred canons,” (Can. 147).  This law (see above) forbids any rehabilitation of heretics and schismatics for any purposes.
3. Those clerics appointed or procured by lay people or who come from “some other source” are judged both by Pope Pius IX and Pope Pius XII to be vitandus. Vitandus cannot provide the sacraments on request for lay people even though no other minister is available (Can. 2261 §3) because they still must rely on supplied jurisdiction which can be provided only by a reigning pontiff. In his Vacantis Apostolica Sedis, Pope Pius XII infallibly nullifies any attempts to usurp papal jurisdiction during an interregnum.

Let us apply all this to certain bishops appointed to their episcopal sees by Pope Pius XII. Trad lay leaders claim these bishops, even though officially affiliated with the Novus Ordo, can absolve their priests and grant them valid jurisdiction. Canon 430 discusses the “privation” of an episcopal see owing to excommunication. This the canonist, Rev. Charles Augustine defines as the “canonical” death of a bishop. This would be considered a “tacit resignation,” incurred by the fact itself, or ipso facto, for heresy or schism, as Canon 188 §4 (footnoted by Pope Paul IV’s “Cum ex…”) states. Such resignation would be effective immediately and would require no acceptance, only evidence of the facts in the case. And it would occur the instant that  a validly ordained and consecrated bishop joined the Novus Ordo anti-church, and/or signed V2 documents; this was the above mentioned “simple act of heresy” to which must be automatically added infamy of law, according to MacKenzie. Pope Paul IV states that bishops who are schismatic lose all power and authority, become infamous, and infamy of law strips them of jurisdiction. Infamy of law is both a vindicative penalty and an impediment to Orders barring the excommunicate from the exercise of valid, legal acts issuing from the clerical state, (or rights or privileges enjoyed by the laity). Heresy and infamy are two separate things. Infamy requires a dispensation and Can. 2295 states: “Infamy of law ceases only on dispensation granted by the Apostolic See.”

Revs. Woywod-Smith comment: “The person who has incurred…an infamy of law…cannot validly obtain ecclesiastical benefices, pensions, offices and dignities, nor can he validly exercise the rights connected with the same, nor perform a valid, legal ecclesiastical act.” Canon 2236 states that the dispensation of a vindicative penalty  (infamy of law) “may be granted only by him who has inflicted the penalty or by his competent superior or successor. In this case the original penalty was inflicted by Pope Paul IV in “Cum ex…” and currently there is no canonically elected papal successor able to lift it. Can. 2237 no. 2 forbids the Ordinary to remit censures (for simple heresy) reserved in a special manner to the Apostolic See (heresy, schism) and Can. 2237 no. 3 forbids the Ordinary to dispense from the vindicative penalty for infamy of law, which invalidates the offender’s acts. Again, these are two separate things. If the case is public, and it is, a special indult from the Holy See is required for the Ordinary to be able to lift the censure. But he cannot dispense from infamy of law. Any indult granted to bishops by Pope Pius XII was lost when they committed heresy and schism, and in any case, it would only lift the censure; infamy of law would remain. The entire case is moot in any event since these priests did not possess jurisdiction, having never received it under bishops who lost it, and could not convey it, and by accepting John 23 and participating in the false Vatican “2” council, (see the papal decree, “Execrabilis”). In fact, according to Pope Pius VI, such men never even became priests. The Pope is the one in charge here, not lay Traditionalists and their pretend priests. To make such a decision on one’s own is to interfere with the rights of the Apostolic See.

Any clerics who have publicly celebrated the N. O. “mass” or who have joined Traditional 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,” (emph. his). Public adherence to a non-Catholic sect is all that is required under Can. 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 temporarily interrupted because none of the Catholic cardinals or bishops separated themselves to elect a true pope to continue his line. Siri was incapable of doing this, being excommunicated for communicatio in sacris himself, incurring all the same penalties listed above.  If those currently functioning as “clerics” within the Traditionalist organization 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 Can. 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 Can. 1935, so also should those be denounced and ordered to cease and desist from these services wherever they may exist. In saying their mass prayers at home, stay-at-home Catholics are observing the censure they believe they have incurred for attending Novus Ordo and Traditionalist 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 set  ALL of us free, if we just recognize it for what it is.

 + + +

Ven. Bartholomew Holzhauser, 17th Century

“During this period, many men will abuse the freedom of conscience conceded to them. It is of such men that Jude the Apostle spoke when he said, ‘These men blaspheme whatever they do not understand; and they corrupt whatever they know naturally as irrational animals do… They feast together without restraint, feeding themselves, grumbling murmurers, walking according to their lusts; their mouth speaketh proud things, they admire people for the sake of gain; they bring about division, sensual men, having not the spirit.’”

“During this unhappy period, there will be laxity in divine and human precepts. Discipline will suffer. The Holy Canons will be completely disregarded, and the Clergy will not respect the laws of the Church.Everyone will be carried away and led to believe and to do what he fancies, according to the manner of the flesh…”

“They will ridicule Christian simplicity; they will call it folly and. nonsense, but they will have the highest regard for advanced knowledge, and for the skill by which the axioms of the law, the precepts of morality, the Holy Canons and religious dogmas are clouded by senseless questions and elaborate arguments. As a result, no principle at. all, however holy, authentic, ancient, and certain it may be, will remain free of censure, criticism, false interpretation, modification, and delimitation by man…”

 “When everything has been ruined by war; when Catholics are hard pressed by traitorous co-religionists and heretics, then the Hand of Almighty God will work a marvellous change, something apparently impossible according to human understanding…”

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

by T. Stanfill Benns | Sep 9, 2012

“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’.)

Introduction

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, (https://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 tolerati…Vitandi 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?

Conclusion

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.