The Loss of Ecclesiastical Offices – Part I: Is Holy Church Unprotected?32-min read (inc. footnotes)

The Loss of Ecclesiastical Offices

Part I: Is Holy Church Unprotected? Theology and Law on Automatic Loss of Office
Part II: Objections and Answers

This is republication of a 1999 essay by John Lane, edited and expanded with permission by S.D. Wright

Image: Nestorius, who St Robert Bellarmine, St Celestine, St Nicholas and Cardinal Billot say lost his power to depose and excommunicate when he began preaching heresy. Wiki Commons.

This is the first part of an essay by Mr John Lane, edited and expanded by S.D. Wright. It concerns the nature of law, offices and jurisdiction, and explains how it is that a man’s office and jurisdiction can, under certain conditions, be lost automatically by his loss of membership in the Church and public disappearance into heresy, schism or apostasy.


1. Many Catholics are well aware that those who purport to be their bishops are blatant heretics. And their Catholic sense informs them that they ought not to subject themselves to heretics.

Unfortunately, however, many apparently learned writers have argued that in such a situation, the culprits retain their offices and status until higher authority intervenes. These writers may regret this, but they say that Canon Law settles the matter and leaves Catholics with no protection against the disaster of heretics in the hierarchy – no protection except the appeal to higher authority, which today is mute.

They tell us that under Canon 2264 the acts of excommunicated clerics are valid unless there has been a declaratory sentence against them.[1] They quote Canon 2314 to the effect that those who defect from the Faith are to be deposed (and are therefore not already deposed as an automatic effect of their defection). 

Thus Canon Law is invoked to argue that even though our local “Catholic” bishop is evidently a raving Modernist, he still retains his authority until deposed by Rome – which, being equally infected by Modernism, has obviously no intention of deposing him. So despite his heresies, he remains our bishop, whether we like it or not. 

The usefulness of these claims for Satan’s plan is impossible to overestimate.

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This paper will explore the question by examining the actual canons, in the light of approved commentaries, along with some of the theology behind them. We have used Dr Edward Peters’ edition of the 1917 Code of Canon Law for all translations of canons.[2] (Paid link)

We will discuss the following concepts and more: 

  • Law
  • Offices
  • Jurisdiction
  • Censures
  • Internal and external fora
  • Membership of Holy Church
  • Legal presumptions
  • Tacit resignation

Law

2. Before turning to the canons, perhaps it will be useful to review some background theology, concerning the nature of law itself. St. Thomas Aquinas gives the classic definition

“[Law is] an ordinance of reason for the common good, made by him who has care of the community, and promulgated.”[3] 

This definition reveals, as St. Thomas explicitly states, that an ordinance which is contrary to reason, or to the common good, or not made by one who has authority, or not promulgated, is no law at all. This truth underlies several key principles affecting the interpretation and application of law. One of these is the principle of epikeia, which is “an interpretation exempting one from the law contrary to the clear words of the law and in accordance with the mind of the legislator.”[4] This follows from St Thomas’s principle that law must promote the common good. A law that, owing to changed or unforeseen circumstances, clearly injures the common good when applied literally, is no law at all in those circumstances.

3. Likewise, St Thomas states that “laws” which are contrary to reason are not laws at all, but 

“are acts of violence rather than laws; because, as Augustine says, ‘a law that is not just, seems to be no law at all.'”[5]

For this reason purported laws which contradict divine law are null and void – they contradict “divine reason”. St. Thomas teaches: 

“[L]aws may be unjust through being opposed to the Divine good: such are the laws of tyrants inducing to idolatry, or to anything else contrary to the Divine law: and laws of this kind must nowise be observed, because, as stated in Acts 5:29, ‘we ought to obey God rather than men.'”[6]

Divine Law

4. Divine law provides the foundations for the law of the Church. Cardinal Ottaviani cites Cardinal Billot’s comparison between the constitutional law of the Church and of the state: 

“If in the Church there is from God not only power in general, but also a form and constitution of rule in detail, it follows finally that no place remains there for those changes, so many and so great, which elsewhere take place according to the variations of times, events, or whatever human circumstances. But because the Church herself is intended by Christ to endure to the end, she will also infallibly retain to the end the same constitution and hierarchy which she received from her founder.[7] (Emphasis added).

Cardinal Billot, quoted by Cardinal Ottaviani

Ottaviani points out that, for this reason, the larger part of canon law is unchangeable: 

“[P]ublic law precedes private law in order and in excellence; the more so, that the former is for the most part divine, while the latter was, in greater part, established by human authority. Consequently, public law is, in its chief part, immutable, constant, lasting to the end of the world, because the Church will stand until that time, in the form in which she was founded by Christ…”[8] (Emphasis added). 

Cardinal Ottaviani

Since our specific area of study relates to the offices of the Church, this testimony is particularly valuable, showing as it does that the nature and constitution of Holy Church are matters of divine law.

Continuing with Cardinal Ottaviani: 

“Jesus Christ, the divine founder of the Church, could indeed have left many things to the decision of men in regard to the social organisation of the Church: nevertheless, in fact He did not so leave them, but He Himself willed to establish all things which regard the fundamental constitution and organisation of the Church in so far as it is a perfect society. Consequently the principal part of the public law is divine, containing the immutable and permanent laws concerning the nature of the church, her authority and teaching office… 

“Examples of divine public law are: the statutes by which the Church is granted full and independent legislative, judicial, and coercive power in affairs which in any manner pertain to her end; also, the statutes which pertain to the primacy of jurisdiction of the Roman Pontiff over the whole Church, and the constitution of the sacred hierarchy; similarly, those by which the Church is granted the faculty, free and independent from any power, of acquiring, keeping and administering temporal goods in order to achieve ends proper to herself. 

“Examples of human public law are: norms relative to the institution and rights of patriarchal sees; certain rights contained in concordats; certain norms concerning the government of the Church during the vacancy of the Apostolic See and the election of the Roman Pontiff.”[9] (Some emphasis added).

Cardinal Ottaviani

5. From this it follows that those laws which pertain directly to the constitution of Holy Church are in fact part of divine law, and immutable by nature. Now, the offices of pope and bishop are essential to the nature of Holy Church. They pertain to the government of Holy Church as a perfect and visible society, as explained by Cardinal Ottaviani, and hence there are certain requirements for their valid possession which are matters of divine law.

For example, it is absolutely necessary that one be a Catholic (i.e. a member of the Church) to possess validly such an office. And the conditions which must be fulfilled for membership of Holy Church are likewise matters of divine law. Nobody – not a bishop, a cardinal, nor even a pope – could change the conditions upon which membership of the Church depends. Our Lord Jesus Christ has laid down what is necessary: baptism, outward profession of the true faith, subjection to the pope. It is also necessary that one not be excommunicated as a vitandus (i.e. “to be avoided”).[10] If a person meets these conditions, then he is a member; if he does not meet any one of these conditions, then he is not a member.

Offices and Jurisdiction

6. An office is a position in Holy Church to which the power of orders or jurisdiction are attached.[11] It is defined thus:

Canon 145 

“§ 1. Ecclesiastical office in the wide sense is any responsibility exercised legitimately for a spiritual end; in the strict sense, however, it is a divinely or ecclesiastically ordered responsibility, constituted in a stable manner, conferred according to the norms of the sacred canons, entailing at least some participation in ecclesiastical power, whether of orders or of jurisdiction. 

“§ 2. In law, ecclesiastical office is taken in the strict sense, unless it appears otherwise from the context of the words.”

In the case of ordinaries – residential bishops and certain others[12] – the power stably attached to the office is ordinary jurisdiction:

Canon 197 

“§ 1. Ordinary power of jurisdiction is that which is attached to an office by law; delegated [power is that which] is committed to a person.”

Jurisdiction etymologically is the power or authority to judge. The Code states: 

Canon 196

“The power of jurisdiction (or government) which is in the Church by divine institution, is divided into that of the external forum and that of the internal forum, or the forum of conscience; the latter is either sacramental or extra-sacramental.”

A residential bishop’s role with respect to the laity is primarily focused on making general laws and punishing infractions of those laws and the universal laws of Holy Church.

In their Canon Law, Text and Commentary, Bouscaren and Ellis comment: 

Jurisdiction is the power to govern the faithful for the supernatural end for which the Church was established by Christ. This power is in the Church by divine institution, because Christ with divine authority placed it there (cf. c.108.). Its chief classifications are: 

“(1) jurisdiction in the internal and external fora (c.196);

“(2) ordinary and delegated jurisdiction (c.197);

“(3) judicial and voluntary jurisdiction (c.201).

Forum means in general a place for the transaction of official business, judicial or administrative. In the present connection it designates rather a field or province of action than a physical place.

“1. The external forum is the forum of the Church’s external government. Jurisdiction in the external forum: (a) concerns actions whereby the faithful are innocent or guilty in the eyes of the Church as members of the Church; and (b) it is exercised publicly, and has juridical effects.

“2. The internal forum is the forum of conscience. Jurisdiction in the internal forum: (a) concerns actions whereby the faithful are innocent or guilty before God; and (b) it is exercised privately, and has no juridical effects, unless these are specially provided for.”[13] (Some emphasis added).

Bouscaren & Ellis – Canon Law, a Text and Commentary, available at Internet Archive.

Note that crime is a juridical concept. A crime is essentially a wrongdoing in relation to the public order, and as such it is judged in the external forum. The key point to grasp is that internal heresy is a sin but not a crime – and therefore it has no juridical effects. Public heresy, though, always has juridical effects for the obvious reason that it is a crime – and in a sense, we can consider it apart from its actual sinfulness. The crime of heresy is defined as the refusal of a person to profess the true faith outwardly. (This will be further explained below.)

Holy Orders and Jurisdiction

7. It should be understood that Holy Orders and jurisdiction are two entirely distinct powers. The former inheres immovably in those ordained to perform sacred functions for the faithful, while the latter is removable either by operation of law, or by the act of a superior. St. Thomas asks the question, “Whether schismatics have any power?” and his answer is as follows: 

On the contrary, Cyprian says in a letter: ‘He who observes neither unity of spirit nor the concord of peace, and severs himself from the bonds of the Church, and from the fellowship of her priests, cannot have episcopal power or honour.’

I answer that, Spiritual power is twofold, the one sacramental, the other a power of jurisdiction. The sacramental power is one that is conferred by some kind of consecration. Now all the consecrations of the Church are immovable so long as the consecrated thing remains: as appears even in inanimate things, since an altar, once consecrated, is not consecrated again unless it has been broken up. Consequently such a power as this remains, as to its essence, in the man who has received it by consecration, as long as he lives, even if he fall into schism or heresy: and this is proved from the fact that if he come back to the Church, he is not consecrated anew. 

“Since, however, the lower power ought not to exercise its act, except in so far as it is moved by the higher power, as may be seen also in the physical order, it follows that such persons [schismatics] lose the use of their power, so that it is not lawful for them to use it. Yet if they use it, this power has its effect in sacramental acts, because therein man acts only as God’s instrument, so that sacramental effects are not precluded on account of any fault whatever in the person who confers the sacrament.

“On the other hand, the power of jurisdiction is that which is conferred by a mere human appointment. Such a power as this does not adhere to the recipient immovably: so that it does not remain in heretics and schismatics; and consequently they neither absolve nor excommunicate, nor grant indulgence, nor do anything of the kind, and if they do, it is invalid.”[14] (Emphasis added).

St Thomas Aquinas

8. We see then the distinction between the two types of spiritual power enjoyed by those in Holy Church – orders and jurisdiction. We also see that orders once conferred are irremovable. Contrasted with this is the fact that non-Catholics are incapable of sustaining ordinary jurisdiction. 

Note that St. Thomas teaches that jurisdiction “does not remain” in heretics and schismatics. Likewise, as pointed out by the Angelic Doctor, St. Cyprian teaches that these non-Catholics “cannot have episcopal power.” For the same reasons, Pope Leo XIII teaches that:

“No one, therefore, unless in communion with Peter can share in his authority, since it is absurd to imagine that he who is outside can command in the Church.”[15]

Leo XIII, Encyclical Satis Cogntium

St. Robert Bellarmine, in his de Romano Pontifice, teaches the same thing: 

“[I]t is proven with arguments from authority and from reason that the manifest heretic is ipso facto deposed. The argument from authority is based on St. Paul, who orders that the heretic be avoided after two warnings, that is, after showing himself to be manifestly obstinate – which means before any excommunication or judicial sentence.

“And this is what St. Jerome writes, adding that the other sinners are excluded from the Church by sentence of excommunication, but the heretics exile themselves and separate themselves by their own act from the body of Christ.”[16] (Emphasis added).

St Robert Bellarmine

9. Supplied Jurisdiction

Louis Cardinal Billot makes the same points as above:

“[S]omeone outside the body of the Church is made incapable by that very fact of any ordinary jurisdiction, such as that of a bishop. The reason is that he who has ordinary jurisdiction, even episcopal jurisdiction, has the dignity of the head, and no one can be the head even of a particular church, if he is not a member of the Church. For what was ever a head which was not a member? For even though not every member is a head, nevertheless every head is a member.”[17]

Cardinal Billot

However, the footnote he adds clarifies his own words and those of these other authorities:

“Note how I said deliberately, ‘all ordinary jurisdiction’; for the same does not apply to extraordinary jurisdiction or that which is merely delegated in a case of necessity, as is obvious to anyone who thinks about it.”[18]

Cardinal Billot

It is true that in certain cases jurisdiction can be validly exercised by non-Catholics, but in these cases the jurisdiction is not their own habitual jurisdiction, but rather it is “supplied” for each particular acts by Holy Church. An example would be if a Catholic in danger of death were to approach a schismatic for the sacrament of Penance. Jurisdiction would be granted for that act, and only for that act, so that the sacrament would be valid. Habitual jurisdiction, which is by definition habitual, does not momentarily come back and then go again. The act is invalid by virtue of the lack of that habitual jurisdiction, which is why it must be validated by jurisdiction supplied separately by the Church, in accordance with law.

St Thomas and others do not mention that they are talking specifically about a lack of habitual jurisdiction, although they were certainly aware of the relevant principles. This is because they didn’t need to mention it. As Billot said above, it “is obvious to anyone who thinks about it.”

Heresy and Membership

10. St Thomas and St Robert state that a heretic separates himself from the Church by the nature of his act. Pope Pius XII confirms this doctrine in his encyclical Mystici Corporis Christi as follows: 

“For not every sin, however grave it may be, is such as of its own nature to sever a man from the Body of the Church, as does schism or heresy or apostasy.”[19]

He further illustrates the distinction between excommunication as a penalty, and automatic exclusion from the Church by (NB: by, not for) crimes against faith and charity, when he teaches, 

“Actually only those are to be included as members of the Church who have been baptised and profess the true faith, and who have not been so unfortunate as to separate themselves from the unity of the Body, or been excluded by legitimate authority for grave faults committed.”[20] (Emphasis added).

Pius XII, Encyclical Mystici Corporis Christi

11. The foundation of this teaching lies in the very nature of Holy Church herself, as a perfect and visible society composed of those who have been baptised, who profess the true faith outwardly, and are subject to the Roman Pontiff. Pope Leo XIII in Satis Cognitum, which is chiefly about the unity of Holy Church, explains: 

“Agreement and union of minds is the necessary foundation of this perfect concord amongst men, from which concurrence of wills and similarity of action are the natural results. Wherefore, in His divine wisdom, He ordained in His Church Unity of Faith; a virtue which is the first of those bonds which unite man to God, and whence we receive the name of the faithful – ‘one Lord, one faith, one baptism’. That is, as there is one Lord and one baptism, so should all Christians, without exception, have but one faith.”[21]

Leo XIII

Earlier in the same encyclical the Holy Father has laid down the following on the nature of the Church as a visible unity of faith

“If we consider the chief end of His Church and the proximate efficient causes of salvation, it is undoubtedly spiritual; but in regard to those who constitute it, and to the things which lead to these spiritual gifts, it is external and necessarily visible. The Apostles received a mission to teach by visible and audible signs, and they discharged their mission only by words and acts which certainly appealed to the senses. So that their voices falling upon the ears of those who heard them begot faith in souls – ‘Faith cometh by hearing, and hearing by the words of Christ’.

“And faith itself – that is assent given to the first and supreme truth – though residing essentially in the intellect, must be manifested by outward profession – ‘For with the heart we believe unto justice, but with the mouth confession is made unto salvation’.”[22] (Emphasis added).

Leo XIII

12. Note that here we are defining Holy Church. It is “the body of the faithful”, to put the matter in its simplest form. Within this definition, of course, there is more detail – but the fundamental fact remains that Holy Church is that group of men who profess the true faith. Those who do not, are outside. 

This is why we have the phrase attributed to St. Athanasius during the depths of the Arian crisis, “Even if Catholics faithful to tradition are reduced to a handful, they are the ones who are the true Church of Jesus Christ.”

Likewise, Pope Leo XIII teaches, quoting St Augustine: 

“The practice of the Church has always been the same, as is shown by the unanimous teaching of the Fathers, who were wont to hold as outside Catholic communion, and alien to the Church, whoever would recede in the least degree from any point of doctrine proposed by her authoritative Magisterium. Epiphanius, Augustine, Theodore, drew up a long list of the heresies of their times. St. Augustine notes that other heresies may spring up, to a single one of which, should any one give his assent, he is by the very fact cut off from Catholic unity:

‘[St Augustine writes:] ‘No one who merely disbelieves in all (these heresies) can for that reason regard himself as a Catholic or call himself one. For there may be or may arise some other heresies, which are not set out in this work of ours, and, if any one holds to one single one of these he is not a Catholic’.”[23] (Emphasis added).

Leo XIII

Can we recognise heresy?

The question arises as to how we are to know when somebody is really a heretic, and not just a Catholic who has erred. In other words, how is pertinacity judged? Note that pertinacity (i.e. “knowing” violation of the law, or the faith) is part of the definition of the crime, and cannot be presumed. For a crime of heresy, schism, or apostasy to be truly manifest there must be evidence of pertinacity in the external forum.

Sometimes Canon 2200 is incorrectly cited, as though it allowed the presumption of guilt in a case where there was no evidence of pertinacity.[24] Pertinacity is what makes heresy what it is, rather than a mere error. But while there must be evidence of pertinacity, we are not really considering heresy as a sin. We are considering whether someone is knowingly not taking the magisterium as the rule of faith. Judgments concerning who are the members of the Church are primarily concerned with a question of fact and law, not of sin.

Canonists treat of these questions from the perspective of law, and are therefore interested in whether it is possible that a putative malefactor could be ignorant in the matter at issue. Moralists, on the other hand, are directly concerned with what is sinful, which is a distinct (though related) question. Canonists also interest themselves in the question of sinfulness, but only in respect of juridical effects, which are obviously subsequent to the question of fact about whether a crime has been committed or not.

In legal terms, pertinacity is judged present when a man clearly knows the law, or the faith, yet violates it anyway. This is always sinful, of course, but to repeat, the sinfulness of the act is a distinct matter from its effect in law, and we are not considering it in this way.

Holy Church has explicitly recognised this distinction. Regarding penalties, Bouscaren and Ellis write: 

“Grave fear (not necessarily unjust and external) excuses from penalties latae sententiae even if the act was intrinsically wrong and gravely culpable, but not if it tends to the contempt of the faith or of ecclesiastical authority or to the public harm of souls.”[25]

What this demonstrates is that the sinfulness of an act is considered quite separately from the fact of the crime itself. They are distinct questions, with distinct consequences.

Interim Summary

14. To summarise, we have seen that:

  • The canons which deal with the nature and constitution of Holy Church are reflective of divine law; 
  • Offices are stable positions to which jurisdiction is attached; 
  • Jurisdiction is a removable power; 
  • Ordinary jurisdiction cannot be possessed validly by non-Catholics; 
  • Questions which have juridical effects, such as those relating to the loss of offices, are judged in the external forum (insofar as their juridical effects are concerned); 
  • All of the members of Holy Church outwardly profess the true faith; and
  • Pertinacity must be present and evident in the external forum for a judgement of heresy or schism to be formed.

Continues below.

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Loss of Office

15. We are now in a position to consider the canons. Canon 192.1, on how someone loses office, states: 

Canon 192

“§1. Privation of office is incurred either by law or by deed of the legitimate Superior.”

Note the clear alternatives: either by the law itself, or by a superior. Bouscaren and Ellis provide the following commentary:

“1. Deprivation is effected by operation of law: (a) in the cases of tacit resignation enumerated above under canon 188; (b) in certain cases where the law declares privation from office as a penalty: e.g., upon sentence of excommunication, in the case of a vitandus (c. 2266), etc. […]

“2. It may be done by an act of the lawful superior. This may be either penal or administrative. [Further explanation of these categories is then given].” (Emphasis added).[26]

Bouscaren & Ellis

From this we see that the “penal loss of office” is the result of the act of a superior, and the section of canon law concerning penalties further specifies how this is to be done.

16. But as should be clear by now, there are two ways by which a man can be excluded from Holy Church (and therefore lose any offices he may hold) – by authority or by his own act.

This fact of divine law is reflected, as we would expect, in canon law. The first of these ways (the process by which an incumbent is deprived of his office by authority) is dealt with in various parts of the Code, especially in the section on penalties, as we have seen.

The second way (automatic loss of office for faithlessness) is covered by Canon 188, in the section of the Code dealing, not with penalities, but rather ecclesiastical offices themselves. It states: 

Canon 188

“Any office becomes vacant upon the fact and without any declaration by tacit resignation recognized by the law itself if a cleric: […]

“§4. Publicly defects from the Catholic Faith. (Emphasis added).”

The canonist Charles Augustine introduces Canon 188 as follows: 

“Besides express or explicit resignation [which generally must be accepted by a superior], both the old and the new law admit also a TACIT RESIGNATION, which is brought about and signified by a fact, especially one upon which the law itself has decreed the loss of an ecclesiastical office.”[25] (Emphasis in the original). 

On Canon 188.4, Augustine comments: 

Defection from the Catholic faith, if public, deprives one of all ecclesiastical offices he may hold…”[26] (Emphasis in the original).

17. Canon 150 points us to a list of ways that can make an office vacant by law (“de jure“):

Canon 150 

“§ 1. The provision of an office that is not vacant by law according to the norm of Canon 183 § 1, is by that fact without force, nor does a subsequent vacancy revive [the attempted appointment].” 

What does Canon 183 say? It gives us this list:

Canon 183

§ 1. Ecclesiastical office is lost by resignation, privation, removal, transfer, or lapse of a predetermined time. 

Bouscaren & Ellis agree that “the ways in which an office becomes vacant de jure are enumerated in canon 183, section 1.”[28] After their discussion on the topic, they repeat “Canon 183 enumerates the various ways in which ecclesiastical offices may be lost: (1) by resignation (cc. 184-191) etc.”[29] (Emphasis added).

Thus all the parts are in place to show us when and how an office is automatically lost de facto and de jure, without a declaration. Here are the points in summary:

  1. Canon 150.1: “The provision of an office that is not vacant by law according to the norm of Canon 183 § 1, is by that fact without force, nor does a subsequent vacancy revive [it].”
  2. Bouscaren & Ellis: “The ways in which an office becomes vacant de jure are enumerated in canon 183.1.” Augustine says the same.
  3. Canon 183.1: “An ecclesiastical office is lost by resignation, privation, removal, transfer, and lapse of time.
  4. There are two kinds of resignations in the Code, explicit and tacit.
  5. Canon 188.4 recognises tacit resignation for 8 reasons – and one of them is public defection from the faith.
  6. Canon 188.4 also states that the office becomes vacant upon the fact of such a tacit resignation, and that this is “recognized by the law itself” and “without any declaration”.
  7. So, one who publicly defects from the Catholic Faith automatically loses his office, and the office is then vacant de jure and without a declaration.

In other words, such offices are “legally” vacant without the need for any intervening declaration.[31] A declaration may be useful for various reasons, but it will be merely declaratory, because the defection and loss of office have already happened; and not just de facto but also de jure. Such a person, by the nature of his actions in the external forum, loses office, not just “in God’s eyes”, but also for the Church. Thus the Canons.

These clear provisions of Canon Law are reflective of the divine law in this matter, which is that non-Catholics are incapable of possessing offices in the Catholic Church.

Historical examples

18. An historical example of automatic loss of office for the crime of heresy is the case of Nestorius, Patriarch of Constantinople. Nestorius denied the divine maternity of the Blessed Virgin and immediately many good Catholics cut off communion with him. He reacted by excommunicating some of them. St. Robert Bellarmine quotes Pope St. Celestine I as follows: 

“Pope St Celestine wrote: ‘It is evident that he [who has been excommunicated by Nestorius] has remained and remains in communion with us, and that we do not consider destituted [i.e. deprived of office, by judgment of Nestorius], anyone who has been excommunicated or deprived of his charge, either episcopal or clerical, by Bishop Nestorius or by the others who followed him, after they commenced preaching heresy. For he who had already shown himself as deserving to be excommunicated, could not excommunicate anyone by his sentence.’

‘”And in a letter to the clergy of Constantinople, Pope St. Celestine I says: ‘The authority of Our Apostolic See has determined that the bishop, cleric, or simple Christian who had been deposed or excommunicated by Nestorius or his followers, after the latter began to preach heresy shall not be considered deposed or excommunicated. For he who had defected from the faith with such preachings, cannot depose or remove anyone whatsoever.’

“St. Nicholas I repeats and confirms the same. Finally, St. Thomas also teaches that schismatics immediately lose all jurisdiction, and that anything they try to do on the basis of any jurisdiction will be null.”[32]

St Robert Bellarmine

St Robert’s language reflects the texts cited above. St Thomas says that jurisdiction “does not remain” in heretics and schismatics, and St Cyprian says that such non-Catholics “cannot have episcopal power”. But Bellarmine’s language also reflects what, in a section which also discusses Nestorius, Billot said was “obvious to anyone who thinks about it” – namely that it is the power of habitual jurisdiction that is lacking for a bishop outside the Church.[33] As such, Nestorius’s acts – as acts supposedly of his “habitual jurisdiction” – were indeed all invalid. But this does completely not prevent some of them, otherwise ordered towards the common good, being validated by supplied jurisdiction – as established above.

Some claim from things like this that Nestorius retained office – or they point to places we hear of him being treated in some ways as Patriarch, and later being deposed. We do not wish to suggest that St Robert, St Celestine, St Nicholas and St Thomas are guilty of such a crass contradiction as saying he immediately lost office and jurisdiction, and yet kept them until he was deposed. These four saints are clear: he had already lost his office and jurisdiction.

19. Many theologians, doctors and popes have affirmed the principle that the judgement of heresy – even for juridical purposes – only needs to be established in the external forum. This principle belongs not just to law, but also to theology. One colourful example could suffice as a witness to this idea: 

“There are two kinds of judgement, that of God and that of men. God judges the inner man; whereas man can only judge of the inner thoughts as they are reflected by outer actions, as is admitted in the third of these arguments. Now he who is a heretic in the judgement of God is truly and actually a heretic; for God judges no one as a heretic unless he has some wrong belief concerning the faith in his understanding. But when a man is a heretic in the judgement of men, he need not necessarily be actually a heretic; but because his deeds give an appearance of a wrong understanding of the faith he is, by legal presumption, considered to be a heretic.”[34] (Emphasis added).

Sprenger and Institoris, Malleus Maleficarum

20. We have at least one historical example of the application of these principles of divine and ecclesiastical law to a pope who was suspected of heresy – the case of Liberius. Pope Liberius was accused of signing an ambiguous semi-Arian formula designed to allow the Arians to be accepted as Catholics. The Roman Clergy apparently believed the allegation, repudiated his pontificate, and elected St. Felix in his place. St. Robert Bellarmine explains: 

“Then two years later came the lapse of Liberius, of which we have spoken above. Then indeed the Roman clergy, stripping Liberius of his pontifical dignity, went over to Felix, whom they knew to be a Catholic. From that time, Felix began to be the true Pontiff. 

“For although Liberius was not a heretic, nevertheless he was considered one, on account of the peace he made with the Arians, and by that presumption the pontificate could rightly be taken from him: for men are not bound, or able to read hearts; but when they see that someone is a heretic by his external works, they judge him to be a heretic pure and simple, and condemn him as a heretic.”[35] 

St Robert Bellarmine

In other words, Bellarmine believed that Liberius was not a heretic before God, but since the Roman Clergy judged him guilty of heresy based on their belief that he had acted as one, they rightly rejected him and chose another for pope.

Conclusion

21. Holy Church has clearly not been left unprotected from the ravages of heretics “in the hierarchy” at all. Clear principles of theology and divine and canon law apply to such cases, and ensure that all Catholics are in position to protect themselves by judging to whom they ought to be subject. 

Certainly it is not right, or even possible, for Catholics to be really subject to heretics, schismatics, or apostates. All of history attests to this fact. Even the various groups and individual priests and bishops who profess to believe that the recent claimants have been popes make clear their acceptance of this principle, in practice: they profess their subjection to each as the Roman Pontiff with words, but in fact do not subject themselves to him by any actions whatsoever

They habitually ignore these men – as good Catholics must do, if they wish to remain Catholic.

The ideas in this piece are controversial today, even though they are based on clearly established principles. In the next part we will consider the various objections raised.

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The original essay can be found here: https://web.archive.org/web/20140701082443/http://strobertbellarmine.net/offices.html

[1] “Can. 2264: Acts of jurisdiction, whether for the external forum or the internal forum, placed by one excommunicated are illicit; and if a condemnatory or declaratory sentence has been laid down, they are also invalid with due regard for the prescription of Canon 2261, § 3; otherwise, they are valid and, indeed, are even licit if they are sought by a member of the faithful according to the norm of the mentioned Canon 2261, § 2.”

[2] The 1917 or Pio-Benedictine Code of Canon Law, in English Translation with Extensive Scholarly Apparatus, trans. Dr Edward Peters, Ignatius Press, San Francisco, 2001

[3] St. Th. I-II, Q. 90, Art. 4, Resp.

[4] Bouscaren & Ellis, Canon Law, A Text and Commentary, 2nd Ed. Bruce, Milwaukee, 1953, p. 33.

[5] S. Th. I-II, Q. 96, Art. 4, Resp. Quoting Aristotle, De Lib. Arb. i, 5

[6] Ibid.

[7] Cardinal Billot, De Ecclesia Christi, Rome, 1927, p. 526. Quoted in Cardinal Ottaviani, Institutiones Iuris Publici Ecclesiastici, Typis Polyglottis Vaticanis, Rome, 1958, p. 352, note 11. Translated by Mr. James Larrabee. Quoting St Cyprian, Ep. lii, quoted vii, qu. 1, can. Novatianus

[8] Ottaviani, op. cit., p. 9.

[9] Ottaviani, op. cit., p. 10-11, (citing Pope St. Pius X, constitution Vacante Sede Ap., 25 Dec. 1904.)

[10] Obviously a pope could, within certain limits, alter the crimes for which this special excommunication is applied. Ordinary excommunication, as a toleratus, is not incompatible with membership of the Church.

[11] Cf. Canon 145.

[12] “Canon 198 § 1. In law by the name of Ordinaries are understood, unless they are expressly excepted, in addition to the Roman Pontiff, a residential Bishop in his own territory, an Abbot or Prelate of no one and his Vicar General, Administrator, Vicar or Prefect Apostolic, and likewise those who, in the absence of the above-mentioned, temporarily take their place in governance by prescript of law or by approved constitution, and, for their subjects, major Superiors of exempt clerical religious [institutes]. § 2. By the name of Local Ordinaries come all those just mentioned with the exception of religious Superiors.”

[13] Bouscaren & Ellis, op. cit. pp. 133, 134. Available online at Internet Archive.

[14] S. Th. II-II, Q. 39, Art 3.

[15] Pope Leo XIII, Encyclical Satis Cognitum 15

[16] St. Robert Bellarmine, De Romano Pontifice, lib. II, cap. 30. Translated by Mr. James Larrabee. Quoting Titus, c. 3. Available in translations by Ryan Grant and Fr Kenneth Baker. This translation available at the Bellarmine Forums.

[17] Louis Cardinal Billot, de Ecclesia Christi, Rome, 1927. This section is taken from a translation made by Fr Julian Larrabee and is found in the section Thesis XI §2

[18] Billot Ibid.

[19] Pope Pius XII, Mystici Corporis Christi, June 29, 1943. No. 23

[20] Ibid. No. 22

[21] Pope Leo XIII, Satis Cognitum. Quoting Eph. iv., 5.

[22] Ibid. Quoting Rom. x., 17.

[23] Ibid. Quoting S. Augustinus, De Haeresibus, n. 88.

[24] “Canon 2200 § 1. Here, dolus is the deliberate will to violate a law and is countered on the part of the intellect by a lack of knowledge and on the part of the will by a lack of freedom. § 2. Positing an external violation of the law, dolus in the external forum is presumed until the contrary is proven.”

[25] Bouscaren & Ellis, op. cit., p. 875. The Reply of the Code Commission (regarding c. 2229§3, 3º) can be found in the Canon Law Digest, vol. II, p. 570.

[26] Bouscaren and Ellis, op. cit. p. 125.

[27] Rev. Charles Augustine, O.S.B., A Commentary On The New Code Of Canon Law, Vol. II, Clergy and Hierarchy, Herder, 1918. P.159. Internet Archive.

[28] Ibid. p. 161.

[29] Bouscaren and Ellis, op. cit. p. 125.

[30] Ibid. p. 129.

[31] A declaration is required, after the fact of such a vacancy, for a new appointment to be made.  But this declaration only affects the lawfulness, not the validity, of any subsequent appointment.

[32] St. Robert Bellarmine, De Romano Pontifice, lib. II, cap. 30. Quoting Pope St Celestine epist. ad Jo. Antioch., which appears in Conc. Ephes., tom. I, cap. 19; St Nicholas I epist. ad Michael, and St Thomas Aquinas S. Theol., II-II, q. 39, a. 3

[33] Billot, Ibid.

[34] James Sprenger & Heinrich Institoris-Kramer, Malleus Maleficarum, English ed. translated by Rev. Montague Summers, The Pushkin Press, London, 1951, p. 200. Available at Internet Archive, and another version available here.

[35] St. Robert Bellarmine, op. cit., lib. IV, c. 9, no. 15

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